REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, DECEMBER TERM, 1850. By BENJAMIN C. HOWARD, Counselor at Law, and Reporter of the Decisions of the Supreme Court of the United States. . VOL. X. SECOND EDITION. EDITED, WITH NOTES AND REFERENCES TO LATER DECISIONS BY STEWART RAPALJE, AUTHOR OF THE “FEDERAL REFERENCE DIGEST,” ETC. NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1884. Entered according to Act of Congress, in the year 1884, BY BANKS & BROTHERS, In the office of the Librarian of Congress, at Washington. SUPREME COURT OF THE UNITED STATES. Hon. ROGER B. TANEY, Chief Justice. Hon. JOHN McLEAN, Associate Justice. Hon. JAMES M. WAYNE, Associate Justice. Hon. JOHN CATRON, Associate Justice. Hon. JOHN McKINLEY, Associate Justice. Hon. PETER V. DANIEL, Associate Justice. Hon. SAMUEL NELSON, Associate Justice. Hon. LEVI WOODBURY, Associate Justice. Hon. ROBERT C. GRIER, Associate Justice. John J. Crittenden, Esq., Attorney-General. William Thomas Carroll, Esq., Clerk. Benjamin C. Howard, Esq;, Reporter. Richard Wallach, Esq., Marshal. (iii) RULES OF COURT. No. 58. Ordered, that, when a case is taken up for trial upon the regular call of the docket, and argued orally in behalf of only one of the parties, no printed argument will be received unless it is filed before the oral argument begins, and the court will proceed to consider and decide the case upon the ex parte, argument. Chancery Rule. Ordered, that the fortieth rule, heretofore adopted and promulgated by this court as one of the rules of practice in suits in equity in the Circuit Courts, be, and the same is hereby, repealed and annulled. And it shall not hereafter be necessary to interrogate a defendant specially and particularly upon any statement in the bill, unless the complainant desires to do so, to obtain a dis-eovery. Admiralty Rules. Ordered, that the following supplemental rules be added to the rules heretofore adopted by this court for regulating proceedings in admiralty. In all suits in personam, where a simple warrant of arrest issues and is executed, bail • shall be taken by the Marshal and the court in those cases only in which it is required by the laws of the State, where an arrest is made upon similar or analogous process issuing from the State courts. And imprisonment for debt on process issuing out of the Admiralty Court is abolished in all cases where by the laws of the State in which the court is held imprisonment Civ) RULES OF COURT. V for debt has been or shall be hereafter abolished upon similar or analogous process issuing from a State court. The twenty-seventh rule shall not apply to cases where the sum or value in dispute does not exceed fifty dollars exclusive of costs, unless the District Court shall be of opinion that the proceedings prescribed by-that rule are necessary for the purposes of justice, in the case before the court. All rules and parts of rules heretofore adopted inconsistent with this order are hereby repealed and annulled. It is further ordered that these rules be published in the next volume of the Reports of the decisions of this court, and that the Clerk cause them to be forthwith printed and transmitted to the several District Courts. LIST OF ATTORNEYS AND COUNSELLORS ADMITTED DECEMBER TERM, 1850. J. Simon Cohen, Andrew Ewing, William A. Porter, Jeremiah Laroeque, Andrew Boardman, Charles Abert, Robert C. WinthroE, Almon W. Griswold, Edward H. Daveis, Henry A. Bullard, I. J. Coombes, John W. Latson, John H. Ing, Edward N. Dickerson, John Ferguson, Charles Chapman, Francis Parsons, Henry E. Davies, Myron O. Wilder, Nathan Evans, Livingston K. Miller, R. H. Marr, Moses Norris, W. F. Hunter, H. H. Strawbridge, Hamilton Alricks, S. Nixon Van Dyke, Samuel Judah, L. Madison Day, B. R. Curtis. C. L. Dunham, J. G. Clarkson, James Green, John C. Wright, Charles B. Moore, Frederick Cunningham, Chancey Donaldson, (vi) Philadelphia, Penn. Nashville, Tenn. Philadelphia, Penn. New York. New York. Washington, D. C. Boston, Mass. Boston, Mass. Portland, Me. New Orleans, La. Gallipolis, Ohio. New York City. Baltimore, Md. Paterson, N. J. Ohio. Connecticut. Connecticut. New York. New York. Ohio. New York. Louisiana. New Hampshire, Ohio. Louisiana. Pennsylvania. Tennessee. Indiana. Mississippi. Massachusetts. Indiana. Pennsylvania. New York. New York. New York. New York. Pen nsylvania. LIST OF ATTORNEYS AND COUNSELLORS. Reuben A. Chapman, S. Corning Judd, Jesse P. Bishop, Oliver S. Halsted, Jr., Hiram Ketchum, Coleman Yellott, John L. Hayes, Mitchell Sanford , Frederick A Coe, A. C. Harris, H. C. Day, C. S. Chase, J. Edgar, Francis B. Fogg, R. J. Meigs, Russell Smith, James H. Campbell, Nelson Merrill, J. B. PURROY, Gilbert Dean, Walter D. Davidge, James Moncrief, Charles S. Wallach, Henry R. Selden, Sanford C. Blanton, Walter S. Cox, John Van Dyke, Grafton Baker, Marshall J. Wellborn, J. A. Spencer, W. B. Lawrence, Jr., George W. Julian, Roswell Marsh, Andrew Garrison, Henry Bennett, Timothy Fitch, Massachusetts. Washington, D. C. Ohio. California. New York. Maryland. New Hampshire. Neiv York. New York. Ohio. New York. Wisconsin. New York. Tennessee. Tennessee. New York. New York. New York. New York. New York. Washington, D. C New York. Washington, 1). C’. New York. Mississippi. Georgetown, D. C. New Jersey. Mississippi. Georgia. New York. New York. Indiana. Ohio. New York. New York. New York. A TABLE OF THE CASES REPORTED IN THIS VOLUME. [The references are to the star (*) pages.]. PAGE Adams et al. Barnard et al. v. . . . . . 270 Bacon et al., Shelby v. . . . . : . . 56 Baltimore and Susquehanna R. R. Co. v. Nesbit et al. . . 395 Baltimore and Susquehanna R. R. Co. Stimpson v. . . 329 Barnard et al. v. Adams et al. . . . . . . 270 Batty et al., McNulty v. . . . . . . 72 Bracken, Preston et al. v. . . . . . . .81 Brant, Landes v. . . . . . . . . 348 Brooks et al., United States v. ..... 442 Butler et al. v. State of Pennsylvania .... 402 Collins, Hallett et al. v. . . . . . . . 174 Cooper, Webster v. ....... 54 D’A uteri ve et al., United States ....... 609 Downs v. Kissam ....... , 102 Drew, Paup et al. v. . . . . . . . 218 Drew, Trigg et al. v. . . . . . . . 224 Eastburn, Sears v. ....... 187 East Hartford v. Hartford Bridge Company . . . 511 East Hartford v. Hartford Bridge Company . . .541 Gayler et al. v. Wilder ....... 477 Motion to open the Judgment in Do. . . . 509 Gilmer v. Poindexter ....... 257 Graham, Strader et al. v...................82 Greely v. Thompson et al. ...... 225 Griswold et al., Maxwell v................242 (viii) TABLE OF CASES REPORTED. ix Hallett et al. v. Collins ....... 174 Hartford Bridge Company, East Hartford v. . . .511 Hartford Bridge Company, East Hartford -y. . . 541 Henderson et al. v. State of Tennessee . . . .311 Hoyt v. United States ....... 109 Iowa, State of, v. State of Missouri ..... 1 Kissam, Downes v. ....... , 102 Landes v. Brant . . . . . . . . . 348 Louisville Manufacturing Company v. Welch . . . 461 Marriott, Oldfield 0. ....... . 146 Maryland, State of, Philadelphia, &c., R. R. Co. v. . 376 Maxwell v. Griswold et al. . . . . . . . 242 McNulty v. Batty ët al. . . . . . . . 72 Minor et al., Robinson et al. y............627 Missouri, State of, v. State of Iowa........ 1 Nesbit et al. Baltimore and Susquehanna R. R. Co. v. . . 395 Newton v. Stebbins.................. . . 586 Oldfield v. Marriott ........ 146 Paine et al., St. John v. ....... 557 Paup et al. v. Drew ........ 218 Pennsylvannia, State of, Butler et al. v...402 Philadelphia, &c., R. R. Co. v. State of Maryland . . 376 Poindexter, Gilmer v. ...... 257 Preston et al. v. Bracken ....... 81 Rhodes v. Steamship Galveston . . . . . 144 Robinson et al. v. Minor et al. . . . . . . 627 Sandford et al., Wilson v. ...... 99 Sears v. Eastburn ........................ 187 Shelby v. Bacon et al. ...... 56 Sickles et al. Washington, Alexandria, and Georgetown Steam Packet Co. v. ....... 419 Steamship Galveston, Rhodes v. . . . *. . 144 Stebbins, Newton v. ....... 586 Stimpson v. Baltimore and Susquehanna R. R. Co. . . 329 St. John v. Paine et al. . . . . e e 557 Strader et al. v. Graham . . . . . . e g2 X TABLE OF CASES. REPORTED. Tennessee, State of, Henderson et al. v. . . . .311 Thompson et al., Greely v. ..... . 225 Trapnail, Woodruff v. ....... 190 Trigg et al. v. Drew ....... 224 United States v. Brooks et al. ..................442 United States v. D’Auterive et al. . . . . 609 United States, Hoyt v. . . ... . . 109 United States, Villalobos et al. v. . . . . 541 . Villalobos et al. v. United States ...... 541 Washington, Alexandria, and Georgetown Steam Packet Co. v. Sickles et al. . . . . . . . ^19 Webster v. Cooper . • . • . . . .54 Welch, Louisville Manufacturing Company v. . . . 461 Wilder, Gayler et al. y. . . ■> . . . . 477 Motion to open the Judgment in Do. . . . . 509 Wilson v. Sandford et al. . . . . . . .99 Woodruff v. Trapnail ....... 190 A TABLE OF THE CASES CITED IN THIS VOLUME. [The references are to the star (*) pages.] A. • Page Albright v. Celluloid. Trimming Co.... 2 Bann. & A., 635...........477« Albright v. Teas.................... 16 Otto, 617; 13 Fed. Rep. 413... 99n Alfonso. ■». United States........... 2 Story, 429. .............. 237 Allen v. McKean..................... 1 Sumn., 276 .............190«, 403« America, The...................... 2 Otto, 432 ............ „558« Andrews v. Smith. ............... 19 Blatchf., 109............. 56« Ann & Mary, The.... ................. 2 W. Rob., 189..........581, .382 Ann Caroline, The. ................. 2 Wall., 545................ 558« Ant, The ........................ 10 Fed. Rep., 297..........558«, 587« Antoni v. Greenhow............... 17 Otto, 803............. 207« Ashley v. Stribling.................. 4 Pet., 138 ................308 Atlantic, &c., R. R. Co. v. Georgia.... 8 Otto, 359............... 377« Avendano v. Gay..................... 8 Wall., 376...................329« B. Backus v. Coyne......................45 Mich., 584...............270« Bagnall v. Broderick............... 13 Pet. 436.................257n Balch, Ex parte3 McLean, 221....................................... 56« Baltimore, &c., R. R. Co. v. Grant.... 8 Otto, 401................. 72« Barker v. City of Pittsburg........ 4 Pa. St., 51...............418 Barron v. Mayor, &c., of Baltimore... 7 Pet., 243..................539 Bartling v. Brasuhn................102 Ill., 441................348« Bayard v. Mandeville............... 4 Wash. C. C., 445..........187« Beard v Federy..................... 3 Wall., 491...............348« Belcher v. Linn....................24 How., 525.................226« Benner v. Porter..................... 9 How., 235 ..............78, 80 Bensley v. Burdon.................. 2 Sim. & S., 519.............268 Bentley v. Coyne................... 4 Wall., 511............. 558« Berthold v. McDonald............... 22 How., 339.................374« Bethell v. Matthews................ 13 Wall., 1................. 329« Beveridge v. West Chicago Comm’rs .. 7 Bradw. (Ill.), 467........395« Bills v. New Orleans, &c., R. R. Co.... 13 Blatchf., 227...........187« Binghampton Bridge, The............ 3 Wall. ,51.................190« Bissell v. Penrose................... 8 How., 330..............370, 374 Blackburn v. Watson................. 85 Pa. St., 241............. 56« Blanchard v. Eldridge............... 1 Wall. Jr., 337...............495 Bloomer v. McQuewan................. 14 How., 550 ................. 99« Bond v. White.......................24 Kan., 45.................... 56« Boston, &c., R. R. v. New York, &c., „ R-R............................... 13R. I., 274................. 377« Boston Beer Co. v. Massachusetts.... 7 Otto, 33 .................190n Boyd, Ex parte....................'.. 15 Otto, 647................187« Boyd v. Alabama...................... 4 Otto, 645 ................190« (xi) xii TABLE OF CASES CITED. Page Bridge Proprietors v. Hoboken Co ... 1 Wall., 116................. 190« Brinkman v. Jones. .................. 44 Wis., 498 .............. 257« Briscoe v. Bank of Kentucky........... 11 Pet., 311................ 205 Brooks v. Mills County................. 4 Dill., 524............... 56« Brown v. Anderson...................... 4 Litt. (Ky.), 201....... 376 Brown v. Shannon...................... 20 How., 55................. 99« Brown v. Volkening.................... 64 N. Y., 76............... 348« Bruce v. United States ............... 17 How., 440............. 109« Buck v. Holloway....................... 2 J. J. Marsh (Ky.), 180. 376 Bullock Printing Press Co. v. Jones... 3 Bann. & A., 197.......... 477« Burr v. Des Moines Co .............. 1 Wall., 102 ........... 329« Butler v. Palmer.................... 1 Hill (N. Y.), 324, 328. 79 Bugler v. Young........................ 1 Flipp., 276..............187« Buyck v. United States...... 15 Pet., 224.................. 556, 557 C. Calder v. Bull......................... 3 Dall., 386..........401, 402 Carron Iron Co. v. Maclaren............ 5 H. L. Cas., 416.......... 56« Carver v. Hyde....................... 16 Pet., 513...............* 345 Casey v. Steinmeyer.................... 7 Mo. App., 556........■. 348« Catterina v. Chiazzare............ L. R., 1 P. D., 368..........., 56« Caze v. Reilly....... 3 Wash. C. C., 298 .......................... 302 Celt, The.............................. 3 Hagg. Adm., 327.......... 581 Central R. R. Co. v. Georgia...... 2 Otto, 675 .............. 377« Certain Logs of Mahogany............... 2 Sumn., 589............... 56« Chamberlain 1?. Ward.................. 21 How., 570............... 558« Chapman v. Borer....................... 1 McCrary, 50.............. 56« Charles River Bridge «.Warren Bridge.. 11 Pet., 420... .417, 533, 534, 536, 537, 538, 539 Chesapeake, &c., R. R. Co. v. Virginia ........................... 4 Otto, 726.......... 377n Chester, The......................... 3 Hagg. Adm., 316........ 581 Chouteau v. Eckhart.................... 2 How., 345.............. 370 City of New York, The................. 15 Fed. Rep., 629......... 558« Claflin v. Brandt.................... 58 Ga., 414................ 461n Clark«. Corp, of Washington....... 15 Wheat., 54................. 535 Clarke «. Morey....................... 10 Johns. (N. Y.), 69...... 326« Clary ». Marshall...................... 5 B. Mon. (Ky.), 266.... 328 Clinton «. Strong.................... 9 Johns. (N. Y.), 370... 256 Coari «. Olsen........................ 91 Ill., 273.............. 348« Coffin «. Ogden....................... 18 Wall., 125.............. 49Sn Cole «. Flitcraft..................... 47 Md., 312................. 56« Collins «. Thompson....................22 How., 246............... 174« Colorado, The.......................... 1 Otto, 701.............. 606?i Commonwealth «. Bacon.................. 6 Serg. & R. (Pa.), 322.... 417 Commonwealth «. Breed.................. 4 Pick. (Mass.), 460, 463 . 537 Commonwealth «. Mann................... 5 Watts & S. (Pa.), 418.... 418 Compton «. Baltimore, &c., R. R. Co . 3 Bland (Md.), 391........... 399 Consolidated Fruit Jar Co. «. Whitney. 2 Bann. & A., 32............ 99n Cook «. Burnley....................... 11 Wall., 659............... 56« County of Scotland «. Thomas...... 4 Otto, 693.................... 377« Cox «. Mitchell...................... 8 W. R., 45; 7 Com. B. u. S., 55 56« Craft «. Russell...................... 67 Ala., 12............... 174« Crews «. Brewer ...................... 19 Wall., 70.............. 329« Crowley «. Wallace.................... 12 Mo., 143 ......... 328, 372 Curran«. State of Arkansas............ 15 How., 304.............. 190« Curtis «. Petitpain............... 18 How., 109 .............. 329« D. Dalrymple «. Dalrymple................. 2 Hagg. Cons., 54........ 181 Daniels «. Davison.................... 16 Ves., 253............. 375 Dartmouth College «. Woodward. .... 4 Wheat., 518.......... 190«, 536 TABLE OF CASES CITED. xiii Page Davenport v. Dodge County........... 5 Otto, 237.............. 187n Davis v. Brown..................... 19 Blatchf., 275.......... 477n Davis v. Gray...................... 16 Wall., 221............ 190n Davis v. Police Jury of Concordia..... 9 How., 280....... .... 622, 623 Davis v. Wells................... 14 Otto, 170 ......... 461n, 475n Delaware, The...................... Olc., 240................... 187n Delaware Railroad Tax, The. . ......18 Wall, 228 .............. 377n Dennistoun v. Stewart.............. 18 How., 569................ 54n Dodge v. Woolsey................... 18 How., 331........... 377n, 511n Doe d. Lumley v. Lumley............. 3 Ad. & E., 2, 12.......... 268 Donovan v. United States............23 Wall., 399.............. 109n Douglass v. Reynolds................ 7 Pet., 126................ 474 Dred Scott v. Sandford ........... 19 How., 452............... 82n Drehman v. Stifle................... 8 Wall., 595 ............. 395n E. Earl v. Raymond..................... 4 McLean, 233............. 56n East Hartford v. Hartford Bridge Co.. 10 How., 539............... 82n Easton v. Hodges.................... 7 Biss., 324............. 187n Eaton v. St. Louis, &c., Mining Co.... 2 McCrary, 362......... 187n Elliott v. Swartwout............... 10 Pet., 137................255 Emm'ons v. Sladdin.................. 2 Bann. & A., 204......... 477n Enfield Bridge v. Hartford, &c., R. R. Co................................ 17 Conn., 464 .......... 539 Escanaba Co. v. Chicago............ 17 Otto, 689................ 82n Excelsior, The...........'......... 12 Fed. Rep., 200.......... 558n F. Fairclaim v. Shamtitle.............. 5 Burr., 1299.............. 326 Fairtitle v. Gilbert................ 2 T. R., 169............... 535 Fellows v. Blacksmith.............. 19 How., 372.............. 442n Fenn v. Holme...................... 21 How., 481.............. 257n Fletcher v. Peck.................... 5 Cranch, 138 ............. 402 Flint v. Crawford County Comm’rs.... 5 Dill., 481................ 187n Foster v. Foster...................129 Mass., 566 .............. 395n Foster v. Mora..................... 8 Otto, 425............. 257n Fourth Nat. Bank of Chicago v. Ney-bardt............................. 13 Blatchf., 393....... 187n Fowler v. Rathbones................ 12 Wall., 117 ............. 270n Frazer v. Colorado Dressing, &c., Co.. 2 McCrary, 11............. 187n French«. Spencer.................. 21 How., 239.......... 348n, 374n Friends, The....................... 1 W. Rob., 483 ............ 581 Frye «. Partridge..................82 Ill., 267............... 257n Fullerton v. Bank of United States.... 1 Pet., 604.............. 187n Fulton v. McAffee.................. 16 Pet., 149.......... 323 Furman v. Nichols................... 8 Wall. ,63..............’190n G. Gamewell Fire Alarm Teleg. Co. v. City of Brooklyn...................14 Fed. Rep., 256...... 477n Gelpecke v. City of Dubuque........ 1 Wall., 204 ................ 395a Generes v. Bonnemer................. 7 Wall., 564............ 329n Genessee Chief, The, v. Fitzhugh...12 How., 463..........'.'.’.'.'558n, 607n Gibbs v. Cannon..................... 9 Serg. & R. (Pa.), 198.... 474 Gifford«. Bennett.................. 75 Ind., 528............... 257n Gi « Weils .........................22 Wall., 28.............. 329n Gillette «. Bate................... 10 Abb. (N. Y.), N. C., 93. 477n Gilman v. City of Sheboygan......... 2 Black, 510.............. 377n Golden Grove, The.................. 13 Fed. Rep., 688.......... 558n Gordon «. Appeal Tax Court.......... 3 How., 133............... 377n Goslee v. Shute.................... 18 How., 463 .............. 558n xiv TABLE OF CASES CITED. Page Goszler v. Corp., of Georgetown... 6 Wheat., 596................ 535 Gould v. Rees........................ 15 Wall., 194........... 329n Gouverneur v. Lynch................... 2 Paige (N. Y.), 300..... 375 Graham v. Bayne.............18 Wall., 62..................... 329» Graham v. Meyer..................... 4 Blatchf., 129......... 56» Gray v. Wain......................... 2 Serg. & P. (Pa.), 229... 302 Greely v. Burgess................... 18 How., 415........... 226n Greely ». Thompson................... 10 How., 238............. 242» Greenleaf v. Birth.................... 6 Pet., 302............... 325 Greer ». Higgins......................20 Kan., 420............. 348» Grider ». Apperson................... 32 Ark., 332............. 56n Grimstone ». Carter................... 3 Paige (N. Y. ), 436..... 375 Grisar ». McDowell........... .... 6 Wall., 380 ............ 348» Gross ». Rice................71 Me., 258...................... 403» H. Hacker ». Stevens ................ 4 McLean, 535......... 56» Hadden ». St. Louis &c. R. R. Co..57 How. (N. Y.) Pr., 390....... 56» Hale ». Gaines..'................. 22 How., 160.......... 311» Hall ». Wisconsin .. ................ 13 Otto, 5............... 190» Hammond ». Hunt..................... 4 Bann. & A., 113....... 477» Handayside ». Wilson.................. 3 Car. & P., 528 ........ 581 Haney ». Baltimore Steam Packet Co.. 23 How., 287............ 558» Hartell ». Tilghman................. 9 Otto, 552............ 99» Hartman®. Greenhow................... 12 Otto, 679............. 190» Hawkins ». Duchess &c. Steamboat Co. 2 Wend. (N. Y.), 452....... 584 Hawthorne ». Cajef.................... 2 Wall., 21............. 190» Hay ». Railroad Co.................... 4 Hughes, 344.......... 99n Heath ». Rose.................... 12 Johns. (N. Y. ), 140... 328 Henderson’s Distilled Spirits........ 14 Wall., 53............ 329» Henderson ». Poindexter.............. 12 Wheat., 530............ 643 Henderson ». Tennessee.............. 10 How., 328............ 348» Hendrick». United States............. 16 Ct. of CL, 102........ 109» Hendrie®. Sayles...................... 8 Otto,549.............. 477» Hickey ». Stewart..................... 3 How., 756.............. 644 Hiern ». Mill........................ 13 Ves., 120............... 375 Hill ».Whitcomb....................... 1 Bann. & A., 36........ 477n Hiller ». Shattuck......... 1 Flipp., 272........... 187» Hiriart ». Ballou..................... 9 Pet., 156............. 187» Hitchcock». Humfrey................... 5 Man. & G., 559.......... 474 Hobson ». Lord........................ 2 Otto, 405............. 270» Hogan». Kurtz......................... 4 Otto, 775 ............ 267» Holbrow ». Wilkins.................... 1 Bann. & C., 10.........474 Holden®. Joy......................... 17 Wall., 247 ........... 442» Home of the Friendless ». Rouse... 8 Wall., 430............... 377» Hommel ». Dwinney................... 39 Mich.-, 522.......... 348» Hooper ». Scheimer.... ;............ 23 How., 235.......... 257» Hope, The............................ 13 Pet., 331.;.............302 Hughes ». United States............... 4 Wall., 232.......... 348» Huse ». Glover...................... 15 Fed. Rep., 297......... 82» I. Illinois, The........................ 13 Otto, 298............. 558» Indianapolis &c. R. R. Co. ». Horst... 3 Otto, 291........... 187» Ingalls ». Tice...................... 14 Fed. Rep., 297........ 477» Irving ». Chitsowdt................... 4 T. R., 485 ............ 256 J. Jackson ». Lamphire................... 3 Pet., 289.............. 539 Jackson ». M’Michael.................. 3 Cow. (N- Y.), 75 ...... 372 Jackson ». The Magnolia. .............20 How., 238............. 607» TABLE OF CASES CITED. xv Page Jackson d. DeForrest v. McMichael.... 3 Cow. (N. Y.), 75........... 328 Jackson d. Winter v. McEvoy........ 1 Cai. (N. Y.), 151........326 Jameson v. Drinkaid................ 12 Moo., 148................ 581 Jamison v. Dimock.................. 95 Pa. St., 52........... 348n Jefferson Branch Bank «. Skelly.... 1 Black, 436................. 377n John L. Hasbrouck, The.............. 3 Otto, 406.................. 558n Johnson, The........................ 9 Wall., 153.............. 558n Johnson v. Clark.................. 18 Kan., 157............ 348n Jones b. Lofton.................... 16 Fla., 189. ............ 257n Jones v. Shore.....................,. 1 Wheat., 462.............. 138 Jupiter, The........................ 3 Hagg. Adm., 320.......... 581 K. Keith v. Clark...................... 7 Otto, 455............. 130n Kelly v. Hendricks.. ............ 57 Ala., 193............ 257n Kelsey v. Forsyth.................. 21 How., 88......'......... 187n King v. Worthington................ 14 Otto, 44............. 187n Kirkland, The...................... 3 Hughes, 641............. 558n Klein v. Seibold................... 89 Ill., 540............ 348n Knapper v. Barry County Supervisors. 46 Mich., 24--’ ............ 403n L. La Roche b. Jones................... 9 How., 170 ............... 644 Landes v. Brant......'............. post *348................... 328 Landes v. Perkins.................. 12 Mo., 238.............370, 377 Larkins v. Saffarens............... 15 Fed. Rep., 153........... 72n Lawrence v. McCalmont............... 2 How., 426.......... 461n, 474 Lea v. Polk County Copper Co....... 21 How., 498................. 348n Leavitt v. Mowe. ................. 54 Md., 613................. 56n Lehigh Valley R. R. Co.«. McFarlan.. 4 Stew. (N. J.), 706...... 190n Les Bois v. Bramell................. 4 How., 449................ 370 Lessieur v. Price.................. 12 How., 77................. 348n Lewis b. Gould..................... 13 Blatchf., 216......... 187«. Livingstonb. Story.................. 9 Pet., 632—............... 267 Long b. Converse................... 1 Otto, 114................311n Long b. Palmer..................... 16 Pet., 65................ 187n Lonsdale b. Moies................... 11 Law Rep., N. s., 658.... 348n Loring b. Marsh..................... 2 Cliff., 323.. .■..... 56n Loughridge b. Borland....... 52 Miss., 546............. ... 348n. Louisiana b. Jumel.................. 17 Otto, 745, 750.......... 191n Louisville Manuf. Co. b. Welch..... post *461..................... 207 Love b. Simons...................... 9 Wheat., 515.. ............325 Luther b. Borden.................... 7 How., 1............'.. ... 538 Lyman b. Brown...................... 2 Curt., 559............... 56n M. McAndrews b. Thatcher............... 3 Wall., 370.............. 270n McCready b. Goldsmith.............. 18 How., 91.... ......... 606n McGee b. Mathis................... 4 Otto, 143.............. 377n McHenry b. Lewis................. 31 W. R., 305 ; 22 Ch. D., 397.. • 56n McLane b. United States ........... 6 Pet., 405................ 138 McVeany b. Mayor &c. of New York.. 80 N. Y., 190................. 403n McWilliams b. The Vim............. 12 Fed. Rep., 914.......... 558n Magic Ruffle Co. b. Elm City Co.... 2 Bann. & A., 157............. 99n Majors b. Cowell... ........-.......51 Cal., 478............... 187n Mali Ivo, The....... .............. L. R., 2 A. & E., 356......... 56n Margarethe Blanca, The............. 12 Fed. Rep., 730......... 270n Margarethe Blanca, The.............. 14 Fed. Rep., 60........... . 306n Maria, The.-........................’7 Fed. Rep., 254 ......... 558n Marriott b. Brune................. 9 How., 634.....¡..........234 Marsh b. Brooks.................... 14 How., 524............... 375k . XVI TABLE OF CASES CITED Page Massey v. Papin....................... 24 How., 364........... 348n Maxwell v. Griswold......... ..... post *242........... 225n, 238 Mayor®. Lord.......................... 9 Wall., 409........... 187n Melan v. Fitzjames. ............. 1 Bos. & P., 138, 139........ 256 Memphis ®. United States.............. 7 Otto, 293.......... 190»i Merchants Nat. Bk. v. Jefferson County 1 McCrary, 364.......... 190n Meyer v. Johnson..................... 64 Ala., 657............ 377n Millar®. Taylor...................... 4 Burr., 2305............ 503 Miller ®. Lancaster Bank.............. 16 Otto, 544............ 311n Milroy®. Quinn....................... 69 Ind., 406; 35 Am. Rep., 227.. 461 n Montault ®. United States............. 12 How., 51............. 609n Montgomery ». Hernandez............... 12 Wheat., 129 ........... 323 Monticello, The Propeller ®. Mollison. 17 How., 154............ 558n Moore ®. Marsh....................... 7 Wall., 521........... 477n Morehouse ®. Phelps......... 21 How., 305............. 348n Mullins ®. Wimberly.............. 50 Tex., 457.......... 348n Mut. Building Fund ®. Bossieux.... 1 Hughes, 386.............. 187n N. Nelson ®. McMann....................... 4 Bann. & A», 210...... 477n Nesmith®. Sheldon...................... 6 How., 41...........54n, 55 New ®. Wheaton............ 24 Minn., 406..................... 348n New Jersey ®. Yard..................... 5 Otto, 104............ 377« New Jersey Steam Nav. Co. ». Mer- chant’s Bank......................... 6 How., 395.............. 608 New Orleans ». Morris ................. 3 Woods, 115........... 187n New York, The.......................... 4 Wheat., 59, 74......... 138 New York &c. Mail S. S. Co. ». Rumball 21 How., 385............ 558n New York &c. Transp. Co. ®. Philadel- phia &c. Steam Nav. Co.............. 22 How., 461......... 558« New York, The Steamb. ®. Rea...... 18 How., 225................ 558n Newton®. Commissioners................ 10 Otto, 559........ 403n, 511îi Newton®. Stebbins................. post *585................... 558« Nickerson ®. Atchison &c. R. R. Co... 1 McCrary, 383. ......... 187« Nolan v. Grant........................ 51 Iowa, 519............ 348« North Missouri R. R. Co. ». Maguire.. 20 Wall., 61............. 377« Northwestern Fire Extinguisher Co. ®. Philadelphia Fire Extinguisher Co.. 1 Bann. & A., 190...... 477« Northwestern University ®. People.... 9 Otto, 309................. 377n Noyes ®. Hall.......................... 7 Otto, 34............. 348« O. O’Connor ®. The Ocean Star........ 1 Holmes, 248....:....... 270« Ogden®. Saunders...................... 12 Wheat., 266........... 402 Oregon, The Steamer ». Rocca...... 18 How., 576............. 54n, 558« Orvis ®. Powell........................ 8 Otto, 176............ 187« Ostell ®. Le Page...................... 2 DeG. M. & G., 892..... 56« Ottawa, The........................... 3 Wall, 273........... 558« Owings®. Norwood...............'....... 5 Cranch, 344 ...... 323, 327 P. Palao ®. Hunt.......................... 4 How., 589........... 79 Parsons®. Denis.................,. 2 McCrary, 359........... 187« Parsons ». Greenville &c. R. R. Co.... 1 Hughes, 279. ..... .. 56« Patton®. Philadelphia.................. 1 La. Ann., 98...... 181, 182 Paup ». Drew......................... 10 How., 222............ 190« Pawlet ®. Clark........................ 9 Cranch, 292 ........... 536 Peerce ». Kitzmiller.................. 19 W. Va., 573.......... 395« People ®. Morris.......................13 Wend. (N. Y.), 325..... 417 Perth, The............................. 3 Hagg. Adm., 414........ 583 Peruvian Guano Co. ». Bockwaldt.... 31 W. R., 851 ; 23 Ch. D., 225... 56n TABLE OF CASES CITED. xvii Page Peshawur, The...... .............. 31 W. R., 660............... 56« Philadelphia &c. R. R. Co. v. Harris.. 12 Wall., 82.............. 392« Philadelphia &c. R. R. Co. v. Trimble. 10 Wall., 379.......... 477«. Philip v. Nock.................... 13 Wall., 185............. 99« Philips®. Astling.................. 2 Taunt., 206.............. 474 Phillips v. Gregg....?............. 10 Watts (Pa.), 158......... 181 Phillips Academy v. Exeter.......;. 58 N. H., 307................ 377« Pickerell v. Morss ......•......... 97 Ill., 220............... 257« Pickering v. McCullough............. 3 Bann. & A., 280......... 477« Piquignot v. Pennsylvania R. R. Co... 16 How., 104.......... 56«, 187« Platter v. Green.................. 26 Kan., 252............... 461« Pollard V. Hogan..................... 3 How., 212................ 95 Pomeroy v. Bank of Indiana......... 1 Wall., 602.............. 329« Pool v. Fleeger.................... 11 Pet., 210................ 643 Presbyterian Church v. City of New York............................... 5 Cow. (N. Y.), 542........ 535 Prince v. Skillin...................71 Me., 365............... 403n Prouty ®. Ruggles............... 16 Pet., 341................ 345 Purcell v. Enright.. ................ 4 Stew. (N. J. ), 74............ 348n Q. Queen v. Millis................... 10 Cl. & F., 534............ 181 B,. Railroad Co. Maine.................. 6 Otto, 499............... 377« Rankin ®. Hoyt.................... 4 How., 327................ 240 Raymond v. Danbury &c. R. R. Co.... 43 Conn., 596............. 187« Redemptorist Fathers v. Boston...... .129 Mass., 180............ 377« Reedy®. Scott..................... 23 Wall., 367............ 329« Renner ». Marshall................. i.. 1 Wheat., 215............. 56« Rex ®. Justices of the Peace........ 3 Burr. , 1456.............. 79 Reynolds ®. Douglass............... 12 Pet., 497................. 474 Riggs ®. Johnson County............. 6 Wall., 205.............. 56« Roe d. Haldane ®. Harvey............ 4 Burr., 2484............... 325 Rooker ®. Rooker................. 75 Ind., 571............... 257« Rose, The. ......................... 2 W. Rob. ,1.......... 584, 606 Rounds®. Smart..................... 71 Me., 383................ 403« Russell ®. Clarke................... 7 Cranch, 69 ............. 461« S. Salt Lake Nat. Bank ®. Golding...... 2 Utah T., 9 ............... 377« Sampson ®. Peaslee. .............. 20 How., 578......... 226«, 242« Samuel! ®. Howarth................. 3 Meriv., 272.............. 473 Satterlee ®. Matthewson............. 2 Pet., 380......... 402, 539 Savings Inst. ®. Makin............. 23 Me., 360................. 237 Searls ®. Bouton.................. 12 Fed. Rep., 142........ 477« Seymour ®. Osborne................. 11 Wall., 552............. 477« Shannon, The. ..................... 2 Hagg. Adm., 173.......... 583 Sheirburn v: Cordova............... 24 How., 423............ 257« Sherman®. Smith................... 1 Black, 587.........'.... 190« Shoup®. Henrici..................... 2 Bann. & A., 251......... 477« Siebert ®. Rosser................ 24 Minn., 155.............. 34ß« Sills ®. Brown...................... 9 Car. & P., 601.......... 581 Sims ®. Gurney..................... 4 Binn. (Pa.), 513.........302 Sizer ®. Many...................... 16 How., 98................. 99« Sloan ®. McDowell...........’.. ..... 75 N. C., 29................ 56« Smith ®. McCann.................... 24 How., 398.............. 257« Snyder ®. Sickles.................. 8 Otto, 212............... 370« Society for Savings ®. Coite...... 6 Wall., 606............. 377« Soule ®. United States............. 10Otto, 11.................. 109n South Western R. R. Co. ®. Georgia... 2 Otto, 676............. 377'1 X Vol. 10.—B, xviii TABLE OF CASES CITED. Page Springfield v. Drake.................58 N. H., 21...,........... 477n Stanton v. Embrey................... 3 Otto, 548............... 56n Star of Hope, The................... 9 Wall., 229............... 27On State Bank of Ohio v. Knoop........... 16 How., 369.... 190n, 395n, 535 State ex rel. v. Kalb...............50 Wis., 183............... 403n State ex rel. ». New Orleans.........32 La. Ann., 715........... 395n State of Maryland v. Baltimore &c. R. R. Co ......................... 3 How., 552........... 417, 535 ' Stearns». Gage......................79 N. Y., 102.............. 257n Stevenson». Mortimer............... Cowp., 805.................. 236 Stoddard ». Chambers................ 2 How., 316.................374 Strader v. Graham.................. post *82...................... 72n Strickland». Kirk...................51 Miss., 795 ............. 348n Sunnyside, The...................... 1 Otto, 210............... 558n Supervisors ». Kennicott........... 13 Otto, 556; s. c. 2 Morr. Tr., 491 329n Surtees ». Ellison.................. 9 Barn. & C., 750.......... 79 Suydam ». Williamson................20 How., 434............ 329n Swayze ». Burke.................... 12 Pet., 11................ 257n Swinyard ». Bowes................... 5 Mau. & Sei., 62 .......... 474 T. Tankard». Tankard.................. 79 N, C.,54............... 348n Taylor ». Shouse............... ... 73 Mo., 361................ 461n Terrett ». Taylor................... 9 Cranch, 48............... 536 Thames, The......................... 5 Rob., 345................ 581 Thebarlth ». Celluloid Manuf. Co... 5 Bann. & A., 580......... 477n Thompson ». Glover..................78 Ky., 193; 39 Am. Rep.,220... 461n Thompson ». Whitman................ 18 Wall., 464.............. 371n Tillie, The....................... 13 Blatchf., 514........... 558n Tomlinson ». Branch.................15 Wall., 465 ............. 377n Tomlinson ». Jessup............... 15 Wall., 454.............. 377n Tracy». Swartwout.................. 10 Pet., 95................. 234 Traveller, The...................... 2 W. Rob., 197........ 581, 582 Trebilcock ». Wilson............... 12 Wall., 659.............. 218n Trigg ». Drew...................... post *224.................... 223 Tucker». Ferguson...................22 Wall., 575...'.......... 377n Tyler». Magwire.................... 17 Wall., 280 ............. 348n U. Udell ». Davidson.................... 7 How., 769................. 323 Union Baptist Soc. ». Town of Candia. 2 N. H., 20 ................. 538 Union Mut. Life Ins. Co. ». Chicago University....................... 10 Biss., 197n.............. 56n United States ». Arredondo..........13 Pet., 133............... 556 United States ». Boisdore........... 8 How., 121................ 79 United States ». Buford.-........... 3 Pet., 29.................. 132 United States ». Castant........... 12 How., 437............... 610n United States ». Delespine......... 15 Pet., 333................. 557 United States ». Dickens........... 15 Pet., 141.....:...........143 United States ». Ducros.............15 How., 41................ 609n United States ». Eckford.. ......... 1 How., 250................ 133 United States ». Eliason............16 Pet., 291................ 346 United States ». Forbes............ 15 Pet., 172................ 556 United States ». Gaussen........... 19 Wall., 213............ 109n United States». Hodge.............. 13 How., 485............... 109n United States ». Huertas............ 9 Pet., 171................555 United States v. Jones.............. 8 Pet., 375.................. 133 United States ». King............... 7 How., 846................ 267 United States ». Knox County Court.. 1 McCrary, 608.............. 187n United States v. Levy............. 13 Pet., 83 ................ 556 United States ». Lyman.............. 1 Mason, 504............... 234 United States ». Lynde............. 11 Wall., 643.............. 609n TABLE OF CASES CITED. xix Page United States v. Miranda........ 16 Pet., 156............... 557 United States v. Payne......... 8 Fed. Rep., 888; 2 McCrary, 295 442ft United States ». Pillerin........ 13 How.. 9............... 609ft United States v. Pinson.......... 12 Otto,554.............. 109ft United States v. Reynes........... 9 How., 127...... 621, 622, 623 United States v. Shoemaker........ 7 Wall., 342............. 141n United States v. Tetlow.......... 2 Low., 159............. 187ft United States Ins. Co. v. Brune... 6 Otto, 588................ 56ft United States Matter of v. Eighty-four boxes of Sugar................... 7 Pet., 453............. 241 United States Stamping Co. v. Jewett. 18 Blatchf., 477; 7 Fed. Rep., 877 477 ft V. Van Fossen v. State...............37 Ohio St., 320........... 82n Van Wart v. Woolley............... 3 Barn. & C., 439 ........ 474 Veazie Bank®. Fenno............... 8 Wall., 553.......... 205ft Verdin®. Coleman.................. 1 Black, 474 ........... 311ft Von Hoffman ®. City of Quincy..... 4 Wall., 535........... 190ft W. Wabash &c. Canal Co. ®. Beers..... 1 Black, 448........... 190ft Wadleigh ®. Veazie................ 3 Sumn., 165............. 56ft Wait®. Smith......................92 Ill., 385 ............ 348ft Walker ®. United States Ins. Co... 11 Serg. & R. (Pa.), 61.....305 Ward ®. The Ogdensburgh........ 5 McLean, 622; 1 Newb., 139.. 558ft Waring ®. Clarke.................. 5 How., 467............... 608 Warrington ®. Furber.............. 8 East, 242............... 474 Washington University ®. Rouse.... 8 Wall., 439 ............. 377ft Watson ®. Mercer.........'......... 8 Pet., 110.............. 401 West River Bridge ®. Dix.......... 6 How., 507............ 536, 537 Whalen ®. Sheridan............... 18 Blatchf., 308....... 187ft Whitaker ®. Bramson............... 2 Paine, 209.............. 56ft Whitbread v. Brooksbank........... 1 Cowp., 66, 69............. 256 White ®. Lee............. 5 Bann. & A., 574........ 99ft White ®. Whitman.................. 1 Curt., 494............ 56n Whitney ®. Emmett................. 1 Baldw., 317............. 241 Wiede ®. Cloud....................52 Iowa, 371............. 348ft Wiggins Ferry Co. ®. East St. Louis... 17 Otto, 371.......... 376ft Wilcox®. Draper.................. 12 Neb., 142 ............ 461ft Wilcox ». Hunt................... 13 Pet.,378.............. 187n Wildes ®. Savage.................. 1 Story, 22 .............. 474 Wills ®. Ross.................... 77 Ind., 1; 40 Am. Rep., 279.... 461ft Wilson ®. Chickering............. 14 Fed. Rep., 918........ 477ft Wilson ®. Coon.................... 6 Fed. Rep., 626.......*.... 477ft Wilson ®. Ferrand................ L. R., 13 Eq., 362.......... 56ft Wilson ®. Wall.................... 6 Wall., 91............... 257ft Windham®. Portland................ 4 Mass., 384.............. 538 Woodrop Sims, The................. 2 Dods., 86............... 581 Woodruff ®. Trapnail.............. post *207............. 292, 461ft > Wright®. Rändel................... 8 Fed. Rep., 596........ 477ft Wyandotte ®. Drennan..............46 Mich., 480.......... 403ft Wynn ®. Morris....................20 How., 5............... 311ft Y. Yontz ®. United States............23 How., 498.............. 373n Young ®. Porter................... 3 Woods, 342 ............ 257n / THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES, AT DECEMBER TERM, 1850. The State of Missouri, Complainant, v. The State of Iowa, Respondent.— Original Bill. The State of Iowa, Complainant, v. The State of Missouri, Respondent.—Cross Bill. The report of the commissioners appointed by this court in 7 How., 660, to run and mark the line dividing the States of Missouri and Iowa, adopted and confirmed, and the boundary line finally established. The commissioners appointed by this court to run and mark the boundary line between said states, according to our decree of the December term, 1848, having performed that duty, and reported to the court at this term the manner in which said work had been performed: and it appearing that two surveyors had been employed by said commissioners to aid them in doing the work in the field; and that other assistants had been employed, and that various expenses had been incurred in running and marking said line: now, in order that the parties to .said controversy may be informed of the amount of means necessary to be provided to pay for said services, and also for other costs and charges, incident to the suit, it is ordered that the clerk of this court do examine witnesses, and resort to other evidence, for the purpose of ascertaining what is the proper compensation to be allowed to said commissioners and the surveyors they employed; and also-what compensation is due to the Hon. Robert W. Wells for such services as he may have performed as commissioner before he resigned. And said clerk will also ascertain the amount of expenses, of every description, incurred by said commissioners, besides the compensation to themselves and Vol. x.—1 1. 1 SUPREME COURT. Missouri v. Iowa. said surveyors, together with the costs and charges incurred in #Q-| this court in carrying on'the Controversy here. All of which he will include in a detailed account, and report the same to this court at an early day, for its final action thereon. And in taking said account, the report of said commissioners will be taken as primd facie true. Said clerk will also ascertain and report the amount oi moneys already advanced to said commissioners by the states of Missouri and Iowa respectively; and the manner in which said moneys have been expended. 12 December, 1850. And now, on this third day of January, A. d. 1851, this cause came on for further order and decree therein, when it appeared to the court that at the December term, 1848, thereof, Henry B. Hendershott and Joseph C.-Brown were appointed commissioners to run and mark the line in controversy between the states of Missouri and Iowa; and the said Brown having died, the Hon. Robert W. Wells was appointed in room and stead of said Brown by the Chief Justice of this court, in vacation. And said Wells having resigned his appointment, William G. Minor was appointed commissioner in room and stead of said Wells, by this court, at its last December term of 1849 ; and at which term the time for running and marking said line was extended to this present term of December, 1850, for the reasons stated in the report of said Wells and Hendershott, made to the last term; and which is hereinafter embodied. And the present commissioners, Henry B. Hendershott and William G. Minor, have made their report in the premises to this term; and which report is as follows:— To the Honorable the Supreme Court of the United States. The undersigned, appointed commissioners by this honorable court, in the above cases, to establish the boundary line between the aforesaid states, respectively report, that, for the purpose of arranging the operations in the field so as to combine economy with speed, we met in the city of St. Louis, in March last, and there, after consulting experienced surveyors as to the time that might be consumed in running the line, the probable amount of expense to be incurred, the necessary force to be employed, and the proper outfit, we determined a plan of operations, and agreed to meet at the supposed site of Sullivan’s “ northwest corner,” between the 1st and 20th 2 DECEMBER TERM, 1 850. 2 Missouri v. Iowa. of April last. While in St. Louis, we obtained from Major M. L. Clark, Surveyor-General of the States of Missouri and Illinois, a copy of the field notes of the survey made by John C. *Sullivan, in the year 1816, of a line beginning on the east bank of the Missouri River, opposite the middle of *■ the mouth of the Kansas River, and extending north one hundred miles, where he made a corner, and also of the line run by him in an easterly course to the Des Moines River. We were also furnished by Major Clark with several charts, diagrams, and copies of surveys which had at various times been made of portions of Sullivan’s line, and which were of much service in the prosecution of the work. The surveyors severally appointed by us were William Dewey, Esq., of Iowa, and Robert Walker, Esq., of Missouri. Both these gentlemen had been connected with the public works of their respective states, and enjoy a high professional reputation. According to our agreement, we left our respective homes on the 10th of April last, and soon after reaching the point of meeting, in view of increased prices of transportation, provisions, &c., caused by the immense emigration through Southern Iowa and Northern Missouri to California, we altered our plan of work and reduced our force. No precise trace of the “old northwest corner” remained, —the witness-trees to it were on the margin of a vast prairie, and had apparently been destroyed by fire years ago. Consequently its exact position could not be ascertained. Yet from the running of many experimental lines, diligently examining the evidences before us, together with the reports of the surveyors, we became satisfied of its proper position, and accordingly established it. Its latitude taken resulted as follows :— 40° 34' 40" N. At the corner so determined we planted a large, solid cast-iron pillar, weighing between fifteen and sixteen hundred pounds, four feet six inches long, squaring twelve inches at its base and eight inches at its top. This pillar was deeply and legibly marked with the words (strongly cast into the iron) “Missouri ” on its south side, “ Iowa,” on its north side, and “ State Line ” on the east. From the monument so planted at the “ northwest corner ” aforesaid, in the said latitude, the survey of the line was com menced, running due west on said parallel of latitude to the Missouri River, as directed by this honorable court, and at its terminus, as near the bank of said Missouri River as the per- 3 3 SUPREME COURT. Missouri v. Iowa. ishable nature of the soil would admit, we planted a monument similar in figure, weight, dimension, and inscription to the one planted at the “ northwest corner,” the words “ State Line ” facing the east. *Unexpected delays, arising from a condition of the J weather which prevented the surveyors from making reliable astronomical observations, together with the fact, that, to a great extent, in the vicinity of said line there were no roads, and the settlements distant and sparse, compelling us to open a track for the transportation of the monuments and baggage of the corps, and also to construct necessary bridges and grade fords, greatly retarded the work. Returning to the “ northwest corner,” the survey of the line was commenced, extending eastwardly from said “ corner ” to the Des Moines River, as run and marked by said Sullivan, in 1816, from said corner to said river. On this line, by close examination, we discovered abundant blazes and many witnesstrees, which enabled us to find and re-mark the said line, as directed by this honorable court. The survey of this portion of the line, more than one hundred and fifty miles in length, was commenced on the 13th day of August, and finished on the 18th of September. Near the bank of the Des Moines River where the line terminated, we planted a cast-iron pillar, similar in weight, figure, dimensions, and inscriptions to those planted at the “ northwest corner,” and near the bank of the Missouri River, the words “ State Line ” facing the west. Solid pillars of cast-iron, weighing each between three and four hundred pounds, and minutely described as to figure and inscriptions in the report heretofore made to this honorable court by Messrs. Wells and Hendershott, commissioners, we caused to be planted at every ten miles, in the due west line extending from said “northwest corner” to the Missouri River, and also at every ten .miles in the line extending east from the “ northwest corner ” aforesaid to the Des Moines River. No iron monument was planted at mile 150 in the line running east, because between it and the point where the large one is planted on the bank of the Des Moines River there existed but a small fraction of ten miles, being only fifty-one chains. For a fuller account of the said survey we respectively refer to the report of the surveyors made to us, marked A, and to the following exhibits herewith transmitted — Field notes of said survey, accompanied by a map of the line (marked B:) 4 DECEMBER TERM, 1850. 4 Missouri v. Iowa. Tabular statement of the costs and charges incurred in said survey (marked C.) All of which is most respectfully submitted. Henry B. Hendershott, Comm'r, eld. We proceeded to search for the old corner, which was to be the basis of our future operations. Having a certified copy of Sullivan’s field notes, from the Surveyor-General’s office at St. Louis, we knew that the corner had been originally located in timber, and designated by two witness-trees. Aided by a view of the topography of the locality,—as indicated in the notes, and especially by the manner in which Sullivan’s north line crossed the Platte River near its terminus,—we were able to determine the locality of the corner approximately; and an inspection of the ground satisfied us that every evidence of its exact position had long since disappeared. Time, and the fires that annually spread over the prairies, had destroyed the witness-trees and every trace of both lines near the corner. This point, known familiarly as the “ old northwest corner,” was the termination of the line surveyed by Sullivan, in 1816, from the mouth of the Kansas River north one hundred miles, and was the point at which he turned east, in running to the Des Moines River, his miles being numbered north from the Kansas, and east beginning again at the corner. Having no direct evidence of the exact site of the required point, it became necessary to find determinate points in the two lines as near the corner as possible. Prolonging the lines severally from such points, their intersection would be the point to be assumed as the corner, and, if Sullivan’s measure- 5 5 SUPREME COURT. Missouri v. Iowa. ment were correct, would be the precise spot where he established it. Near the supposed locality of the 99th mile corner on the north line, we found a decayed tree and a stump, which correspond in course, distance, and description with the witnesstrees to that corner, and cutting into the tree we saw what we supposed to be the remains of an old blaze, upon which was preserved a part, apparently, of the letter M. This sup-position *was verified by measuring south two miles to a -* point, which we found to be Sullivan’s 97th mile corner from one witness-tree, which was perfectly sound. The marks upon it, two or three inches beneath the bark, were plain and legible. On the east line we found the witness-tree to the 3d mile corner. The wood upon which the marks had been described was decayed, but their reversed impression appeared upon the new growth which covered the old blaze, and which was cut out in a solid block. Prolonging the lines three miles each from the points thus determined, their intersection was assumed as the required corner, and at that point was planned the monument specified in the decree. By measurement made from the. surveyed lines, we found the corner to be in the northeast quarter of section 35, township 67 north, range 33 west. Its exact position with reference to those lines can be seen in the diagram in the field notes. See post, *15. The latitude of the corner, determined by a series of observations taken on the ground, we found to be 40° 34' 40" north. While employed upon these observations, we were delayed by unfavorable weather, and it was not till the 24th of May that we were in readiness to commence the survey of the west line from the corner to the Missouri River. This portion of the boundary, being required to be a parallel of latitude, was run with Burt’s solar compass, the use of which requires the longitude of the place of observation to be at least approximately known. Not having the requisite means' of ascertaining the longitude of the corner, we calculated it from maps to be about 94° 30" west from Greenwich, which was sufficiently accurate for the purpose. The instrument used being an untried one, some delay was experienced in its adjustment. To insure accuracy in the work, a telescope was attached to it. The principles upon which this line was run involve a mathematical investigation, which will be found in Note A, accompanying this report, but the mode of running it will be briefly described here. Each successive mile was prolonged 6 DECEMBER TERM, 1850. 6 Missouri v. Iowa. in the plane of the prime vertical passing through its beginning. The direction indicated by the instrument stationed at the beginning of a mile is in the plane of the prime vertical passing through that point, and that direction was continued through the mile by means of fore and back sights. At the end of the mile, an offset north was made to compensate for the sphericity of the earth. This offset, it will be seen by the note, is 6.855 inches for one mile. The instrument being moved at the end of the mile the proper distance north, and a new direction *given and continued as before, the parallel r-*? passing through the initial point was continued through-out the line. In some instances, however, it became convenient, whenever the nature of the ground admitted of it, instead of offsetting, to continue the same direction through several miles. It will be seen by the note, that the offsets increase as the squares of the distances, being for one mile 6.855 inches, for two miles, four times that distance, &c. Thus it appears that the offsets rapidly increase with the distance run, and that, by continuing the direction of the prime vertical from the corner to the terminus, the southing would have been over 2,000 feet. At the western terminus of the line, the observations for latitude were repeated. Having established that point, we returned to the northwest corner and commenced retracing Sullivan’s east line on the 13th of August. It is thirty-four years since this line was run, and every vestige of the mounds and pits established in the prairie has disappeared. Much of the country through which it passes consists of brushy barrens, or high rolling prairies, dotted with detached groves, or covered with a thin growth of dwarf timber. Much of this description of timber has been destroyed by fire, forming in some instances prairie, and in others brushy barrens, destitute of trees; while in some places an entirely new growth of young timber, principally hickory, has sprung up. In all such cases the witness-trees and other marks mentioned in Sullivan’s field notes were gone, and thus it occurred that we frequently were several miles without finding any traces of the line. But in heavy bodies of timber no difficulty was experienced in discovering evidences of the precise location of the line, not only by blazes, but by line and witnesstrees, many of which are sound, and the marks in good preservation. The general topography of the country, and especially the crossings of the streams, greatly facilitated us in following the line, and. in some instances, when confirmed by the old blazes, enabled us to establish it with sufficient certainty. In the absence of any traces of the line between two known 7 7 SUPREME COURT. Missouri v. Iowa. points, distant from each - other more than one mile, we assumed the line to be straight between such points, and established our posts accordingly. This was done by running a random line from the last- found corner, in a direction as near that pursued by Sullivan as we could determine, until another point was found, and then correcting back. No notice, however, is taken of these random lines in the field notes, which relates to the true line only. We soon satisfied ourselves that the line run by Sullivan $2-. *was not only not a due east line, but that it was not J straight. That more or less northing should have been made in the old line was to have been expected from the fact that Sullivan ran the whole line with one variation of the needle, and that variation too great. This would account for the fact that the northing increases as he progressed east. But there are great irregularities in the course of the line, for which it is difficult to find a cause. Sudden deviations amounting to from one to three degrees frequently occur, and it rarely happens that any two consecutive miles pursue the same direction. A resurvey of the line between the 91st and 134th miles was made in the year 1845, and we found the witness-trees on that part of the line defaced, and others substituted. We succeeded, however, in identifying Sullivan’s trees, and we destroyed the marks of that survey as far as they related to the old line. In all instances where a corner on Sullivan’s line is mentioned in our field notes, one or both witness-trees were found to identify it and we did not always think it necessary to repeat the fact in the notes. Accompanying this report are the field notes and map of the boundary, the former of which are sufficiently explained in the note prefixed to them. On the west line the monuments every ten miles were deemed sufficient. On the east line mile posts are established, marked, and witnessed as described in the field notes. It will be perceived that the measurement of this line as run by us exceeds that of Sullivan by Hyjo chains, and that this increase, although gradual, is not regular. Some portions of the old line agree very nearly with our measurement, while others differ materially, and the greatest gain is generally made in brushy and broken land. For the convenience of estimating distances, and that the true length of the line might be indicated by the mile posts, they were established by our measurement, taking care in every instance to note the distance of the posts set by us from the corresponding corners in the old line whenever found. 8 DECEMBER TERM, 1850. 8 Missouri v. Iowa. The different courses being extended from one known point to another, the line was not altered at those points, being made to pass through them, but only its length corrected. The length of the entire line is 211 miles and 32-A^ chains, embracing 4° 1' 7".29 of longitude. The length of a second of longitude is calculated in Note C, and the longitude of any point of the line being known, that of any other point can be deduced. The map is platted from the field notes on a scale of half an inch to the mile, and is only intended to represent the general *features in the topography of the line. The scale upon which it is made is much too small to show the angles in L the east line, to do which would require it to be extended to a length that would render it inconvenient. All the purposes for which it can be used will be attained by its present form. Wm. Dewey, Surveyor on the part of Iowa. R. Walker, Surveyor on the part of Missouri. Note A. Put a — semi-equatorial axis of the earth. c = semi-polar axis. x absciss 1 to a point S on the terrestrial meridian. 2/ = ordinate J r e = eccentricity. I — latitude of & r = radius of curvature at S. Then considering the centre as the origin of the co-ordinates, we have 2 c2 (a2 — x2) = a2 and. differentiating, j , c2 x d x « v==-------5— $ \ ° a2 y whence, .... (1.) Differentiating again, we find ¿2 v _. (a2 C2 y2 + c4 a2) d x2^ > • • • • k v 9 9 SUPREME COURT. Missouri v. Iowa. Substitute these values (1 and 2) in the general equation r _ _ (dx2 + dy2)% ax d2 y ’ and we have ______/(ct4 ^24-c4 a;2) d a2\%______________a4 y3______ \ a4 y2 / * (a? c2 y2 4- c4 a2) d a? r A /C2 (a2 — ®2)\ , 9 Z 9 9x 2 14 A O , P I ai (-------2---) i \ai — eJ I i/8 a ar a6 y% (a2 c2 -- ^aa2 x ■ —|- c4 z3) d xP ___(a4 c2 — a2 c2 x2 + (a2 — e2)2 a?2)j a4 c4 ___(a6 — a4 e2 — a4 x2 4- a2 e2 x2 4- a4 x2 — 2 a2 e2 x2 4- e4 æ2)| a4 c4 (a6 — a4 e2 — a2 e2 æ2 4- e4 æ2)f__ [ (a4 —e2æ2) (a2 —e2)]| a4 c4 ai & _ [ (a4 — e2 æ2) c2]§ __ (a4 — e2 a:2)!' c3 , a4 c4 a4 c4 ’ and, finally, r = ................•. . (3.) The foregoing equation (3) is the proper expression for the radius of curvature when the value of x is known; but as, in the-present case, the value of this quantity is unascertained, it will be better to deduce an equivalent expression involving only quantities which must, from the nature of the question, necessarily be known. Let E q represent the equatorial axis of the earth; C P, the semi-polar axis; jP, the pole; /S', a point on the terrestrial meridian at which the ra- dius of curvature is required, and whose latitude /S' L H= I is known; then, retaining the notation hitherto adopted, C q= a; CP—c; CH=x; and /S' H = y. S L is normal to the meridian at 10 DECEMBEE TERM, 1850. 10 Missouri v. Iowa. S, and. is, consequently, a part of r, the radius of curvature. In the right-angled triangle 8HL, L H: 8H: : cos. I: sin. Z, ------------------------------------------2 ------2 and, from the properties of the ellipse, C q: CP:: CH: L H; --------------------------------------------------2 whence L H=CPx C H—c2 x -----2 a2 Cq And the first analogy becomes ^»2 zj* * — : y:: cos. I: sin. Z, c i or, since y = — (a2—ar)2, a c2 x c „1 . ---: _ (a2 — 2^)2 :; cos. Z: sin. Z; a2 a whence, J CO8. Z; and, dividing by _ a c x sin. Z — a (a2 — 2^)2 cos. Z. Squaring, we find x2 sin.2 I = a2 (a2 — 2A) cos.2 Z = a4 cos.2 Z — a2 x2 cos.2 Z. Hence, since c2 — a2 — 20 „ N.20°W.5T “ Land rolling, second-rate. Timber, elm, burr-oak, hickory lind, &c. 14th Mile. 1.40 Sullivan’s 13th mile corner found by one witness-tree still standing. Course N. 89° 43' E. 40.20 Field. Left timber. The line is on Sullivan’s blazes, through this timber. 50.75 Left field. Prairie. 80.00 Set 14th mile post in mound. Land rolling, second-rate. Timber good, white and burr oak, elm, hickory, &c. 15th Mile. 80.00 Set 15th mile post in mound. Land rolling prairie. 16th Mile.—Var. 10° 30' E. 39.00 Small branch runs southeast. 46.00 Branch, 12 links wide, runs south-southwest. Narrow belt of timber on bank. Sullivan’s blazes. 55.00 Sparse timber. 69.00 Prairie. 80.00 Set 16th mile post in mound. Land rolling, second-rate. 17th Mile. 80.00 Set 17th mile post in mound. Land same. 25 24 SUPREME COURT. Missouri v. Iowa. 18th Mile. Dist. 30.00 Bottom. 80.00 Set 18th mile post in mound. Upland rolling. Bottom rich. *25] *19th Mile. [*25 13.50 Branch, 10 links wide, runs south; narrow belt of timber on the branch. 30.00 Timber (Lot’s Grove). 32.50 Creek, 25 links wide, runs southwest. 80.00 Set 19th mile post. p . ( White oak, 10 in. diam., N. 20° W. 129| Iks. neaungs, j u u 14 « « S. 8°W. 85 « Land rolling, second-rate. Timber good, white, black, and burr oak, elm, hickory, &c. 29th Mile. 2.15 Sullivan’s 19th mile corner found by both witness-trees. Course S. 89° 47' E. 6.50 Small branch runs northwest. Prairie. 30.50 Small branch runs northwest. 80.00 Set cast-iron monument, facing as before. Land broken and brushy; a few trees on east end of mile. 21st Mile. 67.50 Drain runs southwest. 80.00 Set post 21st mile. Bearings, i B"r “k’ m- diam., S. 61» E. 181 links, o ’ J 66 66 66 66 66 35° E. 74 Land broken and brushy. 22d Mile.—Var. 10° 10' E. 1.00 Sullivan’s 21st mile corner found by both witness-trees. Course N. 89° 29' E. 6.00 Small branch, west-southwest, a few trees. 12.50 A small branch runs southwest. 80.00 Set 22d mile post in a mound. Land broken and brushy. Barrens. 23d Mile. 5.00 Small branch runs north. 27.50 Small branch runs southwest. 80.00 Set 23d mile post in mound. Land very rolling, with patches of hazel. 26- DECEMBER TERM. 1 8 50. Missouri v. Iowa. 24th Mile. Disk. 23.00 Creek, 50 links wide, runs southwest. Timber. 26.09 “ “ “ “ northwest. 33.50 “ “ “ . “ southwest. 35.00 Prairie. 80.00 Set 24th mile post in a mound. Land rolling, second-rate/ Timber indifferent, elm, hickory, and burr-oak. *25th Mile.—Var. 9° 54' E. [*26 67.50 Small branch runs northwest. Sparse timber. 80.00 Set 25th mile post. r» • j Black oak, 20 in. diam., S. 31° W. 190 Iks. neanngs, j u w 20 « « 41° W. 262 “ Rolling, brushy prairie. Timber poor, black and burroak, and hickory. 26th Mile. 2.00 Prairie. 14.50 Road northeast. 66.25 Small branch runs south. Grove 206 links south. 80.00 Set 26th mile post in a mound. Land rolling, second-rate. 27th Mile. 80.00 Set 27th mile post in a mound. Land same as last mile. 28th Mile. 22.00 Creek, 20 links wide, runs south. Timber. 27.84 Red oak, 36 in. diam., Sullivan’s line tree. Noted by him as 26 chains. 80.00 Set 28th mile post on Sullivan’s blazes. -d . ( Elm, 10 in. diam., S. 50° E. 60 links. Bearings, j oak> u go E Land rolling. Timber good, white, burr, and red oak, elm, hickory, &c. Course N. 89° 4' E. 29th Mile. 3.00 Prairie. 60.00 A few trees and brush. 80.00 Set 29th mile post in mound. Rolling prairie. 27 26 SUPREME COURT. Missouri v. Iowa. 30th Mile. Dist. 12.00 Small branch runs southeast. 80.00 Set cast-iron monument, facing as before. Rolling prairie ; rather brushy. Course N. 88° 20' E. 31st Mile. 11.50 Timber. 16.00 -Creek, 50 links wide, runs southeast. 22.00 Prairie. 80.00 Set 31st mile post in mound. Land same as before. 32d Mile. 80.00 Set 32d mile post in mound. Rolling prairie. *27] *33d Mile. 20.50 Creek 25 links wide, runs southeast. Timber. 22.50 Prairie. 36.75 Stream, 10 links wide, runs south. 80.00 Set 33d mile post in mound. Land same. 34th Mile. 69.83 Stream, 35 links wide, runs southeast. Timber. 78.50 Prairie. 80.0 0 Set 34th mile post. -D . ( Elm, 10 in. diam., N. 75° W. 63 links, hearings, | u 9 « « s. 450 w 148 u Land rolling ; soil second-rate. 35th Mile. 3.67 Sullivan’s 34th mile corner found by one witness-tree. Course N. 88° 53' E. 80.00 Set 35th mile post in mound. Land rolling. 36th Mile. 40.75 Stream, 25 links wide, runs south; few trees on banks. 54.00 Timber. 78.50 Prairie. 80.00 Set 36th mile post in mound. Rolling prairie. 37th Mile. 80.00 Set 37th mile post in mound. Rolling prairie. 28 DECEMBER TERM, 1850. 27 Missouri v. Iowa. 38th Mile. Dist. 80.00 Set 38th mile post in mound. Rolling prairie. 39th Mile. 31.00 Grove of young timber, hickory. 32.50 Prairie. 44.00 Grove of young hickory. 46.50 Prairie. 60.00 Timber. 62.60 Stream, 25 links wide, runs south ; dry at present. 66.50 Small prairie, surrounded with timber. 76.50 Timber. 80.00 Set 39th mile post. Rparino-q ! Burr oak’ 9 in* diam., N. 20° E. 39 links, neaungs, j Black oak, 12 u „ S. 30° E. 22 « Land rolling. Timber, burr and black oak, &c. 40th Mile. 5.50 Sullivan’s 39th mile corner found by one witness-tree. 9.50 Prairie. 80.00 Set a cast-iron monument, facing as above, on the slope of a hill in the prairie. Rolling prairie. 41st Mile. [*28 80.00 Set 41st mile post in mound. Land as above. 42d Mile. 10.00 River bottom. 60.00 Timber. 76.00 Sullivan’s line tree (an elm). 80.00 Set 42d mile post. Rparino-q ! Cottonwood, 18 in. diam., S. 20° E. 17 links, tarings, | Maple> ■ 9 „ „ S.35<>W-1| Land bottom and rich. Timber cottonwood, elm, maple, walnut, &c. 43d Mile. 0.50 Grand River, 200 links wide, runs southeast. 6.50 Sullivan’s mile corner. Course N. 89° 6' E.—Var. 9°. 6' E. 11.50 Prairie bottom. 79.50 Upland and timber. 80.00 Set 43d mile post. 29 28 SUPREME COURT. Missouri v. Iowa. Dist. ■O . (Elm, 10 in. diam., N. 8° W. 79 links. Bearings, j White oak? 10 „ „ s. 6()o w 158 u Level, rich land. 44th Mile. 6.73 Sullivan’s 43d mile corner found by one witness-tree. Course N. 89° 47' E. 61.00 Prairie. 73.00 Timber. 76.00 Prairie. 80.00 Set 44th mile post. T> . ( Pin oak, 15 in. diam., S. 82° W. 390 links. Bearings, 1 u u u y. ggo 342 « Land rolling. Timber oak and hickory. 45th Mile. 7.00 Sullivan’s 44th mile corner found by one witness-tree. Timber. Course N. 89° 9' E. 22.00 Prairie. 80.00 Set 45th mile post in mound. Land as usual. 46th Mile. 73.00 Timber with thick undergrowth. 80.00 Set 46th mile post in mound. Barrens. *29] *47th Mile. 80.00 Set 47th mile post in mound. Brushy barrens. 48th Mile. 53.00 Stream, 12 links wide, runs south. 80.00 Set 48th mile post in mound. Brushy barrens. 49th Mile. 52.50 Timber. 60.50 Little River fa fork of Grand River), 60 links, runs S. E. 66.50 Same stream runs north. 71.50 “ “ “ south. 80.00 Set 49th mile post. r> • ( White oak, 36 in. diam., S. 76° E. 39 Iks. Bearings, | M M ggo E M Land first-rate. 50th Mile. 6.20 Sullivan’s 49th mile corner found by one witness-tree. 30 DECEMBER TERM, 1850. 29 Missouri v. Iowa. Dist. Course N. 80° 16' E. 10.00 Brushy prairie. 80.00 Set cast-iron monument facing as before. Barrens. 51st Mile. 80.00 Set 51st mile post in mound. Rolling prairie. 52d Mile. 12.00 Timber. 25.00 River bottom. 28.50 East Grand River, 150 links wide, runs southwest. 38.50 “ “ “ “ “ north. 52.30 “ “ “ “ “ south. 80.00 Set 52d mile post. Bearing ! Elra’ 18 in* diam’’ 874° E’ 10i lks* Bearings, j Burr oak, 12 u u 22? w g8 M Mostly rich bottom. White & burr oak, elm, hickory, &c. 53d Mile. (iourse N. 88° 47z E. 0.30 A pond, 250 Iks. wide; direction of its length N. and S. 5.00 Prairie. 15.00 Timber. 30.00 Field (Stokes) fence nearly north and south. 57.50 Left field. Brushy prairie. 80.00 Set 53d mile post. -d . \ Black oak, 8 in. diam., S. 53° E. 15 links. Land ^’1 “ “ 6 “ “ N. 53° E. 64 “ rolling. Timber, oak and hickory, with undergrowth. 54th Mile. [*30 1.50 A small prairie surrounded by timber. 9.00 Timber and dense undergrowth of thorn, oak, &c. 80.00 Set 54th mile post. ■d . j Black oak, 12 in. diam., N. 55° W. 73 Iks. Bearings, j „ „ ’ 14 „ „ s, 0O w_ 124 „ Growth of small timber and dense underbrush. 55th Mile. 4.07 Sullivan’s 54th mile corner found by both witness-trees. Course N. 89° 2' E. 32.70 Branch 10 links wide, runs south. 42.50 “ “ . “ “ northwest. 62.75 Prairie (small and surrounded with timber). 31 30 SUPREME COURT. Missouri v. Iowa. Dist. 71.00 Alexander’s field fence nearly north and south. 80.00 Set 55th mile post in a field; first-rate upland. 56th Mile. 7.00 Fence nearly north and south. 9.00 Fence runs a little south of east. 11.00 Brushy thicket; plum, scrub-oak, sumac, &c. 20.00 Timber. 31.00 Prairie. 75.00 Fence about N. 65° E. (Hodges.) 80.00 Set 56th mile post in mound. Land same as before. 57th Mile. 8.50 Fence about N. 25° W. 47.50 Road north and south. 80.00 Set 57th Mile post in mound. Rolling prairie. 58th Mile. 31.00 Timber with dense undergrowth. 31.35 Stream, 10 links wide, runs northeast. 31.80 Same; runs east. 32.25 Same; runs northeast. 49.75 Same; runs south. 53.00 Prairie. 57.50 Brushy prairie. 58.75 Prairie. 60.50 Brushy thicket. 65.00 Timber, with dense undergrowth. 75.90 Sullivan’s line tree (elm). 80.00 Set 58th mile post. Bparino-« ! Pin oak’ 8 iri* 8. 77° E. 43 links, imunigs, । u «6 “ “ N. 11° E. 411 “ Land rolling; soil good. Timber small, with a dense undergrowth. *31] *59th Mile. 2.53 Sullivan’s 58th mile-corner found by both witnesstrees. Course N. 89° 27' E. 3.65 West fork of Muddy Creek, 25 links wide, runs south. 55.00 Middle fork of Muddy Creek, 25 links wide runs southeast. 79.00 Prairie. 80.00 Set 59th mile post, in mound. Land same as before. 32 DECEMBER TERM. 1 850. 31 Missouri v. Iowa. Dist. 60th Mile. 0.45 Field Sullivan’s fence north and south. 12.45 Fence north and south. Prairie. 35.25 Field (Sullivan’s and Lochlin’s) fence about S. 25° W. 45.20 Fence about S. 65° E. 80.00 Set cast-iron monument facing as before. Land good. 61st Mile. 19.80 East fork of Muddy Creek, runs south; very little timber on banks. 80.00 Set post to 61st mile in mound. Land good. 62d Mile. 80.00 Set 62d mile post in mound. Rolling prairie. 63d Mile. 80.00 Set 63d mile post in mound. Rolling prairie. 64th Mile. Set 64th mile post in mound. Same. 65th Mile. 7.00 Timber. 11.00 Prairie. 19.65 West fork Medicine Creek, 40 links, runs south. Timber. 22.50 Field fence north and south. 33.25 Left field fence north and south. 47.50 Prairie. 80.00 Set 65th mile post in mound. Land good. Timber indifferent. 66th Mile. 62.50 Timber. 80.00 Set 66th Mile post. Bparincrq ! White oak, 16 in. diam., N. 63° E. 14 Iks. ueanngs, j „ „ lg „ g. w (( Rich land. *67th Mile. [*32 4.50 Sullivan’s 66th mile-corner found by one witness-tree. Course N. 89° 42' E. 9.20 Middle Medicine Creek, 25 links wide, runs southeast. 13.40 Same; runs northeast. Vol. x.—3 33 32 SUPREME COURT. Missouri v. Iowa. Dist. 16.20 Same; runs southeast. 18.00 Prairie. 44.50 Timber. 45.21 Big Medicine Creek, 60 links wide, runs southeast. 80.00 Set 67th mile post. ■o . ( White oak, 10 in diam., S. 47° E. 48 Iks. Bearings, | « “8 “ “ N. 40° W. 25 “ Broken, second-rate land. 68th Mile. 4.62 Sullivan’s 67 mile-corner found by both trees. Course N. 89° 35' E. 25.48 Sullivan’s line tree (a white oak). 31.30 Collins’s field; fence nearly north and south. 41.25 Left field fence nearly north and south. 61.50 Timber. 72.50 Prairie. 80.00 Set 68th mile post in mound. (Corrected this mile from the line tree.) / Land second-rate. Course N. 89° 21' E. 69th Mile. 8.00 East Medicine Creek, 30 links wide, runs southeast. Timber on the bank. 17.00 Timber open white oak. 47.50 Prairie. 80.00 Set 69th mile post in mound. Land rolling. Timber white oak, elm, and hickory. Land second-rate. 70th Mile. 80.Q0 Set cast-iron monument facing as before. Same. Rolling prairie. 71st Mile. 80.00 Set 71st mile post in mound. Same. 72d Mile. 80.00 Set 72d mile post in mound. Same. 73d Mile. 80.00 Set 73d mile post in mound. Same. 34 DECEMBER TERM, 1850. *33 Missouri v. Iowa. Dist. *74th Mile. 41.00 Stream, 15 links wide, runs south. Timber. 47.50 Prairie. 60.10 Stream, 10 links wide, runs southwest. Narrow strip of timber on banks. 80.00 Set 74th mile post in mound. Land same. 75th Mile. 80.00 Set 75th mile post in mound. Same. 76th Mile. 80.00 Set 76th mile post in mound. Same. 77th Mile. 66.30 Stream, 50 links wide, runs southwest. Timber. 80.00 Set 77th mile post. . ( Bell oak, 15 in. diam., S. 23° W. 30 links. Bearings, j M M 15 u « N. 44° E. 20 “ Broken, second-rate land. 78th Mile. 9.20 Sullivan’s 77th mile corner found by both witness-trees Course N. 89° 45' E. 47.00 Prairie. 55.75 Smith’s field fence north and south. 58.40 Timber. 64.50 Prairie. 74.00 Field fence north and south. 80.00 Set 78th mile post in a field. Land rolling, soil second-rate. Timber, oak and hickory. 79th Mile. 9.00 Left field fence north and south. Prairie. 49.50 Timber generally small, with underbrush. 59.20 Stream, 10 links wide, runs south. 77.50 Small prairie. 80.00 Set 79th mile post in mound. Same. 80th Mile. 2.50 Timber. 14.60 Stream, 10 links wide, runs south. 41.50 Prairie. 80.00 Set cast-iron monument, facing as before. Same. 35 33 SUPREME COURT. Missouri v. Iowa. Dist. 81st Mile. 40.50 Mormon trace north and south. 80.00 Set 81st mile post in mound. Rolling prairie. *34] *82d Mile. 4.50 Stream, 10 links wide, runs south. Timber on the banks. 80.00 Set 82d mile post in mound. Same. 83d Mile. 80.00 Set 83d mile post in mound. Same. 84th Mile. 80.00 Set 84th mile post in mound. Rolling prairie. . 85th Mile. 80.00 Set 85th mile post in mound. Same. 86th Mile. 29.50 Benner’s house, about 150 links north. 80.00 Set 86th mile post in mound. Prairie, with clumps of oak. 87th Mile. 80.00 Set 87th mile post in mound. Land same. 88th Mile. 38.50 Timber. 80.00 Set 88th mile post in mound. Prairie, with scattering trees. Sparse timber. 89th Mile. 13.34 Sullivan’s 88th mile corner found by one witness-tree. Course N. 89° 12' E. 33.75 Stream, 50 links wide, runs southeast. 65.28 Sullivan’s line tree (a white oak). Course S. 89° 15' E. 80.00 Set 89th mile post. r> • j White oak, 24 in. diam., N. 15° W. 65 links. ■Dearings, < M tt 24 » u g# ^3° 32 “ Poor, broken land. 90th Mile. 3.50 Small prairie, surrounded by timber. 12.82 Sullivan’s 89th mile corner. 36 DECEMBER TERM, 1850. 34 Missouri v. Iowa. Dist. Course N. 88° 57' E. 15.00 Timber. 80.00 Set cast-iron monument facing as before. Timber white and black oak, with undergrowth. Land rolling. 91st Mile. Var. 9° 36' E. 12.71 Sullivan’s 90th mile corner. Course N. 89° 5' E. 38.40 Small branch runs southeast. 80.00 Set 91st mile post. r>0£,„;n„Q J White oak, 24 in. diam., S. 2|° E. 49 links, searings, । u u 20 w « E g9 Land broken, third-rate. Timber, white and black oak, &c. *92d Mile. [*35 8.55 Corner to intersection of supposed Sullivan’s line with range-line between ranges 17 and 18 (Iowa sur.). 12.19 Sullivan’s 91st mile corner. Course N. 89° 12' E. 84.05 Corner to intersection of supposed Sullivan’s line with range-line between ranges 17 and 18 (Mo. sur.). 43.00 Prairie. 46.50 Cut off the southeast corner of a field. 49.10 Left field. 52.00 Timber. 54.70 West fork of Chasiton, 100 links wide, runs southeast. 80.00 Set 92d mile post. Bearings, ! Wkite °^k’ 8. 44» E. 41 links. ® ’ ( « “14 “ “ North 41 “ Upland broken, third-rate ; narrow bottom on the river, first-rate. Timber, white and black oak, &c. 93d Mile. 12.36 Sullivan’s 92d mile corner. 15.00 Small branch runs northwest. 19.33 Sullivan’s line tree. 80.00 Set 93d mile post. r> , • j White oak, 12 in. diam., N. 23° W. 30 links. Bearings, < « « g « « g. 40 E 4g u Land broken, third-rate. White and black oak, hick ory, &c. 94th Mile. 12.20 Sullivan’s 93d mile corner. Course N. 89° E. 37 35 SUPREME COURT. Missouri v. Iowa. Dist. 25.00 Prairie. 80.00 Set 94th mile post in mound. Land broken, second-rate soil. 95th Mile. 0.30 Road northeast and southwest. 80.00 Set 95th mile post (in the brush) in a mound. Land broken, second-rate. Brushy, a few trees. 96th Mile. 63.00 Jack-oak grove. 68.50 Small prairie, surrounded by timber. 75.75 Small branch runs northeast. 80.00 Set 96th mile post. Bearings, Burr oak, 14 in. diam., N. 11° E. 235 links. Land broken, second-rate. Scrub-oak, crab, thorn, &c. *36] *97th Mile. 71.80 Sullivan’s 96th mile corner found by his elm tree. Course N. 88° 33' E. 22.00 Heavy timber, more open. 35.00 Sparse, open timber. 53.00 Thicket of scrub-oak, crab, thorn, &c. 80.50 Set 97th mile post. P . ( Black oak, 6 in. diam., N. 40° E. 12 links, neanngs, j pin u 12 « « S. 29°E. 126 “ Land broken, second-rate. Timber poor. 98th Mile. 11.84 Sullivan’s 97th mile corner, witness-trees defaced. Course N. 89° 3' E. 26.50 Small branch runs north. 29.50 Barren, brushy prairie. 42.00 Sparse timber. 56.58 Sullivan’s line tree (black oak, 24 inches diameter.) Course N. 88° 53' E. 78.00 Bottom prairie. 80.00 Set 98th mile post in mound. Land rolling, soil second-rate. 99th Mile. 19.85 Field fence north and south; north side of field 25 links north of line and parallel with it. 35.35 Left field. 87.00 Thicket and sparse timber. 42.00 Bottom prairie, level and wet. 38 DECEMBER TERM, 1850. 36 Missouri v. Iowa. Dist. 80.00 Set 99th mile post in mound. Upland is good soil. 100th Mile. 7.50 Timber. 12.06 Sullivan’s 99th mile corner, witness-trees defaced. Course N. 88° 57' E. 14.00 Right bank of Chariton, 150 links, runs southwest. 17.25 Left bank of river (by triangulation) ; left bottom. 80.00 Set cast-iron monument, facing as before. Land rolling, second-rate. Timber good, white and black oak, hickory, &c. 101st Mile.—Var. 9° 30' E. 9.00 Timber. 12.77 Sullivan’s 100 mile corner. ♦Course N. 89 ° 2'E. [37* 20.29 Sullivan’s line tree. 34.00 Low, wet prairie. Land rolling, to this point. 63.00 Timber, upland. 80.00 Set 101st mile post. n ( Black oak, 14 in. diam., S. 38° E. 621- Iks. Bearings, | whit? „ „ „ „ N E „ Timber good, white and black oak, hickory, &c. 102d Mile. 12.78 Sullivan’s 101st mile corner. Trees defaced. Course N. 88° 47' E. 54.80 Road north and south. 80.00 Set 102d mile post. •d . • j Hickory, 14 in. diam., S. 4° E. 88 Iks. Bearings, j White oak, 12 M u 583° w 61i „ Land rather broken. Timber good, white and black oak. 103d Mile. CT.00 Small branch runs north. 12.40 Sullivan’s 102d mile corner. Course N. 88° 56' E. 43.60 Road nearly north and south. House 500 links south. 64.00 Prairie. 77.50 Timber. 80.00 Set 103d mile post. r> • ( Elm, 20 in. diam., N. 12° E. 46 links. Bearings, | M 20 w 22 0 it Land rolling, second-rate. Timber indifferent, brush. 39 37 SUPREME COURT. Missouri v. Iowa. DiSt> 104th Mile. Var. 8° 45' E. 11.96 Sullivan’s 103d mile corner, one witness [tree] standing. . Course N. 88° E. 12.00 Prairie. 17.20 Field (Veach) fence north and south. 48.20 Left field fence north and south. 80.00 Set 104th mile post in mound. Land rolling ; soil second-rate. 105th Mile. 80.00 Set 105th mile post in mound. Same. 106th Mile. 52.00 Small grove and thicket. 65.75 Small branch, runs south. 69.50 Prairie. 80.00 Set 106th mile post in mound. Land same. *38] *107th Mile. 45.00 Grove and thicket. 80.00 Set 107th mile post. -D . ( Black oak, 12 in. diam., S. 20° E. 43 links. Bearings, j u w « «■ tf. 8° W. 7 “ Land rolling, second-rate. Brushy, timber poor. 108th Mile. 12.69 Sullivan’s 107th mile corner. Course N. 87° 39' E. 20.00 Small prairie. 26.00 Timber. 30.20 Small branch runs south. 64.50 Prairie. 80.00 Set 108th mile post in mound. Timber poor. 109th Mile. 80.00 Set 109th mile post in mound. Rolling prairie. 110th Mile. 11.40 Field fence north and south (Wright). 20.00 Left field. 70.00 Timber and patches of brush. 75.00 House 200 links north of line (Baker). 80.00 Set cast-iron monument, facing as before. Land rolling. Timber poor and sparse. 40 DECEMBER TERM, 1850. 38 Missouri v. Iowa. Dist. Ill th Mile. 12.34 Sullivan’s 110th mile corner. Course N. 86° 7' E. 80.00 Set 111th mile post in mound. In small prairie, surrounded by dense thickets. Land broken, second-rate. Scrub timber and small prairies. 112th Mile. 3.00 Heavy timber. 11.50 Sullivan’s 111th mile corner. Course N. 87° 56' E. 14.50 Small branch, general course east; the line runs down it, crossing it several times. 41.50 Left branch, course northeast. 73.00 Same branch runs south. 76.00 “ u “ northeast. 80.00 Set 112th mile post on Sullivan’s blazes. -d . ( White oak, 20 in. diam., N. 3° E. 119 links. Bearings, j M u „ s. 15|o w. 165 Land good. Timber, white, black, and burr-oak, hickory, elm, &c. *113th Mile. [*39 11.09 Sullivan’s 112th mile corner. Course N. 88° 21' E. 60.50 Field fence north and south. 74.75 Left same. 76.50 Bottom prairie. 80.00 Set 113th mile post in prairie. Bearings, Burr oak, 20 in. diam., N. 15^° E. 268 links. Land and timber as last mile. 114th Mile. 25.00 Timber. 33.00 Fabius River (west fork), 50 links, runs southeast. 50.72 Sullivan’s line tree. 65.00 Barrens. 80.00 Set 114th mile post. Raavinn-a J Black oak, 12 in. diam., N. 424° W. 177 Iks* neanngs, j « 6 « « S. 29j° E. 40 “ Land good. Timber, hickory, black oak, elm, &c. 115th Mile. 7.70 Field fence north and south. Prairie. 41 39 SUPREME COURT. Missouri v. Iowa. Dist. 34.00 Left field fence north and south. 80.00 Set 115th mile post in mound. Rolling prairie. 116th Mile. 36.00 Scrub-oak thicket. 48.00 Prairie. 75.00 McAtee’s field fence north and south. ,80.00 Set 116th mile post in field. Same. 117th Mile. 15.50 Left field fence north and south. 40.00 Timber on Sullivan’s blazes. 75.15 East fork of Fabius, 50 links wide, runs south. 80.00 Set 117th mile post. n ( Hickory, 12 in. diam., S. 34° E. 73 links. Bearings, 1 u 20 “ « N. 14* W. 91 “ Land good. Timber hickory, elm, white and black oak, &c. 118th Mile. Course N. 88° 17' E. 65.00 Prairie. 80.00 Set 118th mile post in mound. Land good. Timber, burr and black oak, hickory, &c. and brush. 119th Mile. 9.25 Field fence north and south. 19.40 Left field near southeast corner. Thicket. 53.50 Hickory branch, 15 links wide, runs east-southeast. 80.00 Set 119th mile post in black-oak thicket. | Black oak, 8 in. diam., S. 38° W. 154- links. Bearings, j u M 5 M 50 M Land second-rate. Timber poor, black oak and hickory. *40] *120th Mile. 2.00 Prairie. 80.00 Set cast-iron monument, facing as before. Rolling prairie. 121st Mile. 80.00 Set 121st mile post in mound, edge of thicket. Same. 122d Mile. 13.00 Branch, 10 links wide, runs south. Timber thicket. 17.55 Range-line between ranges 12 and 13. 42 DECEMBER TERM, 1850. 40 Missouri a. Iowa. Dist. 29.50 Prairie. 40.00 Jack-oak thicket. 80.00 Set 122d mile post. Bearings, Jack-oak, 6 in. diam., S. 12° E. 47 links. Land second-rate. Timber poor.’ 123d Mile. 15.04 Sullivan’s line tree (a black oak, noted as a hickory}. Course N. 88° 12' E. 20.00 House 300 links south (J. N. Bish). 23.00 Touched northeast corner of field. 31.50 Small low, wet prairie, extending south. 45.00 Timber. 53.20 Wyacondah Creek, 40 links wide, runs southeast. 56.20 Enter creek, running east. 59.70 Left same creek, running southeast. 67.00 Cut off south corner of field. 69.00 Brushy prairie. 80.00 Set 123d mile post Bearings, White-oak, 24 in. diam., S. 28|-0 W. 54 links. Land brushy, timber poor. 124th mile. 1.50 Prairie. 15.00 Thicket and a few trees. 29.50 Open prairie. House 300 links south. 33.00 Touched northwest corner of a field. 80.00 Set 124th mile post in mound. Land rolling. Timber poor, with undergrowth. 125th Mile 80.00 Set 125th mile post in mound.-Rolling prairie. *126th Mile. r*41 46.00 Timber. 47.00 Branch, 25 links wide, runs south-southeast. 52.00 Prairie. 63.50 Thicket of black and jack oak. 71.00 Prairie. 80.00 Set 126th mile post in mound. Land as usual. 127th Mile. 29.00 Drain runs southeast. 80.00 Set 127th mile post in mound. Rolling prairie. 43 41 SUPREME COUR'!'. Missouri v. Iowa. Dist. 128th Mile. 30.20 Small branch runs southeast. Small grove. 80.00 Set 128th mile post in mound. Rolling prairie. 10.84 Sullivan’s 128th mile corner. Course N. 87° 58' E. 13.00 North point of a grove. 80.00 Set 129th mile post in mound. Same. 130th Mile. 80.00 Set cast-iron monument, facing as before. Same. 131st Mile. 53.50 Small branch runs southeast. Timber on banks. 80.00 Set 131st mile post in mound. Same. 132d Mile. 80.00 Set 132d mile post in mound. Same. 133d Mile. 13.00 Branch, 10 links wide, runs southeast. Timber, 13.50 Sullivan’s 132d mile corner. Course N. 87° 50' E. 80.00 Set 133d mile post in mound. Same. . „ . , 134th Mile. 16.50 Field fence nearly north and south. 28.40 Left field. Thicket and sparse timber. 54.50 Small wet prairie. 59.25 Timber. Thicket. 61.50 Creek 15 links north of line. 63.50 Little Fork Creek, 40 links wide, runs south. 67.80 Sullivan’s line tree. 80.00 Set 134th mile post. tj . ( Burr oak, 10-in. diam., N. 35° E. 69 links. Bearings, { Hickory> 14 „ „ g. 46» E. 89 “ Land good. Timber poor. Dense undergrowth. Course N. 88° E. *42] *135th Mile. 35.00 Brushy prairie. 46.10 Field fence north and south. Thicket. Field is waste ground. 57.50 Left field. Thicket. 44 DEC EMBER TER M. 1 8 5 0. 42 Missouri v. Iowa. Dist. 58.00 House 250 links south (Circles). 60.85 Small branch runs south. Brushy prairie. 62.00 Road to Keozanqua, north and south. 80.00 Set 135th mile post in mound. Prairie, with brush and thickets. 136th Mile. 5.00 Road to Farmington a little north of east. 11.50 Touched northwest corner of a field in a lane. 30.75 Touched southeast corner of another field. Prairie. 60.00 Northeast corner of a field, 12.00 south. 80.00 Set 136th mile post in mound. Rolling prairie. 137th Mile. 22.00 Road to Farmington east-northeast. 60.00 Brushy barrens. 80.00 Set 137th mile post in mound. Same. 138th Mile. 27.50 Prairie. 30.00 A small drain runs northwest. 42.00 A field fence north and south. 71.60 Left field fence north and south. Prairie. 80.00 Set 138th mile post in mound. Same. 139th Mile. 21.00 Timber. 25.00 Small stream runs north. 26.50 Prairie. 66.00 Road northeast and southwest. 80.00 Set 139th mile post in mound. Rather level, second rate. 140th Mile. 6.50 Sparse timber and barrens. 14.83 Sullivan’s 139th mile corner. Course N. 87° 24' E. i5.00 Heavy timber. 80.00 Set cast-iron monument, facing as before. Land rolling. Timber, black and white oak, hickory, and dense undergrowth of same, with crab, &c. *141st Mile. [*43- 14.54 Sullivan’s 140th mile corner. Course N. 87° 56' E. 45 43 SUPREME COURT. Missouri v. Iowa. Dist. 38.76 Big Fox River, 50 links, runs a little east of south. 49.84 Same, runs north. 56.50 Same, runs east-southeast. 59.25 Same, runs north. 77.00 Enter river, runs southeast. 80.00 Left same, and set 141st mile post on the bank. v> • \ Birch, 22 in. diam., N. 55° E. 128 links. Bearings, j Elm> 24 „ „ S. 15° W. 58 “ Land on river level; other, same as last. 142d Mile. 8.20 Fox River runs south. 13.85 Sullivan’s 141st mile corner. * Course N. 88° 9' E. 23.00 Fox River runs north. 25.00 Same, “ south. 35.00 Enter river, “ east. 40.70 Left “ “ southeast. 43.00 Prairie. 75.00 Timber. Upland. 80.00 Set 142d mile post. T>A„r:nn.c j Black oak, 30 in. diam., N. 84° E. 115 Iks. neanngs, | u u u M Land level, second-rate. Timber poor; dense undergrowth. 143d Mile. 49.50 Road to Churchville runs southeast. 80.00 Set 143d mile post in mound (in the brush). This is exceedingly brushy; scrub oak, &c. 144th Mile. 11.80 Sullivan’s 143d mile corner. Course N. 87° 15' E. 80.0 0 Set 144th mile post. t» I White oak, 10 in. diam., S. 10° W. 28 links. Bearings, j M u « 29° E gl u This mile is brushy ; barrens. *44] *145th Mile. 2.50 Prairie. Barrens. 43.00 Brushy barrens. 80.00 Set 145th mile post in brush. j Burr oak, 14 in. diam., South 75 links. Bearings, j „ lg „ u North „ Barrens. 46 DECEMBER TERM, 1 8 5 0. 44 Missouri v. Iowa. Dist. 146th Mile. 12.00 Sullivan’s 145th mile corner. Course N. 87° 38' E. 29.50 Prairie. 46.50 Touched northwest corner of a field, a lane runs parallel with and 25 links north of the line. 57.50 House 50 links north (William Hatton). 67.50 Lane turns south, field fence north and south. 74.00 Left field fence north and south. Prairie. 80.00 Set 146th mile post in mound. Land as before. 147th Mile. 12.00 Thicket. 42.00 Prairie. 69.00 Thicket. 80.00 Set 147th mile post in thicket. Bearings, Red oak, 30 in. diam., S. 46° E. 256 links. Barrens. 148th Mile. 3.00 Branch, 6 links wide, runs north. 30.00 Prairie. 58.50 Field fence north and south. 61.00 Road to Churchville north and south. 80.00 Set 148th mile post in a field. Prairie, with brushy barrens. 149th Mile. 3.90 Left field fence north and south. 30.00 Brush and timber. 59.00 Road north and south. 80.00 Set 149th mile post in edge of a small prairie. Bearings, Burr oak, 12 in. diam., S. 1^° E. 172 links. Land good. Timber indifferent, burr and black oak, hickory, elm, &c., with a dense undergrowth. 150th Mile. 3.50 Timber. 80.00 Set 150th mile post. t> • ( White oak, 10 in. diam., N. 27° W. 93 links. Bearings, | „ 20 .. « S.80j»E. 90 “ Land broken, second-rate. Timber, white and black oak, hickory, &c., underbrush. *151st Mile. [*45 4.90 A small saltpetre cave, noted by Sullivan. 41.50 River bottom. 47 45 SUPREME COURT. Missouri v. Iowa. Dist. 51.00 Set a cast-iron monument on the bank of the Des Moines River, with the words “ State Line ” facing the west, and the word “ Missouri ” facing the south, and the word “ Iowa ” facing the north. 51.80 Sullivan’s terminus on the lower bank found by one witness-tree still standing. River bottom rich. Timber, white and black oak, hickory, lind, elm, &c. September, 18, 1850. Keokuk, September 30, 1850. We certify the foregoing to be the correct field notes of the survey of the boundary between Iowa and Missouri, as run by us. R. Walker, Surveyor on the part of Missouri. Wm. Dewey, Surveyor on the part of Iowa. And the report of the Hon. Robert W. Wells and Henry B. Hendershott, which is above referred to,' and which was made to the last term of this court, is as follows:— To the Honorable the Supreme Court of the United States. The undersigned, appointed by this honorable court commissioners in the above cases, to establish the boundary line between the states of Missouri and Iowa, respectively report that upon being furnished with copies of the decree, they, in compliance therewith, addressed letters to the chief magistrates of those states, through their Secretaries of State, respectfully requesting the cooperation and assistance of the state authorities in the performance of the duties imposed on the commissioners by said decree; and they received assurances, in answer to their letters, of all the aid and assistance within their power. The Governor of the state of Missouri consented to consider an appropriation of two thousand dollars, made by the General * Assembly for the purpose of conducting the -* suits, as applicable to the establishment of the boundary by the commissioners; and agreed to place that sum at their disposal for that object. The Governor of the state of Iowa entertained the opinion, it is understood, that no appropriation had been made by the 48 DECEMBER TERM. 1 850. 46 Missouri v. Iowa. Legislature of that state, applicable to the survey of the boundary, but endeavored to obtain the necessary funds from other sources; and, as the undersigned are advised, obtained them. But the commissioners were not informed of this until about the 23d of October last,—7then too late to procure the necessary assistants, fit out an. expedition, travel to the place of commencing operations and complete the work in the field, before the weather would, in all probability, become too inclement in the vast and high prairies through which the line will pass. As the grass in the prairies is burned in October, there would also be some difficulty, after that, in procuring provender for the teams necessary for the transportation of the baggage, provisions, and monuments. | For these reasons, add others with which it is unnecessary to trouble the court, the commissioners resolved not to attempt the work in the field until the opening of the spring. The commissioners have procured all the monuments necessary for the line. Three are of the size and description directed in the decree, ; Nineteen other cast-iron monuments, six of which are four feet long, eight inches square at the base, and five inches square at the top, to be placed at intervals of thirty miles; and thirteen of which are seven inches square at the base, and four inches square at the top, and four feet long. These nineteen monuments each have the word “ Missouri ” on one side, and “ Iowa ” on the opposite side, and the word “ Boundaryon the other opposite sides, strongly cast into the metal. All the monuments are cast solid; and will weigh about 13,000 pounds, and cost three cents per pound. A drawing of the largest sized moiiument is annexed. [See page 47.] The others are similar id form, except as hereinbefore mentioned. All of which is most respectfully submitted. H. B. Hendershott, R. W. Wells. November, 1849. *And said reports not having been excepted to by either of the parties, they are therefore respectively ■-confirmed and adopted by this court. From said reports, it appears that the old northwest corner of the Indian boundary line, made by John C. Sullivan in the year 1816 (and referred to in our former decree)', is ,found to be at forty degrees thirty-four minutes and forty seconds of north latitude, and at about ninety-four degrees thirty minutes of west longitude from Greenwich ; that at said “ northwest corner ” was planted a » large cast-iron monument, weighing between fifteen and six- Vol. x.—4 49 SUPREME COURT. Missouri v. Iowa. 50 DECEMBER TERM, 1 8 50. 48 Missouri v. Iowa. teen hundred pounds, four feet six inches long, squaring twelve inches at its base, and eight inches at its top. This monument is deeply and legibly marked with the words (strongly cast into the iron) “ Missouri ” on its south side, and “ Iowa ” on its north side, and “ State Line ” on the east. And this court doth adjudge and decree, that said monument doth mark and witness the true northwest corner of the Indian boundary lines, as run by John C. Sullivan, in 1816. And the precise corner is hereby established and declared to be in the center of the top of said monument. Said reports further show, that from the monument a line was run due west, on a parallel of latitude, to the eastern bank of the Missouri River ; which line appears, by the field notes accompanying the reports, to be sixty miles and sixty-one chains in length. And it further appears, by the reports and field notes, that the commissioners caused to be planted cast-iron pillars in the line running west from the old northwest corner, at intervals of ten miles apart, with the word “ Boundary ” cast in the iron, on the east side and on the west side of said pillars; and the word “ Iowa ” facing on the north; and the word “ Missouri ” facing on the south. That in running west, one such pillar was planted at the end of ten miles from the old northwest corner; another at the end of twenty miles ; a third at the end of thirty miles ; a fourth at the end of forty miles ; and a fifth at the end of fifty miles. And at the end of sixty miles was planted a monument similar to that erected at the old northwest corner, marked “ Missouri ” on its south side, “Iowa” on its north side, and “State Line” on the east. This monument stands sixty-one chains east of the eastern bank of the Missouri River, on firm ground, the bottom lands beyond being soft and subject to overflow; for which reason the monument was planted so far east of the river. From this last monument, the line runs due west, on a parallel of latitude, through a cottonwood-tree thirty inches in diameter, notched on the east and west sides, and marked with the letter “I.” on the north, and the letter “M.” on the south. And on *the bank of the Missouri River, sixty-one chains west of the iron monument last planted, a wooden post is set in the ground, with two cottonwood pointers,—one of ten inches diameter standing S. 67° E. 6 links; and the other at N. 21° W. 12 links from the wooden post. And said line having been run and marked according to our former decree, it is therefore now adjudged and decreed, that the true and proper boundary line between the states of Missouri and Idwa, extending west from the centre of the monument standing at Sullivan’s old northwest corner, 51 49 SUPREME COURT. Missouri v. Iowa. runs through the centre of the five iron pillars and the monument near the Missouri River; and through the cottonwoodtree above described; and through the centre of the wooden post planted by the commissioners on the eastern bank of the river; and then due west on a parallel of latitude to the middle of the Missouri River. And it further appears from the report of said commissioners, that, pursuant to our former decree, they had ascertained and re-marked Sullivan’s line, as run and marked by him in 1816, extending eastwardly from the old “northwest corner,” above described and established. Sullivan’s line, as run and marked in 1816, from said corner east, to the Des Moines River, was found not to be a due east line; but that more or less northing should have been made in the old line. Nor is it a straight line, as sudden deviations amounting to from one to three degrees frequently occur; and it rarely happens that any two consecutive miles pursue the same direction. It also appears, that, if the whole line was reduced throughout to a straight line, its southing would be about two degrees from a due east line. The length of this line is one hundred and fifty miles fifty-one chains and eighty links, from the old northwest corner to the western bank of the Des Moines River. At the end of each intermediate space of ten miles, on tracing Sullivan’s line from the old northwest corner eastwardly, cast-iron pillars were planted, of a similar description to those erected in the western part of the line between the old northwest corner and the monument near the Missouri River. These pillars were planted in Sullivan’s line as found at the particular point; but as the line was bending in the ten mile spaces between the pillars, it was found necessary to erect wooden posts, at the termination of each mile, in order to mark the line with more accuracy. In the prairies the mile posts are marked with the letters “ B. L.” facing the east, the letter “I.” facing the north, and the letter “M.” facing the south; and the number of the mile is marked on the west face of the *601 Post- Where timber *exists, the number of the mile is -* marked on witness-trees or pointers, with the letter appropriate to e$ch state; there being one tree marked on each side of the line, whenever it was possible so to do. The foot of each witness-tree is marked with the letters B. L. In all cases where posts are set in mounds, the pit is invariably nine links west, to designate it from other surveys. At the end of the one hundred and fiftieth mile, no iron pillar was planted, because at fifty-one chains west of this point, the Des Moines River was reached; and there, accord-52 DECEMBER TERM, 1 8 5 0. 50 Missouri v. Iowa. ing to our former decree, a large mounument was planted, of similar description to that placed at the old northwest corner, with the words “ state line ” facing the west, the word “ Missouri” facing the south, and the word “Iowa” facing the north. And the re-marking of Sullivan’s line as above set forth, partly with wooden posts at the termination of each mile, having been submitted to the counsel of the parties, it was by them deemed sufficient, because the public surveys of the lands of the United States are to be governed and closed on said line as run by the commissioners; and therefore private titles will be established on both sides, the state line being the dividing boundary of such private rights. And in these views of the counsel the court concurs. It is therefore adjudged and decreed, that Sullivan’s line is established to run through the wooden mile posts and the cast-iron pillars planted ten miles apart on said line; and that the true and proper dividing line between the states of Missouri and Iowa, east of the monument erected at the “ old northwest corner,” begins at the centre of said monument, and runs eastwardly, (southing about two degrees of a true east line,) through the centre of each wooden post and iron pillar, to the centre of the monument erected on the bank of the Des Moines River. And it is further adjudged and decreed, that a straight line from one mile post to another, and from a mile post to a •pillar, and from the last mile post to the monument on the bank of the Des Moines River, is the true and proper line, and that such straight line shall conclude all other marks. And it is further adjudged and decreed, that a line extended north eighty-seven degrees thirty-eight minutes east, from the centre of the monument erected on the bank of the Des Moines River to the middle of said river, is the true and proper boundary line between the states of Missouri and Iowa west of said monument. And this court having had submitted to its consideration what amount of compensation should be allowed to the different commissioners, and to the surveyors employed by them, for services performed in running and marking the line in controversy; *and also the amount of expenses incurred in performing the duties imposed on said commissioners by our former decree; and these matters having been referred to the clerk of the court to ascertain the proper compensation and charges, and he having reported thereon; and also on other costs and charges incident to the suit; and said report not being excepted to, is in all things 5 51 SUPREME COURT. Missouri v. Iowa. confirmed, and which report is in the words and figures following, to wit:— To the Honorable Chief Justice and Associate Justices of the Supreme Court of the United States. Pursuant to an order of this honorable court made the 12th instant, in the case of the state of Missouri and the state of Iowa, now pending on bill and cross bill, the undersigned, after a careful examination of witnesses and all the sources of information within his reach, respectfully reports:— li That the $8 per diem, which the commissioners agreed to pay each of the surveyors in the field, is a fair and reasonable compensation for their labors. 2. That $10 per day to each of the three commissioners while engaged in this duty is a fair and reasonable compensation for their services;—and that a further per diem of $2 to each of the two commissioners engaged in the field would be a reasonable and proper allowance on account of their personal expenses. 3. That the statement of the expenditures by the commissioners, and of their purchases, appears to be very moderate and reasonable. 4. That the whole expense of the survey amounted to $10,880.41. 5. That each of the said states advanced $2,000. • 6. That the commissioners realized from sales of camp furniture $13.15. 7. That the instruments purchased by the commissioners for the survey (which cost $247.22) have been retained by them for safe keeping, subject to the order of this court. 8. That the fees now due to the clerk of this court, and up to this term, by both parties in this case, amount to $48.67. Lastly. That in a detailed account, stated upon the preceding basis and hereto appended, each of the said states is charged with $3,457.96^-, being a moiety of the balance ($6,867.26) due on the survey, and a moiety of the fees (48.67) now due the clerk of this court. All of which is respecfully submitted by Wm. Thos. Carroll, 17 December, 1850. Clerk of Supreme Court, U. S. 54 DECEMBER TERM, 1850. *52 Missouri v. Iowa. *The States of Missouri and Iowa, in Account with the Adjustment of the Boundary Line between them. Dr. To 22 cast-iron monuments, .... $ 386.95 “ Freight, transportation, and expenses on same, 246.40 “ Camp furniture, provisions, expenses in going to and returning from the line, and upon the line, postage, stationery, hire of horses, expenses in going to and returning from Iowa City, Jefferson City, and St. Louis, . 826.92 “ Wages to hands in the field, . . . 1,718.92 “ Wm. Dewey, surveyor, for 184 days, at $8 per day, . . . ... 1,472.00 “ Robt. Walker, surveyor, for 183 days, at $8 per day, . .................... 1,464.00 Robert W. Wells, commissioner, for 15 days, 150.00 at $10 per day, . 2,124.00 “ William G. Minor, commissioner, for 177 days at 12 per day, ..... 2,124.00 “ Henry B. Hendershott, commissioner, for 187 days, at $12 per day, .... 2,244.00 “ Sextant, barometer and thermometer, solar compass, and other instruments necessary for the survey,........................ 247.22 “ Fees now due the clerk in the case pending in Supreme Court of U. S., 48.67 $10,929.08 Contra. Or. By Cash received from State of Missouri, . . $2,000.00 w Cash received from State of Iowa, . . 2,000.00 « Proceeds from sale of camp equipage, . . 13.15 « Balance, of which $3,457.96| is due by the State of Missouri, and $3,457.96| is due by the State of Iowa, .... 6,915.93 $10,929.08 And it appearing to the court here, that there will be due to the clerk of this court, for the duties devolved on him by this decree, and for the services performed by him at this term, the further sum of sixty-three dollars and sixty cents, in addition to the forty-eight dollars and sixty-seven cents stated in his report to be now due him; and it also appearing to the court, that the said clerk should be allowed, for making his 55 52 SUPREME COURT. Missouri v. Iowa. report, for carrying on the correspondence incident to this cause and paying *the expense thereof, and also in •J consideration of any future service to be performed by him in the progress of this cause, the further sum of fifty dollars ; it is thereupon ordered and decreed, that said commissioners Hendershott and Minor, do pay to the clerk of this court, in full discharge of all costs and charges that have now accrued or that may hereafter accrue for any service done or to be performed by the said clerk, in the progress of this cause, the sum of $162.27 out of the first moneys received by them undei* this decree. And it appearing that certain advances had been made by the states of Missouri and Iowa, respectively, to the commissioners, and said advances having been credited, it now appears that the state of Missouri is bound to pay the further sum of $3,514.76|-; and that the state of Iowa is bound to pay the further sum of $3,514.76^ of the charges and costs of the controversy. And it is ordered and decreed, that the state of Missouri pay over the said sum of $3,514,764, and that the state of Iowa pay over the said sum of $3,514.76^, to the commissioners, Henry B. Hendershott and William G. Minor, in final and full discharge of their portions, respectively, of said costs and charges. And it is further ordered and adjudged, that said commissioners receive the several sums of money, and distribute and pay over the same to those entitled thereto, according to the report of the clerk of this court. And it also appearing that certain instruments purchased by the said commissioners are retained by them, subject to the order of this court, it is further ordered that the commissioners dispose of the said instruments at such times and places, and on such terms, as to them may seem most advantageous for the interests of the parties to this suit; and that they pay the proceeds of the sales into the treasuries of the said states of Missouri and Iowa, respectively, that is to say, one half of the proceeds into each treasury, and take receipts from the proper officers for the moneys paid. And it is further ordered, that said commissioners, Hendershott and Minor, report to the next term of this court the manner in which they have executed the duties hereby imposed upon them; and to which end this cause is kept open. And it is ordered, that the clerk of this court do forthwith transmit to his Excellency, the Governor of the state of Iowa, a copy of this decree (including the reports of the commissioners, surveyors, and clerk, together with a copy of the field 56 DECEMBER TERM, 1850. 53 Webster v. Cooper. notes of said surveyors), duly authenticated under the seal of this court. *And it is further ordered, that a similar copy in all r*c4 respects be by said clerk forwarded to his Excellency, L the Governor of the state of Missouri. And it is further ordered, that the clerk forward a copy to each of said commissioners, Hendershott and Minor, of the order referring the matter of costs and charges, the clerk’s report thereon, and so much of the foregoing decree as respects the costs and charges, for the guidance of said commissioners in the performance of their duties in this respect. Henry Webster, Plaintiff v. Peter Cooper. Where it appears that the whole case has been certified proforma, in order to take the opinion of this court, without any actual division of opinion in the Circuit Court, the practice is irregular, and the case must be remanded to the Circuit Court to be proceeded in according to law.1 The decision of this court in the case of Nesmith and others v. Sheldon^ (6 How., 41,) affirmed.2 This case came up on a certificate of division of opinion, pro forma, between the judges of the Circuit Court of the United States for the District of Maine. It was a real action, in which the plaintiff demanded a certain parcel of land situated in Pittston, in the county of Kennebec and state of Maine, and claimed title under the will of one Florentius Vassal, made in England in 1777. Most of the points of division certified arose upon the construction of this will, and the remainder were upon the right of the plaintiff to maintain the action, and the rule of estimation as to improvements; covering in fact the whole case. The cause was argued by Mr. Dexter and Mr. E. H. Daveis, for the plaintiff, and Mr. Allen, for the defendant; but as no decision was had upon the merits, the arguments of counsel are omitted. Mr. Chief Justice TANEY delivered the opinion of the court. This case has been argued at the bar upon points certified as upon a division of opinion in the Circuit Court. But it appears by the record that the whole case has been divided 2 Followed. Dennistoun v. Stew- Rocca, 18 How., 576. art, 18 How., 569. Relied on in dis- 2 See note to Nesmith v. Sheldon» senting opinion, Steamer Oregon n. 57 54 SUPREME COURT. Webster v. Cooper. into points and sent up to this court,—and several of the latter points could not have arisen on the trial until the previous ones were first decided. We understand it was a pro forma division, certified at the request of the counsel for the respective parties. *This court has frequently said that this practice is J irregular, and would, if sanctioned, convert this court into one of original jurisdiction, in questions of law, instead of being, as the Constitution intended it to be, an appellate court to revise the decisions of inferior tribunals. Indeed, it would impose upon it the duty of deciding in the first instance, not only the questions of law which properly belonged to the case, but also questions merely hypothetical and speculative, and which might or might not arise, as previous questions were ruled the one way or the other. The irregularity and evil tendency of this practice has upon several occasions attracted the attention of the court, although it has been occasionally acquiesced in, and the points so certified acted upon and decided. But at December term, 1847, the subject was very ’fully considered, and it was then determined that this practice ought not to be sanctioned, and that this court would in all cases refuse to take jurisdiction, when it was obvious that the whole case had been certified pro forma, in order to take the opinion of this court, without any actual division of opinion in the Circuit Court. The result of this determination will be found in the case of Nesmith and others v. Sheldon and others, 6 How., 41. The case before us cannot be distinguished from the one referred to. It is true that it was certified before that decision was pronounced. But the opinion in that case conformed to all the opinions previously expressed by this court upon the irregularity of this practice. This case, therefore, must be remanded to the Circuit Court, to be proceeded in according to law. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maine, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. And it appearing to this court, upon an inspection of the said transcript, that no point in the case within the meaning of the act of Congress has been certified to this court, it is thereupon now here ordered and 58 DECEMBER TERM, 1850. 55 Shelby v. Bacon et al. adjudged by this court, that this cause be, and the same is hereby, dismissed, and that this cause be, and the same is hereby, remanded to the said Circuit Court, to be proceeded in according to law. *Isaac Shelby, Complainant, v. John Bacon, Alexander Symington, Thomas Robins, James L Robertson, Richard H. Bayard, James S. Newbold, Herman Cope, Thomas S. Taylor, and George Beach. By a statute of Pennsylvania, passed in 1836, “ assignees for the benefit of creditors and other trustees” were directed to record the assignment, file an inventory of the property conveyed, which should be sworn to, have it appraised, and give bond for the faithful performance of the trust, all of which proceedings were to be had in one of the state courts. That court was vested with the power of citing the assignees before it, at the instance of a creditor who alleged that the trust was not faithfully executed. The assignees of the Bank of the United States chartered by Pennsylvania, recorded the assignment as directed, and filed accounts of their receipts and disbursements in the prescribed court, which were sanctioned by that court. A citizen of the state of Kentucky afterwards filed a bill in the Circuit Court of the United States for the Eastern District of Pennsylvania, against these assignees, who pleaded to the jurisdiction of the court.1 The principle is well settled, that where two or more tribunals have a concurrent jurisdiction over the same subject-matter and the parties, a suit commenced in any one of them may be pleaded in abatement to an action for the same cause in any other.2 1 Reviewed. Andrews v. Smith, 19 Blatchf., 109. 2 Criticised. Loring v. Marsh, 2 Cliff., 323. Followed. Riggs v. Johnson County, 6 Wall., 205. Cited. Union Mut. Life Ins. Co. v. Chicago University, 10 Biss., 197 n; Chapman v. Borer, 1 McCrary, 50. The pendency of another suit for the same cause of action in the same state is pleadable in abatement. Pi-quignot v. Pennsylvania R. R. Co., 16 How., 104; Earl v. Raymond, 4 McLean, 233; Bond v. White, 24 Kan., 45; and so is a suit pending in the courts of another state. Ex parte Balch, 3 McLean, 221; Hacker v. Stevens, 4 Id., 535; Contra, Hadden v. St Louis, &c. R. R. Co., 57 How. (N. Y.), Pr., 390; but not if the other action was commenced since the last continuance. Renner v. Maishall, 1 Wheat., 215; nor if the suit in which the plea is interposed be a suit in personam in a Circuit Court. White v. Whitman, 1 Curt., 494; Whitaker v. Bramson, 2 Paine, 209; and a suit pending in a foreign country is not so pleadable. Lyman v. Brown, 2 Curt., 559. Where a suit is pending in a foreign jurisdiction, between the same parties and upon the same cause of action as one instituted in our own courts, either of two courses maybe taken by the latter, viz., (1) the continuing of the foreign action may be enjoined, or (2) proceedings in the home action may be stayed. In the leading English case of The Carron Iron Co. v. Maclaren, 5 H. L. Cas., 416, Lord Cranworth, Ch., said: “There is no doubt as to the power of the Court of Chancery to restrain persons within its jurisdiction from instituting or prosecuting suits in foreign courts, whenever the circumstances of the case make such an interposition necessary or expedient. The court acts in personam, and will not suffer any one 59 56 SUPREME COURT. Shelby v. Bacon et al. within its reach to do what is contrary to its notions of equity, merely because the act to be done may be, in point of locality, beyond its jurisdiction.” And having examined the early authorities he stated their result to be that, “ if the circumstances are such as would make it the duty of the court to restrain a party from instituting proceedings in this country, they will also warrant it in restraining proceedings in a foreign court.” In McHenry v. Lewis, 31 W. R., 305 ; 22 Ch. D., 397, the jurisdiction to make an order staying proceedings in the home action, was emphatically asserted, although in the particular circumstances the motion was refused. Admiralty, from the extent of its jurisdiction, and the nature of the claims which come before it, is peculiarly concerned with questions of Us alibi pendens ; and has repeatedly exercised this discretionary jurisdiction. Thus, in The Mali Ivo, L. R. 2 A. & E.. 356, it was laid down that if the evidence established that there was a lis alibi pendens before a tribunal which could afford the plaintiff a complete remedy, whether the proceedings were technically in rem or in personam, it would be the duty of the court either to suspend proceedings, or to put the parties to their election as to which action they would continue (see also The Cattarina Chiazzare, L. R. IP. D., 368, and The Peshawur, 31 W. R., 660; L. R. 8 P. D., 32.) But the decisions in the other courts, prior to McHenry v. Lewis, seem to have proceeded upon an opposite principle; for in Cox v. Mitchell, 8 W. R., 45; 7 Com. B. n. S., 55, where it was admitted that no authority could be produced in favor of the application, it was held that “ the court will not stay proceedings in an action here because an action for the same cause is pending in a foreign country;” and Erle, C. J., said, “Though there maybe hardship that property may be doubly perilled, possible hardship is not a sufficient ground for our interference. If there were judgment in one country, I should expect that the court in the other country would stay the proceedings.” In Ostell v. Le Page, 2 De Gr. M. & G., 892, although a decree for an account in a partnership suit had been actually made by the Supreme Court in Calcutta, the English court refused to stay proceedings in a suit for the same purpose, the de- 60 fendant having, since the institution of the Indian suit, come to reside permanently in this country. “ If,” said Lord Cranworth, “ there has been in a foreign court of competent jurisdiction a final adjudication upon the same matter between the same parties, and that matter, so adjudicated upon, is attempted to be renewed here between the same parties, it would be a good plea in bar to plead that final adjudication.” This seems to imply that, in his lordship’s opinion, pending litigation in a foreign court is no ground for staying an English suit; but his language is confined to the technical defence of a plea, and the decision arrived at rested on the fact that the entire subject of the English suit was not covered by the decree in India. Again, in Wilson v. Ferrand, L. R., 13 Eq., 362, which involved the construction of a French contract according to French law, Malins, V. C., in refusing an application to stay proceedings on the ground of pending litigation in France, characterized the motion as “on principle totally unjustifiable and unsustainable.” In McHenry v. Leivis," above cited, the Master of the Rolls said: “ Where the two actions are by the same man in courts governed by the same procedure, and where the judgments are followed by the same remedies, it is prima facie vexatious to bring two actions where one will do. But where a right is being enforced in a foreign country, it certainly appears that we cannot draw the same inference. Not only is the procedure different, but the remedy is different.” Therefore in such cases a special case must be made out to justify the interference of the court. In another very recent case—Peruvian Guano Company n. Bockwoldt, 31 W. R., 851; 23 Ch. D., 225, the court declined to put a plaintiff to his election whether he would proceed with an English or a French action, the fact that the former was in respect of seven cargoes, while the latter was for six of them only, being held sufficient to prevent a stay of proceedings. To avail in abatement of a second suit, the first suit must have been pending when the second was commenced, and must have been pending in this state. Hadden v. St. Louis &c. R. R. Co., 57 How. (N. Y.), Pr., 390. The first suit must be pending id DECEMBER TERM, 1850. 56 Shelby v. Bacon et al. But the proceedings in the state court cannot be considered as a suit. The statute was not complied with, and even if it had been, the Circuit Court would still have had jurisdiction over the matter.3 This cause came up on a certificate of division of opinion between the judges of the Circuit Court of the United States for the Eastern District of Pennsylvania. The complainant was a citizen of Kentucky, and the defendants were all citizens of Pennsylvania. The latter (under three assignments bearing date the 7th of June and the 4th and 6th of September, 1841) were trustees of the Bank of the United States, a banking institution incorporated by the legislature of the state of Pennsylvania, by an act passed on the 18th day of February, 1836. It appeared that the bank, being unable to meet its liabilities, made an assignment of a part of its property on the 1st of May, 1841, to certain trustees, to secure the payment of sundry post-notes, held by certain banks of the city and county of Philadelphia. Afterwards, on the 7th of June, 1841, it made another assignment of a portion of its property to the defendants Bacon, Symington, and Robins, in trust to the time of plea pleaded, to effect an abatement of the second suit; if dismissed before plea pleaded, it will prevent the abatement. Leavitt v. Jfowe, 54 Md., 613. The pendency of another action in the courts of another state is not a ground of abatement. Grider v. Ap-person, 32 Ark., 332. S. P. Cole v. Flitcraft, 47 Md., 312. Where a suit in equity and a suit at law are pending between the same parties for the same matter, one cannot be pleaded in abatement or in bar of the other ; but the court of equity will sometimes order a stay of proceedings in one until the other is determined. Graham v. Meyer, 4 Black 129. S. P. United States Ins. Co. v. Brune, 6 Otto, 588. The objection of lis pendens can be sustained only, where the two suits are of the same character, and where the plaintiff in both suits is the same. Certain Logs of Mahogany, 2 Sumn., 589. Where the action is for the recovery of land, and the plaintiff in the one suit is the defendant in the other and vice versa, the plea is not good. The two actions must be by the same plaintiff against the same defendant. Wadleigh v. Veazie, 3 Sumn., 165; S. P. Blackburn v. Watson, 85 Pa. St., 241; Cook v. Burnley, 11 Wall., 659. 3 The pendency of a prior suit in a state court is not a bar to a suit in a Circuit Court of the United States or in the Supreme Court of the District of Columbia, by the same plaintiff against the same defendant for the same cause of action. Stanton n. Embrey, 3 Otto, 548. A suit pending in a United States court in another state does not defeat the prosecution of a suit brought in the courts of North Carolina, although between same parties and for same cause of action. Sloan n. McDowell, 75 N. C., 29. A plea in abatement of a cause in the Federal court, that another suit is pending in a state court, is not good, where the parties to the two suits are not the same. Brooks v. Mills County, 4 Dill., 524. Pendency of a general creditor’s bill in a state court does not preclude a creditor who is not a party thereto from bringing an action in a United States Circuit. Court, to recover judgment upon his demands. Parsons v. Greenville &c. The defendants aver, “ that having in part executed the trust so as above committed to them, they did, on the 7th of January, 1843, file in the office of the prothonotary of the Court of Common Pleas aforesaid an account, duly verified, of their receipts and disbursements,’.’ &c. And several other and similar returns are averred to have been made. By the seventh section of the act, the court are authorized, on the application of any person interested, to issue a citation to any assignee or trustee for the benefit of creditors, whether appointed by a voluntary assignment or in pursuance of the laws relating to insolvent debtors, &c., requiring him “ to appear and exhibit, under oath or affirmation, the accounts of the trust in the said court,” &c. The ninth section authorizes the court to give notice, by publication, when the accounts will be acted on, that objections to them may be made. And by the eleventh section, where a trustee has neglected or refused, when required by law; to file a true and complete inventory, or to give bond with surety, when so required by law, or to file the accounts of his trust, “ it shall be lawful for the court ” (of Common Pleas) “ to issue a citation, &c., to show cause why he should not be dismissed.” Now it does not appear from the plea that the assignees ever filed the inventory of the assets in their hands with the prothonotary of the court, as required by the first section, 74 DECEMBER TERM, 1850. 69 Shelby v. Bacon et al. and it would seem that not only the inventory must be filed, where the assignment is voluntary, to give jurisdiction to the court, but also that it must be sworn to, an appraisement of the trust property made and returned, and bond given by the assignees. This is a proceeding under a statute, and to bring the case within the statute, every material requirement of the act must be complied with. And if the above requisites have not been observed, it is not perceived how the court could take jurisdiction of the case. In the plea it is stated that accounts have been filed by the assignees at different times, and moneys distributed among the creditors. But how can this give jurisdiction? The court has no evidence of the extent and value of the trust, and no bond of the assignees faithfully to account. If these important steps have been taken, they should have been stated in the plea; as it must show, to be effectual, that the court had jurisdiction of the whole matter. The plea is defective in not setting out the above requirements. But if the plea had been perfect in this respect, it would not follow that the complainant could not invoke the jurisdiction of the Circuit Court. He being a non-resident has his option *to bring his suit in that court, unless he has r«7n submitted, or is made a party, in some form, to the *-special jurisdiction of the Court of Common Pleas. It appears from the bill, that the assignees have refused to allow the claim of the plaintiff, or any part of it. To establish this claim as against the assignees, the complainant has a right to sue in the Circuit Court, which was established chiefly for the benefit of non-residents. Not that the claim should thus be established by any novel principle of law or equity, but that his rights might be investigated free from any supposed local prejudice or unconstitutional legislation. On the most liberal construction favorable to the exercise of the special jurisdiction, the rights of the plaintiff, in this respect, could not, against his consent, be drawn into it. It is difficult to define the character of this procedure under the Pennsylvania law. There being no court of chancery in that state, statutory provision was made for the execution of trusts. The statutes adopt some of the principles of chancery, but do not invest the court with the powers of a court of equity which are necessarily exercised in administering trusts. It is not strictly a proceeding in rem. The proceeding is intended to adjust the rights of debtors and creditors of the bank, beyond the jurisdiction of the state of Pennsylvania. Citizens residing, perhaps, in a majority of the states of the Union, are debtors or creditors of the bank. It is difficult to 75 70 SUPREME COURT. Shelby v. Bacon et al. perceive by what mode of procedure the state of Pennsylvania can obtain and exercise an exclusive jurisdiction over the rights of persons thus situated. From the plea, it does not appear that any notices have been given, or citations issued, as authorized by the statute. Nothing more seems to have been done by the assignees than to file their accounts, have them referred to auditors, and finally sanctioned by the court. Whether this procedure is evidence of a faithful discharge of the trust so far as the accounts have been so adjusted, it is not necessary to inquire. We suppose that it could not be contended, that fraud or collusion might not be shown to avoid the proceeding before any tribunal having jurisdiction. No suit seems to be pending in the Common Pleas. The action of the assignees appears to be voluntary, for their own justification, and not in obedience to the order of the court. By the statute, any person interested may, on application to the court, obtain a citation to the assignees to appear and answer. But this is nothing more than the ordinary exercise of a chancery power to compel them to account. And it is only an exercise of jurisdiction over them from the time the bill is filed and a notice served, or the application for a cita-*Y1 -| tion is made *on due notice. If no such proceeding is -I had, the assignees, it would appear, file their accounts or omit to do so at their pleasure. This is not in the nature of a bankrupt or insolvent procedure. Neither the person nor the property of the assignor is entitled to exemption, under the statute, from the claims of creditors. But in such a proceeding, notice to the creditors and a schedule of debts, as well as assets, are required by law. Under the laws of Pennsylvania a debtor may assign his property for the benefit of his creditors, giving a preference to some of them over others. This may be done by the common law. The assignment made by the late Bank of the United States specifies different classes of creditors, but none are excluded from the benefits of the assignment. The assignees admit, in their plea, that they have vested a large amount of assets to await the determination of certain suits still pending. Suppose they had reduced to possession the whole amount of the assets of the bank, and held them ready for distribution ; could it be doubted that the complainant would have a right to file his bill in the Circuit Court, not only to establish his claim against them, but also for a proportionate share of the assets ? The Circuit Court could not enjoin the Court of Common Pleas, nor revise its proceedings, as on a writ of error; but it could act on the assignees, and enforce the rights of the plaintiff against them. The debts DECEMBER TERM, 1 850. 71 McNulty v. Batty et al. due by the bank being ascertained, and the amount of its assets, after the payment of all costs, the equitable distribution would not be difficult. Not doubting that the complainant may file his bill in the Circuit Court for the purposes stated, against the defendants, we deem it unnecessary at this time to consider questions which may arise in the exercise of the jurisdiction. The questions certified by the Circuit Court are both answered in the negative. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, 1st. That the facts stated in the amended plea to the amended bill filed by John Bacon, Alexander Symington, and Thomas Robins, do not deprive *the said Circuit Court of jurisdiction of this ¡-*79 case; 2d. That the facts stated in the plea to the •-amended bill filed by the defendants James Robertson, Richard H. Bayard, James S. Newbold, Herman Cope, and Thomas S. Taylor, do not deprive the said Circuit Court of jurisdiction of this case;—and that this opinion renders it unnecessary for this court to answer the remainder of the questions certified. Whereupon it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court. John McNulty, Plaintiff in error, v. John Batty, Robert Shaw, Daniel Wann, and Thomas C. Legate. Where a case had been brought up to this court from the Supreme Court of the territory of Wisconsin, and was pending in this court at the time when Wisconsin was admitted as a state, the jurisdiction of this court over it ceased when such admission took place. Provision was made in the act of Congress for the transfer, from the territorial courts to the District Court of the United States, of all cases appropriate to the jurisdiction of the new District Court; but none for cases appropriate to the jurisdiction of state tribunals. By the admission of Wisconsin as a state, the territorial government ceased to exist, and all the authority under it, including the laws organizing its courts of justice and providing for a revision of their judgments in this court. 77 72 SUPREME COURT. McNulty v. Batty et al. The act of Congress passed in February, 1848, supplementary to that of February, 1847, applies only to cases which were pending in the territorial courts, and does not include such as were pending in this court at the time of the admission of Wisconsin as a state. Even if Congress had directed the transfer, to the District Court of the United States, of "cases appropriate to the jurisdiction of state courts, this court could not have carried its judgment into effect by a mandate to the District Court. The facts in this case are stated in the opinion of the court. It was submitted on printed arguments by J/r. May, for the plaintiff in error, and Mr. Carlisle, for the defendants in error. Mr. May's argument was as follows: This case comes here by writ of error to the Supreme Court of Wisconsin Territory. In the District Court of Iowa County, on the 3d of November, 1845, the plaintiff in error sued out his writ of attachment, in an action of debt against the defendants in error, founded on his affidavit (according to the law and practice of that territory). The sheriff seized certain goods and chattels of one of the defendants, to wit, Legate, which, on motion, were ordered by the court to be sold. The defendants, at the next term of said court, on the 4th of *March, 1846, appeared by their counsel, and moved $-1 for a rule on plaintiff to file his declaration within three days, which was denied. At the next term of the court, the plaintiff, by leave of the court, filed his declaration, containing three counts. The first upon a judgment against the defendants, recovered in the state of Illinois. The second on a bill of exchange, drawn by one of the defendants and accepted by the others. The third upon an account for goods, wares, and merchandise. The defendants moved the court to strike out all the said counts except the first, on account of a variance, because the action was founded on the affidavit, which stated the judgment alone as the cause of action, which motion was granted ; whereupon the defendants pleaded, and after several pleas, replications, and demurrers, issue was joined by agreement of the parties, and the cause tried by the court. The plaintiff read a record of a judgment of the Circuit Court of Illinois. The defendants then offered to read the record of the same case in the Supreme Court of Illinois (which showed a reversal of the judgment of the Circuit Court). The plaintiff objected to the offering of this record, because it was not 78 DECEMBER TERM, 1850. 73 McNulty v. Batty et al. properly authenticated, but the court overruled his objection, and he excepted. Judgment was rendered for the defendants, by the District Judge. • , Plaintiff moved for a new trial, and filed his reasons, which was denied. The case was carried by writ of error to the Supreme Court of Wisconsin territory, where the judgment of the District Court was affirmed. The plaintiff in error will contend here, that the judgment of the said Supreme Court ought to be reversed, because,— First, the District Court erred in striking out the counts of the declaration as aforesaid, after défendants had appeared to the action. Statutes of Wisconsin concerning Attachments, § 7. Rowen v. Taylor., Wisconsin Reports, July term, 1842. He ought to have pleaded in abatement. McKenna v. Fisk, 1 How., 241 ; 11 Wheat., 280. Second, the record of the said Supreme Court of Illinois was not duly authenticated, so as to be used as evidence in said suit, and ought not to have been received. The certificate of Samuel H. Treat does not certify that the attestation of the clerk “ is in due form,” and styles him clerk of “ the State of Illinois.” It appears also, on the face of the certificate, that the judge *was ‘‘an associate justice,” while the same record discloses that there was a “ chief justice ” of said court. * 1 Stat, at L., 122 (Act of May 26, 1790). 2 Stat, at L., 298. Mr. Carlisle's argument was as follows. The defendants in error were also defendants below. The action was commenced by attachment, in the District Court of Iowa County, Territory of Wisconsin. The affidavit of the plaintiff, dated 3d November, 1845, sets forth a debt “ arising out of, and based and founded upon, a judgment at law,” obtained three days before (31st October, 1845), in a county court of the state of Illinois. Pending the attachment, and before the plaintiff had declared, to wit, at the December term, 1845, of the Supreme Court of Illinois, the judgment upon which the attachment was founded was reversed. And this reversal having been pleaded and given in evidence on the trial of the attachment, in Wisconsin, the judgment was for the defendants. The plaintiff carried the case, by writ of error, to the Supreme Court of the Territory of Wisconsin, where the judgment below was affirmed ; and thence the case is brought to this court by writ of error. 79 74- SUPREME COURT. McNulty v. Batty et al. The defendants in error will contend that there is no error in either of the points assigned. 1. As to the order to strike out the second and third counts in the plaintiff’s declaration, it was addressed to the discretion of the court, and is not subject to be assigned for error. 1 Tidd, 559. It was not excepted to in the court below. But if the order can be reviewed here, it was well founded. The proceeding by attachment is regulated by the act of 1838-39. (Stat, of Wisconsin, p. 165, § 7.) The affidavit must specify the cause of action, which must be “ arising out of, founded upon, or sounding in contract, or upon the judgment or decree of some court of law or chancery.” Accordingly, the affidavit set forth the cause of action as “ arising out of, and based and founded upon, a judgment at law,” specifying the same. The attachment recites the same, specially and alone. The first count in the declaration is upon this judgment. But the judgment having been reversed in January, 1846, and the plaintiff in the attachment not declaring till October following, two other counts are added to that upon the judgment; viz, a count upon an instrument described as a bill of exchange, being the same which was merged in and extinguished by the judgment set forth in the first count, and a count for goods sold and delivered, which were the consideration for that “ bill of exchange.” *The second and third counts were therefore merely J frivolous and vexatious, and intended to evade the effect of the reversal of the judgment. And the court properly ordered them to be stricken out. The second and third counts, if material, could only be so because they were variant from the first count, and consequently variant from the affidavit and the attachment. 2. As to the special demurrer to the defendant’s second plea, the plea itself was immaterial. The first plea was nul tiel record, and put in issue the existence of the record set forth in the first count; and at the time of that plea pleaded there “ was no such record remaining in full force and effect,” &c., but the same had been reversed and annulled before the plaintiff filed his declaration. The record of such reversal was admissible in evidence upon the issue joined on that plea. From the time of the reversal “ it is no such record ab initio,” Green v. Watts, 1 Ld. Raym., 274; Knight's case, 1 Salk., 329 ; S. C., 2 Ld. Raym., 1014. It would appear that the demurrer should have been sustained. But the effect would have been simply an amendment. The plaintiff has not been prejudiced. He could not 80 DECEMBER TERM, 1 850. 75 McNulty v. Batty et al. have recovered. Under such circumstances judgment will not be reversed. But the plaintiff obtained leave to withdraw his demurrer, and put in a replication. He thereby waived his demurrer, and it cannot be revived here. Craig v. Blow, 3 Stew. (Ala.), 448; Peck v. Boggis, 1 Scam. (Uh), 281; United States v. Boyd, 5 How., 29. 3. As to the objection to the admissibility of the record of the Supreme Court of Illinois, it was not specified at the trial. The precise objection was not disclosed till- errors were assigned on the writ of error. This court will not now entertain it. Cambden v. Doremus, 3 How., 515. But the objection itself was not well founded. Although the record was not authenticated according to the act of Congress, so as to have effect independently of the local law, yet it was authenticated in such manner and form as to be admissible in evidence in the courts of Wisconsin by virtue of the act of the legislature of that territory. Statutes of Wisconsin, p. 246; Act concerning Testimony, &c., § 51. If the points assigned as error shall not have been sufficiently answered above, to the satisfaction of the court, the counsel for the defendants in error further suggests to the court the following objection to the jurisdiction. Two acts of Congress were passed for the admission of Wisconsin into the Union, viz., Act 3d March, 1847 (9 Stat, at L., 178) ; and Act 29th May, 1848 (Id., 233). *The r*76 first act prescribed a condition, upon compliance with L »° which, and upon the annunciation of such compliance by the President’s proclamation, the admission was to take effect. It does not appear that this condition was complied with; and it is supposed that the admission took effect exclusively under the second act, and that its date is the 29 th of Mav, 1848. . The acts of Congress regulating the appellate jurisdiction of this court, and supposed to confer jurisdiction in this case, are 1847, ch. 17, and 1848, ch. 12 (9 Stat, at L., 128 and 211). It is the second section of the act of 1848, ch. 12, which contains the general provision as to states thereafter to be admitted into the Union. It makes the provisions of the act of 1847, ch. 17, applicable, “ so far as may be,” to cases which may be pending in the Supreme Court of any territory at the time of its admission, and to cases in which judgments shall have been rendered in such Supreme Court at the time of admission, and not previously removed by writ of error or appeal. The date of the admission is 29th May, 1848. The date of Vol. x.—6 81 76 SUPREME COURT. McNulty v. Batty et al. the judgment in the Supreme Court of the territory is . 31st July, 1847. The citation upon this writ of error was served 4th December, 1847. The record was filed here 29th February, 1848. This case, therefore, was not “ pending in the Supreme Court of the territory ” at the time of admission, nor was it a case in which judgment had been rendered there, “ and not previously removed by writ of error.” But if it were in either of these categories, the provisions of the act of 1847 do not apply, and cannot “ be made applicable.” That act gave jurisdiction only in cases where the proceedings below were transferred to the Federal court, to which this court was authorized to send its mandate ; and not in cases “ legally transferred to the state courts.” The appellate jurisdiction of this court was not intended to be reserved except in cases of “ Federal character and jurisdiction.” Act 22d February, 1848, § 3. The sixth section of the act for the admission of Wisconsin provides only for the transfer to the Federal court of the records of judgments, &c., “ in cases arising under the Constitution and laws of the United States,” which is equivalent language to “ cases of Federal character and jurisdiction.” The judgment below is “legally transferred to the state court.” It is now a judgment in the Supreme Court of the state of Wisconsin. The record shows that it is not a case of Federal character and jurisdiction. But in such a case only can the mandate of this court go to the state court. (Martin v. Hunter, 1 Wheat.) And in such cases only do the acts in question provide for the operation of the mandate by transferring the records *below from the territorial to the *77] District Courts. Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the Supreme Court of the late Territory of Wisconsin. The suit was commenced by a writ of attachment in the first judicial district of that territory, on the 3d of November, 1845, founded upon a judgment for 82747.49 previously obtained against the defendants in a Circuit Court in the state of Illinois. A large amount of property was attached belonging to one of the defendants. All the defendants appeared by attorney, and put in two special pleas to the declaration, upon which issues were joined; and such proceedings were afterwards bad thereon, that at the October term, 1841, judgment was rendered in the said suit for the defendants. The cause was then removed to the Supreme Court of the territory on error; and at the July term of that court, to wit, on the 31st of July, 1847, the judg-82 DECEMBER TERM, 1 850. McNulty v. Batty et al. ment below was in all things affirmed. This judgment has been appealed from to this court, and is now before us for review. The citation is signed the 20th of November, 1847. The case has been submitted by counsel on written arguments under the fortieth and fifty-sixth rules of the court. The first question presented is, whether or not this court has jurisdiction to review the judgment below. The Territory of Wisconsin was admitted into the Union as a state, on the 29th of May, 1848. (9 Stat, at L., 233.) An act had been previously passed, on the 2d of March, 1847, assenting to the admission on certain terms and conditions to be first complied with ; and providing that upon a compliance with them, and on the proclamation of the President announcing the fact, the admission should be considered complete. The admission did not take place under this act, and no proclamation was issued by the President in pursuance of it. The people of the territory again assembled, by a convention of delegates, and formed their constitution, on the 1st of February, 1848, as is recited in the preamble of the act of Congress, passed 29th May, 1848, by the first section of which the state is declared to be admitted into the Union on an equal footing with the original states. The date of the admission, therefore, is the 29th of May, 1848. The writ of error having been issued on the 20th of November, 1847, was, therefore, regularly issued during the existence of the territorial government, and the case was pènding in this court at the time when that government ceased, and with it *the jurisdiction and power of the territorial courts. [-*70 (Benner v. Porter, 9 How., 235.) L The fourth section of the act of Congress admitting the state into the Union organized a District Court of the United States for the state (see also § 4 of the Act of 6th August, 1846, 9 Stat, at L., 57), and the 5th section provided, that the clerks of the District Courts of the territory should transmit to the clerk of the above District Court “ all records of all unsatisfied judgments, and suits pending in said courts, respectively, attaching thereto all papers connected therewith, in all cases arising under the laws or Constitution of the United States, or to which the United States shall be a party ; *’ and the said District Court shall enter the same on its docket, and shall proceed therein to final judgment and execution, as if such suits or proceedings had originally been brought in said court. The sixth section provides for the delivery by the clerk of the Supreme Court of the territory to the clerk of the Dis-83 78 SUPREME COURT. McNulty v. Batty et al. trict Court, of all records and papers relating to proceedings in bankruptcy under the late bankrupt act; and also all records of judgments, and of proceedings in suits pending, and all papers connected therewith, in cases arising under the Constitution and laws of the United States. These sections provide for the Federal cases pending in the courts at the termination of the territorial government, and for unsatisfied judgments of that character, by transferring them to the Federal court, there to be proceeded in and completed, or executed. But no provision is made for the class of cases pending, and unfinished, that belong to the state judicature after the admission of the territory into the Union. That class seems to have been left to be provided for by the state authorities. We had occasion to express our views on this subject in the recent case of Benner v. Porter, and need not repeat them. The case before us is one of this character; and is, therefore, unaffected by the transfer of cases to the District Court above provided for. And the question is, whether, under these circumstances, this court has jurisdiction to review it. By the admission of the state of Wisconsin into the Union, on the 29th of May, 1848, the Territorial government ceased to exist, and all the authority under it, including the laws organizing its courts of justice, and providing for a revision of their judgments in this court by appeals or writs of error. This appellate power does not depend upon the Judiciary Act of 1789, but upon laws regulating the judicial proceedings of *7Q1 *the Territory. And these necessarily ceased with the J termination of the territorial government. In the case of the United States v. Boisdore's Heirs (8 How., 121), it is said, that, as this court can exercise no appellate power over cases, unless conferred upon it by act of Congress, if the act conferring the jurisdiction has expired, the jurisdiction ceases, although the appeal or writ of error be actually pending in the court at the time of the expiration of the act. The cases on this point are referred to in the brief in that case, and afford full authority for the principle, if any were needed. (1 Hill (N. ¥.), 328; 9 Barn. & C., 750; 3 Burr., 1456; 4 Moo. & P., 341.) The writ of error, therefore, fell with the abrogation of the statute upon which it was founded. Besides, since the termination of the territorial government, there is no .court in existence to which the mandate of this court could be sent to carry into effect our judgment. Our power, therefore, would be incomplete and ineffectual, were we to consent to a review of the case. (Palao v. Hunt, 84 DECEMBER TERM, 1850. 79 McNulty v. Batty et al. 4 How., 589.) And, had the records been transferred to the District Court, as in the Federal cases, we do not see but that the result must have been the same; for the case being one not of Federal jurisdiction, should the judgment be affirmed or reversed, and sent down to that court, it would possess no power to carry the mandate into execution, having no power over the case under the Constitution or laws of Congress conferring jurisdiction upon the Federal courts. (Art. 3, § 2, Const. U. S.; Judiciary Act of 1789, § 11.) There is another act of Congress bearing upon this question which it is material to notice; and that is, an act supplementary to the act entitled “ An Act to regulate the exercise of the appellate jurisdiction of the Supreme Court in certain cases, and for other purposes,” passed the 22d of February, 1848, ch. 12 (9 Stat, at L., 211). The second section provides, “ that all and singular the provisions of the said act to which this is a supplement, so far as may be, shall be, and they hereby are, made applicable to all cases which may be pending in the Supreme or other Superior Court of and for any territory of the United States, which may hereafter be admitted as a state into the Union, at the time of its admission; and to all cases in which judgments or decrees shall have been rendered in such Supreme or Superior Court at the time of such admission, and not previously removed by writ of error or appeal.” The act to which the above is a supplement was passed *22d February, 1847, ch. 17, (9 Stat, at L., 128,) and r*gq its several provisions related to cases pending, and *-unsatisfied judgments existing in the courts of the territory of Florida at the time of its admission into the Union as a state, and which were the subject of examination in the case of Benner v. Porter, already referred to. As the territory 6f Wisconsin has been admitted into the Union as a state since the passage of this supplementary act,, the second section applies the provisions of the Florida act to the cases pending in its courts, and to the judgments existing therein at the time of its admission. But it will not be material to refer particularly to those provisions, as this second section does not bring the case before us within them. It applies them to all cases pending in the several courts of the territory; and to all cases in which judgments or decrees shall have been rendered at the time of the admission, and not previously removed by writ of error or appeal to this court. In this case the judgment had been rendered and removed before the admission, and was 85 80 SUPREME COURT. McNulty v. Batty et al. pending here at the time ; and is, therefore, unaffected by this supplementary act. The section was drawn, doubtless, under the supposition that, if the suit was pending here, at the time of the admission of a territory into the Union as a state, on appeal or writ of error, no legislation was necessary to preserve or give effect to the jurisdiction of the court over it; an opinion, as we have seen, founded in error. In placing the want of jurisdiction, however, upon this ground, we must not be understood as admitting, that, if the provisions of the Florida act of the 22d of February, 1847, applied to the case, the jurisdiction could be upheld. For, if we are right in the conclusion, that, even assuming the record in the case had been transferred from the territorial to the District Court of the state, our jurisdiction would still be incomplete and ineffectual, inasmuch as that court possessed no power to carry the mandate into execution, the case not being one of Federal jurisdiction, the result would be the same as that at which we have arrived. In every view, therefore, we have been able to take of the case, we are satisfied, that our jurisdiction over it ceased with the termination of the territorial government and laws; and that it has not been revived or preserved, if, indeed, it could have been, by any act or authority of Congress on the subject, and that the writ of error must be abated. Order. This cause came on to be heard on the transcript of the record *from the Supreme Court of the territory of -I Wisconsin, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court, that this writ of error be, and the same is hereby, abated. Mr. Walker, of counsel for the defendants in error, moved the court to direct the clerk to what court the mandate, or other process prescribed by the forty-third rule of court, should be addressed. On consideration whereof, it is now here ordered by the court, that the clerk do not issue any mandate or other process in this case, but only a certified copy of the judgment this day rendered in this cause. 86 DECEMBER TERM, 1850. 81 Preston et al. v. Bracken. Sylvester B. Preston, William Kendall, William Nichols, and William T. Phillips, Plaintiffs in error, v. Charles Bracken. This case was decided on the same ground as the preceding case of McNulty v. Batty and others. This was a writ of error to the Supreme Court of the late Territory of Wisconsin. An action of ejectment was commenced at the April term, 1845, of the Iowa County Court, by the defendant in error, against the plaintiffs in error, to recover a lot of land situate in 'that county. The venue was afterwards changed to the county of Milwaukie. Issue having been joined, and a jury impanelled and sworn, a verdict was found for the plaintiff, upon which a judgment was entered. On the 19th of July, 1847, the case was carried by writ of error to the Supreme Court of Wisconsin Territory, and on the 2d day of August, the judgment of the County Court was affirmed by a divided court. Whereupon a writ of error to the Supreme Court of the Territory of Wisconsin was sued out of this court, and the citation served on the 24th of November, 1847. Wisconsin was admitted into the Union as a state by the act of Congress approved 29th May, 1848. The cause was submitted on printed arguments by Mr. May, for the plaintiffs in error, and Mr. Walker, for the defendant in error. As the case was determined upon the point of jurisdiction, and as the argument for the plaintiffs in erroi’ was upon the merits, and as the argument for the defendant in error on the question of jurisdiction, assumed substantially the same ground as was taken by the counsel for the defendant in error in the case of McNulty v. Batty, et al., ante, p. 72, the arguments are not here inserted. Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the Supreme Court of the late Territory of Wisconsin. The suit was an action of ejectment brought by the plaintiff *below, the defendant in error, in the second; and re- r*Qo moved to the third judicial district of the territory, to •-recover possession of a small piece of land; and was commenced on the 16th of April, 1845. Issue being joined between the parties, such proceedings 87 82 SUPREME COURT. Strader et al. v. Graham. were had thereon, that judgment was afterwards rendered against the defendants in the June term of said court in the year 1846. The case was afterwards removed to the Supreme Court of the territory, and the judgment of the court below affirmed by a divided opinion at the July term of that court, to wit, on the 2d of August, 1847. The judgment was afterwards removed to this court by a writ of error for review. The citation is signed 22d November, 1847. The case was, therefore, pending here on the 29th of May, 1848, at the time of the admission of the territory into the Union as a state. It is one not of a Federal character, but belonging to the state judicature, and therefore falls within the decision of the case of McNulty v. Batty and others, just made, and the writ of error must be abated. Order. This cause came on to be heard on the transcript of the record from the Supreme Court of the Territory of Wisconsin, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this writ of error be, and the same is hereby, abated. Me. Walker, of counsel for the defendant in error, moved the court to direct the clerk to what court the mandate, or other process prescribed by the forty-third rule of court, should be addressed. On consideration whereof, it is now here ordered by the court, that the clerk do not issue any mandate or other process in this case, but only a certified copy of the judgment this day rendered in this cause. Jacob Strader, James Gorman, and John Armstrong, Plaintiffs in error, v. Christopher Graham. Under the 25th section of the Judiciary Act, this court has no jurisdiction over the following questions, viz., “ Whether slaves who had been permitted by their master to pass occasionally from Kentucky into Ohio acquired thereby a right to freedom after their return to Kentucky ?” The laws of Kentucky alone could decide upon the domestic and social condition of the persons domiciled within its territory, except so far as the powers of the states in this respect are restrained or duties and obligations imposed upon them by the Constitution of the United States.1 1 Followed. Dred Scott v. Sand- Cited. East Hartford v. Hartford ford, 19 How., 452 (but see Id., 462); Bridge Co., 10 How., 539. Van Fossen v. State, 37 Ohio St., 320. DECEMBER TERM, 1 850. 82 Strader et al. v. Graham. There is nothing in the Constitution of the United States that can in any degree control the law of Kentucky upon this subject. The Ordinance of 1787 cannot confer jurisdiction upon this court. It was itself superseded by the adoption of the Constitution of the United States, which placed all the states of the Union upon a perfect equality, which they would not be if the Ordinance continued to be in force after its adoption.2 Such of the provisions of the Ordinance as are yet in force owed their validity to *acts of Congress passed under the present Constitution, during the territorial government of the Northwest Territory, and since to ■ 5 the constitutions and laws of the states formed in it.3 In error to the Court of Appeals for the state of Kentucky. The defendant in error, who was a citizen of Kentucky, filed his bill in the Louisville Chancery Court, against Jacob Strader and James Gorman, who were citizens of Ohio, and owners of the steamboat Pike, which plied between Louisville, Kentucky, and Cincinnati, Ohio, and John Armstrong, who was the captain of said steamboat. The bill alleged that the complainant was the owner of three negro slaves, George, Henry, and Reuben, of the value of about fifteen hundred dollars each, who had left his residence at Harrodsburg, Kentucky, and made their way to Louisville, whence they were taken on board of said' steamboat Pike, and carried to Cincinnati, from which place''they escaped to Canada, and were lost to their owner. Complainant averred that he had a lien on said boat by reason of ?the asportation of said slaves, for the damages he had sustained, and prayed an attachment and sale of said boat, and general relief. An attachment was ordered and served, but the boat was relieved upon bond being given to perform all orders of the court, or to have the boat forthcoming. Two of the defendants in the court below (Strader and Gorman), in their answer, stated that they were not on board the boat at the time of the alleged transportation, had no knowledge of such transportation, and they therefore denied it. They alleged that the boat was under the command of the defendant Armstrong, her captain, and that the negroes in question had been permitted by the complainant to travel out of the Commonwealth as if free ; and in an amended answer, they averred that, long before the alleged transportation, the said negroes had actually become free. The answer of Armstrong was substantially to the same effect. There were various proceedings had in the state courts, the case having been twice carried to the Court of Appeals, when 8 Cited. Huse v. Glover, 15 Fed. Rep., 297. 3 Cited. Escanaba Co. v. Chicago, 17 Otto, 689. 89 83 SUPREME COURT. Strader et al. ». Graham. Graham finally succeeded in obtaining a decree in the Louisville Chancery Court for $3,000 damages, to be paid before a day named, or the boat, her furniture, tackle, &c., to be sold if forthcoming, and if not forthcoming, the court to make the necessary order against the obligors, in said forthcoming bond; which decree was affirmed by the Court of Appeals. To reverse the decree of affirmance, this writ of error was sued out. By the statute of Kentucky approved 7th January, 1824, any master or commander of a steamboat or other vessel, who shall hire or employ, or take as passengers on board of such *«41 *steamboat or other vessel, or suffer it to be done, or -* otherwise take out of the limits of the Commonwealth, any slave or slaves, without permission of the master of such slave or slaves, shall be liable to damages to the party aggrieved by such removal; and the steamboat or other vessel on board of which such offence was committed shall be liable, and may be proceeded against in chancery, and may be condemned and sold to pay such damages and costs of suit. The amended act, approved 12th February, 1828, extends the remedies given by the former act, so as to embrace the owners, mate, clerk, pilot, and engineer, as well as the master, and they are declared to be liable to the action of the party aggrieved, “ either jointly with the masters, or severally, and either at law or in chancery.” It appeared in evidence, that the negroes were the slaves of Graham, and that they were musicians; that, for their improvement in music two of them were placed under the care of one Williams, who was a skilful performer and leader of a band, and were permitted to go with him to Louisville, and other places, and play with him at public entertainments. The following permit was filed as an exhibit, and proved. “ Harrodsburg, August 30iA, 1837. “ This is to give liberty to my boys, Henry and Reuben, to go to Louisville, with Williams, and to play with him till I may wish to call them home. Should Williams find it his interest to take them to Cincinnati, New Albany, or any part of the South, even so far as New Orleans, he is at liberty to do so. I receive no compensation for their services, except that he is to board and clothe them. “ My object is to have them well trained in music. They are young, one 17 and the other 19 years of age. They are both of good disposition and strictly honest, and such is my confidence in them, that I have no fear that they will ever [act] knowingly wrong, or put me to trouble. They are 90 DECEMBER TERM, 1 850. 84 Strader et al. ». Graham. slaves for life, and I paid for them an unusual sum; they have been faithful, hard-working servants, and I have no fear but that they will always be true to their duty, no matter in what situation they may be placed. C. Graham, M. D. P. S. Should they not attend properly to their music, or disobey Williams, he is not only at liberty, but requested, to bring them directly home. C. Graham.” Under this permission, Williams, in the year 1837, made several excursions with his band, including the slaves Reuben and Henry, to Cincinnati, Ohio, and New Albany and Madison, *Indiana, for the purpose of playing at balls or r*oc public entertainments; after which he returned to L Louisville, his place of residence, said slaves returning with him; from which time to the time of their escape in 1841, they had remained within the state of Kentucky. The case was argued by Mr. Jones, for the plaintiffs in error, and Mr. Crittenden, Attorney-General, for the defendants in error. Mr. Jones, for the plaintiffs in error. The owner of the slaves in question placed them under the care of a person to learn music, who carried them out of the state of Kentucky into an adjoining free state to play at balls and parties for hire. As soon, then, as they touched the soil of Indiana or Ohio, with the consent of their master, the quality of freedom attached to their persons, and could never afterwards be dissociated from them; and it made no difference whether they went permanently, or as mere temporary sojourners. There was no distinction, either in reason or in law, to be drawn from the mere duration of commorancy, if the removal to a free state was voluntary on the part of the slave and with the permission of the master. The Ordinance of 1787 declares that neither slavery nor involuntary servitude shall exist in the Northwest territory. The laws of Ohio and Indiana only reiterate the provisions of that Ordinance. The instant, therefore, the slave came within the boundaries of such states, the laws of those states took effect upon his condition, and eo instanti he became clothed with every attribute of freedom. Mr. Jones concluded the opening argument by reading from the brief of Mr. Duncan, filed in the case, as follows:— The Ordinance of 1787 was made after Somerset’s case, and after several of our states had passed laws, whose object was to put an end to slavery within their jurisdictions, by opera- 91 85 SUPREME COUltT. Strader et al. v. Graham. ting on the post nati. It has been claimed to be a solemn compact, as well as an ordinance. Its provisions are as broad and comprehensive as they could be made, inhibiting slavery and involuntary servitude, except for crime, within the Northwest Territory. That the courts of Kentucky are bound to take notice of this Ordinance, and to know judicially that slavery is forbidden in this Northwest Territory, are propositions long since settled by the Appellate Court of Kentucky. See Rankin v. Lydia, 2 A. K. Marsh. (Ky.), 467. When Ohio and Indiana were permitted to make their constitutions, and were admitted into the Union by acts of Congress, the courts of Kentucky were still bound to know, judicially, *that slavery was prohibited there by the -* fundamental law of each of those states. It will not be forgotten, that all this territory and Kentucky were component parts of Virginia when the Ordinance was made. By force of the Ordinance and of the Constitution of the United States, and the acts of Congress for the admission of Ohio and Indiana as states, those states stand as to the subject of slavery like England, excepting only the cases provided for by the Constitution of the United States, and fairly embraced within its provisions. For national purposes, all of our states are governed by the same laws, and constitute one government; for other purposes, they are separate and independent sovereignties, with laws and institutions altogether different. 2 Pet., 590. And with respect to their municipal regulations the several states are to each other foreign. 2 Wash., 298. Slavery has been decided to be local, and to depend upon the local law. Somerset's case, State Trials; 1 Lofft, 1; 3 A. K. Marsh. (Ky.), 470-472; 3 Bos. & P., 69; 2 Barn. & C., 448; 2 Mart. (La.), N. S., 403. In the case last cited, Lunsford v. Coquillon, the Supreme Court of Louisiana decided, that by removing a slave to Ohio that slave became instantly free by operation of law, and being once free there, the slave was free everywhere. The case of Rankin v. Lydia, above cited, maintains substantially 'the same propositions. The case of Elizabeth Thomas v. Generis, fie., 16 La., presented these facts. The slave was sent from Kentucky to Illinois, to be put under the charge of an eminent physician, during the absence of the owner. But this was done under circumstances to warrant the inference that the owner consented to the slave residing there. The Supreme Court of Louisiana on such facts say (p. 488)—“If the plaintiff resiued 92 DECEMBER TERM, 1850. 86 Strader et al. v. Graham. in Illinois with the express or implied consent, and with the knowledge and tacit authorization, of her former master, she was under no obligation to serve him there. The bond of slavery once dissolved cannot be renewed by a subsequent removal of a slave so circumstanced into a slaveholding state.” 5 Leigh (Va.), 615; 10 Id., 697; 9 Gill & J. (Md.), 19. In the case of Louis n. Cabarrus, 7 La., 172, the converse of the proposition was laid down in these words :—“ The residence of a slave in Ohio contrary to the will or without the knowledge of his owner, does not deprive the owner of his property.” In Frank v. Powell, 11 La., 500, the court says,—“ The owner must be presumed to consent to emancipation of a slave by his removal to Ohio.” *In Smith v. Smith, 13 La., 444, the court says the [-*07 fact of a slave being taken to a country where slavery or involuntary servitude is not tolerated, operates on the condition of the slave, and produces immediate emancipation. In 4 Mart. (La.), 385, it said,—“ The slave has no will, and cannot give consent to serve in a free state.” In 11 La., 501, it appeared that the plaintiff was brought or left in Ohio, by the person claiming to be owner, for the purpose of serving an innkeeper until $150 was received for his hire. It was there decided that the hiring of a slave for service in a free state operated on the freedom of the slave. In 9 La., 474, the court decided, that where a slave was taken into a free state, even temporarily, for any other purpose than a mere passage through such country, such slave would become free, and that freedom once impressed was indelible. The case of Winney v. Whitesides, 1 Mo., 334-336, formally . settled the proposition that the United States had power to purchase the Northwest Territory. It treats the Ordinance as a compact (“ assented to the articles of compact ”), and as in full force (p. 335), and says (p. 336),—“ The sovereign power of the United States has declared that neither slavery nor involuntary servitude shall exist there, and this court thinks that the person who takes his slave into said Territory, and by the length of his residence there indicates an intention of making that place his residence, and that of his slave, does by such residence declare his slave to have become a free man.”' The case of Lagrange n. Choteau, 2 Mo., decides that any sort of residence, continued or permitted by the legal owner, to defeat or evade the Ordinance, and thereby introduce slavery de facto, would doubtless entitle a slave to freedom. . 93 87 SUPREME COURT. Strader et al. v. Graham. This case also says the Ordinance was intended as fundamental law. The case of Ralph t v. Duncan, 3 Mo., 140, says,—“ The object of the Ordinance of 1787 was to prohibit the introduction of slaves into the territory, of which the present state of Illinois constitutes a part, and the master who permits his slave to go there to hire himself offends against that law as much as one who takes his slave along with himself to reside there, and if we are at liberty to regard the moral effect of the act, it is much more to permit the slave to go there to hire himself to labor, than for the master to take him along with himself to reside,” &c. 3 Mart. (La.), N. S., 699. In the case of Julia n. McKinney, 3 Mo., 196, the court said, —“ Here was a hiring of a person bound to labor in Ken-*881 fucky, *whilst in Kentucky, brought into Illinois (not 8 J to reside there, say if you will), and hired to labor for one or two days by the owner. What difference can it make if the hiring had been for one hundred days? We can see none, except in the degree or quantity of time.” The court is referred also to Stewart v. Oakes, 5 Harr. & J. (Md.), 107, n.; also to 3 Harr. & J. (Md.), 491, 493 ; 3 Mon. (Ky.), 104; 5 Litt. (Ky.), 285; 1 Gilm. (Va.), 143; and many other cases might be cited from the decisions of the courts of last resort in the states where slavery exists, to show that the principles contained in the cases cited are generally recognized. In all these cases, it is believed the length of residence was considered immaterial. The fact that the slave was taken or permitted to reside, or hired, or sent to labor, where slavery was forbidden, determined the right to freedom. . The grand object and settled policy of the Ordinance would be evaded and defeated, if citizens of Ohio or Indiana could hire slaves in Virginia and Kentucky to cultivate their farms. If they could thus hire for a day, or a month, or a year, they could do so for any number of years. It would be no answer to say the master resided in a slave state, contracted in a slave state, and never intended to change the permanent residence of his slave. The proposition is maintained, that if a master voluntarily hire his slave to a citizen of a non-slaveholding state, to perform service and labor in such non-slaveholding state, and if he in fact send the slave there for that purpose, the slave becomes free. There is no principle of comity which requires any sover-. eignty to surrender the interest of its citizens, or its established laws, or its settled policy, in deference to or respect 94 DECEMBER TERM, 1850. 88 _ __________X______________________ Strader et al. v. Graham, for any foreign law. If the non-slaveholding states, out of comity, would allow citizens of slaveholding states to cultivate their soil with their slaves, they would soon be converted into slaveholding states. If the citizens of non-slaveholding states could themselves introduce slaves under contracts of hire, they would violate the settled policy of their state by bringing slave labor in competition with their poor. 16 Pet., 539, 2 McLean, 596. When Connecticut passed her law to provide for the eradication of slavery, she began it with a preamble which declared in concise terms the reason and policy of the law to be, “ that slavery is inconvenient and injurious to the poor.” The defendant in error, by express written authority, gave Williams authority to take the slaves to Indiana and to Ohio, to serve him, Williams, in those states. This was done upon a consideration which the master deemed adequate. Under *that express written authority of the master, they were r*on so taken, again and again, to those states, to perform L service for pay. Now this either did or did not make them free. If it did make them free, it was either by virtue of the Ordinance, or of the Constitution or laws of the United States admitting those states under that Ordinance with constitutions prohibiting slavery. The defence of Strader, &c., turned on the giving, or refusing to give, validity to the Ordinance or acts of Congress. A state court has decided against that defence,—and this is claimed to be one of the very cases in which jurisdiction is given to this court under the twenty-fifth section of the Judiciary Act. Pollard v. Kibbe, 14 Pet., 417. Mr. Crittenden, contra. Much argument has been urged to show, that, in regard to the operation of the Ordinance of 1787 and the laws of Ohio and Indiana upon the condition of slaves brought into those states with the consent of their masters, there is no difference between a temporary and a permanent residence. But in this case there was no residence at all. It was only a transient visit to Madison for part of one night, and for a fleeting and temporary purpose. Williams’s residence was in Louisville. There was no change of domicile, nor was there the most remote intention of such change. The slaves accompanied Williams in his short visit, and voluntarily returned with him to Kentucky; and it was not till some four years after their return to their master that they made their escape. A distinction is attempted between a temporary residence and a visit in transitu. There is no foundation for such a distinction. The only legal distinction 95 89 SUPREME COURT. Strader et al. v. Graham. is that of domicile and transient residence, or stoppage in itinere. But the important fact in this case is the voluntary return of the slave to his master. The question, then, is, What is the condition of the slave on his return, by the laws of Kentucky ? not what was his condition by the laws of Indiana or Ohio, when within the limits of those states. This is a question purely of local law, to be decided by the local courts. The laws of Kentucky could alone determine the status or condition of persons residing within the state, and the courts of the state were the appropriate expounders of those laws. This court has, consequently, no jurisdiction to reverse or review the decision of the Court of Appeals in this case. It does not arise under any act of Congress. It does not arise even under the Ordinance of 1787. If the slaves had sued for their freedom, it might have been brought under the Ordinance. It is simply a case arising under the statute law of Kentucky. Owens v. Norwood's Lessee, 5 Cranch, 344. *What have the Supreme Court of Kentucky ' J decided ? They have decided that there was no residence, that there was a temporary visit for a temporary purpose ; and that such a visit, followed by a voluntary return to their master, gave no title to freedom under the Ordinance of 1787. The Ordinance of 1787 declares that there shall be no involuntary servitude northwest of the Ohio. It says nothing of the effect of a mere temporary sojourn of a slave in that territory with the consent of his master, and a voluntary return to the state from which he came. The Ordinance was founded in wise counsels, for large purposes, and has been faithfully kept. It was not to catch up a wandering fiddler, as in this case, upon a mere visit for playing at a ball, that the Ordinance of 1787 was passed. It degrades the character of that Ordinance to suppose so. It would give to it the effect of creating a border warfare, instead of cultivating the courtesies and amenities of life. If, however, that decree be examinable in this court, it will be further insisted,— 1st. That under the circumstances of this case, the transient excursion of the slaves in question to Cincinnati, for a temporary purpose, with intention to return, and within their actual obligations to the service of their master, conferred no right to freedom after such voluntary return, either under the Ordinance, or under the Constitution or laws of the United States. Judge Story, in his Conflict of Laws, § 96, on the question of a voluntary return to slavery, considers the law to be that 96 DECEMBER TERM, 1850. 90 Strader et al. v. Graham. the slave acquires no right to freedom. In the case of the Commonwealth of Massachusetts v. Awes, 18 Pick., 193, the court in Massachusetts decide that a slave who has been in a free state, but returns voluntarily to the state from which he came, returns to the condition in which he was when he left. He waives his right to freedom by his voluntary return. And so did Sir William Scott decide, in 2 Hagg. Adm., 94. And the court of Kentucky decide the same thing. 2d. That the plaintiffs in error have no right thus collaterally to make any defence or question as to the claims of those slaves to their freedom, claims which they themselves had apparently abandoned, and which they certainly never asserted. Their right, if any, was personal, and cannot be revived and brought into litigation, as attempted in this case by the plaintiffs in error. I suppose it is very clear that the only question here is, whether this decision conflicts with the Ordinance of 1787. It may conflict with the law of Ohio, or Indiana, or the constitution of Ohio or Indiana; but that confers no jurisdiction on this court. *If the doctrine maintained on the other side be established, the Ohio will be made like the fabled Styx, *-the river of death, which, if once crossed, can never be recrossed. It will destroy that amenity of intercourse, that interchange of social courtesies, which now exist, and which do so much to preserve those kindly and fraternal feelings upon which the success of our institutions so much depends. He trusted in the wisdom of the court to arrive at such a decision as should be acquiesced in by all. Mr. Jones, in reply and conclusion. The defence is, that these slaves having once had the indelible character of freedom stamped on them by a residence, sojourn, or commorancy within the territory over which the Ordinance of 1787 extended, it could never afterwards be obliterated. The penalty or forfeiture is for transporting slaves, and it is a necessary prerequisite that the status of slavery should be established. Suppose a slave emancippated, and I am indicted for dealing with him, a slave, can I not set up a defence that the condition of slavery did not exist under the Ordinance of 1787? And did not the court of Kentucky in this case decide upon the effect of the Ordinance of 1787? It is agreed that this case arises under the laws of Kentucky. But Kentucky could not pass laws inconsistent with Vol. x.—7 97 91 SUPREME COURT. Strader et al. v. Graham. the Ordinance. They cannot make a slave of one whom the Ordinance makes free. All that Kentucky has done has been to apply the penalty to the asportation of slaves. The question, then, is, Bond or free ? It is decided as to the condition of slavery in those states where it is not recognized, that there is no obligation under common law, in the national law, or the comity of nations, to recognize it where the slave is brought into such state voluntarily. Then, as to the permanence of the removal, all the authorities concur, that no matter how temporary the purpose, if the slave be brought or sent by the master for ever so short a time, on.ce there, eo instanti he becomes free. Some state courts have distinguished between slaves temporarily employed and slaves in transitu. This is illustrated by the acts of coterminous slave states. Maryland and Virginia were obliged to pass laws to prevent freedom from resulting from a temporary residence. What is the difference between temporary and permanent residence ? Animus morandi and animus revertendi. The only true distinction is between domicile, on the one *hand, and mere residence, whether for a short or for a J long time, on the other. Various words have been applied to express the idea, such as sojourning, commorancy, residence, &c. Many persons pass their whole lives in a strange land. The Israelites sojourned in Egypt for four hundred years; yet it was not their home. It is true that in the case in 2 Martin, the slave was removed into Indiana for a permanent residence, and the court seemed to indicate a distinction between a permanent and temporary residence ; but it was only incidentally laid down, and has been overruled in Louisiana since. In the case in 18 Pickering, the slave was a mere attendant in itinere, and the decision was, that even that conferred freedom. In fact, the states of Kentucky, Louisiana, and Missouri concur (with the exception of persons in itinere') with the courts of the Northern states as to the effect of residence. And the length of residence was immaterial. There are two cases in Louisiana where slaves were taken to France and brought back again, which entirely abolish all distinction between one sort of residence and another. The case of the slave Grace has been referred to, where the right to freedom, which might have been asserted, was considered as waived by a return to the place of slavery. But does that construction of law as existing in England apply here ? It is a monstrosity in morals and in law, that a man who has been made free by the operation of law can make 98 DECEMBER TERM, 1850. 92 Strader et al. v. Graham. himself a slave. On the coming of the slave into the free state, by the mere force of the prohibition, his shackles fall from him. Are they ever to be restored? By what law? If he be free in Ohio and Indiana, how shall he be a slave elsewhere ? What power of man is to redintegrate that condition? Nor is there any real distinction as to right of dominion and right of property. If the slave be made free, there can be no right of property in his service. Where is the law which makes a distinction between the right of property quoad the state, and an absolute divestiture of all right of property by operating on the status of slavery ? It cannot be said that the slave is free, and yet that my right of property remains intact. Mr. Chief Justice TANEY delivered the opinion of the court. This case is brought here by writ of error directed to the Court of Appeals of the state of Kentucky. The facts in the case, so far as they are material to the decision of this court, are briefly as follows: The defendant in error is a citizen of the state of Kentucky, and three negro men whom he claimed and held as his slaves were received on board the steamboat Pike, at Louisville, without his knowledge *or consent, and transported to Cincinnati; and r#nq from that place escaped to Canada, and were finally *-lost to him. The proceedings before us were instituted under a statute of Kentucky, in the Louisville Chancery Court, against the plaintiffs in error, to recover the value of the slaves which had thus escaped, and, in default of payment by them, to charge the boat itself with the damages sustained. Strader and Gorman were the owners of the boat, and Armstrong the master. The plaintiffs in error, among other defences, insisted that the negroes claimed as slaves were free; averring that, some time before they were taken on board the steamboat, they had been sent, by the permission of the defendant in error, to the state of Ohio, to perform service as slaves; and that, in consequence thereof, they had acquired their freedom, and were free when received on board the boat. It appears by the evidence, that these men were musicians, and had gone to Ohio, on one or more occasions, to perform at public entertainments; that they had been taken there for this purpose, with the permission of the defendant in error, by a man by the name of Williams, under whose care and direction he had for a time placed them; that they had always returned to Kentucky as soon as this brief service was over; 99 93 SUPREME COURT. Strader et al. v. Graham. and for the two years preceding their escape, they had not left the state of Kentucky, and had remained there in the service of the defendant in error, as their lawful owner. The Louisville Chancery Court finally decided, that the negroes in question were his slaves; and that he was entitled to recover $3,000 for his damages. And if that sum was not paid by a certain day specified in the decree, it directed that the steamboat should be sold for the purpose of raising it, together with the costs of suit. This decree was afterwards affirmed in the Court of Appeals of Kentucky, and the case is brought here by writ of error upon that judgment. Much of the argument on the part of the plaintiffs in error has been offered for the purpose of showing that the judgment of the state court was erroneous in deciding that these negroes were slaves. And it is insisted that their previous employment in Ohio had made them free when they returned to Kentucky. But this question is not before us. Every state has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory; except in so far as the powers of the states in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of the United States that can in any degree con-*q4.i ^rol *the law °f Kentucky upon this subject. And the J condition of the negroes, therefore, as to freedom or slavery, after their return, depended altogether upon the laws of that state, and could not be influenced by the laws of Ohio. It was exclusively in the power of Kentucky to determine for itself whether their employment in another state should or should not make them free on their return. The Court of Appeals have determined, that by the laws of the state they continued to be slaves. And their judgment upon this point is, upon this writ of error, conclusive upon this court, and we have no jurisdiction over it. But it seems to be supposed in the argument, that the law of Ohio upon this subject has some peculiar force by virtue of the Ordinance of 1787, for the government of the Northwestern Territory, Ohio being one of the states carved out of it. One of the articles of this Ordinance provides, that “ there shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment for crimes whereof the party shall have been duly convicted: Provided always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original states, 100 DECEMBER TERM, 1 850. 94 Strader et al. ». Graham. such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.” And this article is one of the six which the Ordinance declares shall be a compact between the original states and the people and states in the said territory, and for ever remain unalterable unless by common consent. The argument assumes that the six articles which that Ordinance declares to be perpetual are still in force in the states since formed within the territory, and admitted into the Union. If this proposition could be maintained, it would not alter the question. For the regulations of Congress, under the old Confederation or the present Constitution, for the government of a particular territory, could have no force beyond its limits. It certainly could not restrict the power of the states within their respective territories; nor in any manner interfere with their laws and institutions; nor give this court any control over them. The Ordinance in question, if still in force, could have no more operation than the laws of Ohio in the state of Kentucky, and could not influence the decision upon the rights of the master or the slaves in that state, nor give this court jurisdiction upon the subject. But it has been settled by judicial decision in this court, that this Ordinance is not in force. The case of Permoli v. The First Municipality, 3 How., 589, depended upon the same principles with the case before us. It *is true that the question in that case arose in r»qr Louisiana. But the act of Congress of April 7, 1798, *- L chap. 28 (1 Stat, at L., 549), extended the Ordinance of 1787 to the then territory of Mississippi, with the exception of the anti-slavery clause; and declared that the people of that territory should be entitled to and enjoy all the rights, privileges, and advantages granted to the people of the territory northwest of the Ohio. And by the act of March 2, 1805, chap. 23 (2 Stat, at L., 322), it was enacted that the inhabitants of the then territory of Orleans should be entitled to and enjoy all the rights, privileges, and advantages secured by the Ordinance of 1787, and at that time enjoyed by the people of the Mississippi territory. In the case above mentioned, Permoli claimed the protection of the clause in one of the six articles which provides for the freedom of religion, alleging that it had been violated by the First Municipality. And he brought the question before this court, upon the ground that it had jurisdiction under the Ordinance. But the court held that the Ordinance ceased to be in force when Louisiana became a state, and dismissed the 101 95 SUPREME COURT. Strader et al. v. Graham. case for want of jurisdiction. This opinion is, indeed, confined to the territory in which the case arose. But it is evident that the Ordinance cannot be in force in the states formed in the northwestern territory, and at the same time not in force in the states formed in the southwestern territory, to which it was extended by the present government. For the ordinances and pledges of the Congress of the old Confederation cannot be more enduring and obligatory than those of the new government; nor can there be any reason for giving a different interpretation to the same words used in similar instruments, because the one is by the old Confederation and the other by the present government. And when it is decided that this Ordinance is not in force in Louisiana, it follows that it cannot be in force in Ohio. But the whole question upon the Ordinance of 1787, and the acts of Congress extending it to other territory afterwards acquired, was carefully considered in Pollard v. Hagan, 3 How., 212. The subject is fully examined in the opinion pronounced in that case, with which we concur; and it is sufficient now to refer to the reasoning and principles by which that judgment is maintained, without entering again upon a full examination of the question. Indeed, it is impossible to look at the six articles which are supposed, in the argument, to be still in force, without seeing at once that many of the provisions contained in them are inconsistent with the present Constitution. And if they could be regarded as yet in operation in the states formed within the *limits of the northwestern territory, it -• would place them in an inferior condition as compared with the other states, and subject their domestic institutions and municipal regulations to the constant supervision and control of this court. The Constitution was, in the language of the Ordinanace, “adopted by common consent,” and the people of the territories must necessarily be regarded as parties to it, and bound by it, and entitled to its benefits, as well as the people of the then existing states. It became the supreme law throughout the United States. And so far as any obligations of good faith had been previously incurred by the Ordinance, they were faithfully carried into execution by the power and authority of the new government. In fact, when the Constitution was adopted, the settlement of that vast territory was hardly begun ; and the people who filled it, and formed the great and populous states that now cover it, became inhabitants of the territory after the Constitution was adopted ; and migrated upon the faith that its protection and benefits would be extended to them, and that they 102 DECEMBER TERM, 1850. 96 Strader et al. ». Graham. would in due time, according to its provisions and spirit, be admitted into the Union upon an equal footing with the old states. For the new government secured to them all the public rights of navigation and commerce which the Ordinance did or could provide for ; and moreover extended to them when they should become states much greater power over their municipal regulations and domestic concerns than the Confederation had agreed to concede. The six articles, said to be perpetual as a compact, are not made a part of the new Constitution. They certainly are not superior and paramount to the Constitution, and cannot confer power and jurisdiction upon this court. The whole judicial authority of the courts of the United States is derived from the Constitution itself, and the laws made under it. It is undoubtedly true, that most of the material provisions and principles of these six articles, not inconsistent with the Constitution of the United States, have been the established law within this territory ever since the Ordinance was passed ; and hence the Ordinance itself is sometimes spoken of as still in force. But these provisions owed their legal validity and force, after the Constitution was adopted and while the territorial government continued, to the act of Congress of August 7, 1789, which adopted and continued the Ordinance of 1787, and carried its provisions into execution, with some modifications, which were necessary to adapt its form of government to the new Constitution. And in the states since formed in the territory, these provisions, so far as they have been preserved, owe their validity and authority to the Constitution of the *United States, and the constitutions and laws of [-*07 the respective states, and not to the authority of the L Ordinance of the old Confederation. As we have already said, it ceased to be in force upon the adoption of the Constitution, and cannot now be the source of jurisdiction of any description in this court. In every view of the subject, therefore, this court has no jurisdiction of the case, and the writ of error must on that ground be dismissed. Mr. Justice McLEAN. I agree that there is no jurisdiction in this case, and that it must be dismissed. The plaintiffs obtained this writ of error to reverse a judgment of the Court of Appeals of Kentucky, which affirmed the judgment of the inferior court, in which Graham obtained a verdict and judgment against the defendants below for three thousand dollars, on the ground that three of the servants of 103 97 SUPREME COURT. Strader et al. v. Graham. the plaintiff had been conveyed from Louisville, Kentucky, to Cincinnati, in the steamboat of defendants, by which means they escaped, and the plaintiff lost their services. The defendants set up in their defence the Ordinance of 1787, for the government of the Northwestern Territory, which prohibited slavery in the sixth article of the compact, and which was declared “ to be unalterable unless by common consent.” The defendants alleged that, with the permission of Graham, the slaves had been permitted to visit Ohio and Indiana as musicians, by which they were entitled to their freedom ; although they had returned voluntarily to their master, in Kentucky. And the right to their freedom was asserted under the Ordinance, which, it is insisted, brings the case within the twenty-fifth section of the Judiciary Act of 1789, and gives jurisdiction to this court. The provision of the Ordinance in regard to slavery was incorporated into the constitution of Ohio, which received the sanction of Congress when the state was admitted into the Union. The constitution of the state, having thus received the consent of the original parties to the compact, must be considered, in regard to the prohibition of slavery, as substituted for the Ordinance, and consequently all questions of freedom must arise under the constitution, and not under the Ordinance. This, in my judgment, decides the question of jurisdiction, which is the only question before us. And any thing that is said in the opinion of the court, in relation to the Ordinance, beyond this, is not in the case, and is, consequently, extrajudicial. *9g-i *Mr. Justice CATRON. J The Ordinance of 1787 provides that the six articles contained in it shall be unalterable, and remain a compact between the original states and the people of the Northwestern Territory, “ unless altered by common consent.” 1. The sixth article declares, that slavery shall be prohibited. 2. And that absconding slaves there found shall be surrendered to their owners. The constitution of Ohio incorporates the first part of the sixth article, but leaves out the second part. The state constitution having received the sanction of Congress, the alteration was made by common consent, as this was the mode of consent contemplated by the compact; that is to say, by the states in Congress assembled, whether under the Confederation or present Constitution. This being an “engagement entered into ” before the adoption of the Constitution, was equally 104 DECEMBER TERM, 1 850. 98 Strader et al. v. Graham. binding on the one Congress as the other, according to the sixth article of the new Constitution ; and the new Congress, equally with the former one, had power to consent to alterations. The power to alter necessarily involves the power to annul, or to suspend; and when the state constitution of Ohio was assented to by Congress, the article stood suspended, or abolished, as an engagement among the states, and can now only be recognized as part of the organic state law. And as this law is drawn in question here, no jurisdiction exists to examine the state decision. But in regard to parts of the other five articles, I am unwilling to express any opinion, as no part of either is in any degree involved in this controversy. The fourth article secured the free navigation of the waters leading into the rivers Mississippi and St. Lawrence, and the carrying-places between them, as common highways; and exempted them from tax, impost, or duty. The mouths of the two great rivers were in possession of foreign powers, and closed to our commerce, at the date of the Ordinance and Constitution; and therefore it was more necessary that the tributaries should be always open, and the carrying-places free, so that the Ohio and St. Lawrence could be reached from the great lakes, and back and forth either way. Some of these tributary rivers and the carrying-places, it was known, would fall into a single new state, as contemplated by the Ordinance. This is true of every carrying-place, and is equally true as respects most of the rivers leading to the carrying-places; and as Congress had only power given by the new Constitution “ to regulate commerce among the states,” it is a question now unsettled, whether such inland rivers and carrying-places *could be regulated, where the naviga- |-*qq tion and carrying-places began and ended in a single *-state. For thirty years, the state courts within the territory ceded by Virginia have held this part of the fourth article to be in force, and binding on them respectively; and I feel unwilling to disturb this wholesome course of decision, which is so conservative to the rights of others, in a case where the fourth article is in no wise involved, and when our opinion might be disregarded by the state courts as obiter, and a dictum uncalled for. When the question arises here on the fourth article, it is desired by me, that no such embarrassment should be imposed on this court as necessarily must be by now passing judgment on the force of the fourth article, and pronouncing that it stand superseded and annulled. 105 99 SUPREME COURT. Wilson v. Sandford et al. Order. This cause came on to be heard on the transcript of the record from the Court of Appeals for the state of Kentucky, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby, dismissed for the want of jurisdiction. James G. Wilson, Appellant, v. George A. Sanford and Robert G. Musgrove. The seventeenth section of the act of 1836 gives the right of appeal to this court, when the sum in dispute is below the value of two thousand dollars, “in all actions, suits, controversies on cases arising under any law of the United States, granting or confirming to inventors the exclusive right to their inventions or discoveries,” provided the court below shall deem it reasonable to allow the appeal.1 But a bill filed on the equity side of the Circuit Court to set aside an assignment, upon the ground that the assignee had not complied with the terms of the contract, is not one of these enumerated cases; and the value in dispute being less than two thousand dollars, this court has no jurisdiction over the case.2 * * * & This was an appeal from the Circuit Court of the United States for the District of Louisiana. 1 Cited. Hay v. Railroad, Co., 4 Hughes, 344. See Magic Ruffle Co. v. Elm City Co., 2 Bann. & A., 157. See U. S. Rev. Stat., § 699. 2 Applied. Albright v. Teas, 16 Otto, 617, 618; s. c. 13 Fed. Rep., 413. Followed. Kartell v. Tilghman, 9 Otto, 552 (but see Id., 558). Relied on. Bloomer v. McQuewan, 14 How., 550. Reviewed. Consolida- ted Fruit Jar Co. v. Whitney, 2 Bann. & A., 32. See White v. Lee, 5 Id., 574. Where a bill is filed to enforce the specific execution of a contract in relation to the use of a patent right, the Supreme Court has no appellate jurisdiction, unless the matter in controversy exceeds $2,000. The jurisdiction, where the bill is founded on a contract, differs materially from the jurisdiction on a bill to prevent the infringement of a monopoly of the patentee, or of those claiming under him by legal assignments, and to protect them in their rights to the exclusive use. Brown v. Shannon, 20 How., 55. The rights given by the acts of Feb-106 ruary 18th, 1861, and July 20th, 1870, of appeal or writ of error without regard to the sum in controversy in questions arising under laws of the United States, granting or conferring to authors or inventors the exclusive right to their inventions or discoveries, applies to controversies between a patentee or author and an alleged infringer as well as to those between rival patentees. Philip v. Nock, 13 Wall., 185. Where a judgment in a patent case was affirmed by the Supreme Court with a blank in the record for costs, and the Circuit Court afterwards taxed costs at a sum less than $2,000, and allowed a writ of error, this writ was dismissed on motion. The writ of error brings up only proceedings subsequent to the mandate, and there is no jurisdiction where the amount is less than $2,000, either under, the geheral law or the discretion allowed by the patent law. The latter only relates to cases which involve the construction of the patent laws and the claims and rights of patentees under them. Sizer v. Many, 16 How., 98. DECEMBER TERM, 1850. 99 Wilson v. Sandford et al. The appellant had filed his bill in the court below, setting forth a patent to William Wood worth, dated December 27th, 1828, for a planing machine; also an extension, in 1842, of said patent for seven years, granted to William W. Wood-worth, administrator of the patentee; an assignment of all right and interest in said extended patent throughout the United States (except Vermont) to complainant, Wilson; and a license from Wilson to the defendants to use one machine upon payment *of $1400, as follows, viz., $250 in i-#-|aa cash, and the remainder in nine, twelve, eighteen,- and L twenty-four months, for which promissory notes were given, dated 23d April, 1845, one for $150, and four for $250 each. The license was made an exhibit in the case, which, after setting forth the consideration of $1400 above mentioned, and the promissory notes for part thereof, contained the following provision :—“ And if said notes, or either of them, be not punctually paid upon the maturity thereof, then all and singular the rights hereby granted are to revert to the said Wilson, who shall be reinvested in the same manner as if this license had not been made.” The first two of said notes were not paid when they fell due, payment having been demanded and refused before the filing of the bill. The bill further insisted, that the license was forfeited by the failure to pay the notes, and that the licensor was fully reinvested at law, and in equity, with all his original rights. That the defendants, nevertheless, were using the machine, and thus were infringing the patent. Prayer for an injunction, pendente lite, for an account of profits since the forfeiture of the license, for a perpetual injunction, for a reinvestiture of title in complainant, and for other and further relief. The defendants demurred to the whole bill, and also (saving their demurrer) answered the whole bill. They admitted all the facts alleged; and averred, on their part, that the contract set forth in the bill had been modified and varied by a new contract, which the complainant had broken, and that the respondent, being in the lawful use of a planing-machine at the expiration of the patent, had the right to use such machine without license, and consequently that the notes were without consideration. There was a general replication, and the cause was heard first on bill and demurrer, and afterwards (the demurrer having been overruled) on bill, answer, and replication. Whereupon the bill was dismissed, with costs, and an appeal to this court taken. 107 100 SUPREME COURT. i Wilson v. Sandford et al. The cause was argued by Mr. Seward, for the appellant, no counsel appearing for the appellees. As, however, the appeal was dismissed for want of jurisdiction, the argument of Mr. Seward, which was wholly upon the merits, is not inserted. Mr. Chief Justice TANEY delivered the opinion of the court. The bill in this case was filed by the appellant against the appellees in the Circuit Court of the United States for the District of Louisiana. *1011 *The object of the bill was to set aside a contract -* made by the appellant with the appellees, by which he had granted them permission to use, or vend to others to be used, one of Wood worth’s planing-machines, in the cities of New Orleans and Lafayette; and also to obtain an injunction against the further use of the machine, upon the ground that it was an infringement of his patent rights. The appellant states that he was the assignee of the monopoly in that district of country, and that the contract which he had made with the appellees had been forfeited by their refusal to comply with its conditions. The license in question was sold for fourteen hundred dollars, a part of which, the bill admits, had been paid.. The contract is exhibited with the bill, but it is not necessary in this opinion to set out more particularly its provisions. The appellees demurred to the bill, and at the final hearing the demurrer was sustained, and the bill dismissed. And the case is brought here by an appeal from that decree. The matter in controversy between the parties arises upon this contract, and it does not appear that the sum in dispute exceeds two thousand dollars. On the contrary, the bill and contract exhibited with it show that it is below that sum. An appeal, therefore, cannot be taken from the decree of the Circuit Court, unless it is authorized by the last clause in the seventeenth section of the act of 1836. The section referred to, after giving the right to a writ of error or appeal in cases arising under that law, in the same manner and under the same circumstances as provided by law in other cases, adds the following provision:—“And in all other cases in which the court shall deem it reasonable to allow the same.” The words “ in all other cases ” evidently refer to the description of cases provided for in that section, and where the matter in dispute is below two thousand dollars. In such suits no appeal could be allowed but for this provision. The cases specified in the section in question are, “ all actions, suits, controversies on cases arising under any law of 108 DECEMBER TERM. 1 850. 401 Wilson v. Sandford et al. the United States, granting or confirming to inventors the exclusive right to their inventions or discoveries.” The right of appeal to this court is confined to cases of this description, when the sum in dispute is below two thousand dollars. And the peculiar privilege given to this class of cases was intended to secure uniformity of decision in the construction of the act of Congress *in relation to patents. Now the dispute in this case does not arise under any act of Congress ; nor does the decision depend upon the construction of any law in relation to patents. It arises out of the contract stated in the bill; and there is no act of Congress providing *for or regulating contracts of this kind, pino The rights of the parties depend altogether upon com- *-mon law and equity principles. The object of the bill is to have this contract set aside and declared to be forfeited; and the prayer is, “that the appellant’s reinvestiture of title to the license granted to the appellees, by reason of the forfeiture of the contract, may be sanctioned by the court,” and for an injunction. But the injunction he asks for is to be the consequence of the decree of the court sanctioning the forfeiture, fie alleges no ground for an injunction unless the contract is set aside. And if the case made in the bill was a fit one for relief in equity, it is very clear that whether the contract ought to be declared forfeited or not, in a court of chancery, depended altogether upon the rules and principles of equity, and in no degree whatever upon any act of Congress concerning patent rights. And whenever a contract is made in relation to them, which is not provided for and regulated by Congress, the parties, if any dispute arises, stand upon the same ground with other litigants as to the right of appeal; and the decree of the Circuit Court cannot be revised here, unless the matter in dispute exceeds two thousand dollars. This appeal, therefore, must be dismissed for want of jurisdiction. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged, and decreed by this court, that this cause be, and the same is hereby, dismissed for the want of jurisdiction. 109 102 SUPREME COURT. Downs v. Kissam. Alfred C. Downs, Plaintiff in error, v. Joseph Kissam. Where the Circuit Court instructed the jury, “that, if any one of the mortgages given in evidence conveyed more property than would be sufficient to secure the debt provided for in the mortgage, it was 109,000, for the excess of deposits for unascertained duties. It is the practice of the merchants, when they want their goods immediately, to deposit with the collector a sum sufficient by estimate to cover the duties, and when the duties are ascertained, the merchant calls for repayment of any excess of the deposit over the ascertained duties, which excess is thereupon paid over by the collector to the claimants. The whole amount of the estimated duties deposited having at the time of the deposit been paid by the collector, under requirement of law, into the Treasury, is credited to the collector by the government in his account, but in that account he is only charged with the actual duties. The collector repays the excess to the merchant out of his own money, and the government afterwards returns it to him by a warrant from the Treasury, and charges him with that warrant. If the government had retained the whole sum deposited, and at the same time had required the collector to pay back to the merchant the excess, there would be some ground to sustain the allegation of the defendant; but as it is, there is no ground for the allegation of the defendant of a double charge, or error in this sum, and the jury are wholly to disregard this claim, and make no allowance for it whatever. The court further charged the jury, that the book of general 128 DECEMBER TERM. 1 850. *121 Hoyt v. The United States. *accounts, and the cash-book of the custom-house, introduced before the jury as evidence by the defendant, were the books of the defendant, with the keeping of which the plaintiffs had no connection, and over which they had no control; and that, if there was any discrepancy between them, it was for the defendant and not the government to explain such discrepancy. And the court further refused to charge the jury in conformity with the points above submitted on the part of the defendant, and in conformity with which the said defendant prayed the said court to charge the jury, except so far as in the foregoing charge is contained. And thereupon the said defendant then and there excepted /to so much of the said charge of the said court, wherein the said court charged the jury in conformity with said 1st, 2d, 3d, 4th, and 5th propositions of law, so as above submitted on the part of the plaintiffs, and to so much of the said charge of the said court, wherein the said court charged the jury that the items numbered 15, 16, 18, and 19, in said statement, so as above submitted on the part of the plaintiffs, were illegal charges, and not to be allowed to the defendant in account with the government; and also to so much of the said charge of the said, court as related to the claim of the defendant to have the item 8109,000, or thereabouts, for excess of deposits for duties over ascertained duties, allowed him in account, and as directed the jury to disallow such claim; and also to so much of the said charge of the said court as related to the book of general accounts, and the cash-book of the custom-house. And the said defendant thereupon then and there further excepted to the refusal of the said court (in so far as the said court did so refuse) to charge the jury in conformity with the points so as above submitted by the said defendant, and in conformity with which the said defendant so as above prayed the said court to charge- the jury. And the said defendant thereupon then and there further excepted to the decision of the said court, in admitting as evidence against the defendant the Treasury transcripts introduced by the said plaintiffs, and also to the decision of said court in excluding the testimony of William Moore, a witness introduced by said defendant, and also to the decision of said court in excluding the letters of defendant dated the 12th and 22d December, 1842, and 17th, 25th, and 28th January, 1843. The record contained numerous circulars from the Treasury Department to collectors and receivers of public money. That Vol. x.—9 129 121 SUPREME COURT. Hoyt v. The United States. of the 9th June, 1837, and extracts from those of 13th March, *1221 18^9, and JulY’ 1^40, only are inserted, these *hav-J ing been more particularly referred to in the argument of the case. Circular instructions to Collectors of the Customs and Receivers of the Public Money. “ Treasury Department, June 9th, 1837. “ Sib,—Should all the banks in your vicinity, selected as depositories of the public money, have suspended specie payments at any time, so that you can no longer legally deposit in them, as usual, to the credit of the Treasurer, all public moneys received by you, except such sums as may be required to meet the current expenses of your office, the payment of debenture certificates by collectors, &c., in other words, the sums you would formerly have placed in bank to the credit of the Treasurer of the United States, will, under the present arrangements, be placed to his credit, in a separate account, on the books of ’your office. They will be drawn for by him in the following manner, and no other. “ 1st. By the Treasurer’s draft on the officer having funds to his credit, directing the payment, which draft will be recorded by the Register of the Treasury, who will authenticate the record by his signature. A private letter of advice will be transmitted by the Treasurer in each case. “ 2d. By a transfer draft signed as above, and approved by the signature of the Secretary of the Treasury, for the purpose of transferring funds to some other point where they may be required for the service of the government. “No deduction whatever is to be made from the moneys placed by you to the credit of the Treasurer, except in one of these two modes, until they can be lodged by you with some legal depositary. “ On payment of any draft, the party to whom it is paid will receipt it. You will note on it the day of payment; will charge it on the same day to the Treasurer, and will transmit it to him with the return of his account in which it is charged. In charging these payments, it will be proper to enter each draft separately, and to state the number and kind of draft, whether transfer, or on Treasury, War, or Navy warrants, and the amount. “ It is also necessary that the Treasurer’s accounts be closed weekly with the conclusion of Saturday’s business, and transcripts thereof forwarded in duplicate ; one copy to the Secretary of the Treasury, and one to the Treasurer. When the 130 DECEMBER TERM, 1 850. 122 Hoyt v. The United States. quarter of the year terminates on any other day of the week, the account should be closed on the last day of the quarter, leaving *for an additional return the transactions from that time to the close of the week, so that neither the receipts nor payments of different quarters be included in one return. Punctuality in transmitting the returns is indispensable. “ To produce uniformity in the manner of making the returns of the Treasurer’s account, a form is herewith transmitted. For the purpose of binding, it is requested that they be made on paper of nearly the same size. Your monthly returns must be rendered to the Department as heretofore. “ When the public money shall have accumulated in your hands to an amount exceeding---------dollars, you can make a special deposit of the same in your name, for safe keeping, in the nearest bank in which you have heretofore deposited the public money, and which will receive the same, to be held by it specially, subject to the payment of checks or drafts drawn by the Treasurer of the United States on the officer by whom the same has been deposited. “Levi Woodbury, Secretary of the Treasury?' Extract from Circular to the Collectors of the Customs, or persons acting as such. “ Treasury Department, First Comptroller's Office, March T&th, 1839. “.........In this spirit I have to inform you that it is deemed indispensably requisite that you should open an account special with the Treasurer of the United States, agreeably to the form annexed, A. Having been required heretofore to keep a separate account of this nature, it will not materially increase your labors. In this account you will pass the moneys referred to, as soon as received, to the credit of the Treasurer; and in order that it-may be kept in as simple and clear a form as is consistent with your business operations, I have especially to request that, in making the debit and credit entries, you will distinguish the deposits for duties unascertained from duties paid under protest, and both from other moneys, to be denominated cash received, or placed opposite to the distinctive heads of receipts; and also designate the kind, number, and amount of each paid draft issued upon you by the Treasurer. “ But as you will not be able readily to observe this distinction of moneys in the special account with the Treasurer, 131 123 SUPREME COURT. Hoyt v. The United States. * or without great inconvenience and difficulty, in some cases, adjust the excess of the deposits over the ascertained duties, or the duties to be refunded as having been paid under protest, which are to be so refunded, if at all, in pursuance of a *1941 Treasury *warrant, and upon the order of the Depart--* ment, according to the usage that has so long prevailed, I deem it also equally indispensable that you should keep separate and distinct accounts of them,—the one to be called ‘the unascertained duty account,’ and the other ‘the protested duty account,’ agreeably to the forms annexed, B and C. In these accounts, according as the case may need, you will enter upon the debit side the deposit made by the importer, which will be balanced by the ascertained duty, and the excess paid back to the importer; or enter on the debit side the amount of duty paid under protest, and balance it by the draft of the Treasury in favor of the importer............. There are other reasons that might be given, but these are in themselves sufficient. It has, therefore, upon full deliberation, been decided upon as the more proper course, and as a substantial compliance with the section, that you should make exhibits of the sum necessary for the purpose of refunding excess in deposits to importers to the Secretary of the Treasury, monthly, to be examined and countersigned by the naval officer, agreeably to form annexed, D, on which the Secretary will issue his warrant for the same in your favor, as assignee in fact of the respective importers. You will thus be put in funds to meet this class of re-payments, and you will take 4)f each importer duplicate receipts, and account quarterly for the same at the department. The form of the account you are to render to the First Auditor of the Treasury is annexed, E. In this account you will charge yourself with the Treasury warrant, and claim credit for the vouchers produced. This account has no connection, immediate or remote, with your accounts at the customs. In the latter account, you are charged with the true ascertained amount of duties, but the former arises from the government, out of abundant caution, taking under its control for a time the money of individuals, mingled with that of the public, for the better security of its own just and legal portion........... “Very respectfully, your obedient servant, “ J. N. Barker, Comptroller.” Extract from Circular. “ Treasury Department, July 9iA, 1840. «.........As a depositary of the public money standing to 132 DECEMBER TERM, 1 8 5 0. 124 Hoyt v. The United States. the credit of the Treasurer of the United States, you will keep an account current with him, in which you will debit yourself with all sums received on his account, and credit yourself with all payments made by his order, and no other......... “ Ba pleased to understand thoroughly this principle, that all *money in your hands to the credit of the Treas-urer, is, in fact, money in the Treasury of the United *- ° States, and cannot be used for any other purpose than the payment of warrants (or the drafts thereon) issued in pursuance of appropriations by Congress; but these moneys may be transferred from one depositary to any other depositary, by direction of the Secretary of the Treasury, under the authority of the tenth section of the act.......Respectfully, “Levi Woodbury, Secretary of the Treasury.” The cause was argued by Mr. Evans and Mr. Walker, for the plaintiff in error, and by Mr. Crittenden, Attorney-General, for the defendants in error. Mr. Attorney-General Crittenden moved the court to dismiss this cause for irregularity in the bill of exceptions, which was opposed by Messrs. Evans and Walker, of counsel for the plaintiff in error. Whereupon this court, not being now here sufficiently advised of and concerning what order to render in the premises, took time to consider. On consideration of the motion made in this cause by Mr. Attorney-General on the 6th instant, and of the arguments of counsel thereupon had, it is now here ordered by the court, that the whole case be argued upon the bill of exceptions. Mr. Evans, for the plaintiff in error. 1. Mr. Hoyt went into office at a peculiar juncture, when great embarrassment was felt in the business community. He was made the depositary of the public money, and had many new duties to perform. Many of the duties of his office he could neither personally perform nor personally supervise. This is an action of assumpsit for money had and received against plain Jesse Hoyt. It is not upon his official bonds. The action is founded on an implied contract; whilst that upon the bond is an express one. This action can only be sustained for so much as the plaintiff in error had actually received; and if he had failed to collect, the action should have been upon his bond. It is questionable whether an action of assumpsit can be maintained at all against a public officer 133 12.5 SUPREME COURT. Hoyt v. The United States. who has given bonds for his official conduct. Trafton et al. v. United States, 3 Story, 646 ; Perkins v. Hart, 11 Wheat., 237; 8 Barn. & C., 324; 5 Mees. & W., 83; Toussaint v. Martinnant, 2 T. R., 105. But how do the United States prove their action? Why, by Treasury transcripts made up in the Treasury Department. The act of 3d March, 1797 (1 Stat, at L., 512), makes the Treasury transcripts evidence in certain cases, arising in the ordinary transactions of the Treasury, against public officers for official delinquency. But it does not apply to accounts like these. These transcripts are made up from a variety of other papers. Those papers should have been produced. So with the quarterly accounts. They are made up from a variety of papers which should have been produced. The aggregated accounts are not evidence, but the items should have been offered in order that the court might test the accuracy of the government officers. The particulars, and not the results, *19«-] should have *been before the court. United States v. J Jones, 8 Pet., 383; United States v. Edwards, 1 McLean, 447. In short, all the evidence that was before the accounting officers should have been before the court. 2. The judge erred in refusing the first ten instructions requested by the defendant below, and in giving the first five prayed for by the plaintiffs. The instructions given and refused were upon the ground that the defendant was responsible in this action for bonds or money fraudulently abstracted from the custom-house without his fault or knowledge. The instructions should have left it to the jury to find how much money of the United States had been received by the defendant; and whether the same had been accounted for. Sthreshley v. United States, 4 Cranch, 169. It was never contemplated by any law that the collector should personally perform all the duties of his office. The law provides for other officers, and provides for their compensation, and defines their duties. Such persons are, therefore, officers of the government, and the collector is not responsible for the fidelity of these subordinates, beyond what may grow out of his own neglect in not properly superintending the discharge of their duties. Dunlop v. Monroe, 7 Cranch, 242-263. Briscoe et al. v. Lawrence is direct to the point. Wherever it is otherwise it is by express enactment, and is so set forth in the bond. Thus the condition of the Treasurer’s bond (1 Stat, at L., 66, § 4) is for the faithful performance of the duties of his office, and for the fidelity of the persons to be by him employed. So, by the act of 21st July, 1789 (1 Stat, at 134 DECEMBER TERM, 1850. 126 Hoyt v. The United States. L. 37), the collector is made answerable for the neglect of his deputy. So also naval officers and surveyors were empowered to appoint deputies for whom they were to be held responsible (1 Stat, at L., 155). Supervisors of Albany v. Dorr et al., 25 Wend. (N. Y.), 440. Mr. Evans read the letter of 30th June, 1841, and said that the quarterly accounts accompanied by that letter were not to be considered as evidence of indebtedness to the amount therein stated. In that letter Mr. Hoyt states that this account as well as others, were prepared in the auditor’s office and signed by him without personal examination. It was therefore no admission at all. The 4th and 5th instructions prayed for by the plaintiff, and given by the judge, were erroneous, in requiring the defendant to prove by the “ clearest evidence ” certain parts of his claim. It was beyond the province of the court to determine for the jury what degree of evidence should satisfy them. Carver v. Astor, 6 Pet., 588; Rex v. King, 5 Car. & P., 124. The expressions * “ clearest evidence,” “ clear proof,” r*|27 were calculated to mislead the jurv. 1 Serg. & R. *-(Pa.), 72: 11 Wend. (N. Y.), 83; 7 Id. 408; 1 Pet., 182; 14 Id., 431; 9 Conn., 247; 1 Hawks, (N. C.), 190. The judge erred in the instruction as to the 8109,000, twice charged as excess of deposits for unascertained duties. The question involved was one of fact merely. An excess for duties is paid into the Treasury. The merchant calls for the excess, and the collector pays it out of funds in his hands; and the amount is refunded to him by warrant. The warrant is charged to him, but he is not credited for the amount which he has paid. Was it not a matter of fact for the jury to determine whether the errors of which the defendant complained did not exist ? Cheval v. Burnham, 2 Pet., 623; McLanahan v. Universal Ins. Co., 1 Id., 170, 182; United States v. Jones, 8 Id., 415; Greenleaf n. Birth, 9 Id., 299; Scott v. Lloyd, Id., 445; United States v. Tillotson, 12 Wheat., 181, 183; Corning v. Call, 5 Wend. (N. Y.), 253, 257; Long v. Ramsay, 1 Serg. & R. (Pa.), 72; Reid v. Hurd, 7 Wend. (N. Y.), 408, 411. [Mr. Evans also maintained that the defendant was entitled to one moiety of certain goods seized and forfeited for undervaluation, and cited 1 Stat, at L., 697; McLane v. United States, 6 Pet., 404; Gelston v. Hoyt, 3 Wheat., 264; Jones v. Shore, 1 Id., 462; Van Ness v. Buel, 4 Id., 74; Opinions of Attorneys-General, 853, 862.] The judge erred in charging the jury that the claim for commissions for paying .the drafts of the Treasurer was an 135 127 SUPREME COURT. Hoyt v. The United States. illegal charge. The service which was rendered did not belong to the duties of his office as collector, but was imposed upon him by the Treasury Circular of 9th June, 1837, on account of the embarrassments into which the financial affairs of the government were thrown by the suspension of specie payments by the banks. And he was not precluded from receiving compensation, therefore, by the law limiting the amount he should receive as collector. The act of 7th May, 1822 (3 Stat, at L., 695), refers to offices then existing and then known to the law. The duty of collecting and the duty of disbursing were separate and distinct, and were regarded so by the whole spirit of our legislation. Mr. Crittenden, Attorney-General, contra. The first question raised by the other side is whether this action for money had and received can be - maintained. As early as 9 Wheat., 651, a case occurred like this. It was an action of assumpsit against a defaulting officer. The same objection was taken there as here, that the suit should have been on the bond; and the court decided that the official *12R1 b°nd *did not extinguish the simple contract debt -J arising from a balance of account due to the United States. In that case the same objection to the Treasury transcripts was made, but the court decided that they were admissible in evidence. The second section of the act of 3d March, 1797 (1 Stat, at L., 512), expressly makes the Treasury transcripts evidence in case of the delinquency of a public officer. It is contended on the other side, that this only applies to cases where money is paid out of the Treasury. The case of United States v. Buford, 3 Pet., 12, is directly against this position. There the money was received by Buford from Morrison, and it was held to have been received to the use of the United States; and what can be better evidence against an officer, than a transcript made up at the Treasury upon his own reports? The transcripts in this case are founded upon the quarterly official reports of the collector. But it is said, Why not produce them? I can only answer, that the object of the law was to get rid of the necessity of producing all those voluminous original evidences. It was intended to simplify the matter. United States n. Eckford's Executors, 1 How., 251. But even if this were not so, these very quarterly accounts were handed over to the defendant, and were given in evidence by him. But it is complained of, that the judge decided the fact that the transcripts from the Treasury and the quarterly accounts agreed. This was a mere matter of eyesight. The 136 DECEMBER TERM, 1 850. 128 Hoyt The United States. testimony of Moore was properly ruled out. That testimony was to the effect that one of his correspondents had seen a bond somewhere in Switzerland, and that therefore bonds had been abstracted. Well, give his testimony all its weight, and how is it known that the bonds ought to have been in the Treasury ? They might have been paid. If such loose evidence is admissible, the Treasury of the United States would be at the mercy of public officers. There would be no security. So, too, the letter of Hoyt, dated 30th June, 1841, was properly ruled out. That letter was written after he had retired from his office and had become a private citizen, and could no more be made an available protest against his official admissions in his quarterly accounts, than a letter written at or after the execution of a bond could be adduced to show the invalidity of the bond. The same may be said of the letters from Hoyt to the First Comptroller in 1842 and 1843. As to the first five instructions granted, the prayer was that the judge would instruct the jury in conformity with those propositions. It does not appear that the judge used the particular language of those propositions. But if he did, it amounts to the same thing. For “ clear proof,” “satisfactory *proof,” and “ the clearest proof,” all mean that the 9Q thing must be proved. L The claim for goods forfeited was clearly illegal. Mr. Hoyt, having received his portion of the proceeds of the bond, now claims also a portion of the duties. The goods are the things to which the collector is primarily to look for his compensation. But the law has provided that, until the suit is decided, the importer may give his bond, and take the goods into possession, paying the duties as though the goods had been legally entered. The claim for half duties is only arrived at by argument, not from the words of the law. There is only one case similar to this, that of McLane v. United States, 6 Pet., 404. But that was a case of prohibited goods, and the court say that duties, as such, do not accrue upon goods which are prohibited. But it does not support the proposition that duties do not accrue upon goods which are forfeited. Whatever the government took in that case was in the nature of a penalty. Next as to the item of $109,000, alleged to be twice charged. It has not been shown where it is twice charged. It is assumed, not proved. I say that it does not appear to have been twice charged; and until it is pointed out, it is needless to discuss it. The practice of the department is easily understood. The collectors, prior to 1829, retained in their hands duties paid under protest, or for unascertained duties, under 137 129 SUPREME COURT. Hoyt v. The United States. the idea that they were personally responsible. After 1829 this practice was changed. Since then, the collector credits the United States with the amount of unascertained duties, and pays to the importer (out of moneys in his hands) the excess when ascertained. For this amount he receives a warrant from the Treasury, with which he is charged. And it is contended that, being charged with the money paid back to the importer, and also with the Treasury warrant, he is thus twice charged. He receives the money twice, once from the importer and once from the Treasury in the shape of a warrant. And he credits the United States with the money when received from the importer, and he also credits the Treasury warrant. And this balances the account. There was consequently no error in the stating of the account, and no double charge. But if there had been, it should have been presented to the accounting officers under the act of 3d March, 1797, before a credit could be claimed for it in this suit. The charge of commissions for paying drafts has never been allowed, from the first. The services were not extra-official, but were properly imposed on him as collector, and for which the fees and emoluments embraced in the act of 1822 were the compensation allowed by law. The decision of Mr. Jus-*1301 ^ce *Story *n $ which is relied on, is not in point. -* That was the case of a man appointed to two offices, and for which he was to receive two distinct salaries. It was not a commission claimed for the discharge of the duties of a single office. Mr. Walker., in reply and conclusion, referring to the statements of accounts and to the testimony in the record, argued that Mr. Hoyt never, in fact, received or disbursed personally a dollar of the public money. The duties were performed by subordinate officers, and the statements which were signed by him were prepared by those officers. He could not possibly verify the accuracy of those accounts. It was physically impossible. If there was any defalcation it was not his. As to the item of $109,000, it is said that it nowhere appears to have been twice charged. Now this was not a single error, but an aggregate of many errors running through the quarterly accounts current. Som£ 'were in one account, some in others. Now these quarterly accounts are considered as admissions by virtue of the letter of 10th June, 1841; and yet we are asked to throwout the letter,and take the account of which it forms a part. The accounts must stand or fall by the letter as an admission. The excess of deposits for unas-138 DECEMBER TERM, 1850 130 Hoyt v. The United States. certained duties was paid to the merchant by the cashier for the collector, and was not charged on the cash-book. And by the circular from the comptroller’s office he was directed to enter upon the debit side of his accounts the whole deposit made by the importer, which would be balanced by the ascertained duty, and the excess paid back to the importer. But the excess having been paid by the cashier for the collector, and the collector being charged with the warrant which was to replace the money thus paid back to the importer, the account would not stand balanced. He has in fact paid these duties to the importer, and not received any thing in return. The Attorney-General has insisted that the Treasury transcripts were evidence, by virtue of the act of 3d March, 1797. The authorities show that they are only evidence between the government and its disbursing officers. Until 1839, the collector paid moneys on the order, not the draft of the Secretary of the Treasury. By what law has the collector been shown to be a disbursing officer of -moneys in the Treasury. Can he be made a disbursing officer for the War and Navy Departments? If so, then he could be made the general disbursing officer for all the expenditures of the government. [dfr. Walker referred to the financial history of the times, the message of the President, the reports of the Secretary of the Treasury, &c.] *Different auditors had the oversight of different r*-io-i officers; one for the Navy, one for the War Department, >-&c. And they could only officially certify the accounts which were within their supervision. Now, by making the collector disbursing officer for these different classes of duties, can you. give the First Auditor power to certify all these different accounts ? Next as to commissions. [Mr. Walker referred to several acts of Congress to show that the spirit of the whole legislation on this subject was to separate the duties of collecting from those of disbursing the public moneys.] The responsibility of the collector was increased by a change in the mode of drawing money by the Treasurer’s draft and by a transfer draft. It was increased by his being obliged to pay drafts of which he had no previous notice. These services did not appertain to the office of collector, and were of that description for which compensation has been repeatedly allowed. Gratiot v. United States, 15 Pet., 336; Milner v. Gratz, 16 Id., 221. Suppose these duties had been devolved on some bank, would not that bank be entitled to commissions? Was it not so before the Independent Treasury Act, either that they 139 131 SUPREME COURT. Hoyt v. The United States. should receive commissions, or, what was better, interest on the money deposited? Now what is the difference whether you select a person who holds no office, or one who holds an office with particularly defined duties and a defined salary for those duties? The act of 1822 limits the emoluments of an office. What is an emolument? It is a compensation for the performance of an official duty. Is a commission for performing duties not belonging to an office an emolument of that office? The act of 7th May, 1822 (3 Stat, at L., 684), gave to the collectors in Florida compensation in addition to fees and emoluments. The act of 1839 does not apply to this case, first, because Hoyt was not a disbursing officer “in any branch of the public service, known and recognized by law, or who had given bond for the performance of such duties.” Second, because he was neither an “ officer ” nor a “ person ” whose pay or emoluments are fixed by law. His compensation as collector was contingent, depending upon the business done at the custom-house. As to the form of the action. This claim can only be sustained under that count in the declaration which is money had and received. It must have been money. Suppose goods had been received, could this action be maintained? If not, could it be maintained for bonds or anything else than money? The account is for bonds some of which are not yet due. Nor do the transcripts alter the case in this respect. They only stand in place of the voluminous accounts. They do not change the form of action. The instruction of the *1 Q91 jU(^ge, which *required that the defendant should show -* an error in the quarterly accounts by the clearest evidence, is not defensible. It is a superlative, and rejects two inferior kinds of evidence, viz., clear evidence and clearer evidence. Now by what rule of law is a jury bound to reject clear testimony? Would the same rule apply to a note of hand in which error should be alleged? Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the Circuit Court held in and for the Southern District of New York, in a suit brought by the United States against the late collector of the port of New York, to recover a balance claimed in the settlement of his accounts. The defendant had been collector from the 29th of March, 1838, to the 2d of March, 1841, and on a final adjustment of his accounts, at the close of his official term, a balance against him was found due by the accounting officers of the Treasury of $216,048.07. 140 DECEMBER TERM, 1850. 132 Hoyt v. The United States. The counsel for the plaintiff produced on the trial four Treasury transcripts containing a statement of his accounts with the government for the whole period of his term, and which resulted in the balance above stated. These transcripts were objected to, as not competent evidence against the defendant of the balance therein found due, within the meaning of the act of Congress providing for this species of proof. Act of 3d March, 1797 (1 Stat, at L., 512). The second section of the act provides, that in every case of delinquency, where a suit has been brought, a transcript from the books and proceedings of the Treasury, certified by the Register, and authenticated under the seal of the department, shall be admitted as evidence, upon which the court is authorized to give judgment. It has been already determined, under this act, that an account stated at the Treasury, which does not arise in the ordinary mode of doing business in that department, can derive no additional validity from being certified according to its provisions; and that the statement can only be regarded as establishing items for moneys disbursed through the ordinary channels of the department, where the transactions are shown by its books; in such cases the officers have official knowledge of the facts stated. (United States v. Buford, 3 Pet., 29.) That when moneys come into the hands of an individual, not through the officers of the Treasury, or in the regular course of official duty, the books of the Treasury do not exhibit the facts, nor can they be known to the department. (Id.) It was held in the United States v. Buford, that a Treasury *transcript was not competent proof against the defen-dant in respect to moneys coming into his hands from *-a third person not in the regular course of official business; and that the evidence on which the statement of the account was founded should have been produced. (See also United States v. Jones, 8 Pet., 375.) In the case before us, the several items of account in the transcripts arise out of the official transactions of the defendant, as collector, with the Treasury Department, and were founded upon his quarterly and other accounts, rendered in pursuance of law and the instructions of the Secretary. They were substantial copies of these quarterly returns, revised and corrected by the accounting officers as they were received, and with copies of which the defendant had been furnished in the usual course of the Department; they present a mutual account of debit and credit, arising out of his official dealings with the government in the collection of the public revenue. 141 133 SUPREME COURT. Hoyt v. The United States. We can hardly conceive of a case, therefore, coming more directly within the act of Congress as expounded by the cases referred to. In the case of the United States v. Eckford's Executors, (1 How., 250), a transcript corresponding with the one in question was held to be competent evidence of the balance of the account. The point was presented in a certificate of a division of opinion of the judges. It has also been objected to these transcripts, that some of the items included contain a charge against the defendant in gross; such as the aggregate amount of the duty bonds, and of duties accruing within the quarter, reference being made to the abstracts for the particular items composing each amount. This objection was not specially pointed out at the trial, as the one made then was to the admissibility of the transcripts generally. If made then, it might have been removed by the production of copies of the abstracts. They were called for, in the course of the trial, in respect to the item of bonds in the quarterly account of the 31st March, 1838, and produced. This affords a full answer to the objection. But we do not intend to admit that it would have been available, if made at the proper time. We agree, that a transcript of a gross balance against the officer would be objectionable, as the act of 1797 obviously contemplates, to some extent, a detailed statement of the accounts between him and the government. It must be “ a transcript from the books and proceedings of the Treasury,” which doubtless will usually present such a statement. The amount of the detail, or degree to which the particulars of the account should be *1341 carried’ *mus^ necessarily be left open to the exercise -> of some discretion, as there can be no fixed rule by which to determine it. The necessity of greater particularity than exhibited here in the several transcripts, to guard the officers against surprise, and afford an opportunity for explanation, is not very apparent; for they contain the several items making up the quarterly returns of the party himself, with the addition of such errors as the accounting officers may have detected in their examination; and with all of which he had been furnished. If the accounting officers, therefore, have fallen into error, the officer has had ample time and means for inquiry and correction. This is true as it respects each quarterly account rendered. i Besides, by the fourth section of the act of 1797, no claim for an equitable credit can be admitted, upon the trial, but such 142 DECEMBER TERM, 1850. 134 Hoyt v. The United States. as shall appear to have been presented to the accounting officers for examination, and by them disallowed, except in case of vouchers, which the officer was not before able to procure, or was prevented from exhibiting, by absence or. unavoidable accident. As a general rule, therefore, every item of the account that can be the subject of litigation at the trial, on the production of a transcript, must have been a matter of dispute at the Treasury Department, and, of course, presenting nothing new or unexpected to either of the parties. If the transcript contains the accounts, debits, and credits, as acted upon at the Department by the accounting officers, it would seem to be sufficient as it respects the particulars of the account required by the act. The court is of opinion, therefore, that the several Treasury transcripts given in evidence were properly admitted. . The comptroller, in the adjustment of the accounts, rejected nineteen items, that were claimed by the defendant as legal or equitable credits, which, in the aggregate, exceeded the amount of the balance reported against him. All of them except four were either allowed by the court, or submitted to the jury as a matter of fact involving no principle of law, and, of course, require no further notice. Among the items rejected is a charge of $36,712.71, for fees payable by persons engaged in trade and navigation for certain services, performed by the collector at each port, such as giving permits to land goods, clearances, bills of health, &c., and which were chargeable under the compensation act of 2d March, 1799 (T Stat, at L., 705, § 2). These fees were divided between the collector, naval officer, and surveyor, in districts in which these several officers are appointed. The *collector in the district of New York was also entitled to a commission of one quarter of one per cent, on all «-moneys received on account of duties on goods, or tonnage of vessels. .—- By an amendment of this act, April 30, 1802 (2 Stat at L., 172, § 3), it was provided, that whenever the annual emoluments of any collector, after deducting the expenses incident to the office, shall amount to more than five thousand dollars, the excess shall be accounted for, and paid into the Treasury. The act was not to extend to fines, forfeitures, and penalties, a share of which the collector was entitled to, under the twentieth section of the act of 2d March, 1799 (1 Stat, at L., 697). The act of 7th March, 1822, reduced this maximum to four thousand dollars per annum, and the commission to one sixth 143 135 SUPREME COURT. Hoyt v. The United States. of one per cent, on the moneys received. (3 Stat, at L., 694, 695, §§ 7,9.) It is insisted by the defendant, that the limitation in the aforesaid acts does not refer to or embrace the fees allowed to him under the act of 1799; and that the collector was still entitled to apply them to his own use. X At the date of the act of 1802, the compensation of the collector was derived from three sources :—1, fees allowed for the services already referred to ; 2, commissions on the duties received ; and 3, a share of the fines, penalties, and forfeitures. The emoluments of the office were dependent upon the receipts from these sources ; and the officer was entitled to apply to his own use the whole amount derived from them. The provision in this act, therefore, that whenever the annual emoluments, after deducting the expenses, exceeded the amount of five thousand dollars, the excess should be accounted for, necessarily embraces in the limitation the fees as well as commissions belonging to the office, and would have embraced also the fines and forfeitures, had it not been for the proviso to the act taking them out of the limitation. The argument would be quite as strong in favor of excluding the commissions as in the case of fees, as the one can in no more appropriate sense be regarded as emoluments of office than the other, and thus the limitation would become a nullity. These terms denote a compensation for a particular kind of service to be performed by the officer, and are distinguishable from each other, and are so used and understood by Congressin the several compensation acts ; they are also distinguishable from the term emoluments, that being more comprehensive, and embracing every species of compensation or pecuniary profit derived from a discharge of the duties jof the office; and such is the obvious import of it in these acts«- * *1361 *The act of 1822, so far as respects this question was J simply,a reenactment of that of 1802, with the exception of fixing the limit of compensation to four instead of five thousand dollars. But it is unnecessary to pursue this argument further, as there is another view of the question, founded upon subsequent acts of Congress, that is entirely decisive. The third section of “ An Act to provide for the support of the Military Academy of the United States for the year 1838, and for other purposes,” passed 7th July, 1838 (5 Stat, at L., 264), provides, that the Secretary of the Treasury shall be authorized to pay collectors, out of any money in the treasury not otherwise appropriated, such sums as will give to them the same compensation in the year 1838, according to the importa- 144 DECEMBER TERM. 1 850. 136 Hoyt v. The United States. tions of that year, as they would have been entitled to receive, if the act of 14th July, 1832, had not gone into effect; provided, that they shall not receive a greater annual salary or compensation than was paid for the year 1832; and provided, also, that the collectors shall render to the Secretary, under oath, a quarterly account of all fees and emoluments whatever, by them received, together with the expenses of their office; and provided further, that no collector shall receive more than four thousand dollars per annum. This provision was continued in force for the years 1839, 1840, and down to the 3d of March, 1841, when the mode of compensation was materially changed. (5 Stat, at L., p. 431, § 2; p. 432, § 7. 6 Stat, at L., 815.) The provision relating to the year 1840 is not to be found in the public statutes at large, as it is embraced in the seventh section of “ An Act for the relief of Chastelain and Ponvert, and for other purposes,” passed 21st July, 1840. Being a private act, it was not incorporated in the public statutes in Little & Brown’s edition of 1846. It will be seen by the act of 1838, that the collector is bound to account to the Secretary of the Treasury for all the fees and emoluments received by him in the execution of the duties of his office, and that his annual compensation was limited, as in the act of 1822, to an amount not exceeding the sum of four thousand dollars. The same act required that the naval officers and surveyors should make a return of their fees and emoluments, and limited the annual amount of their compensation. During the period, therefore, of the term of office of the defendant as collector of the port of New York, which extended from the 29th of March, 1838, to the 2d of March, 1841, there can be no pretence for claiming that the limitation, as respected *his annual compensation, did not apply as well to the fees received under the act of 1799, *-as to commissions or emoluments of office derived from any other source. He was required in express terms to account for them to the Treasury, the same as in the case of other emoluments. Another item claimed, and which was rejected by the court, is a charge of $14,035.29 for a moiety of the duties received on goods that were seized, and afterwards condemned for a violation of the revenue laws. This question turns upon a construction of sections 89 and 91 of the revenue act of 2d March, 1799 (1 Stat, at L., 695. 696). Section 89 provides, among other things, that the claimant, Vol. x.—10 145 137 SUPREME COURT. Hoyt v. The United States. after the seizure of the vessel and merchandise, may procure the same to be re-delivered to him on the execution of a bond with sureties for the payment of the appraised value, together with the payment or security of the duties, the same as if the vessel and goods had been legally entered at the customs. If judgment shall afterwards pass in favor of the claimant in the proceedings instituted, the bond shall be cancelled; if against him, then, unless he pays into the court the amount of the appraised value of the ship and goods, together with the costs, within twenty days, judgment shall be entered on the bond by a motion in open court, without further delay. In case no bond is given by the claimant, and the vessel and goods have been condemned, the same are to be sold at public auction by the marshal to the highest bidder, and the proceeds paid over to the collector. (§ 90.) Section 91 provides, that all fines, penalties, and forfeitures recovered by virtue of the act, after deducting costs and expenses, shall be disposed of as follows: one moiety shall be paid by the collector into the treasury for the use of the United States; and the other equally divided between him, the naval officer, and the surveyor of the port. It will be seen, therefore, by these provisions, in cases of seizure, where the claimant elects to give a bond, and pay or secure the payment of the duties, with a view to a re-delivery of the vessel and goods, that, if the same be condemned, he loses as well the duties paid or secured, as the property seized and condemned. It .is a moiety of these duties which accrued during the term of the defendant, as collector, that he claims as a portion of the forfeitures belonging to him under the ninety-first section of the act. A conclusive answer to this claim, in the judgment of the court, is, that the duties thus paid constitute no part of the proceeds of the goods forfeited, in which only the collector *1*has an interest. The proceeds are the appraised value -• secured by the bond, or, in case no bond be given, the amount derived from the sale by the marshal, after the deduction of all proper charges. The payment of the duties is a condition to the acceptance of the bond, and re-delivery of the goods, and is the voluntary act of the claimant. They do not enter into the question of condemnation, nor constitute any part of the forfeiture declared by the act, or the judgment of the court. It is true, the collector acquires by the seizure an inchoate right to the goods, which, when followed by condemnation, becomes absolute to the extent of his share of the forfeiture (1 Wheat., 462; 4 Id., 74) ; but it is a right only in the goods 146 DECEMBER TERM, 1850. 138 Hoyt v. The United States. themselves, which have been seized and forfeited,—the rem, a moiety of which, it is admitted, has already been allowed to him. This view is in conformity with the language of the act (§ 91), which is, that all fines, penalties, and forfeitures, recovered by virtue of this act, shall be disposed of, one moiety to the government, the other to the collector, to be divided as therein declared. The case is not like that of McLane v. The United States, 6 Pet., 405. There the sum in controversy was reserved out of the forfeiture by the act for the relief of the owners; and was regarded by the court as part and parcel of it. The only doubt that existed was, whether or not the amount thus reserved should be considered as the legal duties belonging to the government, or a portion of the forfeiture, the residue of which had been remitted. The amount reserved was to be equal to the double duties imposed upon goods imported, under certain circumstances, by an act which had been passed since the forfeiture accrued; and the court was of opinion, that duties mentioned in that act were referred to simply as a measure to determine the sum to be reserved, and not as duties in the common acceptation of the term. The amount reserved, therefore, was so much excepted out of the forfeiture remitted, a moiety of which properly belonged to the collector. Another item rejected by the court is a charge by the defendant of $201,500 commissions, for accepting and paying drafts of the treasury during his term in office. These commissions are claimed on the ground that the services required and performed were extra services, not incident to the proper legal duties belonging to the office of collector, and that he is entitled, therefore, to a reasonable remuneration for the same, beyond the compensation annexed to the office. . By the act of 2d March, 1799, § 21 (1 Stat, at L., 642), it *is provided that the collector shall receive all moneys ™ paid for duties, and take all bonds for securing the *-payment thereof; and shall, at all times, pay to the order of the officers, who shall be authorized to direct the payment thereof, the whole of the moneys which he may receive by virtue of the act, and shall once in every three months, or oftener, if required, transmit his accounts to the Treasury Department for settlement. The Secretary of the Treasury is the head of that Department ; and has devolved on him the superintendence and collection of the public revenue; and is the officer properly 147 139 SUPREME COURT. Hoyt v. The United States. authorized to direct the safe-keeping and payment or disbursement of the same. (1 Stat, at L., 65, 66.) Under the authority thus given, and which has been exercised since the foundation of the government, the Secretary, by a circular dated 9th June, 1837, in consequence of the suspension of specie payments by the banks in which the public moneys had been deposited, directed that all public moneys received by the collectors, except such as were required for current expenses of the office, &c., should be placed to the credit of the Treasurer of the United States, in a separate account, on the books of the customs, and that the same would be drawn for by the Treasurer’s drafts on the collector, from time to time, as the necessities or the convenience of the government required. This mode of keeping and paying out the public moneys received by the collectors in the different collection districts continued during a considerable part of the term of office of the defendant; and, doubtless, very much increased the duties of the office, its labors and responsibilities, for which he may well be equitably entitled, at the hands of the proper authorities, to a corresponding compensation ; and it is not at all improbable, that to the necessity of keeping on hand such large sums of the public moneys as are daily and weekly collected at the port of New York, and the disbursement in comparatively small sums, upon the drafts of the Treasurer, may be attributed, in part, at least, the great deficiency in the accounts. It must have required extraordinary diligence and accuracy, and very competent and faithful subordinates, to have prevented it. But be this as it may, we are unable to perceive that the duties thus imposed, onerous and responsible as they undoubtedly were, exceeded those legally incident to the office; or such as the Secretary was authorized to require as the head of the Treasury. The depositaries of the public revenue, as provided by the act of 23d June, 1836, having failed to comply with the conditions required of them, the duty of regulating the safe-keeping and disbursement devolved upon the sound discretion of *14-01 this *officer; and indeed, on looking into the provisions -* of that act, and the numerous and complicated conditions and restrictions annexed to the employment of the banks as depositaries, it is difficult to say, that the authority there conferred to use them formed any exception to this discretion. If they refused to become depositaries, or failed to comply with the conditions, or, in the judgment of the Secretary, were unsafe, it was his dutv to provide some other mode for the 148 DECEMBER TERM, 1 850. 140 Hoyt v. The United States. safe-keeping and disbursement, and until some other was provided, those officers immediately concerned in the receipt and collection of the revenue must necessarily become the depositaries, and disbursing officers of whatever amount they may have received. If other depositories be provided by law, or by the regulations of the Secretary, the money is then deposited there by the collector, in sums large or small, as received, according to the instructions of the Secretary; if not, it remains rn their hands until drawn out, from time to time, as the necessities of the government may require, upon drafts by the same authority. In either case, the collector is but performing the duties enjoined by the act of 1799, which provides, that he shall receive all moneys paid for duties, and shall, at all times, pay them over upon the order of the officer authorized to direct the payment. The duty is the same in both cases, the nature of the service the same, and the obligation to perform the service dependent upon the same authority. This mode of keeping and disbursing the public revenue has existed since the foundation of the government. Even when the banks have been used as depositories, either by act of Congress, or by the regulations of the head of the Treasury, it was not, at all times and places, practicable for the different collectors and receivers to make the deposit, and in such cases the moneys were kept until drawn for by the proper authority. The Bank of the United States, and the state banks, under the act of 1836, with some slight exceptions, are the only instances, I believe, in which Congress have undertaken to control the discretion of the Secretary, as to the place in which the public moneys shall be kept, down to the act of 1840, when a new system was established, usually known as the sub-treasury. (5 Stat, at L., 385.) With these exceptions, the place of deposit, if any was designated, or the mode of making payments by the collectors, depended upon the regulations of the Treasury. And it is not to be doubted but that it was as much their duty to conform to the orders of that department, under such circumstances, whether for deposit or payment, as in the cases in which the depositories had been designated by act of Congress. In the *one case, the orders rested upon the r#141 general power vested in the department by the act of L i 1789; in the others, upon the same power, modified by the subsequent acts prescribing the particular depositories. But there is another view of this branch of the case, which must not be overlooked, and that is, whether, assuming that 149 141 SUPREME COURT. Hoyt v. The United States. the services of the defendant were extra and beyond those incident to the office, the court erred in rejecting the claim. The act of 1822, already referred to, as we have seen, limited the fees and emoluments of the office to an amount not exceeding the sum of $4000. The act of 1838, and which was continued through the term of office of the defendant, contained a like restriction, and the eighteenth section of the act of 1822 further provided, that no collector should ever receive more than four hundred dollars, exclusive of his compensation as collector, and the tines and forfeitures allowed by law, for any services he may perform for the United States in any other office or capacity. It would be extremely difficult to say, even if the defendant is right as to the nature of the service performed, in the face of this provision, that a court of law could sanction the compensation claimed, or any other compensation for such service. The very ground of claim here is that the service was rendered in a capacity other than that of collector. The two limitations, the one upon his compensation as collector, and the other upon compensation for service in any other office or capacity, while acting as collector, would seem to close up every “ loophole ” through which any additional remuneration could be claimed in a court of justice. But this is not all. By the eighth section of the act of 3d March, 1839 (5 Stat, at L., 349), it is provided, “ that no officer in any branch of the public service, or any other person whose salaries, or whose pay or emoluments, is or are fixed by law and regulations, shall receive any extra allowance or compensation, in any form whatever, for the disbursement of public money, or the performance of any other service, unless the said extra allowance or compensation be authorized by law.” It is impossible to misunderstand this language, or the purpose and intent of the enactment. It cuts up by the roots these claims by public officers for extra compensation, on the ground of extra services. There is no discretion left in any officer or tribunal to make the allowance, unless it is authorized by some law of Congress.1 The prohibition is general, and applies to all public officers, or quasi public officers, who have a fixed compensation. *1421 *This act, together with the act of 13th August, -• 1841, making it penal for any officer charged with the safe-keeping or disbursement of the public money to convert it to his own use, or to neglect or refuse to pay it over upon 1 Followed. United States v. Shoemaker, 7 Wall., 342. 150 DECEMBER TERM, 1850. 142 Hoyt v. The United States. the authority of the Secretary of the Treasury, present a system of legislation against these claims for extra compensation by public officers, that, if fairly carried into effect, must, for aught we see, effectually extinguish them, except when allowed by the authority of Congress; and which, it must be admitted, is the proper constitutional tribunal to decide upon the matter. Another item in the account rejected by the court is a claim of $109,000, for excess of deposits for unascertained duties, which it is supposed has been twice charged by the accounting officers against the defendant in the adjustment of his accounts. The item does not appear among those presented to the comptroller, and to have been rejected by him, but it is claimed that the error is shown upon the face of the account, and, therefore, available to the defence. This sum was the subject of comment by the defendant in his correspondence with the department at the time of closing the settlement of his accounts, in June, 1841, but he seems to have been unable to satisfy himself at that time that the amount had been twice charged against him. By the second section of the act of 3d March, 1839 (5 Stat, at L., 348), all moneys paid to the collector for unascertained duties were directed to be placed to the credit of the Treasurer, and to be kept and disposed of as other moneys paid for duties; and should not be held by him to await the ascertainment of the duties ; and, whenever it was shown to the Secretary of the Treasury that more money had been paid than covered the actual duties when ascertained, it should be his duty to draw a warrant upon the Treasurer to refund the amount. The regulation, under this act, at the Treasury, was, to permit the collector to refund the excess of duties, as they were ascertained, to the importer, keeping a separate account of the same, and at the end of each month to make a return to the department of the amount, accompanied with the vouchers, when a warrant was drawn in his favor, refunding the amount. The aggregate amount of this excess thus paid by the collector during his term, and for which warrants were drawn in his favor, constitutes the sum in question. The defendant supposes it has been twice charged in his accounts, once in the credit given to the government for the amount of unascertained duties, and again by charging him with these warrants. If this were true, *the error would be obvious, and being ri(e1 <« so obvious, it is difficult to believe it could have oc- *- 151 143 SUPREME COURT. Hoyt v. The United States. curred; or, if it had, that either the department or the defendant could not have readily detected it. It is, however, sufficient for the purposes of this case to say, we are unable to perceive any evidence upon the face of the accounts, or indeed in the record, tending to establish it, and that the court were right, therefore, in the instructions given to the jury. If the whole of the unascertained duties were credited to the government, then the warrants drawn to reimburse the collector for the payment of the excess should not be charged in his customs account. If the credit was for the net or actual duties only, then it would be proper to charge them. How this may be, it is impossible to say from anything in the record. An examination at the Treasury Department would, doubtless, have removed any difficulty in the account. Another item claimed by the defendant, and rejected by the court, is a charge of 81063.84 deducted from the maximum compensation for the year 1838, the service having commenced on the 29th day of March in that year, when he entered upon the duties of his office. The defendant claimed compensation for the entire year. The act of 1838, already referred to in another branch of this case, which provided for the compensation of the collectot for the year, made it virtually a salary office, with the addition of his share of the fines, penalties, and forfeitures, and the pro rata allowance, therefore, for the portion of the year the defendant held an office was all that could be legally claimed. The case is distinguishable from that of The United States v. Dickens, 15 Pet., 141. The question is of no importance now, as it has since been settled by an express act of Congress. (9 Stat, at L., 3.) There were some other questions of minor importance presented in the argument, but which, in our judgment, cannot materially affect the result, and need not, therefore, be particularly noticed. After the best consideration we have been able to give to the case, we are of opinion that the several rulings of the court below were correct, and that the judgment should be affirmed. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of New York, and was argued by counsel. «1441 On Consideration whereof, it is now here ordered and J adjudged by this court, that the judgment of the said 15'2 DECEMBER TERM, 1850. 141 Rhodes v. The Steamship Galveston. Circuit Court in this cause be, and the same is hereby, affirmed, with damages at the rate of six per centum per annum. Ex Parte : In the Matter of Henry W. Rhodes v. The Steamship Galveston, &c.—In Admiralty. In order to sustain a motion to docket and dismiss a case under the forty-third rule of this court, it is necessary to show, by the certificate of the clerk of the court below, that the judgment or decree of that court was rendered thirty days before the commencement of the term of this court. Hence, where the certificate of the clerk stated that a final judgment was pronounced at April term, 1850, it was not sufficient, because non constat that the April term might not have been prolonged until December, 1850. Mr. Coxe filed the following motion and certificate: “ A certificate being produced from the District Court of Texas, by which it appears that at the April term, 1850, of said court a final decree was rendered by said court in favor of the defendants and respondents, and that an appeal from said decree was prayed and obtained by the libellants to the Supreme Court of the United States,—and it appearing that the record in said case has not been filed,—Mr. Coxe for said respondents and defendants, moves the court that the said cause be docketed and dismissed with costs. “ Coxe, for Defendants and Respondents." “ United States District Court.—District of Texas. “Henry W. Rhodes, Libellant, v. The Steamship Galveston, her Tackle, Apparel, and Furniture, John R. Crane, Master. Charles Morgan, Israel C. Harris, and Henry R. Morgan, Claimants and Respondents.—In Admiralty. “I, James Love, Clerk of the United States District Court for the District of Texas, do hereby certify, that at the April term, 1850, of said court, a final judgment or decree was rendered by the court here in the above-entitled cause, in favor of the defendants and respondents, and that the libellant prayed and obtained an appeal from the said final decree of the said District Court to the Supreme Court of the United States. “ In testimony whereof, I have hereunto set my [seal.] hand and affixed the seal of said court, this 27th day of December, A. d., 1850. James Love, Clerk." Mr. Chief Justice TANEY delivered the opinion of the court. 153 *145 SUPREME COURT. Rhodes v. The Steamship Galveston. *A motion has been made to docket and dismiss the case of Henry W. Rhodes, libellant, against the steamship Galveston, and John B. Crane, master, and Charles Morgan and others, respondents and claimants, in which it appears that a decree was rendered in the District Court of the United States for the District of Texas against the libellant, and from which decree he prayed an appeal. The motion is made in behalf of the respondents and claimants under the forty-third rule of this court; and in support of the motion they produce the certificate under seal of the clerk of the District Court, stating that at the April term, 1850, a final decree was rendered in the above-mentioned case in favor of the respondents and claimants; and that the libellant prayed and obtained an appeal to this court. The certificate does not state on what day the decree was made. The rule referred to entitles a party, in a case like the present, to have it docketed and dismissed, where the decree was rendered thirty days before the commencement of the term of this court, unless the appellant shall docket the case and file the record within the first six days of the term. The record has not yet been filed and the case docketed by the appellant. But in order to entitle the appellees to docket and dismiss, they must show by the certificate of the clerk that the decree was rendered thirty days before the present term. The certificate produced states only the term of the District Court at which it was rendered, and not the day. And it often happens that the term of a court continues by adjournments from time to time for several months. For aught that appears in this certificate, the April term, 1850, of the District Court may have continued until the meeting of this court; and we are not aware of any case that has been docketed and dismissed under this rule, unless the day of the judgment or decree was stated in the certificate. And as we have no evidence before us to show how long the term of the District Court continued, or on what day this decree was rendered, the motion to docket and dismiss is overruled. Order. On the motion of R. S. Coxe, Esq., to docket and dismiss, under the forty-third rule of this court, the appeal in this case from the District Court of the United States for the District of Texas. On consideration of this motion, it is now here ordered by the Court, that the said motion be, and the same is hereby, overruled. 154 DECEMBER TERM, 1850. *146 Oldfield Marriott. * Granville S. Oldfield, Plaintiff in error, v. William H. Marriott. The second article of the treaty between the United States and Portugal, made on the 26th of August, 1840 (8 Stat, at L., 560), provides as follows, viz. :—“Vessels of the United States of America arriving, either laden or in ballast, in the ports of the kingdom of Portugal, and, reciprocally, Portuguese vessels arriving, either laden or in ballast, in the ports of the United States of America, shall be treated, on their entrance, during their stay, and at their departure, upon the same footing as national vessels coming from the same place, with respect to the duties of tonnage, lighthouse duties, pilotage, port charges, as well as to the fees and perquisites of public officers, and all other duties and charges, of whatever kind or denomination, levied upon vessels of commerce, in the name or to the profit of the government, the local authorities, or any public or private .establishment whatever.” This article is confined exclusively to vessels. It does not include cargoes, or make any provision for an indirect trade,—that is, it does not provide for the introduction of articles which are the growth, produce, or manufacture of some third country, into the ports of Portugal in American vessels upon the same terms upon which they are introduced in Portuguese vessels, or the introduction of such articles into the ports of the United States in Portuguese vessels upon the same terms upon which they are introduced in American vessels. These classes of cases are left open to the legislation of each country. The Tariff Act of Congress, passed on the 30th of July, 1846, has the following section:—“Schedule I. (Exempt from duty.) Coffee and tea, when imported direct from the place of their growth or production, in American vessels, or in foreign vessels entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges.” The treaty with Portugal is not one of those referred to in this paragraph. Consequently, a cargo of coffee, imported from Rio Janeiro in a Portuguese vessel, was subject to a duty of twenty per cent., being the duty upon nonenumerated articles.' An historical account given of the course pursued by the government of the United States, showing that, since the year 1785, it has been constantly endeavoring to persuade other nations to enter into treaties for the mutual and reciprocal abolition of discriminating duties upon commerce in the direct and indirect trade. This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maryland. It was an action brought by Oldfield against Mariott, who was the collector of the port of Baltimore, to recover back the amount of duties paid under protest upon an importation of coffee in a Portuguese vessel from Rio Janeiro. On the 26th of August, 1840, a treaty was made between the United States and Portugal (8 Stat, at L., 560), the second article of which provided that “ vessels of the United States of America arriving, either laden or in ballast, in the ports of the kingdom of Portugal, and, reciprocally, Portuguese vessels arriving, either laden or in ballast, in the ports of thè United States of America, shall be treated, on their entrance, during their stay, and at their departure, upon the same footing as national vessels coining from the same place, 155 146 SUPREME COURT Oldfield v. Marriott. with respect to the duties of tonnage, lighthouse duties, pilotage, port charges, as well as to the fees and perquisites of public officers, and all other duties and charges, of what-*1A71 ever kind *or denomination, levied upon vessels of com-J merce, in the name or to the profit of the government, the local authorities, or any public or private establishment whatever.” On the 30th of July, 1846, Congress passed “ An Act reducing the duty on imports and for other purposes,” the third section of which enacted, “ that from and after the first day of December next, there shall be levied, collected, and paid on all goods, wares, and merchandise imported from foreign countries, and not specially provided for in this act, a duty of twenty per centum ad valorem." In the same act of 1846, was the following section :— “ Schedule I. (Exempt from duty.) Coffee and tea, when imported direct from the place of their growth or production, in American vessels, or in foreign vessels entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges ; coffee, the growth or production of the possessions of the Netherlands, imported from the Netherlands in the same manner.” In the trial of the cause in the Circuit Court, the following statement of facts was agreed to:— Granville S. Oldfield v. H. Marriott, Collec- tor of the Port of Baltimore. It is agreed and admitted, in the above cause, that the brig Sandade Eterna arrived at the port of Baltimore, from Rio Janeiro, in Brazil, with a cargo of coffee, the production and growth of Brazil, on or about the 15th day of November. 1847; that the said brig was, at the time of said arrival and importation of said coffee, a regularly documented vessel of the kingdom of Portugal; that 1188 bags of the coffee so imported were consigned to the plaintiff in the above cause, who proceeded, on the 16th of the said month of November, to make an entry of the same as if free of duty, and to obtain a permit, agreeably to such entry, to unload and discharge from said brig the said 1188 bags of coffee so imported and consigned to him, as appears by the papers herewith filed and marked No. 1 and No. 2. (Then followed the import entry, the consignee’s oath, and the permit.) It is further admitted and agreed, that after the said permit had been given to the plaintiff, but before any portion of the said coffee was unloaded from said brig under said permit, 156 DECEMBER TERM. 1 850. 147 Oldfield v. Marriott. and before the permit was delivered or shown to the inspector of customs of the aforesaid port, in whose charge the said vessel had been placed for custody and delivery of her cargo, the said permit was countermanded by the defendant, as collector as * aforesaid, so far as he could legacy countermand p-.,» it, and the aforesaid entry made of the said coffee by L the plaintiff as if the same were free of duty refused, so far as the said collector could refuse, and a claim and charge of duty of twenty per cent, ad valorem made by the said collector (amounting to $2070.60) against the said coffee, as being due and payable upon the same, under the provisions of Schedule I of the Tariff Act of the United States of the 80th of July, 1846. It is further admitted and agreed, that the said plaintiff wholly denied the legality of the said claim of duty made as aforesaid by the said collector, and protested against the payment of the same; and that only because of his inability to obtain possession of his said coffee without the payment of the said duty so claimed and demanded, and after filing with the said collector a protest and notice, of which the annexed paper, marked No. 3, is a copy, did the said plaintiff pay to the said collector the aforesaid sum of $2070.60 as a duty upon the said coffee. (Then followed a copy of the protest and notice.) It is further agreed, that a paper herewith filed, and marked No. 4, is a true copy of the decree of the government of Portugal, of which it purports to be a translation and copy, and that the said decree had been in full force from the time of its date, in all the dominions of the Queen of Portugal, until and after the importation of the aforesaid coffee and payment of the duty herein before mentioned. Ao. 4. Decree of the Queen of Portugal. (Copy.) “ Treasury Department of State. “Donna Maria, by the grace of God and the constitution of the monarchy Queen of Portugal, &c., &c., make known to all our subjects that the General Cortes have decreed, and we have sanctioned, the following law:— “ Article 1. The premium of fifteen per cent, granted by art. 1 of the decree of 16th January, 1837, to articles, merchandise, and manufactures imported in Portuguese vessels, and entered at the custom-houses of the kingdom and adjacent islands, is abolished. “ Sect. 1. Articles, merchandise, and manufactures, coming from countries or ports where the Portuguese flag is not 157 148 SUPREME COURT. Oldfield v. Marriott. admitted, imported and entered for consumption, shall pay the respective duties, and one-fifth more of the amount of said duties. “ Sect. 2. Articles, merchandise, and manufactures, coming from countries or ports where the Portuguese flag is admitted, and not subjected to differential duties, imported in foreign vessels, not of the country of the production of said articles, *merchandise, and manufactures, and entered for con- *' - sumption, shall also pay the respective duties, and one fifth more of the amount of said duties. “ Sect. 3. Articles, merchandise, and manufactures, coming from countries or ports where the Portuguese flag may be subjected to differential duties, imported in foreign vessels, and entered for consumption, shall pay the respective duties, and the additional duties which the government is bound to impose on them according to article 8th of the general tariff of duties, organized in conformity to the law of the 11th of March, 1841. “ Article 2. The provisions of the present law shall commence to take effect three months after its publication, for articles, merchandise, and manufactures which shall be entered in vessels coming from ports in Europe and North America, and six months for all other ports. “ Article 3. All contrary legislation is hereby revoked. “We therefore order all authorities, &c. “ Given at the Palace of Necessidades, the 18th of October, 1841. “ The Queen. “ Antonio Jose d’Avila, Secretary of the Treasury.” Article 8th of the G-eneral Tariff Law referred to. “ A special order of the government shall authorize the collectors to receive an additional duty on goods imported from foreign countries, equivalent to the difference of duties which said nations shall make between their national vessels and those of Portugal, or between Portuguese goods on their importation.” (And the said decree regulated and controlled within the kingdom of Portugal the indirect trade between the United States of America and the kingdom of Portugal at the time of the said importation and demand and payment of said duties; and that, under said decree, coffee and other articles of merchandise the production and growth of Brazil, and imported into any port of the kingdom of Portugal in vessels of the said United States, were subjected in said kingdom, by 158 DECEMBER TERM, 1850. 149 Oldfield v. Marriott. virtue of said decree, to the payment of a discriminating duty of twenty per cent, upon the amount of duty payable upon the same articles if imported into the kingdom of Portugal in a Portuguese vessel.) It is agreed that the facts herein stated may be modified and added to in such way as may be thought proper and necessary by the court for a full and correct presentation and decision of the issue in the cause. *It is also admitted that the said decree of Portugal is executed in like manner, in reference to all foreign *-vessels and their cargoes, as in reference to those of the United States. It is also admitted, that, since the passage of the Tariff Act of 1846, several Portuguese vessels have arrived from Rio de Janeiro, in ports of the United States, with cargoes of coffee the growth of Brazil; that such coffee was admitted free of duty, the Secretary of the Treasury not having been consulted in reference thereto, and having given no directions about the same. It is further agreed that the court shall render a judgment, upon this statement, for the plaintiff or for the defendant, according to the views which the court may take of the law of the case; and that either party may prosecute a writ of error from whatsoever judgment may be rendered by the court in this case. Geo. M. Gill, for Plaintiff. W. L. Marshall, for Defendant. Upon this statement of facts the Circuit Court gave judgment for the defendant. Whereupon, Oldfield brought the case up to this court. It was argued by Mr. Grill and Mr. David Stewart, for the plaintiff in error, and by Mr. Crittenden, Attorney-General, for the defendant in error. The counsel for the plaintiff in error contended,— First. That upon the true construction of the act of 1846, in connection with the treaty with Portugal, the coffee imported by appellant was free from duty, it having been imported from its place of growth to this country in a Portuguese vessel, which, under the treaty with Portugal, is exempt from discriminating duties, tonnage, and other charges. Second. That in the construction of the act of 1846, each word used is to have its usual and ordinary meaning; and while effect is to be given to each word, the whole sentence is 159 150 SUPREME COURT. Oldfield V. Marriott. to be governed by grammatical rules. Respect is also to be had to the order and relation between themselves of the words employed, and such interpretation is to be given as will elucidate the meaning of the whole sentence, and yet give effect, if possible, to each word thereof. If, upon applying the above rules of construction, the meaning of the whole is clear and apparent, then there will be no necessity to look beyond the context. In this case, it is contended that, upon the application of the above principles, the meaning of the law is clear and without ambiguity; and that all coffee imported into this *1 T *country from the place of its growth, in American ves- J seis, or in foreign vessels which, under reciprocal treaties, are exempt from discriminating duties, tonnage, and other charges, is free. Third. That revenue laws are, in no just sense, either remedial laws or founded upon permanent public policy, and are, therefore, not to be liberally construed. Nor is it necessary or proper to look beyond the context of the law to ascertain its meaning or intent, which ought to be gathered from the law itself. In support of this view, the appellant relied upon the case of The United States v. Wigglesworth, 2- Story, 370. Fourth. That if, in ascertaining the Construction of the act of 1846, reference be had to acts in pari materia, the necessity of which in this case is not admitted, the appellant relied upon the following acts. Act of 27th April, 1816, § 3 (3 Stat, at L., 313) ; Act of 22d May, 1824, § 2 (4 Id., 29); Act of 14th July, 1832, § 10 (Id., 592) ; Act of 30th August, 1842, §§ 9, 10 (5 Id., 561). These various acts of Congress all contain a similar provision, by which an additional duty of ten per cent, is imposed upon goods imported in foreign vessels beyond that imposed on the same goods imported in American vessels, unless the said goods are entitled, by treaty or act of Congress, to be imported in such foreign vessels on payment of the same duties as they would be if imported in the vessels of the United States. In all these cases the exemption from the additional duty refers in express terms to the goods themselves. In the case under consideration, the exemption has reference to the vessels, and not to the goods. The difference in the mode of expressing these exemptions was relied on as showing that, in the act of 1846, the exemption from discriminating duties has reference to the vessel, and not to the cargo , and it was contended that other and different language would have been used in the act of 1846, if the policy of the previous 160 DECEMBER TERM, 1850. 151 Oldfield V. Marriott. acts of 1816, 1824, 1832, and 1842 had been designed to be continued in that act. Fifth. The appellant, in considering acts in pari materia, further contended, that the acts of 7th January, 1824 (4 Stat, at L., 4), and of 31st May, 1830 (Id., 425), were general laws, to regulate the duties of tonnage and impost; and, being such, were founded upon views of reciprocity, and were intended to repeal discriminating duties on vessels of foreign nations only where the nations to which these vessels belonged had no discriminating duties against our vessels; and that the same principle is applied to cargoes in foreign vessels. The law of the 7th of January, 1824, in the first place, refers *to a discriminating duty on tonnage; and in the second place, to a discriminating duty on goods. Now, *-if the framer of the act of 1846 meant to continue the same policy in that law as that contained in the laws of 1824 and 1830, the same or similar language would have been used, and the same distinction would have been drawn, which have not been done; and hence the appellant contended that the same policy has not, in fact, been pursued, and was not intended to be pursued. In this view, the appellant relied upon the act of 14th July, 1832, the third section of which provides that coffee shall be free from duty. Under this last law, coffee, no matter whence imported, or in what vessels, is free from duty. Sixth. The appellant also contended, that the true object and policy of the law of 1846 was to reduce the cost of tea and coffee to the consumer in the United States. Hence, these articles are to be free from duty only if imported from their place of growth; and, secondly, to enjoy this privilege, these articles must be imported either in American vessels, or in foreign vessels the charges of which in our ports are not greater than those of American vessels. This policy may be illustrated by the act of 1832, which, as shown, admits all coffee, no matter whence imported, or in what vessels, free, and that of 1842, which admits tea and coffee free only when imported from the place of their growth, and in American vessels. Now, the act of 1846 was framed upon the idea that, by admitting these articles as free when imported from their place of growth, and in vessels which might transport them at the lowest freight, the object of reduction of price would be most certainly accomplished. Seventh. The appellant contended that laws imposing duties are never construed beyond the natural import of the language used, and duties are never imposed upon the citizens upon doubtful interpretations. If a doubt, therefore, exist in this case, the appellant is entitled to the benefit of that doubt, Vol. x.—11 161 152 SUPREME COURT. Oldfield v. Marriott. and. the duty in question is not to be imposed. In support of this view, he relied upon the cases of Adams v. Bancroft, 3 Sumn., 384; United States v. Wigglesworth, 2 Story, 370. Eighth. The appellant further contended, that it is a general rule, in the interpretation of statutes levying taxes or duties, not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operation so as to embrace matters not specifically pointed out, although standing upon a close analogy. He referred, in support of this view, to Dwarris on Statutes, 749, found in 9 Law Lib., 76; to 9 Pick. (Mass.), 412; and to the authorities in Sumner and Story already referred to. *1 *The counsel for the plaintiff also cited the following -> authorities: 1 Kent Com., 462, 5th ed.; 20 Wend. (N. Y.), 461; 4 Dall., 30 ; 4 Gill (Md.), 332; 4 Mees. & W., 195 ; 7 Id., 202; 10 Id., 389, 434, 719 ; Dwarris on Stat., 707, 708, 743, 749; 3 Ga., 146 ; 9 Port. (Ala.), 266; 3 Sumn., 384 ; 4 Wheat., 202. Mr. Crittenden, Attorney-General, for the defendant in error, contended,— I. Exemption of American vessels, in the ports of Portugal, from discriminating duties of tonnage, lighthouse duties, and port charges upon the hulls of the vessels, whilst the discriminating duties upon the cargoes remain to be collected and paid, does not satisfy the sense and policy of the statutes of the United States, nor the true meaning and reason of the Schedule I, for exempting from discriminating duties the foreign goods imported in foreign vessels into the ports of the United States., II. It is a known rule of interpretation of all instruments, that such construction be made upon the whole, as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any interpretation it may be rendered useful and pertinent. 4 Bac. Abr., Statutes, I, § 9, p. 645; Butler v. Buncomb, 1 P. Wms., 457; Touchstone, ch. 5, p. 87; 19 Vin. Abr., Statutes, E., 6, pl. 160, p. 528. III. Another rule for the interpretation of statutes is, that the words must be understood as having regard to the subjectmatter, “sermones semper accipiendi sunt secundum sub-jectam materiam.” The legislator is always supposed to have that in his eye, and to have directed all his expressions to the subject, occasion, and end which caused him to speak and to enact the law. 1 Bia. Com., Introduction, pp. 60, 61. IV. It is an established rule of construction of statutes, to compare one statute with other statutes that are made by the 162 DECEMBER TERM, 1850. 153 Oldfield V. Marriott. same legislature, “ that have some affinity with the subject, or that expressly relate to the point.” “ All acts in pari materia are to be taken together as if they were one law.” Ailesbury v. Pattison, Doug., 30; The King v. Mason, 2 T. R., 586; 1 Tuck. Bl. Com., p. 60, n. 8. “ If divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them; notwithstanding some of them may be expired, or are not referred to in the statute, they must all be taken as one system, and construed consistently.” Rex v. Loxdale and others, 1 Burr., 447; 4 Bac. Abr., Statute, I., 3, pl. 21 to 28, pp. 64 to 67 (edition by Dodd, Vol. VII., pp. 454, 455). *Blackstone has given two examples, his annotator one, and Bacon four, with the citations of the adjudged L cases, from which he has extracted the substance of each case; to which the counsel for defendant respectfully refers the court. Mr. Crittenden then proceeded, under these authorities, to show, by reference to former statutes, that the expressions in the act of 1846—viz.: “ Schedule I. (Exempt from duty.) Coffee and tea when imported direct from the place of their growth or production, in foreign vessels, entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges; coffee the production of the possessions of the Netherlands, imported from the Netherlands in the same manner,”—have relation to a system of discriminating duties for the protection of the ship-building, ship-owning, navigating, and commercial interests of the citizens of the United States; that the expressions quoted from the act of 1846 have a well-defined meaning explained by previous acts, a sense understood at home and abroad, as belonging to the public policv of the United States for countervailing, by discriminating duties, the policy of foreign nations injurious to the commerce of the United States ; that this system of countervailing duties, this public policy of the United States, is not satisfied and fulfilled by the repeal to be made by a foreign nation of the discriminating duties of tonnage and port charges on the hulls of vessels of the United States arriving in the ports of that foreign nation, whilst the discriminating duty on merchandise remains; that the reciprocity required by the United States from a foreign nation, to exempt foreign merchandise from our discriminating duties on merchandise imported into the United States in foreign vessels, is, and must include, an exemption from the discriminating duty on merchandise when conveyed in American vessels into the ports of such foreign nation. 163 154 SUPREME COURT. Oldfield V. Marriott. He cited and commented on,—The Act of Congress of 3d March, 1815 (3 Stat, at L., 224). The Convention between the United States and Great Britain, ratified 22d December, 1815 (8 Stat, at L., 228). The Act of Congress of 1st March, 1816 (3 Stat at L., 255), passed in consequence of that Convention. The Act of Congress of 3d March, 1817 (3 Stat, at L., 377) ; Act of 20th April, 1818 (3 Stat at L. 465). (Both these acts, he said, defined “ discriminating duties ” to include duties of tonnage on vessels and duties on merchandise composing the cargoes of the vessels). The Proclamations of President Monroe, found in 3 Stat, at L., Appendix, Nos. 3, 4, 5, 6, The act of Congress of April 20th, 181.8 (3 Stat, at L., 464.) The Act of 3d March, 1819 (3 Stat, at L., 510). The *1551 ^th January, 1824 *(4 Stat, at L. 2). (In this -* act the term “ reciprocal exemption ” is used and explained to mean duties on goods and tonnage duties also.J, The Act of May 24th, 1828 (4 Stat, at L., 308). The Proclamations issued by the President under this act found in 4 Stat, at L., Appendix, pages 814, 815, 816, 817. The Act of Congress of 31st May, 1830 (4 Stat, at L., 425). The act of 13th July, 1832 (4 Stat, at L., 578.) Since these two acts of 31st May, 1830, and 13th July, 1832, took effect, an exemption by one nation of the vessels of the United States from the duty of tonnage may gain for the vessels of that nation a reciprocal exemption from the duty of tonnage in the ports of the United States. But neither before nor since those acts can an exemption from the discriminating duties of tonnage alone, allowed by a nation to vessels of the United States, gain for that nation an exemption from the discriminating duties imposed by the laws of the United States upon goods imported into the United States in foreign vessels. Such an unequal exemption would be in direct contravention of the established policy of the United States, adopted for the purpose of countervailing the policy of foreign nations prejudicial to the commerce of the United States. The act of 3d August, 1846, passed in consequence of the treaty of 19th January, 1839, between the United States and King of the Netherlands (8 Stat, at L., 524). Jfr. Crittenden then said,—In the series of legislative acts, treaties, and proclamations, under the powers conferred upon the President, I have not found a single instance in which the United States have released or abolished, in favor of any nation, or proposed to release or abolish, the discriminating duties upon goods imported into the United States in foreign vessels, without a reciprocal release or exemption, by such foreign nation, of the discriminating duties upon the vessels 164 DECEMBER TERM, 1 850. 155 Oldfield V. Marriott. of the United States, and upon their cargoes also, in the ports of such foreign nation. An exemption from the foreign discriminating duties of tonnage might obtain a reciprocal exemption from the discriminating duties of tonnage in the ports of the United States; but nothing short of an exemption from the foreign discriminating duties, both of tonnage and impost, upon the cargoes, could gain for a foreign nation an exemption from the discriminating duties upon goods, wares, and merchandise imported in foreign vessels into the ports of the United States. In opposition to the positions taken by the counsel for the plaintiff in error, and the authorities cited in support of them, Mr. Crittenden referred to the following:— *The revenue laws are not to be construed with i-*-. great strictness, like penal laws, “ but so as most effec-tually to accomplish the intention of the legislature in passing them.” Taylor v. United States, 3 How., 210. “ Statutes which concern the public good ought to be construed liberally.” “ A statute made pro bono publico shall be construed in such manner as that it may, as far as possible, attain the end proposed.” Bac. Abr., Statute, I. pl. 68, 69, 73, 84, 85, 86, Vol. IV., pp. 650, 652; 19 Viner, Statutes, E., 6, pl. 49, 50, p. 516 ; 5 Com. Dig., Parliament, R., 10, pl. 15, 17, 18, 19, 28, pp. 337, 338, 340; Taylor v. United States, 3 How., 210. “ Statutes must be so construed as that no collateral prejudice grow thereby.” “In. statutes, incidents are always supplied by intendment.” 2 Inst., 112 and 222; 19 Viner, Statutes, E., 6, pl. 145, 146, p. 527. “ A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter.” 4 Bac. Abr., Statute, I., pl. 42, p. 648 ; 19 Viner, Statutes, E., 6, pl. 80, 81, p. 519; Mountjoy’s case, 5 Co., 1 resolve, p. 5 ; Beawfage’s case, 10 Co., 101; Stowell v. Zouch, Plowd., 366. “ It is not the words of the law, but the internal sense of it, that makes the law; the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law,—quia ratio legis, est anima legis.” “And the law may be resembled to a nut, which has a shell and a kernel within ; the letter of the law represents the shell, and the sense of it the kernel; and as you will be no better for the nut if you make use only of the shell, so you will receive no benefits by the law if you rely only upon the letter.” By st on v. Studd, Plowd., 465. 165 156 SUPREME COURT. Oldfield V. Marriott. The argument for the plaintiff, that “ the exemption has reference to the vessels, and not to the goods,” sticks in the letter, disregards the meaning and reason of the law, makes use only of the shell, and tastes not of the kernel,—the substance and intention of the law. As it is the foreign character of the ships which subjects their cargoes to the discriminating duties, so the exemption from such duties must be communicated by the ships to their cargoes through the instrumentality of a treaty (or other equivalent act) of the nation to which the ships belong, in extending a reciprocal exemption in her ports to the ships of the United States and their cargoes. A reciprocal exemption from discriminating duties of tonnage and port charges only, omitting the reciprocal exemption from the discriminating duties upon goods, wares, and *1 r7-| merchandise, *did not entitle the Portuguese vessel J Sandade Eterna to an entry and permit to her master to unload her cargo of coffee exempt from the duty levied by the third section of the act of 1846, operating as a discriminating duty between the cargoes of American vessels and of foreign vessels, according to Schedule I. of the act. Mr. Justice WAYNE delivered the opinion of the court. This cause was tried and decided in the Circuit Court, upon a statement of facts made by the parties. The question arising from it is, whether or not the vessels of Portugal are within that clause of the act of the 30th of July, 1846, to reduce duties on imposts, in which it is said coffee and tea are exempt from duty when imported direct from the place of their growth or production in American vessels, or in foreign vessels entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges. It is contended that Portuguese vessels are within the act, upon a proper construction of it in connection with the second article of the treaty with Portugal. This article is in these words:—“Vessels of the United States of America arriving, either laden or in ballast, in the ports of the kingdom and possessions of Portugal, and, reciprocally, Portuguese vessels arriving, either laden or in ballast, in the ports of the United States of America, shall be treated on their entrance, during their stay, and at their departure, upon the same footing as national vessels coming from the same place, with respect to the duties of tonnage, lighthouse duties, pilotage, port charges, as well as to the fees of public officers, and all other duties and charges, of whatever kind or 166 DECEMBER TERM, 1 850. 157 Oldfield v. Marriott. denomination, levied upon vessels of commerce in the name or to the profit of the government, the local authorities, or of any public or private establishment whatever.” Its meaning is, that there shall be an entire reciprocity of duties and charges upon the vessels of the two nations in their respective ports; that is, that Portuguese vessels in our ports shall pay no other charges than American vessels do, and that American vessels in Portuguese ports shall be charged with the same duties as Portuguese vessels may be liable to pay. What these duties may be shall be determined by each nation for its own ports. There is not a word in the article relating to the duties upon the cargoes of the vessels of either nation. Nor is there a provision in the treaty,—as we shall show there is in other treaties between the United States and other nations,—restricting either nation from levying discriminating duties upon cargoes carried by the vessels of either into the ports of the other, *when they are made up of articles, merchandise, or r $ manufactures the growth or production of a different nation than that to which the vessel carrying it belongs, or when the cargo shall not be the production either of Portugal or of the United States. This is the view which both nations have taken of the second article, and of the other parts of the treaty relating to the cargoes of vessels. The Queen of Portugal, in October, 1841, in less than six months after the ratification of the treaty had been proclaimed by the United States, promulgated a decree of the general Cortes, imposing a discriminating duty upon goods imported in foreign vessels which were not the production of the countries to which such vessels might belong. The object of it was to secure to Portuguese vessels the direct carrying-trade of such merchandise to the ports of Portugal. The United States did the same by the eleventh section of the act of the 30th August, 1842, two years after the treaty was made. It placed an additional duty of ten per centum above the rates of duty fixed in the act, “ upon goods, on the importation of which, in American or foreign vessels, a specific discrimination between them is not made in the act, which shall be imported in ships not of the United States.” This legislation was acted upon by both nations without any complaint, or even suggestion, that it was not in conformity with the treaty stipulations between them. It shows that the views of both were that the vessels of both were to pay in their respective ports the charges their own vessels were subjected to, and no more, and that the duties upon goods, 167 158 SUPREME COURT. Oldfield V. Marriott. not of American or Portuguese production, imported into the ports of either nation by the vessels of the other, might be made liable to such discriminating duties as either might think would give to their own vessels the direct trade of such articles. We will now’show that this practice of both nations was exactly what the treaty itself had provided for between them. The third, fourth, fifth, and sixth articles of fhe treaty relate to the introduction of merchandise into the two countries, and are all that do so. The seventh and eighth exclude from the operation of those before them the coastwise trade of both nations, and the ports and countries in the kingdom and possession of Portugal where foreign commerce and navigation were not admitted. And the thirteenth* article is a mutual undertaking, if either nation shall grant to any other nation a particular favor in navigation or commerce, that it shall become common to the other party, upon the same terms upon which the grant may be made. The third article pro-*1 v^es that the *productions of either nation shall be J admitted into their respective ports upon payment of the same duty as would be payable on the same merchandise if it were the growth of any other foreign country. No prohibition can be put upon the importation or exportation of the produce of either nation which shall not extend to all other foreign nations ; nor shall there be any higher or other duty in either country, upon the exportation of articles to either from the other, than is put upon the like articles exported to any other foreign country. As yet nothing has been said about the transportation of commodities from one nation to the other, or from foreign states. That is provided for in the fourth, fifth, and sixth articles. By the fourth, both nations can carry in their vessels the productions of each into the ports of the other upon the same terms,—the produce and manufactures of Portugal and the United States, it must be remembered, not the produce or manufactures of any foreign country ; for the stipulation in the fifth article in respect to the transportation of these permits it to be done only whenever there may be lawfully imported into any or all of the ports of either nation, in vessels of any foreign country, articles which are the growth, produce* or manufacture of a country other than that to which the importing vessel shall belong. By the sixth article, the vessels of both nations may export and re-export from the ports of each all kinds of merchandise which can be lawfully exported or re-exported from the ports of either, without paying higher or other duties 168 DECEMBER TERM, 185 0. 159 Oldfield ». Marriott. or charges than the 'same articles pay when exported or reexported in the vessels of either nation. From all this it must be seen that neither nation has a right by the treaty to carry in its vessels to the ports of the other the produce of foreign countries, except upon the payment of such duties, discriminating and otherwise, as each nation may impose. So stood both nations under the treaty from the time of its ratification, and under their respective legislation afterwards relating to duties upon cargoes of foreign produce, without any misapprehension by either, or by the merchants of either, of the privileges of commerce conferred by the treaty. Indeed, there could have been none. But it was necessary to state particularly what our treaty stipulations are, that the nature of the claim now made for her vessels may be more fully understood. It is now said, that that which the treaty does not permit the vessels of Portugal to do, our own legislation allows, in that part of the act of 1846, to reduce duties on imports, which exempts coffee from any duty. *There was such a misapprehension for some time. It was acted upon, too, for several months, by some of L our merchants and collectors,—perhaps until corrected in this instance. The error arose from a misapplication of the act to the treaties which we had with nations abolishing discriminating duties of tonnage and port charges, instead of confining it to our treaties with those of them in which the same thing had been done, with the additional reciprocity, permitting our vessels and theirs to import into the ports of either, on payment of the same duties, the productions of other foreign countries, whether they are shipped from the country in which they are produced, or from any other foreign country. When the act of July 30, 1846, was passed, we had commercial treaties with twenty-four nations. Thirteen of them —Russia, Austria, Prussia, Sweden, Denmark, Hanover, Sardinia, the Hanseatic cities, Greece, Venezuela, Brazil, Central America, and Ecuador—“ had acceded to the most liberal and extended basis of maritime and commercial reciprocity.” They admit our vessels to enter their ports, whether coming from the United States or any other foreign country, laden or in ballast,—whether laden with the produce of the United States or of any other foreign country,—paying the same tonnage duties and charges as national vessels. Our vessels may clear from their ports, either for the United States or for any foreign country, whether laden or in ballast,—whether laden with national or any other produce. They admit the 169 160 SUPREME COURT. Oldfield V. Marriott. produce of the United States to entry, either for consumption or for re-exportation, on payment of the same duties and charges as similar articles the produce of any other foreign country pay, whether imported in American or national vessels ; and the productions of other foreign countries, likewise, on payment of the same duties and charges, whether imported in American or national vessels, and whether coming from the United States, the country of production, or any other foreign country. When re-exported, the productions of the United States are allowed the same drawbacks as similar productions of other countries, whether originally imported in American or national vessels; and other goods are allowed the same bounties, whether exported in American or national vessels. (Senate Report 80, 26th Congress, 1st Session.) These provisions give to us and to them a direct and indirect carrying trade. Each nation gets as much of both as its ability and enterprise can secure, and gathers a supply of the produce of other nations by foreign vessels, which they may not be able to bring in their own. Between the treaties of which we have been just speaking *11 *and our treaty with Portugal there is nothing in com- -I mon, except the provision in the latter abolishing discriminating duties of tonnage and all other port charges upon vessels. In the negotiation of our treaty with her, our Charge d’Affaires, Mr. Kavanagh,* was instructed to offer and to ask for the same enlarged intercourse which we had with these nations. But Portugal preferred to keep the direct trade, placing herself with those nations which had denied to us the indirect trade, or the transportation of foreign produce in our vessels from the place of its growth to their ports. Having shown that there are nations which have a right by treaties to bring into our ports in their vessels the produce of foreign nations, from the places of their production, upon the same terms that our own vessels may import them, the act exempting coffee from duty when brought in American vessels direct from the place of its growth, or when brought by foreign vessels entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges, has a plain intention and certain application. Its terms are no longer doubtful. No room is left for interpretation. The nations to which it applies are known. It would, indeed, be a very wide construction to include other nations under the act, with which the United States have no such reciprocity either by mutual legislation or by treaties. If a different application of the act is made, it opens a trade to our ports in the article of coffee in foreign vessels, which those nations 170 DECEMBER TERM, 1850. 161 Oldfield V. Marriott. deny to the United States. The act itself shows a careful consideration of our carrying trade of that article. Reciprocity is what the United States had desired in that particular. It cannot be supposed that Congress meant to disregard it, or that it was inadvertently done, or that, for some unavowed and undiscoverable cause or reason, Congress has permitted foreign vessels to bring into our ports, from the place of its growth or manufacture, merchandise duty free, only because we have treaties with the nations to which they belong abolishing duties of tonnage and port charges. Such an interpretation of the act of July, 1846, involves a departure from a point in our commercial system which has never been yielded to any nation, except when reciprocally done, or where a compensating advantage has been gained by doing so, which was supposed to be the case in our treaty with France of 1822. With Portugal there was no such inducement. The plaintiff in error relies upon the second article of the treaty with Portugal in connection with the tariff act of July, 1846, and upon nothing else. They do not avail for his purpose. The suggestion that such an interpretation may be given to the act, because it might have been the intention *to give the consumption of coffee duty free to the people of the *-United States, is not at all probable. It surrenders a principle more important,—one upon which the United States have invariably acted,—not to grant an indirect trade to our ports to any nation by which it is not reciprocated. Our conclusion in this case affirms what has been the unvarying policy of the United States since they began as a nation their commercial intercourse with other nations. Its effects upon our own interests have been beneficial; its influence upon other nations has been ultimately decisive and successful. Perhaps it is not too much to say,—however much the changed political and productive condition of nations, during the last half-century, may have aided in liberalizing navigation between them,—that it would not have been what it now is, if it had not been for the stand taken by the United States, in respect to navigation and commerce, as early as 1785, which has been kept ever since. Its basis was to ask for no exclusive privileges and to grant none,—to offer to all nations, and to ask from them, that entire reciprocity of navigation which is made by each carrying to the other, in its own vessels, its own productions and those of all nations, without regard to the places from which they may be shipped, upon the same terms, both as to vessels and cargoes, as the vessels of each nation may take them to its own ports. One great object has been 171 162 SUPREME COURT. Oldfield V. Marriott. to produce such relations, either by corresponding legislation or by treaties ; the latter being preferred, as legislative liberty to trade is too vague and uncertain to secure to a nation all the advantages of its own commercial condition. Thirty years, however, passed, before our proposals made any impression upon the restricted navigation system of Europe, and then only partially so. During all that time our vessels could only take to the countries with which we traded the productions of the United States. Even that could not be done to many of the ports and colonies of other nations. Repeated efforts were made to get for our vessels a larger carrying trade, by offers to all nations of the same reciprocity. It may be said, as it has been, that our liberal views were forced upon the United States, by the necessities of their commercial condition at the close of the Revolutionary war. It may be so; but the remark admits the restraints that were upon navigation between nations, and it cannot be denied that the application of them to the United States brought its appropriate wisdom. Our views upon commerce and navigation were a part and parcel of the intellect and spirit of our men of that day,— *1631 *made what they were by the great events in which -* they had borne their parts, and the difficulties which they saw were to be overcome before their country would be put upon a commercial equality with other nations. The trade which the states as colonies had been allowed with the other colonies of England was cut off by our separation ; that with the mother country was subjected to the rigid exclusions of the third section of the navigation act of Charles II., ch. 12. The English system, too, in respect to navigation, had been adopted by the other nations of Europe, with very slight exceptions, which can scarcely be said to have been relaxations. Heavy duties were laid upon our vessels and their cargoes by all of them. The trade and navigation of the United States with all parts of the world were altogether permissive,—such as each nation chose to allow upon its own terms. Our treaty stipulations at that time with France, the Netherlands, and Sweden were not exceptions of any value. The only benefit from them was, that the commerce and navigation of the United States could not be burdened more than that of any other foreign nation. With Great Britain, Spain, Portugal, and Denmark there was not even that reciprocity. In such a state of things, the United States began their career as a nation. How changed our condition now I Our views upon commerce were promulgated in the state papers of that day. As early as 1785, Mr. John Adams, then 172 DECEMBER TERM, 1850. 163 Oldfield V. Marriott. representing the United States in England, proposed a reciprocation of trade in the produce and manufactures of both nations, and in foreign produce in the vessels of each, upon the same terms and duties, upon the vessels and their cargoes, as national vessels might pay. His proposals were rejected, with a refusal to make any commercial treaty with the United States. Mr. Adams says, in a letter to Mr. Jay, dated London, 21st October, 1785,—“ This being the state of things, you may depend upon it the commerce of America will have no relief at present, nor, in my opinion, ever, until the United States shall have generally passed navigation acts. If this measure is not adopted we shall be derided, and the more we suffer the more will our calamities be laughed at. My most earnest exhortation to the states, then, is, and ought to be, to lose no time in passing such acts.” The temper of the times concerning navigation and commerce generally, and towards the United States especially, had been previously shown in Parliament by its rejection of Mr. Pitt’s bill “ to permit vessels belonging to citizens of the United States to go into the ports of the West India islands, with goods or merchandise of American origin, and to export to the United States any merchandise or goods *whatever, subject only t£ the same duties and charges . as if they had been the property of British natural-born L °4 subjects, and had been exported and imported in British vessels.” Afterwards American vessels were altogether excluded from the British West Indies, and the staple productions of the United States could not be carried there even in British vessels. The exhortation of Mr. Adams had been disregarded by most of the states. Some of them adopted his recommendations, but, as others refused to concur, they were unavailing. The statesmen of England knew that it would not be generally done by the states, and. thought, rightly too, that, as Congress had not the power by the Articles of Confederation to pass national countervailing restrictions, England might trade with some of the states directly, and through those indirectly with the rest of them, upon her own terms. It was also truly said, in reply to our offers to negotiate, that in a confederacy of states, without plenary power to regulate their trade and navigation conjointly, it would be difficult to make and to exercise treaty commercial arrangements between them. This result awakened the American people to the full extent of their actual and prospective commercial condition. Greater efforts were made to get the states to pass counectively countervailing restrictions. They were urged to do so by every argument which could be drawn from these foreign restraints upon com 173 164 SUPREME COURT. Oldfield v. Marriott. merce which had already pressed the known enterprise of the American people almost into inaction,—by all that aggravation of commercial distress which would inevitably follow from the legislation of Great Britain in respect to American commerce since 1783, unless it was resisted. The newspaper essays of that day upon the subject will amply compensate a perusal of them. Without such a perusal, and a careful attention to the acts of Parliament preceding that of the 28th George III., ch. 6, in connection with that act, no one can have an historical idea of American commerce, or of those causes which so much lessened the harmony of feeling between the two nations for so many years afterwards ; now no longer felt, and lost in the interest which both have in preserving their present liberal commercial intercourse. Still the states did not pass countervailing restrictions. On that account more than any other, those conventions were held which happily terminated in the present Constitution of the United States. The first countervailing act under it attracted the attention of the nations of Europe, particularly of the statesmen of Great Britain. The advantages which they had in our former national condition were lost. An English writer says the acts passed by the first Congress that met under the *1651 *new f°rm °f government, imposing discriminating J tonnage duties, did not escape the notice of British statesmen. Their injurious effects upon the navigating interest of Great Britain were at once perceived by them. They saw that American commerce was no longer at the mercy of thirteen distinct legislatures, nor subject to the control of the king and council. As early as September, 1789, therefore, the acts imposing those duties were referred to the lords of the Board of Trade. The same committee was afterwards instructed to consider and report what were the proposals of a commercial nature it would be proper for the government to make to the United States. In January following, the committee made a report upon the subject of American duties, and also upon the general subject of the commercial relations between the two countries. The report was drawn up by Mr. Jenkinson, then Baron Hawkesbury, afterwards Lord Liverpool. On the subject of a commercial treaty, especially in respect to navigation, it states,—“ After a full consideration of all that has been offered on the subject of navigation, the committee think that there is but one proposition which it would be advisable for the ministers of Great Britain to make on this head to the government of the United States, in a negotiation for a commercial treaty between the two countries ; 174 DECEMBER TERM, 1 85 0. 165 Oldfield V. Marriott. viz., that British ships trading to the ports of the United States should be treated, with respect to the duties upon tonnage and imports, in like manner as the ships of the United States shall be treated in the ports of Great Britain; and also, if Congress should propose, as it certainly will, that this principle of equality should be extended to our colonies and islands, and that the ships of the United States should be there treated as British ships, it should be answered that this demand cannot be admitted even as a subject of negotiation.” These extracts from that report show that the statesmen of Great Britain did not entertain the liberal notions of trade and navigation which then prevailed in the United States. They were brought up under an opposite policy, which had long prevailed,—probably very proper at first, as a war measure, to break up the carrying trade of the Dutch, the great rival of Great Britain; but it had become with most of her writers and public men a fixed principle of the protection which each nation should give to its trade and navigation against the competition of other nations. We do not intend to enter upon that discussion. But in confirmation of those differences of opinion concerning trade and navigation which at that time existed between American and British statesmen, we ref§r to Lord Sheffield’s contemporary strictures on the necessity of inviolably *preserving the navigation and colonial system of Great Britain. L J-bo Pursuing the point, however, that the stand originally taken by the United States has contributed to the present extended reciprocity of navigation between nations, we remark that the example of England towards the United States had directed the commercial policy of all the other nations of Europe with which the United States then traded. The utmost that‘could be gained from France, Spain, Portugal, the Netherlands, Den mark, and Sweden was, that our commerce with them should be put upon the footing of the most favored nation. That, however, was very short of what the United States had proposed to Great Britain and the other nations just mentioned. Those nations, yielding to the commercial supremacy of Great Britain, had not then made an effort to release themselves from it. Nor were they in a condition to do so. In three years afterwards, the intelligence and enterprise of the United States, unsubdued by past failures, induced them to renew their efforts to gain a more extended trade and navigation. Mr. Jefferson, then Secretary of State, made a report to Congress upon the subject. It has the ability of every paper written by him in his long political career. Mr. Forsyth says that it suggested, “ First, friendly arrangements with the 175 166 SUPREME COURT. Oldfield V. Marriott. several nations with whom the restrictions existed, or separate acts of our legislation to counteract these defects. The end proposed to be attained by the first would have been a free commerce of exchange between the different nations in those descriptions of commodities which nature had best fitted each to produce, subject to such modifications as purposes of revenue might render necessary ; and it was supposed that its operation would be an exchange of the raw materials then produced in the United States, either for manufactures which had received the last finish of art and industry, or mere luxuries. Failing this, the alternative of statutory prohibitions and countervailing duties and regulations was to be applied.” (Report of the Secretary of State to the Senate, 30th December, 1839.) Upon the earlier state papers and newspaper essays already mentioned,—the report of Mr. Jefferson, another by Mr. Hamilton (which preceded it), and the proposals of Mr. Adams in 1785,—we rest our assertion that the United States were in advance of other nations in respect to the principles by which commerce and navigation should be conducted between nations. The refusal of Great Britain to meet our proposals in a corresponding spirit proves it. From what has been said, it must be admitted, also, that, from the beginning, the countervailing commercial legislation of the United States has been strictly Retaliatory. If further proof of J either were wanting, it may be found in the correspondence of Mr. Jay, connected with his negotiation of the treaty of 1794 with Great Britain, and in the treaty itself. As all of us know, the restrictions which were put upon our commerce by that treaty were offensive to the pride as well as the interests of the American people. But being the utmost that England would yield at that time of her own long-established system, it was thought that the exigencies of our commercial condition required its ratification. Results proved it to be so. It did not reciprocate in any way the liberal views of commerce which had been indulged in the United States. But we now know that it was the most that could be got ; and history not only relieves Mr. Jay from the complaints of that day, but places his memory far above them. Notwithstanding the failure of every effort to place our navigation and commerce upon a better footing, nothing was done legislatively by the United States from which it can be said that there was any departure from the liberal policy which had been proposed to other nations. The natural advantages of the United States, the value of our productions, and the wars in Europe aiding the consumption of them, were constantly overcoming foreign exclusions, and kept us forbear-176 DECEMBER TERM, 1 85 0. 167 Oldfield V. Marriott. ing, if not always in good temper. In fact, except discriminating duties upon tonnage in favor of our vessels, to coun tervail such as all the nations of Europe had imposed in favor of their own ships,—several of them intended to bear particularly upon American commerce,—our legislation was, up to that time, and for twenty years afterwards, exempt from every interference with a free navigation. In 1812, as a war measure, Congress passed an act doubling all duties upon goods imported into the United States, with an additional duty of ten per cent, upon such as might be brought in foreign vessels. The act also increased the duty upon the tonnage of foreign ships one dollar and fifty cents. That it was strictly a war measure is shown by its limitation to the continuance of the war with England. When the war was at an end, and those in Europe had ceased by the overthrow of Napoleon, the United States took the earliest opportunity to renew their efforts for a more liberal navigation than had been at any time allowed by the nations of Europe with each other, or with the United States. In March, 1815, Congress declared that the discriminating duties laid by the act of Jjily, 1812, upon foreign ships and their cargoes, were no longer to be levied, when the President should be satisfied that the discriminating and countervailing duties of any foreign nation had been abolished, so far as they operated to the disadvantage of the United States. When *that declaration was made, or shortly after it, our r^-ipo plenipotentiaries, Mr. John Quincy Adams, Mr. Clay, and Mr. Gallatin, were in London, engaged in negotiating the commercial convention of 1815 with England. It is not dpubted that the act had its influence upon the result. The convention contains all that the act proposes. It was the first relaxation made by Great Britain of her navigation laws in favor of free navigation, and the first step taken to meet the liberal principles of commercial intercourse which had been proposed to all nations by the United States so early in our history as has been already stated. It secured national treatment for our vessels; equal terms for cargoes, whether imported or exported in United States or English ships; equal import duties on the produce of the United States, as on like articles the produce of other foreign nations. But it still restricted the intercourse between the two nations to the production of either,—in other words, to the direct trade. Every effort'which had been made by the United States, for more than thirty years, to give and to get an indirect trade, had failed. Indeed, the Continental nations were not only unwilling to make any such arrangement, but they refused to Vol. x.—12 • 177 168 SUPREME COURT. Oldfield V. Marriott. accept, as England had done, the terms offered by the act of the 3d of March, 1815. It was then determined to renew the discriminating duties which that act had modified. It was confidently believed, that, by doing so, some of those nations which had disregarded that act would be coerced to accept its terms. It was done in April, 1816; and in January following another act was passed, subjecting foreign vessels coming from any port or place to which the vessels of the United States were not permitted to go and trade, to a duty of two dollars a ton. The act was limited to six months; but in two months afterwards, during the same session, Congress, believing that the indefinite extension of it would effect its object sooner, passed such a law. Within the year, Prussia, the Netherlands, and the Hanse Towns, repealed their discriminating duties upon American vessels in their ports, and their vessels were consequently admitted into the ports of the United States upon corresponding terms. Much was gained, compared with what had been our carrying trade. Still the great object, to get and to give an indirect trade, had failed. It had been defeated by the refusal of England to relax that clause of the navigation act of Charles II., ch. 12, which prohibited the produce and manufactures of every foreign country from being imported into Great Britain except in British ships, or in such as were the real property of the people of the country or place in which the goods were Pr°duced, or *from which they could only be or were J most usually exported. The same principle had been adopted by the Continental nations to protect their own from the superior mercantile marine of England. Its increase, too, of English tonnage and commerce, its influence upon both of the other nations of Europe, and the recollection of its ruinous effects upon the trade of the Dutch, which it was originally ¿leant to crush, had misled the judgment of most European statesmen into the conclusion that it was an essential regulation to protect the navigation of each nation from the competition of others. But the general pacification of 1815 restored the long-suspended commercial intercourse between them, and with it sounder views of trade. It was believed, indeed it had become known, that there were nations in Europe who had become as anxious as the United States were to rid themselves of the restrictions imposed upon their commerce by the English navigation act. They were not, however, in a condition to do so immediately in respect to each other, or unitedly against the supremacy of English navigation. Besides, our overtures to some of them for an indirect trade had not been met with the promptness or decision which had been antici- 178 ’ DECEMBER TERM, 1850. 169 Oldfield V. Marriott. pated. The time was favorable for more efficient legislation by the United States than had been made before. It was a matter of doubt and hesitation with many of our public men what could or should be done in such a crisis. Fortunately, there were those among them who were more decided; and Congress determined to adopt the clause of the English navigation act of which we had always complained, with this proviso, however, that it should not be extended to the vessels of any foreign nation which had not adopted and which should not adopt a similar regulation. The proviso explains the purpose of the act of the 1st March, 1817. Before that was passed, the United States had not had a navigation act. It was not, however, followed for several years by any coincident result. But about that time an incident occurred in the political world, which was destined to change, in a great measure, the commercial intercourse between nations. It was the revolt of the Spanish American provinces from Spain, and the recognition of them by the United States and by England as independent nations. Both were anxious to secure a trade with these new states. The United States sought it upon terms of the most extended reciprocity, both as to vessels and cargoes,—England with more commercial liberality than her usual policy, without, however, yielding that main point of it which prevented foreign vessels from having an indirect trade to her ports. Indeed, so fixed had that exclusion become with the nations of Europe, that France, five years afterwards, would *not relinquish, in her treaty with the United States, her right to im- L pose discriminating duties upon cargoes brought into her ports by foreign vessels. In 1825, the United States reaped the first fruits of the act of March 1, 1817. Then, a treaty was made with Central America, the first known between nations, establishing that reciprocity, in respect to vessels and cargoes, which had been offered forty years before by the United States to other nations, and which had for seven years been tendered by the act of March 1, 1817. That treaty was followed by others. Russia, Austria, Prussia, Denmark, Sweden, Sardinia, Greece, the Hanseatic cities, Hanover, Brazil, Ecuador, and Venezuela made treaties with the United States upon the same principle. The vessels of each of those nations were permitted to carry into the ports of the other, without discriminating duties, the productions of any foreign country, whether they were shipped from the places of production or elsewhere. In other words, the vessels of the United States, under those treaties, carry on with those nations an indirect trade, which they can do in 179 170 SUPREME COURT. Oldfield v. Marriott. their vessels to our ports. The act of 1817 was slow in producing any arrangement of a like kind with Great Britain. But it has ultimately done so. The original interpretation of it by Mr. Secretary Crawford having been renewed by Mr. Secretary Walker’s circular, after an interruption of several years, a negotiation was opened with England upon the subject, which resulted in giving to both nations the full intention and benefit of the act of the 1st March, 1817. Its operation, as we have said, had been suspended for several years, from some official misapprehension of its import, when a case occurred in the Circuit Court of the United States for the Southern District of New York, in which the learned judge who presided gave the first judicial interpretation of the act. Judge Betts in that case reviews the legislative history of the act. The question presented in the case of the Recorder and her cargo was, whether an importation into the port of New York by a British vessel from London of a quantity of silks, the production of the British possessions in India, was prohibited by the first section of the act of 1st March, 1817. The court decided that the word “ country ” used in the section comprehended the British possessions in India, and that consequently the importation was lawful. Thé learned judge took occasion also to give his views as to the effect of the proviso in the first section. Upon the publication of the court’s opinion, the Secretary of the Treasury availed himself of its authority, in connection with what had been the first interpretation of the act, and issued his circular on the 6th of *1711 November, 1847, to the collectors and officers *of the -I customs, directing them that, “ where it is satisfactorily shown that any foreign nation allows American vessels, laden with goods the growth, produce, or manufacture of any country out of the United States, freely to enter and land such merchandise in any of the ports of said country, whether such goods be carried directly from the place of origin, or from the ports of the United States, or from any other country whatsoever, the penalties of the act of the 1st March, 1817, are not to be enforced against the vessels of such nations bringing like goods either from the country of production or from the ports of the country to which the vessels may belong.” The opinion of Judge Betts and Secretary Walker’s circular led to a negotiation, which terminated in Great Britain passing, in 1849, the statute of 12 and 13 Victoria, ch. 49, and thus accomplished the great purpose of our policy which had been proposed by the United States to the nations of Europe, to England particularly, in 1785, by Mr. Adams. The circular 180 DECEMBER TERM. 1 850. 171 Oldfield V. Marriott. of Mr. Meredith of the 15th October, 1849, shows what that policy was, and why it was issued. We give it at length. “ In consequence of questions submitted by merchants and others, asking, in consideration of the recent alteration of the British navigation laws, on what footing the commercial relations between the United States in Great Britain will be placed on and after the first day of January next,—the day on which the recent act of the British Parliament goes into operation,—the Department deems it expedient at this time to issue the following general instructions for the information of the officers of the customs and others interested. “First. In consequence of the alterations of the British navigation laws, above referred to, British vessels, from British or other foreign ports, will, under our existing laws, after the first day of January next, be allowed to enter oui' ports with cargoes of the growth, manufacture, or production of any part of the world. “ Second. Such vessels and their cargoes will be admitted, from and after the date before mentioned, on the same terms as to duties, imposts, and charges, as vessels of the United States and their cargoes.” With such facts to sustain it as have been recited,—and they are all official,—it may very truly be said that the reciprocity of navigation now existing between nations, and particularly between Great Britain and the United States, is in a great degree owing to the perseverance of the United States in proposing and contending for it for more than sixty years. It cannot, therefore, be said, as it has been said by more than one foreign writer, that, after the American Colonies had established *their independence, they set about to form a code of navigation laws on the model of those of L England. Those writers have mistaken our legislation for our history, without seeking in the latter the causes of the former. Discriminating duties were never laid by Congress, except they were retaliatory, and for the purpose of coercing other nations to a modification or repeal of their restrictions upon commerce and navigation. The leading point and constantly avowed intention of the United States have been, to produce that reciprocity of trade for the vessels of different nations which had been denied by the nations of Europe for more than two hundred years. It was the American system contradistinguished from the European,—the last now happily no longer so to the extent of its former and long-continued exclusiveness. The judgment of the Circuit Court is affirmed. 181 172 SUPREME COURT. Oldfield V. Marriott. Note.—It has been stated that the opinion of Judge Betts and Secretary Walker’s circular led to a negotiation, which terminated in Great Britain passing, in 1849, the statute of 12 and 13 Victoria, and thus accomplished the great purpose of our policy, which had been proposed by the United States to the nations of Europe, and to England particularly, by Mr. Adams in 1875. Mr. Walker’s circular of November 6th, 1847, restoring the construction given to the act of March 1, 1817, by Mr. Crawford, having been cited, the importance of the subject will justify a reference to another official document. On the 18th of January, 1849, Mr. Buchanan, then Secretary of State, referred to the Secretary of the Treasury a note of the British Chargé, Mr. Crampton, requesting the views of the United States government, as to the effect here of the proposed change of the British navigation laws. In his reply of the 81st January, 1849, to the letter of Mr. Buchanan, Mr. Walker, in discussing the subject, made the following remarks. “ The alterations in the navigation laws of Great Britain, contemplated by the printed memorandum accompanying Mr. Crampton’s note, if adopted to the extent proposed therein, it is conceived, would remove most of the restrictions and disabilities to which our navigation and commercial interests are at present subjected in their intercourse with Great Britain and her colonies, and if the privileges proposed by the measure to be accorded to her colonies should be exercised in a liberal spirit, all the restrictions and disabilities which have heretofore attended our intercourse with said colonies would be likely to be removed. “Arbitrary restrictions upon navigation or trade are as *1731 adverse *to the liberal spirit of our institutions as they J are opposed to our true interests. The navigation act of the 1st of March, 1817, was passed with a view to counteract the restrictive policy of other nations, and mainly in reference to that of Great Britain, operating as was alleged to the prejudice of our shipping and trade. “ In pursuance of the construction given to the before-mentioned act of 1817, and its present practical operation, as contained in the accompanying copy of circular instructions issued to the officers of the customs, under date of the 6th of November, 1847, it will be perceived that its provisions are not construed to prohibit any foreign nation from pursuing the indirect trade with the United States, provided such nation does not interdict the shipping of the United States from carrying on a similar trade with her ports and possessions. 182 DECEMBER TERM, 1850. 173 Oldfield V. Marriott. Consequently, should Great Britain remove her restrictions in this particular, no additional legislation on our part would be necessary to extend to her shipping the privilege referred to.” This official construction by the Treasury Department of the act of 1st March, 1817, was communicated in February, 1849, by the Secretary of State, to the British Chargé, and by him it was transmitted to his government, by whom, after full deliberation and legal advisement, it was adopted as the true interpretation of the act of 1817. As a consequence, the act of Parliament, before referred to, was submitted as a ministerial measure by the British Cabinet, and became a law early in 1840 ; upon the express assurance of the ministry that our act of 1817 would thus, proprio vigore., be brought into operation, the British act being but an acceptance of the terms of reciprocity in the trade, direct and indirect, between the two countries, tendered by the American Congress in 1817. Mr. Meredith, in his circular, consummated the views of Mr. Crawford, Judge Betts, and Mr. Walker, and put into effect the act of 1817 ; in this way restoring the original construction of it which had been given by Mr. Crawford, but which had been suspended by a Treasury circular issued by Mr. Forward, on the 6th of July, 1842, upon an opinion given by Mr. Legaré, then Attorney-General, which was overruled by the decision of Judge Betts in the case of the Recorder and her cargo. Thus, after the lapse of sixty-four years from our first offer, in 1785, and thirty-two years from our second offer, in 1817, Great Britain, in 1849, abandoned her restrictions upon American vessels, and accepted the full reciprocity in the trade, direct and indirect, so long tendered to all nations by the United States. * Order. [*174 This cause came on to be heard on the transcript of the record of the Circuit Court of the United States for the District of Maryland, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs. 183 174 SUPREME COURT. Hallett et al. v. Collins. William R. Hallett and Robert L. Walker, Executors of Joshua Kennedy, deceased, John G. Aikin and Clarissa his Wife, John H. Hastie, and his Wife Secluda, Augustus R. Meslier and his Wife, Mary Augusta Kennedy, Joshua Kennedy, James Inerarity, Samuel Kitchen, William Kitchen, James Campbell, and the Branch Bank of the State of Alabama at Mobile, Appellants, v. Sidney E. Collins. Tn order to constitute a valid marriage in the Spanish colonies, all that was necessary was that there should be consent joined with the will to marry. The Council of Trent, in 1563, required that marriage should be celebrated before the parish or other priest, or by license of the ordinary and before two or three witnesses. This decree was adopted by the king of Spain in his European dominions, but not extended to the colonies, in which the rule above mentioned, established by the Partidas, was permitted to remain unchanged. An ecclesiastical decree, proprio vigors, could not affect the status or civil relations of persons. This could only be effected by the supreme civil power. In 1803, Collins obtained from the military commandant at Mobile a permit to take possession of a lot of ground near that place, and made a contract with William E. Kennedy that the latter should improve it, so as to lay the foundation for a perfect title, and then they were to divide the lot equally. Kennedy’s ownership of a hostile claim, whether held then or acquired subsequently, enured to the joint benefit of himself and Collins; and when Kennedy obtained a confirmation of his title under the acts of the commissioners appointed under an act of Congress, he became a trustee for Collins to the extent of one half of the lot. The deeds afterwards made by Kennedy, under the circumstances of the case, did not destroy this trust; but the assignee, having full knowledge of the trust, must be held bound to comply with it.1 This assignee obtained releases, for an inadequate consideration, from the heirs of Collins, who had just come of age, were poor, and ignorant of their . rights. These releases were void. Before Kennedy conveyed to the assignee just spoken of, he had conveyed the property to another person who held it as a security for a debt; and who, when the debt was paid, transferred it to the same assignee to whom Kennedy had conveyed it. This added no strength to the title, but only gave to this assignee a claim to be reimbursed for the money which he paid to extinguish the debt. The absence of the complainant from the state, and the late discovery of the fraud, account for the delay and apparent laches in prosecuting his claim.2 This was an appeal from the Circuit Court of the United States for the Southern District of Alabama. The controversy had its origin in transactions long anterior *17^1 *t° ^6 acquisition of the country by the United States, and involved also the discussion of events long afterwards; so that the case became very complicated, and the record voluminous. Being an appeal in chancery, all the 1 Cited. Craft v. Russell, 67 Ala., 12. 184 2 See Collins v. Thompson, 22 How., 246, 248. DECEMBER TERM, 1850. 175 Hallett et al. v. Collins. evidence was brought up to this court. Instead of giving a narrative of the case, it appears best to set forth the grounds of complaint in the bill, and of defence in the answer. The defendant in error, Sidney E. Collins, was complainant below in a bill in equity against the heirs and executors of Joshua Kennedy, deceased, and others. The bill sets forth that the complainant is both heir and devisee of his late father, Joseph Collins, and sole heir-at-law of his deceased brothers George and Joseph, the co-heirs and co-devisees with himself of his father’s estate. That Joseph Collins, his father, had obtained a grant of a certain lot of land from the Spanish government, in or near the city of Mobile. That William E. Kennedy claimed an interest in the same lands, through a grant to one Alexander Baudain. That on the 21st of November, 1806, Collins and Kennedy entered into an agreement to divide the land between them ; Kennedy to have the northern half, and Collins the southern ; Kennedy covenanting “ to improve the lot by fencing and ditching so that it might not be forfeited.” That, in pursuance of this agreement, Kennedy held possession of the lot, and made the necessary improvements, during the time that Spain held possession of the territory. That when it came into possession of the United States, the Collins and Baudain permits or claims were both laid before the commissioners. That the first report of Mr. Crawford, the commissioner, was unfavorable to both. That Collins being at this time dead, his claim was not revived by Kennedy, but it was renewed under the Baudain grant alone, and in July, 1820, a favorable report was made in favor of Kennedy in virtue of the Baudain grant, and the legal title confirmed in him by the act of the 8th of May, 1822. That in the meantime, to wit, on the second day of March, 1820, a deed was made by W. E. Kennedy reciting the original agreement between Collins and himself, and conveying the southern half of the lot to James Inerarity, the administrator of Collins, for the use of the estate, with a covenant for further assurance to Inerarity or the heirs of Collins, on the issuing of the patent for the land. The bill also charges, that about this time W. E. Kennedy became very intemperate; that his brother Joshua, who had unbounded influence over him, and was a witness to the deed to Inerarity, and acquainted with the title of Collins’s heirs in the property, contrived a scheme to defeat it and defraud the heirs. That in pursuance thereof he obtained a deed from W. E. Kennedy to *Samuel Kitchen, his father-in-law, for the Collins half of the *-lot, antedated so as to appear to be prior in date to the deed to Inerarity. That Joshua Kennedy transacted the business 185 176 SUPREME COURT. Hallett et al. v. Collins. in Kitchen’s name, at first without his (Kitchen’s) knowledge, and paid the consideration, if any was paid, and. afterwards took a transfer from Kitchen to himself, for a nominal consideration. That in 1824, in further pursuance of the same scheme, he procured a deed from W. E. Kennedy for all his property, and, among other things, a claim or grant from the Spanish government to one Price, of a very suspicious character, which had been rejected by the commissioners. That having succeeded in obtaining a confirmation of the Price claim in 1829, he surveyed it over the claim of Baudain previously confirmed to W. E. Kennedy in right of Baudain, in 1822, and took a patent under it. That this was done for the purpose of complicating the title and defrauding the heirs of Collins. The bill charges, also, that Joshua Kennedy, in further prosecution of this scheme, had certain proceedings entered on the docket of the Circuit Court of Mobile in the name of William Kitchen against James Inerarity, and, without bill, answer, or pleadings of any kind to furnish any key to the claim of Kitchen, a decree was entered, in pursuance of, which Inerarity made a deed to Kitchen for the Collins half of the land, in consideration of Kitchen paying to him a debt claimed by Forbes & Co. (of which firm Inerarity w’as a partner) against Collins’s estate, amounting to the sum of $2233; the property conveyed being then worth $75,000, and now $200,000. That having thus complicated the title of the heirs of Collins to the land in dispute, Joshua Kennedy applied to George and Sidney E. Collins, the heirs, as soon as they came of age, representing that their claim was of no value whatever, and. utterly hopeless, but that, for the sake of peace and quieting his title, William Kitchen was willing to give them each the sum of $1,000. That by means of these fraudulent misrepresentations he obtained deeds from them to Kitchen releasing their claims. That William Kitchen was a brother-in-law of Joshua Kennedy, and a young man without means residing in the family of Kennedy, and his name was used by him for a cover; and that he took a conveyance from Kitchen as soon as the complete title, was supposed to be thus fully vested in him by these fraudulent schemes and contrivances. The bill prays for a conveyance of the land, and an account of rents and profits. The matters of defence set forth in the several answers of the defendants, and relied upon in the argument of the case, were substantially as follows:— 1. That the will of Joseph Collins was not properly proved. 2. That the complainant and his brothers were illegitimate, 186 DECEMBER TERM, 1850. *177 Hallett et al. v. Collins. *and therefore incapable of inheriting from their father or from one another. 3. That Collins had no valid claim to the property. That his concession was abandoned after its rejection, and no possession ever taken under it, nor any attempt made by Collins or his heirs to obtain a title under it. 4. That Joshua Kennedy held the lot under a grant from the Spanish government to Thomas Price, and a confirmation of the same by the United States, and a patent issued in 1837. 5. That the deed to Inerarity was “a special transaction, and not a recognition of title in Collins’s heirs, given to enable Inerarity to recover a debt due from Collins’s estate to John Forbes & Co., or as a compromise.” That the deed to Samuel Kitchen was prior in date to that of Inerarity. That Kitchen was a bond fide purchaser without notice; that he paid for the land through Joshua Kennedy, who was indebted to him ; and that in pursuance of his purchase Kitchen took possession of the lot and made improvements, and afterwards gave Joshua Kennedy a written obligation to convey to him ; and that the “ transaction was closed ” in 1834, by his making a deed to William Kitchen at the request of Joshua Kennedy. 6. That the title of Collins, whatever it was, if any, was extinguished and transferred to William Kitchen by the deed of Inerarity made under a decree of the court, and in consideration of the payment of the debt claimed by Inerarity in behalf of Forbes & Co. against Collins’s estate. 7. That the claim of complainant was extinguished by his own release and that of his brother to William Kitchen for a consideration paid by Joshua Kennedy. . 8. And lastly, the answers, denying all fraud, insist that the full value of the property was paid by Kennedy to the administrator and heirs; and that the sale and releases so made have been acquiesced in by complainant for many years, without any offer to return the consideration or annul the deeds, until after the death of Joshua Kennedy. The immense mass of evidence taken under the authority of the Circuit Court occupied a printed volume of nearly five hundred pages. The following is an abstract of the points which the complainant sought to establish. It is not necessary to refer to the evidence in support of each point. 1. That the plaintiff claimed the south half of the Baudain claim in Mobile as the devisee of his father, and the heir of two brothers, under a Spanish grant to his father and articles of agreement between his father and William E. Kennedy, and possession under them, and a deed confirmatory of them. 2. That the title of Alexander Baudain became perfect 187 *178 SUPREME COURT. Hallett et al. v. Collins. *by the confirmation of the United States, under an act of Congress dated 8th May, 1822, relative to claims of lots in Mobile. 3. That a fraud was practised in the deed made by William E. Kennedy to Samuel Kitchen, and that Joshua Kennedy was a party to it. 4. The participation of Joshua Kennedy in the preparation of the deed to Samuel Kitchen, his beneficial interest in that deed, and his conception of the fraudulent design, are shown by the use that was made of it, by the relations between the parties, and by the fact that all the benefits flowing from it came to him. 5. That Joshua Kennedy brought forward the claim of Price, for the fraudulent purpose of superseding the Baudain claim, in which Collins had an interest, and thus obtaining the whole for himself. • 6. That Kennedy, after having obtained a confirmation and location of the Price claim, purchased from the children of Collins all their rights, under circumstances which show the purchase to have been invalid. 7. That the deeds from the children of Collins were made to William Kitchen, and ought to be set aside. 8. That William Kitchen conveyed to Joshua Kennedy, who obtained a patent in 1837 for the Price claim, covering the land in which Collins had an interest. 9. That the children of Collins left the state of Alabama, and the fraud was not discovered until after the death of Joshua Kennedy (in 1838), and in the progress of a suit which ensued thereupon. The plea of limitations therefore does not apply. 10. That the purchase money paid to the children of Collins was greatly below the real value of the property. On the other hand, the points which the defendants endeavored to establish by the evidence were the following: 1. That Joseph E. Collins was never married to Elizabeth Wilson. 2. That the agreement in 1806, between William E. Kennedy and Joseph E. Collins, was not a settlement of conflicting claims under the Baudain grant. 3. That Kennedy had a right to waive the conditional concession from Collins, and throw himself upon his own better title; and that, in fact, he did disavow all title derived from Collins. 4. That the deed made in 1820, from William E. Kennedy to Samuel Kitchen, was not fraudulently made for the benefit of Joshua Kennedy. 188 DECEMBER TERM, 1850. *179 Hallett et al. v. Collins. *5. That the purchase made by Joshua Kennedy from the children of Collins was fair and bond fide ; that their interest was only contingent, after paying their father’s debts; that the property was a marsh liable to be overflowed, and at the distance of several squares from the business parts of the city, whose value was entirely speculative; and that Kennedy paid as much as their interest in it was worth. 6. That Joshua Kennedy never attempted to complicate the title or obscure the rights of other persons. 7. That the enhanced value of the property is owing entirely to Joshua Kennedy’s industry and judgment in reclaiming and defending it at great expense; and that a court of equity should not deprive his heirs of this advantage without clear proof of fraud. It has already been mentioned, that the evidence taken in the cause was very voluminous to sustain the above positions upon both sides, some of which indeed are rather inferences in law than distinct allegations of fact. But the two classes are so intermingled together, that it appeared impossible to separate them and yet give a thorough explanation of the case. On the 13th of April, 1847, the cause came on for argument in the Circuit Court, which rendered the following decree, viz.: “Sidney E. Collins v. The Heirs and Executors of Joshua Kennedy. “ This cause this day came on to be heard, and it is ordered, adjudged, and decreed, that the deeds of Sidney E. Collins and his brother, George Collins, to William Kitchen, be set aside, and that the representatives of Joshua Kennedy account for the rents and profits received from the said south half of the said lot of land, and also the money derived from the sale of any portion thereof, together with interest thereon, and that the said representatives be allowed for all permanent improvements made on the said land; also the money paid to Sidney E. and George Collins, with interest; and that it be referred to the master to take an account between the parties, in conformity to the principles of this decree.” From this decree, the defendants appealed to this court. It was argued by Mr. Hopkins, and Mr. Reverdy Johnson, for the appellants, and Mr. J. A. Campbell, for the appellee. Their arguments were so blended of matters of fact as deduced from the evidence and matters of law arising thereupon, that *it is impossible to make an accurate report of them without going too much into detail. *- 189 180 SUPREME COURT. Hallett et al. v. Collins. Mr. Justice GRIER delivered the opinion of the court. It will not be necessary, in the consideration of this case, to notice particularly the great mass of documents and testimony spread upon the record, further than to state the results as they affect the several points raised by the pleadings and argued by the counsel. 1. The first of these in order is that which relates to the sufficiency of the probate of the will of Joseph Collins, under whom the complainant claims. But as his claim to two thirds of the property in dispute is through his deceased brothers, he is compelled to remove the objection which has been urged to his and their legitimacy; and if he can succeed in this, and thus establish his right by descent, the decision of the question as to his title by devise will be unnecessary. We shall therefore proceed to examine the second point, as to the legitimacy of the complainant. 2. It is not denied that the complainant and his deceased brothers Joseph and George were the children of Joseph Collins by Elizabeth Wilson, but it is contended that the parents were never legally married. The evidence on this subject is as follows: Joseph Collins resided in the country south of the 31st degree of north latitude, between the Iberville and Perdido, and died there about the year 1811 or 1812, while that country was still in the actual possession of the Spanish government. In the year 1805 he resided in Pascagoula. Elizabeth Wilson resided also in the same place, and in the family of Dr. White, who was a syndic or chief public officer in that place. A contract of marriage was entered into by Joseph Collins and Elizabeth Wilson before Dr. White, who performed the marriage ceremony. The parties continued to live together as man and wife, and were so reputed, till the death of Collins. It is true that some persons did not consider their marriage as valid, because it was not celebrated in presence of a priest, while others entertained a contrary opinion. It is in proof, also, that Collins himself, when he made his will, entertained doubts on the subject. It is a matter of history, that many marriages were contracted in the presence of civil magistrates, and without the sanction of a priest, in the Spanish colonies which have since been ceded to the United States. Whether such marriages are to be treated as valid by courts of law is a question of some importance, as it may affect the titles and legitimacy of *1«11 *many the descendants of the early settlers. It is J not the first time that it has arisen, as may be seen by 190 DECEMBER TERM, 1 850. 181 Hallett et al. v. Collins. the cases of Patton v. Philadelphia, 1 L. Ann., 98, and Phillips v. Gregg., 10 Watts. (Pa.), 158. The question, then, will be, whether an actual contract of marriage, made before a civil magistrate, and followed by cohabitation and acknowledgment, but without the presence of a priest, was valid, and the offspring thereof legitimate, according to the laws in force in the Spanish colonies previous to their cession. That marriage might be validly contracted by mutual promises alone, or what were called sponsalia de presenti, without the presence or benediction of a priest, was an established principle of civil and canon law antecedent to the Council of Trent. (See Pothier du Contrat de Mariage, Part II., ch. 1; Zouch, Sanchez, &c.; and Dalrymple v. Dalrymple, 2 Hagg. Cons., 54, where all the learning on this subject is collected.) Whether such a marriage was sufficient by the common law in England, previous to the marriage act, has been disputed of late years, in that country, though never doubted here. (See the case of The Queen v. Millis, 10 Cl. & F., 534.) On the Continent, clandestine marriages, although they subjected the parties to the censures of the Church, were not only held valid by the civil and canon law, but were pronounced by the Council of Trent to be “ vera matrimonial' But a different rule was established for the future by that council, in their decree of the 11th of November, 1563. This decree makes null and void every marriage not celebrated before the parish or other priest, or by license of the ordinary, and before two or three witnesses. But it was not within the power of an ecclesiastical decree, proprio vigore, to affect the status or civil relations of persons. This could only be effected by the supreme civil power. The Church might punish by her censures those who disregarded her ordinances. But until the decree of the council was adopted and confirmed by-the civil power, the offspring of a .clandestine marriage, which was ecclesiastically void, would be held as canonically legitimate. In France the decree of the council was not promulgated, but a more stringent system of law was established by the Ordonnance de Blois, and others which followed it. In Spain it was received and promulgated by Philip the Second in his European dominions. But the laws applicable to the colonies consisted of a code issued by the Council of the Indies antecedent to the Council of Trent, and are to be found in the code or treatise called Las Siete Partidas *and the Laws of Toro. The law of marriage r*-|oo as contained in the Partidas is the same as that *-which we have stated to be the general law of Europe ante-191 182 SUPREME COURT. Hallett et al. v. Collins. cedent to the council; namely, “ that consent alone, joined with the will to marry, constitutes marriage.” We have no evidence, historical or traditional, that any portion of this code was ever authoritatively changed in any of the American colonies; nor has it been shown, that in the “ Recopilación de los Indies,” digested for the government of the colonies by the order of Philip the Fourth, and published in 1661, nearly a century after the Council of Trent, any change was made in the doctrine of the Partidas on the subject of marriage, in order to accommodate it to that of the council. It may be supposed, that, as a matter of conscience and subjection to ecclesiastical superiors, a Catholic population would in general conform to the usages of the Church. But such conformity would be no evidence of the change of the law by the civil power. Indeed, the fact that the civil magistrates of Louisiana had always been accustomed to perform marriage ceremonies, where the parties were Protestants, or where no priest was within reach, is conclusive evidence that the law of the Partidas had never been changed, nor the decree of the Council of Trent promulgated, so as to have the effect of law on this subject in the colony. The case of Patton v. Philadelphia, already referred to, shows the opinion of the Supreme Court of Louisiana on this subject, which, on a question relating to the early history and institutions of that country, should be held conclusive. 3. These preliminary questions being thus disposed of, our next subject of inquiry must be, whether Joseph Collins had any right or title to the land in dispute which descended to and vested in his heirs. On the 3d of January, 1803, Joseph Collins, who was captain of dragoons and surveyor of the district, made application to Don Joaquim de Osorno, military commandant of Mobile, and obtained a permit, in the usual form, to take possession of a certain lot of marshy ground therein described, near to or in the city of Mobile. The permit was dated on the 26th of April, 1803. This, though merely an inception of a title, was capable of being ripened into a legal title by possession and improvement, which would give him a right to call on the Intendant-General to perfect his grant by a complete title. In order to keep up his possession and improvement on this lot, Collins entered into agreement under seal, dated the 21st of November, 1806, with William E. Kennedy, by which Kennedy covenanted to improve the lot, “ so that, by fencing and ditching, the said lot may not be forfeited, and that he will begin to improve said lots immediately.” By this agree-192 DECEMBER TERM. 1 850. *183 Hallett et al. v. Collins. ment, *Collins was to have the south half of the lot, and the north half was to be conveyed to Kennedy. Whether Kennedy was at this time the owner of the Bau-dain claim to the same lot, and the compromise of their conflicting claims was in part the consideration of this contract, or whether the Baudain claim was first purchased by Kennedy in 1814, when its transfer bears date, is a question of no importance in the case. For it is clearly proved that Kennedy took and held possession of the lot, and made the improvements in pursuance and under his contract with Collins. And whether we consider him as agent, partner, or tenant of Collins, his purchase of another claim would enure to their joint benefit. He could not use the possession and improvement made for Collins to complete an imperfect and abandoned grant to Baudain, as was done, and by such act exclude Collins from his half of the lot. The deed which Kennedy afterwards gave to Inerarity shows clearly that he entertained no such dishonest intention. For after acknowledging by this deed his contract with Collins, and stating his intention to complete the title under the Baudain permit or grant, he proceeded to substantiate his title before the commissioners by proving the possession and improvements made by him under his contract with Collins as the meritorious foundation of his claim ; and thus obtained a favorable report from the commissioners under the Baudain grant, which had been before rejected for want of such proof. By the act of Congress of the 8th of May, 1822, § 2, all claims to lots in the town of Mobile, on which favorable reports had been made by the commissioner^ “ founded on orders of surveys, requettes, permissions to settle, or other written evidence of claims, derived from either the French, British, or Spanish authorities, and bearing date before the 20th of December, 1803, and which ought in the opinion of the commissioners to be confirmed, were confirmed in the same manner as if the title had been completed.” By this act, the legal title to this lot became vested in William E. Kennedy. A patent would be but further evidence of a title which was* conferred and vested by force of the act itself. Having thus obtained the legal title in his own name, Kennedy required no deed from Collins or his representatives, but became seized thereof for his own use as to the northern half, and for the use of Collins, or in trust for his heirs, as to the southern. Inerarity might have maintained an action of covenant on his deed, and compelled him to transfer the legal title by a further assurance. There might be some question, Vol. x.—13 193 183 SUPREME COURT. Hallett et al. v. Collins. perhaps, whether the legal estate did not immediately vest in *1841 Inerarity *by estoppel. But as the conveyance is a J deed poll, in the nature of a quit-claim and release, without a warranty, and with a covenant for further assurance to Inerarity, or the heirs of Collins, it most probably would not. But for the purposes of this case the question is wholly immaterial. Inerarity, as a creditor of the estate of Collins, would have a right to demand the payment of his debt, before he should make a transfer to the heirs. But whether as holder of the legal or equitable estate in trust, his beneficial interest amounted to no more. Some objections have been urged to the view we have taken of this transaction, on the ground that the contract made in 1806 with Collins was not binding. But although we cannot perceive the right of persons, who have purchased the legal title from Kennedy, with full notice of the trust, to object to a contract which Kennedy has executed, we shall proceed to notice them. The first objection is, that Collins did not sign the indenture or articles of agreement of 21st November, 1806, and was therefore not bound to convey to Kennedy; and there was therefore no consideration which could make the deed binding on him. But the deed on its face purports to be an indenture, of which Collins, from the nature of the transaction, would be holder of the counterpart, signed by Kennedy. The original,, which is signed by the grantor, would be in possession of Kennedy the grantee, who cannot object to the validity of his covenant, because a paper is not produced which, if in existence, is in his own possession. Much less could he be heard to make this allegation after the contract has been executed by his own deed sealed and delivered in pursuance of it. It has been objected, also, that the original contract with Collins was void as against the policy of the law. But it was certainly not against the policy of the laws of Spain, under which it was made ; for it was a fulfilment of the conditions of the grant made to Collins. And it cannot well be said to be contrary to the policy of the laws of the United States, who have confirmed the land to Kennedy in virtue of the very possession and improvements made in pursuance of the contract. Thus far, then, we have in 1822 the legal title to the whole lot vested in W. E. Kennedy, in trust, as to the southern half, for the heirs of Collins. 4. What, then, was the effect of the deed made to Samuel Kitchen, dated, or antedated, some two months before the deed to Inerarity ? 194 DECEMBER TERM, 185 0. 184 Hallett et al. v. Collins. The circumstances which tend to show that this deed was made after that to Inerarity, and for the purpose, if possible, of defeating it, are very strong and convincing. 1st. Joshua Kennedy, who acted as the agent for Kitchen, or *used Kitchen’s name for his own purposes, was a witness to the deed to Inerarity, and made no objec- L tions nor suggestions that he had bought and paid for this lot a few days before as agent of Kitchen,—a circumstance not easily accounted for, if such had been the fact. 2d. The deed to Kitchen was acknowledged after that to Inerarity, at the same time with another deed from W. E. Kennedy to Joshua Kennedy, containing property previously sold to Inerarity, and having the same witness, Diego McBoy. “ And thirdly. The frequent declarations of Joshua Kennedy that the object of the deed made to Kitchen, through his intervention, was to defeat Inerarity’s claim to that property.” And lastly, the fact that Samuel Kitchen gave Joshua Kennedy an obligation to convey the lot to him on request; which was afterwards fulfilled by giving his deed to William Kitchen for a nominal consideration; and that William’s name was used by Kennedy for the purpose of covering and complicating the transaction. But it is a question of no importance in the case, whether the deed to Samuel Kitchen was delivered on the day it bears date, or that on which it was acknowledged. He was not the purchaser of a legal title without notice of a secret equity. The rule with regard to purchasers of a, mere equity is, Prior in tempore potior in jure. The equitable title of Collins, of which the deed to Inerarity contained a new acknowledgment, had its origin at least as far back as 1806. So that, even if we could bring ourselves to believe that Joshua Kennedy, whether acting for Kitchen or himself, had purchased and paid his money without notice of the title of Collins’s heirs, it would not enable him to defeat their claim. The legal title first became vested in W. E. Kennedy in 1822, and passed by his deed of 1824 to Joshua Kennedy, with full knowledge of the trust. His attempt to defeat it, by covering the land with the vagrant and probably fraudulent claim under Price, after he had obtained the legal title from the United States, was as unsuccessful as the first, and wholly inoperative, except to show the shifts and contrivances resorted to, in order “ to defeat Inerarity’s claim.” 5. We come now to the consideration of the validity of the deeds of release obtained from George and Sidney E. Collins, in 1829 and 1830. At this time the property had risen in value, with a prospect 195 185 SUPREME COURT. Hallett et al. v. Collins. of a much greater increase; and the frailty of the title was but too transparent to a man of the judgment and shrewdness of Joshua Kennedy, notwithstanding the means used to obscure it. The heirs had just come of age. They were ignorant of the nature or value of their title. Kennedy is not *1861 onty **n Possessi°n °f their land, but of the legal title. -• He persuades them to release their title to William Kitchen for the sum of one thousand dollars each; a sum which, to young men just out of their apprenticeship, poor, and ignorant of their rights, would appear large and attractive. Kennedy is well acquainted with the nature and value of their claim; they are wholly ignorant of it. He informs them that their claim is worthless, but that Kitchen was willing to give them this sum for the sake of peace and quieting his title. Besides, he had so complicated and covered up the title, that it was impossible that they could comprehend it, or know the value of their claim, if the documents had been laid before them. Under such circumstances should a chancellor hesitate in setting aside the releases, if it appeared that the title thus obtained was for a consideration much below the value of the property ? It needs no citation of authorities to show that deeds obtained under such circumstances would be held void. 6. The transfer by In erarity of the equitable trust title held by him, can add nothing to the validity of Kennedy’s title. Whether transferred by him voluntarily, or through the medium of a decree in chancery, can make no difference in this case. Nor is Inerarity liable to any imputations of collusion or improper conduct in the matter. He was bound to transfer his title to the heirs on payment of his debt. And when their releases to Kitchen were produced, by which he appeared to be substituted to their rights, Inerarity, who was ignorant of the means used to obtain them, might justly believe that he was bound to convey to him. He did so, after consulting counsel, and after a decree in equity. Such a decree would be made as a matter of course. But its effect would only be to substitute Kitchen or Kennedy to the rights of Inerarity. The title would be still subject to the trust for Collins’s heirs, and unless their title was vested in Kennedy by these releases, he held the land still subject to their rights. But when the release to the heirs are set aside, Kennedy is entitled to recover the money paid to Inerarity, as there is no allegation that the debt claimed by Forbes & Co. against Collins’s estate was not justly due. But before leaving this part of the case, it will be proper to notice an objection urged with some plausibility in the argument. The record exhibits much contradictory testimony as to the value of this property at the time the releases were 196 DECEMBER TERM, 1850. 186 Sears v. Eastburn. executed, and it has been contended that Kennedy paid the full value for it, being altogether over $4,000. After such a length of time, it may be expected that the estimates of witnesses from recollection will differ widely. But when we look at the public assessments, and the sales of contiguous property about the *same time, which are the best tests, it would seem that the boast of Joshua Kennedy himself, that •-“he had bought for $4,000 property worth $40,000/’ was not an exaggeration of the truth. But assuming the true value to have been one half that sum, and taking into consideration the facts and circumstances already stated, we think the Circuit Court was fully justified in setting aside these conveyances, and decreeing that the defendants should account. 7. The absence of the complainant from the state, and the late discovery of the fraud, fully account for the delay and apparent laches in prosecuting his claim, which have been objected to, on the argument. The decree of the court below is therefore affirmed, but with this addition: “ that the master, in taking the account of rents, profits, sales, &c., shall allow to the defendants the sum paid to James Inerarityfor his claim against the estate of Joseph Collins.” Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs, and with this addition: “ that the master, in taking the account of rents, profits, sales, &c., shall allow to the defendants the sum paid to James Inerarity for his claim against the estate of Joseph Collins; ” and that this cause be, and the same is hereby, remanded to the said Circuit Court, to be proceeded with in conformity to the opinion of this court. Sherburne Sears, Plaintiff in error, v. Joseph R. Eastburn. The act of Congress passed in May, 1828, (4 Stat, at L,, 278), directs that the forms and modes of proceeding in the courts of the United States, in suits at common law in the states admitted into the Union since 1789, shall be the same with those of the highest court of original jurisdiction in the state. 197 186 SUPREME COURT. Sears v. Easthurn. Therefore, where the state of Alabama passed an act to abolish fictitious proceedings in ejectments, and to substitute in their place the action of trespass for the purpose of trying the title to lands and recovering their possession, the Circuit Court of the United States should have conformed, in its mode of proceeding, to the law of the state.1 And the judgment of the Circuit Court, dismissing an action of trespass so brought, upon the ground that the law of the state was not in force in the Circuit Court, was erroneous. 1 See Rev. Stat., §§ 914, 915, 916. The practice of the state courts is not controlling unless adopted by act of Congress or rule of court. Wilcox v. Hunt, 13 Pet., 378; Long v. Palmer, 16 Id., 65; The Delaware, Olc., 240; Bayard n. Mandeville, 4 Wash. C. C., 445; The Mayor v. Lord, 9 Wall., 409. But the state practice may, by an established usage, be adopted by the federal courts, if they see fit, without any statute or rule of court. Fullerton n. Bank of United States, 1 Pet., 604; Hiriart v. Ballou, 9 Id., 156. The state practice cannot be permitted to interfere with the distinction preserved in the federal courts between law and equity, either in substance or procedure. Bills v. New Orleans, 366 Price, 12 Id., 77; Beard v. Federy, 3 Wall., 491 ; Grisar v. McDowell, 6 Id., 380. 5 Cited. Lea v. Polk County Copper Co., 21 How., 498. Open, notorious and exclusive possession of real property by parties claiming it is sufficient to put other persons upon inquiry as to the inter- DECEMBER TERM, 1850. 348 Stimpson v. Baltimore and Susquehanna Railroad Co. In error to the Circuit Court of the United States for the District of Missouri. Isaac Landes, a citizen of Kentucky, brought an action of ejectment in the court below, at the October term of 1845, against Joshua B. Brant, a citizen of Missouri, to recover a lot of ground in the city of St. Louis. Plea, general issue. At the trial of the cause, the plaintiff gave in evidence the following patent:— Patent to Glamorgan. “ The United States of America, to all to whom these presents shall come, greeting: “ Know ye, that there has been deposited in the General Land Office a certificate numbered one thousand one hundred and ninety-three, of the recorder of land titles at St. Louis, *Missouri, whereby it appears that, in pursuance of the (-*049 several acts of Congress for the adjustment of titles *-and claims to lands, Jacques Glamorgan, under Gabriel Dodier, was confirmed in his claim to a tract of land, containing thirty-four acres and sixty-eight hundredths of an acre, bounded and described in a survey dated October 4th, 1826, as follows, to wit: beginning at a stone, the northeast corner of survey number one thousand four hundred and seventy-three, of forty arpents, for Francis Bissonet; thence north twenty-five degrees and forty-five minutes east, two chains and ninety- ests, legal or equitable, held by such parties; and if such other parties neglect to make the inquiry, they are not entitled to any greater consideration than if they had made it and had ascertained the actual facts of the case. Hughes v. United States, 4 Wall., 232. S. P. Lea v. Polk Co. Copper Co., 21 How., 493: Lonsdale v. Moies, 11 Law Rep. N. s., 658; Strickland v. Kirk, 51 Miss., 795; Johnson v. Clark, 18 Kan.. 157: Greer v. Higgins, 20 Id., 420; Tankard v. Tankard, 79 N. C., 54; Noyes v. Hall, 7 Otto, 34; Mullins v. Wimberly, 50 Tex., 457; Purcell v. Enright, 4 Stew. (N. J.), 74; Nolan v. Grant, 51 Iowa, 519; Wrede v. Cloud, 52 Id., 371; Hommel v. Devinney, 39 Mich., 522; New v. Wheaton, 24 Minn., 406; Siebert v. Rosser, Id., 155; Jamison v. Dimock, 95 Pa. St., 52; Bartling v. Brasuhn, 102 HL, 441. The possession must be an actual, open and visible occupation, inconsistent with the title of the apparent Owner by the record; not equivocal, occasional, or for a special or temporary purpose. Brown v. Valkening, 64 N. Y., 76; see also Loughridge v. Borland, 52 Miss., 546. A mere naked possession in a vendor will not hold good against the true owner, and he may pursue his property, and recover it from a purchaser, without notice, unless his own conduct has been such as to estop him from setting up his title. Klein v. Seibold, 89111., 540. Contra, Wait v. Smith, 92 HL, 385. Where a tenant in possession agrees to purchase the premises, his possession amounts to notice of his equitable title, to a subsequent grantee of his landlord. Coari v. Olsen, 91 Ill., 273. The open and notorious possession of a party under an unrecorded lease. Held not to authorize a jury to infer that a purchaser of the land had actual notice of that party’s possession under the lease. Casey v. Steinmeyer, 7 Mo. App., 556. 367 349 SUPREME COURT. Landes v. Brant. two links, to an old stone in a ravine on the east side of Third street, which stone, lying flat in said ravine, was re-inserted by the deputy surveyor, and from which stone the southwest corner of a three-story brick house (in block number sixty-six) bears north eighty-seven degrees east; the northwest corner of a brick house (in block number sixty-five, Barbee’s tavern) bears south; the northwest corner of a stone house (in block number twenty-six, Eph. Town’s Missouri hotel) bears north sixty-nine degrees thirty minutes east; and a black locust, eight inches in diameter, bears north seventy-three degrees west, distant forty-one links; thence north seventy-five degrees twenty minutes west at eighty-three chains an old stone; at one hundred chains an old stone; one hundred and twenty chains to an old stone, the northwest corner of the present survey, from which a white oak, four inches in diameter, bears north twenty-four degrees west, distant sixteen links ; a white oak, three inches in diameter, bears north seventy-five degrees east, distant eleven links; and a red oak, five inches in diameter, bears south forty-two degrees east, distant twenty-two links ; thence south twenty-five degrees forty-five minutes west, two chains and ninety-seven links, to a stone, the northwest corner of survey number one thousand four hundred and seventy-three, of Francis Bissonet; thence south seventy-five degrees twenty minutes east, one hundred and twenty chains, to the place of beginning, being in township forty-five north of range seven east of the fifth principal meridian, and being designated as survey number one thousand two hundred and seventy-eight in the state of Missouri. There is, therefore, granted by the United States unto the said Jacques Glamorgan, under Gabriel Dodier, and to his heirs, the tract of land above described. To have and to hold the said tract, with the appurtenances, unto the said Jacques Glamorgan, under Gabriel Dodier, and to his heirs and assigns for ever. “ In testimony whereof, I, James K. Polk, President of the United States, have caused these letters to be made patent, and the seal of the General Land Office to be hereunto affixed. *“ Given under my hand, at the city of Washing- -I ton, the 18th day of June, in the year of our [l. s.J Lord 1845, and of the independence of the United States the sixty-ninth. “By the President, James K. Polk. By J. Knox Walker, Secretary. “Recorded Vol. X., pages 36, 37, 38. “ S. H. Laughlin, Recorder of the General Land Office.11 368 DECEMBER TERM, 1850. 350 Landes v. Brant. Also an extract from the minutes of the Commissioners to decide land claims, &c., and a record of a confirmation to Jacques Glamorgan, as follows:— “Wednesday, November 13th, 1811. Board met; present, John B. C. Lucas, Clement B. Penrose, and Frederic Bates, Commissioners.—Cer., 1278. “ Jacques Glamorgan, assignee of Esther, mulattress, assignee of Joseph Brazeau, assignee of Gabriel Dodier, claiming one by 40 arpents of land, situate [on] Little Prairie, adjoining the town of St. Louis, produces a concession from St. Ange and Piernas, L. G., dated 23d May, 1772; a transfer from Gabriel Dodier and Joseph Brazeau to Esther, dated 4th November, 1793; from Esther to claimant, dated 2d September, 1794. “The Board grant to Jacques Glamorgan forty arpents of land, under the provisions of the second section of the act of Congress, entitled ‘ An Act respecting claims to land,’ and passed 3d March, 1807, and order that the same be surveyed conformably to the metes and bounds contained in the report of a survey made for said Dodier, and found in Livre Terrien, No. 2, folio 15. Survey at expense of the United States. “ Board adjourned till to-morrow, nine o’clock, A. m. John B. C. Lucas, Clement B. Penrose, Frederic Bates. “Recorder’s Office, St. Louis, Missouri, December 1st, 1846. I do certify the above to have been truly transcribed from book No. 5, of the Commissioners’ minutes, pages 398, 406, and 407, as the same remains of record in this office. “ Loren Spencer, Z7. S. Recorder of Land Titles in the State of Missouri." “Louisiana.— Commissioners' Certificate, No. 1278. “We, the undersigned, Commissioners for adjusting the titles and claims to land in the territory of Louisiana, have decided that Jacques Glamorgan, claiming under Gabriel Dodier, original claimant, is entitled to a patent under the provisions of the second section of the act of Congress, entitled ‘ An Act respecting claims to land in the territories of Orleans and Louisiana,’ *passed the 3d of March, 1807, for forty arpents, situate in the District of St. L Louis, Little Prairie, adjoining the town of St. Louis, by virtue of ten consecutive years’ possession, prior to the 20th December, 1803, and order that the same be surveyed conformably to the metes and bounds established in the report of a survey made for said Gabriel Dodier, and found in Livre Vol. x—24 369 ?51 SUPREME COURT. Landes v. Brant. Terrien, No. 2, folio 15. John B. C. Lucas, Clement B. Penrose, Frederic Bates. “Recorder’s Office, St. Louis, 24th February, 1847. The above is a correct copy of original certificate No. 1278, on file in this office, issued by the board of United States Commissioners therein designated, for ascertaining and adjusting the titles and claims to land in the Territory of Louisiana. “Loren Spencer, U. 8. Recorder of Land Titles in the State of Missouri." Also a certified extract from the registry of patent certificates, containing the date (February 10th, 1845) and the number (1193) of the certificate issued to Clamorgan, together with a copy of survey made in October, 1826. The plaintiff also gave in evidence the last will and testament of Jacques Clamorgan, dated 31st October, 1814, and admitted to probate on the 7th of November, 1814, in which, after the payment of his debts and the distribution of 150 piastres to the poor, he devised all his estate to his natural children, St. Eutrope, Apoline, Cyprien Martial, and Maximin, to be divided into five equal parts, of which Maximin was to have two parts and each of the others one part. Also the last will and testament of Cyprien Martial Glamorgan, dated 27th February, 1827, and admitted to probate on the 27th of May, 1827, in which he devises two lots of ground, situate in block No. 25 in the city of St. Louis, to Henry Clamorgan, second natural son of his natural sister, Apoline Glamorgan, and a lot in the same block to Louis and Louisa, infant children of said Apoline, jointly; also all the interest or estate which he might be entitled to in any lands in the state of Missouri to his sister Apoline and her children, Louis, Henry, and Louisa, and the survivor of them. Also the last will and testament of Apoline Glamorgan, dated the 11th day of April, 1830, and admitted to probate on the 12th day of May, 1830, wherein she devises to Louis and Louisa, and such other children as might be born to her, all her interest and estate in a lot one hundred and twenty feet front by three hundred feet in depth (conveyed to St. Eutrope, Cyprien Martial, and the testatrix, by Joseph Brazeau for Jacques Glamorgan), being in block No. 25 in the city of St. *3521 -kouis; likewise *any interest or estate she might have -• in any other lands in the state of Missouri to her children. The plaintiff also gave in evidence a deed bearing date the 28th day of April, 1845, from Louis and Henry Glamorgan to the plaintiff and one Fidelio C. Sharp, conveying all the inter-370 JANUARY TERM, 1 850. 352 Landes v. Brant. est (except an undivided fourth) which they might have under any patent to be issued by the United States upon the certificate of confirmation dated November 13th, 1811, to Jacques Glamorgan. It was admitted, on behalf of the defendant, that, at the time of the institution of this suit, he was in possession of a part of the premises described and embraced in the plaintiff’s declaration, to wit, a lot in the city of St. Louis, fronting one hundred and eleven feet six inches on Washington Avenue, and running back north one hundred and fifty-two feet in depth, bounded on the south by Washington Avenue and on the west by Fourth Street; and that the said lot is embraced in the confirmation, survey, and patent read in evidence by the plaintiff, being part of that forty arpent tract, which tract is bounded south by the centre of Washington Avenue. It was proven, on the part of the plaintiff, that it was reported and believed by the near relatives and friends of St. Eutrope and Maximin, that they died many years ago, the former leaving a wife, but no children, the latter having never been married, and both having died intestate. That Cyprien Martial died in the year 1826 or 1827, and that Apoline died in 1829 or 1830; that Apoline left four children at her death, to wit, Louis, Henry, Louisa, and Cyprien; that Louisa died in 1833 or 1834, being then only seven or eight years old; that Louis, Henry, and Cyprien, her remaining children, are yet living; that Apoline died a few days before the birth of her son Cyprien; that Apoline was never married, and her children were illegitimate; that Cyprien, Martial, and Apoline were mulattoes. It was admitted on the part of plaintiff and defendant, that Jacques Glamorgan died between the date and probate of his will, as read in evidence by the plaintiff. The defendant gave in evidence a transcript of a record of the General Court of the Territory of Louisiana, in the case of Gregoire Sarpy, Executor of Antoine Reiki, n. Jacques Glamorgan. In this transcript no return appeared upon the summons. The judgment was rendered 16th May, 1808, and commenced with the usual form, “ And now at this day come the parties aforesaid, by their attorneys,” &c. Execution was taken out and levied on the interest of Glamorgan in a certain lot of land one arpent front by forty arpents in depth (being that now in Controversy), and the same was sold at public auction by Jeremiah Connor, the sheriff, to Alexander *• McNair, and a sheriff’s deed given therefor, bearing date the 8th day of July, 1808. Also a transcript of a record of the Circuit Court of St. 371 353 SUPREME COURT. Landes v. Brant. Louis County, in the case of Rufus Easton v. Jacques Glamorgan's Executors, setting out a judgment against the defendants, and an execution thereon, and a sale and deed by John K. Walker, sheriff, to John O’Fallon and Jesse G. Lindell, after the following advertisement :— “ Advertisement.—Sheriff's Sale. “ By virtue of a writ of execution issued from the Clerk’s office of the Circuit Court of St. Louis County, and to me directed, in favor of Rufus Easton, against Jacques Glamorgan’s executors, I have levied upon, and will sell for cash to the highest bidder, at the court-house door in St. Louis, on Thursday, the 27th day of July instant, between the hours of nine and five, all the right, title, claim, interest, estate, and property, that was of said Glamorgan at the time of his death, in and to a piece or parcel of land, containing one arpent in front by forty arpents in depth, and bounded on the eastern end by a fence formerly made to defend the crops of the inhabitants of St. Louis against the animals or beasts ; on the north by land of Tayon (Père) ; on the western end by the king’s domain or vacant land; and on the south by the highway which leads to the village of St. Charles ; it being the same lot of forty arpents acquired by said Glamorgan of Gabriel Dodier, by deed bearing date November 4th, 1793. The boundaries, as above set forth, are the same as given in said deed. Sold to satisfy said execution and costs. St. Louis, July 1st, 1826. “ John K. Walker, Sheriff." To the admission of both these records the plaintiff objected) and, upon the objection being overruled, excepted. Defendant then read in evidence the following documents, to wit:—1st. A deed from Alexander McNair and wife to Jeremiah Connor. 2d. A copy made by the Spanish Lieutenant-Governor of a deed from Dodier to Esther, with a deed from Esther to William C. Carr indorsed thereon ; and 3d. A deed from William C. Carr arid wife to Jeremiah Connor, also indorsed on such Spanish copy. 4th. A deed from Jeremiah Connor to George F. Strother. 5th. A deed from George F. Strother to James D. Earl. 6th. A mortgage from James D. Earl to Sullivan Blood. 7th. A deed of release from James D. Earl to Sullivan Blood. 8th. A deed from George F. Strother and wife to Thomas H. Benton, and Thomas Biddle, in *trust, &c. 9th. A deed from Thomas H. Benton J and Thomas Biddle, and Luke E. Lawless and wife, to Sullivan Blood. 10th. A deed from Sullivan Blood and wife to the defendant. 372 DECEMBER TERM, 1 850. 354 Landes x>. Brant. It was in evidence that Jeremiah Connor had inclosed the Dodier lot soon after the change of government. That Glamorgan went to Mexico in 1806, and returned in 1808 or 1809. There were also in evidence three deeds of emancipation from Jacques Glamorgan to his four children, St. Eutrope, Cyprien Martial, Apoline, and Maximin, all dated 16th September, 1809, in which it was recited that St. Eutrope was born in April, 1799; Apoline on the 7th of February, 1803; Cyprien Martial on the 10th of June, 1803 ; and Maximin in the beginning of the year 1807. The following instructions were asked for by the plaintiff:— 1. That the legal effect of the patent and confirmation read in evidence by the plaintiff was to vest the legal title to the premises therein mentioned in Jacques Glamorgan, the patentee, if living at the date of the patent, and if not living, then in his heirs, devisees, or assignees, in the same manner as if the patent had issued in the lifetime of said Glamorgan. Given. 2. That prior to the confirmation read in evidence by the plaintiff, the legal title to the premises embraced in said confirmation was in the government of the United States, and that the confirmation, survey, and patent read in evidence by the plaintiff were effectual to vest the legal title to said premises in Jacques Glamorgan, his heirs, devisees, or assignees. Given. 3. That the judgment read in evidence by the defendant in favor of Gregoire Sarpy, executor of Antoine Reihle, to the use of Mildrum and Parks, against Jacques Glamorgan, was null and void, and the sale made by the sheriff by virtue of the execution issued thereon, and the deed from said sheriff to Alexander McNair, are also null and void. Refused. 4. That the deed from Sheriff Connor to Alexander McNair, dated 8th July, 1808, and read in evidence by the defendant, is void for uncertainty, and should be disregarded by the jury. Refused. 5. That the deed from Sheriff Connor to Alexander McNair, read in evidence by the defendant, is void as to the plaintiff, unless he had notice of said deed at the date of the deed from Louis and Henry Glamorgan to him, as read in evidence by said plaintiff. Refused, and No. 5 (post, p. 357) given. 6. That the sale made by John K. Walker, sheriff, to O’Fallon and Lindell, on 27th July, 1826, and the deed made in pursuance of said sale, dated 10th August, 1826, as read in evidence by defendant, are fraudulent and void. Rejected. *7. That if, at the date of the levy and sale by Sheriff Walker to O’Fallon and Lindell, the premises *■ 373 355 SUPREME COURT. Landes v. Brant. levied upon, or a considerable portion thereof, then constb tuted a part of the city of St. Louis, and had before then been laid off into blocks and squares, separated by streets and alleys, and distinctly marked out by stones set up at the corners, or other visible boundaries, and if some of said lots or blocks had before then been sold and conveyed by Jeremiah Connor, claiming to be the proprietor thereof, and if upon the said lots or blocks, so sold, buildings and other improve-n.snts had before then been erected, then the said levy and sale were null and void. Rejected. 8. That if the premises levied upon by Sheriff Walker, by virtue of the execution in favor of Rufus Easton, and sold by said sheriff to O’Fallon and Lindell for thirty-three dollars, were at the time of said levy and sale susceptible of division without injury to the property, and were at the date of said levy and sale worth five thousand dollars or more, then the said sale is fraudulent and void in law. Refused. 9. That the salé made by Sheriff Walker to O’Fallon and Lindell is void, unless the said sheriff in his levy or advertisement, or in the deed to said O’Fallon and Lindell, described the premises sold with reasonable certainty, so that the same could have been identified by the said description. Given. 10. That if the premises in controversy are embraced by the confirmation and patent read in evidence by the plaintiff, the sale and conveyance from Sheriff Connor to Alexander McNair, read in evidence by defendant, were not operative to convey the legal title to said McNair, and the said sale and conveyance cannot prevail as against the patent and confirmation in this action. This instruction as asked for is refused, for the reason that it involves confusion; we are of opinion that the legal title to the premises embraced by the sheriff's deed was in the United States until the patent issued, provided the deed covers the land in dispute; but that the imperfect title owned by Clamorgan did pass by the sheriff’s deed made by Connor to McNair, 8th July, 1808; and that neither the act of confirmation by the Board of Commissioners in 1811, nor the issuance of the patent in 1845, defeated the title made by Sheriff Connor in 1808; and so the jury are instructed. 11. That the deed from Gabriel Dodier to Esther, and the deed from Esther to William C. Carr, and the deed from William C. Carr to Jeremiah Connor, read in evidence by defendant, did not at the date of the said last-mentioned deed vest in the said Connor any title to the premises in dispute which *can prevail in this action ; provided the same premises J had before then been confirmed to Jacques Clamorgan, 374 JANUARY TERM, 1 850. 356 Landes v. Brant. and have since been patented to him by the government of the United States. Given. 12. That the possession by the defendant, or those under whom he claims, of the premises in controversy, in order under any circumstances to constitute a valid bar to the plaintiff’s recovery, must have been an actual, adverse, and uninterrupted possession for the space of twenty years next preceding the institution of this suit. This instruction is given, although not strictly as asked. 13. That if, at the dates of the sale and conveyance from Sheriff Connor to Alexander McNair, read in evidence by defendant, the premises conveyed in said deed were susceptible of a description by which the same might have been identified with reasonable certainty, and if the same were not so described either in the levy or sheriff’s deed, then the said deed is void, and vested no title in McNair. This instruction involves one matter of law, appertaining to the decision of the court on a motion heretofore made to reject the sheriff’s deed, and overruled ; and therefore the instruction is refused; but the jury are instructed that it is their duty to find whether the land described in the sheriff's deed is the land in dispute in this action, and the same land that was confirmed to Jacques Glamorgan ; and if the land in dispute is not the same land conveyed by the sheriff’s deed and confirmed as aforesaid, then said deed cannot furnish a defence to this defendant. 14. That if, at the date of the levy and sale by Sheriff Connor to Alexander McNair, read in evidence by defendant, Jacques Glamorgan owned two tracts of land, each of them containing one arpent in front by forty in depth, both situated in the Little Prairie and adjoining the then town of St. Louis, then the deed from Sheriff Connor to Alexander McNair, read in evidence by defendant, is void for uncertainty. This instruction is refused, because there was no legal evidence given to the jury, either proving, or tending to prove, that on the 8th of July, 1808, Jacques Clamorgan was the owner of two such tracts of land. 15. That the execution in favor of Rufus Easton against the executors of Jacques Glamorgan, dated the 3d day of April, 1826, and read in evidence by the defendant, and all the proceedings of the sheriff under and by virtue of that execution, are null and void. Refused. 16. If the jury find from the evidence that the boundaries described in the deed from John K. Walker, sheriff, to John *O’Fallon and Jesse G. Lindell, given in evidence by the defendant, were not, at the time of the sale by the *- 375 357 SUPREME COURT. Landes v. Brant. said sheriff, the true boundaries of the tract of one by forty arpents that had been confirmed to Jacques Clamorgan, as mentioned in the certificate and record of confirmation given in evidence by the plaintiff, and that the same has not been bounded in the manner stated in said deed for a period of more than twenty years, and that the deed referred to in the. said description contained in said sheriff’s deed, as the one from which it was taken, had no existence in fact, then the said description is insufficient, and said sheriff’s deed from Walker is void ; unless the jury shall find from the evidence, that the said tract of one by forty arpents was generally known in the community at the date of said sale by the description given in said deed. * "'This instruction is refused, and the jury instructed instead thereof, that they must find the land in dispute was covered by Sheriff Walker’s deed to O’Fallon and Lindell, before that deed can avail the defendant as an outstanding title. 17. That the deed, given in evidence by the defendant, from Jeremiah Connor, sheriff, to Alexander McNair, conveyed no title to said McNair to the tract of one by forty arpents mentioned in the confirmation of the Board of Commissioners of date November 13th, 1811, given in evidence by the plaintiff. Refused. And thereupon the court gave the 1st, 2d, 9tb, 11th, and 12th instructions, and refused to give the remainder, but in place of the 5th gave the following:— 5. The unregistered deed made by Sheriff Connor to McNair on the 8th of July, 1808, was valid, as between Glamorgan, the execution debtor, and McNair, the purchaser; and equally so as against the devisees of Glamorgan, without being recorded. But it was not valid as against a purchaser of the same premises from Glamorgan’s devisees, who purchased for a valuable consideration, and without notice of the existence of the deed of 1808. The deed on which the plaintiff relies was made in April, 1845, and if the plaintiff then had actual notice of the deed of 1808, it was valid also as to him, without having been recorded. And if the jury find that the defendant Brant was in the open and notorious possession and occupation of the premises when the deed of 1845 was made, and had been so for years before that time, continuously holding under the deed of 1808, then this is evidence from which, connected with other circumstances, the jury may find that the plaintiff had actual notice of the existence of the deed of 1808, when he took his deed in 1845. And so the jury are instructed. And in place of the 10th, gave the following:— 376 DECEMBER TERM, 1850. *358 Landes v. Brant. *10. This instruction, as asked for, is refused, for the reason that it involves confusion; we are of opinion that the legal title to the premises embraced by the sheriff's deed was in the United States until the patent issued, provided the deed covers the land in dispute; but that the imperfect title owned by Glamorgan did pass by the sheriff’s deed made by Connor to McNair, 8th July, 1808 ; and that neither the act of confirmation by the Board of Commissioners in 1811, nor the issuance of the patent in 1845, defeated the title made by Sheriff Connor in 1808, and so the jury are instructed. And in place of the 13th, gave the following:— 13. This instruction involves one matter of law appertaining to the decision of the court, on a motion heretofore made to reject the sheriff’s deed, and overruled, and therefore the instruction is refused; but the jury are instructed that it is their duty to find whether the land described in the sheriff’s deed is the land in dispute in this action, and the same land that was confirmed to Jacques Clamorgan; and if the land in dispute is not the same land conveyed by the sheriff’s deed, and confirmed as aforesaid, then said deed cannot furnish a defence to this defendant. And in place of the 16th, gave the following:— 16. This instruction is refused, and the jury instructed instead thereof, that they must find the land in dispute was covered by Sheriff Walker’s deed to O’Fallon and Lindell, and before that deed can avail the defendant as an outstanding title. To the refusal of which several instructions as asked for, the plaintiff at the time excepted. The defendant then moved the court for the following instructions:— 1. If the jury find from the evidence that the tract of land sold and conveyed by Jeremiah Connor, sheriff, to Alexander McNair, in 1808, as the property of Jacques Clamorgan, is the same tract of land which was claimed by said Glamorgan before the Board of Commissioners, and confirmed to him, then the confirmation to said Glamorgan enures to said Alexander McNair and those claiming under him. Given. 2. If the jury find from the evidence that the lot in dispute is embraced in the tract of land sold and conveyed by John K. Walker, sheriff, to Jesse G. Lindell and John O’Fallon, in 1826, by virtue of the judgment and execution in favor of Rufus Easton against the executors of Jacques Clamorgan, then the plaintiff is not entitled to recover. Given. 3. If the jury find from the evidence that the defendant, and *those under whom he claims, have been in pos-session of the lot in controversy for twenty years con- *- y 377 359 SUPREME COURT. Landes v. Brant. secutively, prior to the commencement of this suit, and since Apoline Glamorgan and Cyprien Martial Clamorgan, under whom the plaintiff claims, arrived at the age of twenty-one years, that such possession was under a claim of title adverse to the plaintiff and those under whom he claims, then the issue ought to be found for the defendant. Given. To the giving of which the plaintiff objected, but the court overruled the objection, and gave each of said instructions, to which the plaintiff excepted at the time. Verdict for plaintiff, and judgment thereon, upon which this writ of error was sued out. The cause was argued by Jfr. Bradley, for the plaintiff in error, and by Mr. Gramble, for the defendant in error. Mr. Bradley, for the plaintiff in error. First Point. The legal title being clearly in the plaintiff, the first question arises under the tenth instruction, in which it is submitted there is error. 1st. An exception was reserved to the admissibility of this deed in evidence; because the record of the cause is either imperfect, or, if perfect, it shows the judgment is void. It is not an erroneous judgment. There could be no jurisdiction without an appearance. The recital in the judgment, “ And now at this day come the parties aforesaid, by their attorney,” &c., is simply surplusage. That could not give life to a void act. There was no service of process, no plea filed, no appearance in person or by attorney, no issue, no evidence. Smith v. Ross, 7 Miss., 463; Hollingsworth v. Barbour and others, 4 Pet., 466, 472; Anderson v. Miller, 4 Blackf. (Ind.), 417; Shaefer v. Grates, 2 B. Mon. (Ky.), 453; Englehead v. Sutton, 7 How. (Miss.), 99. If the judgment is void, it may be objected to in a collateral proceeding. Campbell v. Brown, 6 How. (Miss.), 230. It was not a judgment by confession, nor want of a plea. Again, there is evidence to show that Jacques Glamorgan was not at St. Louis at the time the writ issued, or between that time and the time at which the judgment purports to have been entered. He left there in 1806, and returned in the winter of 1808, or spring of 1809. The writ issued 6th April, 1808; judgment, 16th May, 1808; execution, 6th June, sale, 8th July, 1808. 2d. If the judgment was valid, yet the deed was inoperative and void as to subsequent bona fide creditors and purchasers, *without actual notice, if it was not recorded within the time prescribed by law. This is admitted in the 378 J A N U A R Y T ERM, 1 8 5 0. 3G0 Landes r. Brant. instruction. Where there is no record, there must be actual notice. 1 Territorial Laws (Edward’s Comp.), p. 47, § 8; Frothingham v. Stocker, 11 Mo., 3. 3d. But the court below say further, if the jury find the defendant Brant was in open and notorious possession and occupation of the premises, &c., “then this is evidence from which, connected with other circumstances, the jury may find the plaintiff had actual notice.” It is submitted that there is error in this last clause of the instruction. Undoubtedly there might be other circumstances which, taken in connection with the possession, would justify such finding, but it was an abstract proposition eminently fitted to mislead the jury. Second Point. In the plaintiff’s fifth and defendant’s first instructions, there is error. 1st. The proposition there is, that the imperfect title held by Clamorgan before the confirmation was transferred by the sheriff’s deed to McNair, and the subsequent confirmation and patent to Glamorgan enured to the benefit of McNair. 1. If the imperfect title passed by that deed, the purchaser could and ought to have perfected it before the Commissioners. 12 Pet., 454, 458. 2. It was property. Soulard et al. v. 17. States, 4 Pet., 511. 3. The decision of the Commissioners, confirming the claim, is conclusive as to all parties having antecedent rights.- U. States v. Percheman, 7 Pet., 86; Strother v. Lucas, 12 Id., 458 ; Chouteau v. Eckhart, 2 How., 357; U. States v. King, 3 Id., 787; Hickey n. Stewart, Id., 759, 760; Newman v. Lawless, 6 Mo., 290; Mackay v. Dillon, 7 Id., 13. 4. The deed is as to Clamorgan in invitum. It is without covenant of any kind, and but a conveyance, against his will, of such title as he then had. He was not bound to perfect it. 5. A deed operates by relation, or enures to the benefit of another, only where he who receives the deed has led the other into an interest in the property, and to avoid injury to that interest from events happening between the creation of that interest and the execution of the deed, or the first and second delivery of the deed. 4 Kent Com., 454, 555; 4 Johns. (N. Y.), 230; 15 Id., 316; 1 Cow. (N. Y.), 613. 6. If McNair had, under the sheriff’s deed, an imperfect title, and was bound to have perfected it, and Glamorgan was under no obligation to have it confirmed, and afterwards procured *a confirmation to himself in his individual right, it vested in him the legal title and equitable • interest, paramount to any intermediate equities created against his will. 379 361 SUPREME COURT. Landes v. Brant. But 2d. The court refused to instruct the jury that the deed from the sheriff was void for uncertainty in the description of the property. It is a sale under execution. Hart v. Rrctor, 7 Mo., 534, and cases there cited; Evans v. Ashley, 8 Id., 177; 1 J. J. Marsh. (Ky.), 33. See the cases cited. Third Point. The plaintiff’s ninth and defendant’s second instructions relate to the second record, judgment, execution, and sheriff’s sale. The plaintiff submits there is error in these instructions, as also in the refusal to give the instructions refused. An exception was reserved to this deed. 1st. It was a suit and judgment against an executor, “and that he have his execution against the goods and chattels, lands and tenements, which were of said Jacques Glamorgan,” &c. The execution follows the judgment. Although the judgment may be simply erroneous, and therefore not now to be called in question, it cannot justify the execution. The Revised Code of Missouri, 1825, p. 112, §§ 49, 50, provides for the classification of debts, and p. 563, for the classification or marshalling of the assets. The personal estate should have been first subjected. Grantley's Lessee v. Ewing, 3 How. 707; 1 Blackf. (Ind.), 210. 2d. If the execution was properly issued, the deed did not describe the property with reasonable certainty. No deed from Gabriel Dodier to Clamorgan is shown to help out the defective description, nor was there in fact any such deed. See cases above. Besides, the land had then been laid off, divided into blocks and squares, and lots, and streets and alleys, and the description was wholly delusive. 3d. The property sold for $33 to satisfy $27.88, leaving a surplus of $512. The property was worth $10,000, if free from encumbrance. It was capable of division, and was, in fact, divided. It was evidently taken in connection with the previous sale under another execution, intended to get up all the interests of all Glamorgan’s heirs in all his property within the jurisdiction of the court. Taking all the circumstances together, it was strong evidence of fraud, and ought to have been left to the jury on that ground. Tiernan v. Wilson, 6 Johns. (N. Y.) Ch., 417 ; 4 Cranch, 403; 18 Johns. (N. Y.), 362; 6 Wend. (N. Y.), 522; 3 Blackf. (Ind.), 376. Fourth Point. The instruction granted by the court, as to adverse possession, left to the jury a mixed question of law and fact. The plaintiff submits that it is erroneous. *3621 *lst- Because it submitted to the jury to find whether J the possession was adverse, without qualification. The defendant claimed under the two sheriff s deeds. If 380 DECEMBER TERM, 1 85 0. 362 Landes v. Brant. those deeds were void, no length of time would create an adverse possession. A sheriff’s deed which is void for want of jurisdiction in the court under whose judgment the sale took place, is not such a conveyance as that a possession under it will be protected by the statute of limitations. Walker v. Turner, 9 Wheat 541-551; Powell's Lessee n. Harman, 2 Pet., 241; Hoskins v. Helm, 4 Litt. (Ky.), 310; Brooks v. Marbury, 11 Wheat., 90; 9 Johns. (N. Y.), 167; 1 Id., 157. 2d. The deed from Sheriff Walker to O’Fallon and Lindell is within twenty years of the bringing of the suit. By claiming under that deed, the defendant is estopped to deny that the title was then in the heirs of Glamorgan. 14 Johns. (N. Y.), 225, and note. The court had previously ruled these deeds to be good. If they were void, no adverse possession could arise. Yet the whole question of adverse possession was left to the jury. Adverse possession is a legal idea, admits of a legal definition, of legal distinctions, and is therefore correctly laid down to be a question of law. Bradstead v. Huntington, 5 Pet., 402, 438. The judge did not define the legal properties necessary to constitute an adverse possession, and the facts stated in his instruction do not of themselves constitute such adverse possession. 3d. The statute of limitations of Missouri cannot avail the defendant. 1. The deed of 10th August, 1826, admits the title of plaintiff’s ancestor, and there is no proof of actual adverse possession for twenty years before, and continuously down to suit brought. 2. Louis and Henry Glamorgan, under whom the plaintiff claims, are within the saving of the statute of 1818. Territorial Laws, 598. Finally. The plaintiff maintains, that, although there may have been an equitable title in the defendant, and under the statutes of Missouri an action of ejectment may be maintained on an equitable title in that state, yet such title caiinot prevail against the legal title. It is conceded that the legal title is in the plaintiff, and it is insisted by defendant that it is held in trust for him. This is an implied trust. If it exists at all, it arises from some wrongful act of the plaintiff, or those under whom he claims. But it is begging the question to say the *act was wrongful, and must enure to the benefit of r^o^q defendant. It was the object of the commission to $$ settle the rights of conflicting claimants. It was entirely 381 363 SUPREME COURT. Landes v. Brant. within the power of McNair or O’Connor to have brought this question before them. The transactions were then fresh, and no difficulty would have occurred in adjusting any controversy between them. On these grounds, effect is given to the confirmation to pass the legal title. A conclusive effect is necessarily given to such confirmation, unless it be in cases of fraud and wrong. If there be an equity in those claiming under the said judgments, it cannot prevail in a court of law as against the legal title; and the substance of the instructions given by the court is, it is respectfully submitted, wrong in that particular. Chouteau v. Eckhart, 2 How., 375; Hickey v. Stewart, 3 Id., 750; United States v. King, 3 Id., 787; Les Bois v. Bramell, 4 Id., 449. Mr. (ramble, contra. Clamorgan had filed his claim with the Recorder of Land Titles, and the same was pending before the Board of Commissioners, prior to the year 1808. The fifth section of the act of Congress of the 3d of March, 1807 (2 Stat, at L., 440), had limited the time for the exhibition of claims to the 1st of July, 1808. There was no mode provided by law for substituting for the claimant an heir, devisee, or assignee, who had acquired the right of the claimant after his claim was filed. Glamorgan claimed to be the legal representative of Gabriel Dodier, by purchase from Esther, who purchased from Bra-zeau, who purchased from Dodier, the original grantee. In July, 1808, the sheriff, under execution, sold the interest of Glamorgan in the land, and executed his deed to McNair, the purchaser. The thing itself, so filed, in which Glamorgan claimed an interest, whilst it was sub judice, was sold ; and his interest, as it then existed, was sold, namely, a Spanish claim which had been filed. The sheriff’s deed is declared by the law under which it was made to be effectual “to pass to the purchaser all the estate and interest which the debtor had, or might lawfully part with, in the land, at the time the judgment was obtained.” Edwards’s Territorial Laws, p. 121, § 45. The purchaser at sheriff’s sale held a conveyance which was as operative to pass Glamorgan’s interest in the land, as any instrument which Glamorgan himself could have made. He was by that deed constituted the sole representative of Gabriel Dodier, the original grantee of the land. As to the objection of want of an appearance, the Supreme Court of Missouri have decided that hardly any state of cir-*364-7 cumstances *would justify them to set aside a sheriff’s J sale, where possession had followed the deed. Tindell 382 DECEMBER TERM, 1850. 364 Landes v. Brant. v. Bank, 4 Mo., 228 ; Landis y. Perkins, 12 Id., 254 ; Bay v. Kerr, 7 Id., 426. It is then the settled law of Missouri, that, under the recital contained in this judgment, the defendant will be held to have appeared. No matter whether Clamor-efan was in Mexico or not. If we look to the practice under the Spanish authorities, and since, we shall find that these claims were not a contingent interest separate from the estate, (as was the case in Blanchard v. Brooks, 12 Pick. (Mass.), 52,) but were a present existing interest in the land, and were susceptible of transfer and every form of conveyance. And in whatever form the claimant’s interest was conveyed, his claim to the confirmation was conveyed. It is said that the purchaser should have filed his sheriff’s deed with the Board, and claimed the confirmation to himself. But this could not be done. The law limited the time within which claims could be filed. That time had passed before this sale was made. The patent which conveyed the legal title, being issued in the name of Glamorgan, who was then dead, passed the legal title to the person who was then the holder of the equitable title previously in Glamorgan, and the purchaser of that equitable title would take the legal title, under the patent, in preference to a devisee of Glamorgan. 5 Stat, at L., 31 ; Act of 3d March, 1807 (2 Stat, at L., 440). The language of the Commissioners has probably induced misapprehension. They “grant,” &c., although they had no power to grant. The acts of Congress makes the grant, and the Commissioners were only to ascertain, by rules of evidence, whether the claim was a valid one, according to the laws of Congress. The language, then, which may be employed by the Board, does not, in any manner, affect the operation of the confirmation. If the words in this case had been, “ the claim filed by Jacques Glamorgan is confirmed,” or, “the Board are of opinion that the claim filed by Jacques Glamorgan is a valid claim,” the effect would have been precisely the same as is produced by the language actually employed, “the Board grant to Jacques Glamorgan,” &c. The doctrine of relation applies here with all its force. The Commissioners act upon the claim as filed. They act upon it as it was when filed. The Commissioners in this case having to decide upon claims throughout what is now Missouri, Iowa, and Wisconsin, the adjudication would necessarily be long delayed, and would present just such a case as would make the doctrine of relation applicable. 383 *365 SUPREME COURT. Landes v. Brant. *A judgment relates to the first day of the term at which it is rendered. A deed executed in pursuance of an agreement to convey may relate back to the time of the contract. Jackson n. Bard, 4 Johns. (N. Y.), 230. A sheriff’s deed relates back to the day of sale. Jackson v. Dickinson, 15 Johns. (N. Y.), 309; Boyd v. Longworth, 11 Ohio, 235. An acknowledgment of a deed relates back to the time of its execution. 8 Ohio, 87. So the confirmation relates back to the filing of the claim. As to the objection that the lands ought not to have been sold before the goods and chattels. How can that be inquired into collaterally in the case of a sheriff’s sale? What has the purchaser to do with the question whether the sheriff has made proper search for goods and chattels before he sells the land? There is no evidence here that there was any personalty at all. The objection is raised merely from the form of the precept. It was objected to the instruction as to possession, that the court ruled, that from open and notorious possession, “connected with other circumstances,” the jury might infer that the plaintiff had notice, &c. In Missouri, circumstances are considered sufficient to prove actual notice. Before a jury it would be competent to contend that circumstances made out a case of notice. Possession is one circumstance. A list made out in Glamorgan’s handwriting (this lot being omitted) is another. And so on. The gist of the instruction was, that the jury might find from circumstances that the plaintiff had actual notice; not that the circumstances detailed were proof of notice. A question was made in the court below in relation to the sufficiency of the description contained in the sheriff’s deed to McNair. The plaintiff contended that the deed was void for uncertainty, and objected to its being admitted in evidence, and afterwards moved for instructions to the jury to the same effect. In the fourth instruction, the court was asked to declare, as a matter of law, that the deed was void. This instruction the court very properly refused, as it required the court to pass upon all the facts in evidence before the jury, relating to the description contained in the deed. The thirteenth instruction, which applies to the same subject, was refused by the court in the form in which it was asked, but in lieu of it the court instructed the jury, “ that it was their duty to find whether the land described in the sheriff’s deed is the land in dispute in this action, and the same land that was confirmed to Glamorgan, and if the land in dispute is not the same land conveyed by the sheriff’s deed, and. confirmed as 384 DECEMBER TERM, 1 850. 365 Landes v. Brant. aforesaid, then said deed cannot furnish a defence to thia defendant.” This instruction refers the question to the jury, whether the *description in the sheriff’s deed covers the land in dispute. They are to take the deed with its descrip- L tion, and all the evidence describing the land in dispute, and to determine whether the description in the deed embraces the land in controversy. The Supreme Court of Missouri, in the case of Landis v. Perkins., 12 Mo., 260, say:—“ Whether the description of the premises sold was ‘sufficient, would depend upon extrinsic circumstances. If the lot was known by the description given, the sale would be valid, according to the principles settled in the case of Hart v. Rector, 7 Mo., and parol evidence was admissible to- establish that fact.” The Circuit Court, undoubtedly, gave the proper instruction, to direct the attention of the jury to the question of fact upon which the validity of the deed depended, and very properly refused to instruct the jury that this deed was void for uncertainty. If it were necessary to cite authorities to show that descriptions, as general as that used in this deed, have been held to be sufficient, I would refer the court to 4 Dev. & B. (N. C.), 414; 1 Humph. (Tenn.), 80; 3 Yerg. (Tenn.), 171; 7 Id., 490; 8 Gill & J. (Md.), 349; 2 N. H., 284. Mr. Bradley, in reply and conclusion. There is a wide difference, as to adverse possession, between a claim of title from the same stock under a defective deed, and a claim of title from another stock. In the former case, if the deed under which the claim is set up is void, it nevertheless admits the title of the other. That is the case here. If we show that the deeds of the sheriff are void, they purporting to convey Glamorgan’s title, do we not thereby confirm as against them the title under which they claim? Is it not an admission that our title is good, unless it has been divested by the machinery on which they rely? The cases cited show that possession under a void deed is a possession consistent with, and subordinate to, the title of the true owner, and can never give rise to an adverse title. Now as to what passed by the sheriff’s deeds, I maintain that nothing passed but the naked possessory title :—“ All the estate and interest which the debtor had, or might lawfully part with, in the land, at the time the judgment was obtained.” See Edwards’s Ter. Laws, p. 121, § 45. Now what had Glamorgan at that time which he “might lawfully part with” in this land ? I do not ask to what he might by proper cove- Vol. x.—25 ‘ 385 366 SUPREME COURT. Landes v. Brant. nants bind himself. But what had he which could have passed by a mere quitclaim deed? He had then an equitable interest in the land, which is said *3671 *t° have been the subject of seizure and sale. He had, J also, a claim pending before the Board of Commissioners, for a confirmation of that interest, so as to create in him a legal estate. Was that, also, the subject of seizure and sale? Would that pass by a quitclaim deed? The claim was before the Board. It is said the time for filing claims had passed. Was there anything to prevent the assignee, if he were such, from filing his assignment made subsequent to the filing of that claim ? Clearly he might have done so. Glamorgan was there. His was a mere possessory title, with an inchoate right to the legal estate. His possessory right was the subject of seizure and sale. It was a valuable thing, and, unless some one else procured the legal estate, it might be perfected. The means of perfecting it were within his reach. The law of this court is, that however strong the possessory right, however clear the equity, a grant or confirmation to a stranger claiming the land would have passed the legal estate to such stranger. There was, then, every motive to induce him to present his claim to a confirmation, if he had one, and it might then have been decided, when every thing was fresh, and the parties on the spot. The law provided for legal representatives, and embraced as well those who were assignees before, as after, the claim filed. It was confirmed to Glamorgan. It is supposed the legal title enured to the benefit of the intermediate assignee of Glamorgan, that is, to the forced assignee, after the claim filed. Upon what principle ? Was Glamorgan bound by any legal or moral obligation to perfect the title ? The sheriff had sold his possession; no more. Illustrations are drawn from the law of relation, which is sup* posed to be clearly expounded in the books, and cases are put forth to show its operation ; a deed executed in performance of an agreement, a judgment, a sheriff’s deed, the acknowledgment of a deed, are put; to which may be added the case of Graham v. Graham, 1 Ves., 275, and Garnons v. Knight, 8 Dowl. & Ry., 348. In these and like cases, where a man, by his own voluntary act, has passed an imperfect title to another for a full consideration, and afterwards seeks to transfer the property to another, or that interest is sought to be subjected by process to his debts, or he has, after a full consideration received, or under covenant, received a good title, in such case, the law, to prevent injustice, interposes, and by relation secures the title to the first vendee. But there is a wide dis-386 DECEMBER TERM, 1 850. 367 Landes v. Brant. tinction between voluntary and compulsory acts, between a naked quitclaim and a covenant for title, between a mere right to present possession and enjoyment and an absolute estate in fee. In the case of a naked quitclaim, an afteracquired title will never *relate back, so as to vest in the vendee of the quitclaim. 1 Cow., 613. Nor would *-any court tolerate for a moment, that a squatter who has the bare possession, and sells that, should be debarred from acquiring for himself the absolute estate in fee. And there is a substantial reason for this distinction. He who buys an imperfect title pays a proportionate price for it. He has no right to look to his vendor to complete it. He takes it for what it is worth ; no more. I admit that the same rule of relation applies to sheriff’s deeds, and to others acting in a fiduciary or executive capacity, where the title to the property has passed by the sale, and the deed is a mere formal execution of the power. In some states, Maryland for instance, the deed from the sheriff is not necessary, nor is it in cases of chancery sales; and when executed, it relates back to the time of the sale. But what does it convey? Has it ever been supposed to carry with it any thing more than the actual title or interest which the party had at the time of such sale ? If this rule prevails as between vendor and vendee, where they deal together, and treat of the actual right or possession, the thing in esse not in posse, it should apply with still greater force to a case where the sale is wholly in invitum. The policy of the law and the rules of courts are much more stringent in such cases than in those where the parties act voluntarily. Here the whole proceeding against Clamorgan was compulsory. He had an interest which could be taken in execution. The confirmation was most uncertain, at best. The claim was not appraised. It was not in any manner referred to. The purchaser was bound to know that he was buying but a naked possession, and he must, of course, have regulated his price by that. There was, then, no foundation even for equity to interpose to compel a deed from Clamorgan. And will it be pretended, that courts of law will make a deed enure by relation, when equity would not interpose to compel the party to make it ? The great questions in this case are as to the effect of the confirmation and patent; whether or not the confirmation and patent enure to the purchasers at the sheriff’s sale, or, the deeds of the sheriff being void, whether the title does not subsist in the heirs and devisees of Glamorgan. The cases cited from the fourth and sixth volumes of the Missouri Reports differ from this. In the first there was pro-387 368 SUPREME COURT. Landes v. Brant. cess served and an appearance by attorney. In the last there was service of process on one of the defendants. Here there was no service of process, no appearance. But it is thought the defects are cured by the entry, that “ the parties come by their attorneys,” &c., and the record is *not to be contradicted; it binds parties and privies, is J a solemn judgment of a court of competent jurisdiction, final and conclusive until reversed. If it is a record, it must stand or fall by itself. It does not require the aid of the maxim cited for its support. But is it a record, and as such entitled to conclusive force? The judgment begins with “ Therefore it is considered,” &c. The rest is recital. No court can have jurisdiction except under certain statutes, unless the defendant is before it. On the return of process, an attorney may appear if the defendant is in court, but I know no case in which an attorney has been allowed to appear suo motu, unless the party was in court. There must be an authority, clear and explicit, naming the attorney, or there must be a party in court under process. Here there is neither. It is a mockery of justice, not error, but absolutely void, to .allow a voluntary appearance by attorney without any authority of record, or the presence of the party in court. There is nothing in the whole proceedings from which it can be inferred that the defendant had notice, actual or constructive, of this proceeding, and without this the judgment is a nullity. See the cases on the brief, and also Buckmaster v. Carlin, 3 Scam. (HL), 104, and Crane v. French, 1 Wend. (N. Y.), 312. A case in 6 Miss., 50, and one in 7 Id., 426, are relied on to show that such a recital binds the parties. But these cases, if they are in conflict with, are clearly overruled by, 7 Miss., 465. If the rule is so inflexible, it would never be in the power of the defendant to show that he had no notice. Nor does the maxim, “ Ex diurnitate temporis omnia presu-muntur, rite et solemniter esse acta," apply to such a case. That can avail-only where there is a defect in the proof, and to supply the imperfect record. But when the proof is itself a matter of record, and no suggestion is made of a defect in it, not evanescent, but fixed and public, courts must deal with it alone, and not with presumptions. Nor is the ruling of the court sustained by the passage in Greenleaf, nor the case in Wendell, on which the defendant relies. It is not a case of an erroneous judgment; but of a judgment utterly void for want of jurisdiction over the person of the defendant, for want of an appearance under process, or by any voluntary authority. It is not sought to reverse or 388 DECEMBER TERM, 1850. 369 Landes v. Brant. vacate it, but to treat it as a’nullity; and this may be done in a collateral proceeding as well as in any other mode. Mr. Justice CATRON delivered the opinion of the court. The first title paper offered in evidence by the plaintiff was a patent from the United States to Jacques Glamorgan, dated *June 18, 1845, which purports to grant “to said Glamorgan (under Gabriel Dodier), and to his heirs,” [*370 the land in dispute. The patent is founded on a certificate made by the first board of commissioners established at St. Louis, which declares, that Glamorgan, claiming under Dodier, original claimant, was entitled to a patent under the provisions of the second section of the act of Congress of 3d March, 1807; and it was ordered that the same should be surveyed conformably to the metes and bounds established in the report of a survey made for said Gabriel Dodier, “and found in Livre Terrien, No. 2, folio 15 ; by virtue of ten consecutive years’ possession, prior to the 20th December, 1803.” The confirmation and certificate bear date November 13th, 1811. According to the former decisions of this court, all controversy was concluded by the confirmation as regarded two questions :—First, it settled that Glamorgan was the true and proper assignee under Dodier, through the various mesne conveyances by which Glamorgan claimed. Bissell v. Penrose., 8 How., 330. Secondly, that Glamorgan had the oldest and best claim to the land, as against every other claimant under the Spanish government. In explanation of our former decisions, it is proper to remark, it is held, that, as between two claimants under that government, setting up independent imperfect claims, the courts of justice had no jurisdiction; that in such cases it appertained to the political power to decide to whom the perfect title should issue; and when this was done, no controversy could be raised before the courts of justice impeaching the first confirmation.1 The only question decided in Chouteau v. Eckhart, 2 How., 345, and in Les Bois v. Bramell, 4 Id., 449, was, that when Congress confirmed and completed an imperfect claim, and then confirmed another and different claim for the same land, the older confirmation defeated the younger one ; nor could a court of justice go behind the first confirmation, and ascertain from facts and title papers which claimant had the better original equity. That if this was allowed, then the first confirmation could be overthrown by the courts; and the action 1 Cited. Snyder v. Sickles, 8 Otto., 212. 389 370 SUPREME COURT. Landes v. Brant. of the political department (in all cases of double confirmation) would have no conclusive force when the courts were resorted to. In the present case, the plaintiff's right of recovery cannot be questioned on the face of his title; and the controversy depends on the defendant’s claim of title. In 1808, Sarpy recovered a judgment against Glamorgan in the District Court at St. Louis, for $2,393. The objection to the judgment is, that no process seems to have been served on Clamorgan, *and it is proved that he was absent in Mexico at the -* time; but the record of the judgment states, that “ now at this day came the parties by their attorneys, and neither of said parties requiring a jury, but this case with all things relating to the same being submitted to the court, for that it appears to the court that said Sarpy has sustained damages,” &c. And then a judgment follows. A defendant’s being beyond the jurisdiction of a court is not conclusive evidence that the judgment was void; he may have left behind counsel to defend suits brought against him in his absence, by which means his property could be reached by attaching it; and the proof shows it to be probable enough that such was Glamorgan’s condition when the judgment was rendered. But the validity of the judgment does not depend on this consideration. If it was voidable for want of notice, and a false statement on its face, “ that the parties appeared by their attorneys and dispensed with a jury, and submitted the facts to the court,” then it should have been set aside by an audita querela, or on petition and motion; such being the familiar practice in similar cases.1 Furthermore: This suit in ejectment is collateral to the judgment; and it cannot be impeached collaterally. So the Supreme Court of Missouri held in 1848, in the case of Landes v. Perkins (12 Mo., 254), on the same title, and a similar record in all respects to that before us, and with the views on this point there expressed we entirely concur. In the same case it is held that Glamorgan’s interest in the land by virtue of his imperfect Spanish claim was subject to seizure and sale under execution, according to the then laws of Missouri; that the proceeding was not void, but passed to the purchaser at execution sale all the title that would have passed from Glamorgan, had he made a quitclaim deed to McNair, the purchaser. That such was the force and effect of a regular sheriff’s deed under the local laws of the then Missouri territory is not open 1 Cited. Thompson v. Whitman, 18 Wall., 464. 390 DECEMBER TERM, 1850. 371 Landes ®. Brant. to question ; nor is it controverted. And the only remaining consideration on this branch of the case is, whether the sheriff’s deed can be set up as a defence at law, notwithstanding the confirmation and patent, both of which are of subsequent date to the sheriff’s sale and deed. The court below held, that the title set up in defence under the sheriff’s sale was a valid, legal title; and so charged the jury; which instruction was excepted to; and this presents the principal matter of controversy now before us. Glamorgan’s claim to the land sold had existed for many years before the United States acquired Louisiana. It had *been regularly surveyed, by order of the Spanish gov- i-#«™ ernment, and the survey was filed with the recorder, L according to the act of 1805; Glamorgan had held possession under the claim of Dodier, to the extent of his survey, for more than ten consecutive years, before the 20th of December, 1803; he was on that day in possession, and then a resident of Louisiana. The second section of the act of March 3, 1807, declares, that any person thus claiming and holding land shall be confirmed in his title to the tract thus held. The confirmation was to be made by the commissioners; and by section fourth their decision was to be final against the United States in cases within the foregoing description. And section sixth provides that a patent shall issue on a certificate of the Board. In the case of Landes v. Perkins, the Supreme Court of Missouri held that the conclusive legal title vested in Glamorgan by the confirmation of 1811; and that, being the date of the legal title, a court of law could not go behind it; nor did the confirmation, or patent, relate to any previous step taken to acquire title; and the sheriff’s deed, being a mere quitclaim, did not estop Glamorgan or his devisees from setting up the legal title against such a deed. And it is intimated that a court of equity could be resorted to, and through its aid the sheriff’s sale might be set up by decree. How far a court of equity would interfere in such a case we are not disposed to inquire, as it is apprehended that the Supreme Court of Missouri was mistaken in the effect it attributed to the confirmation of 1811, and the patent founded on it. Glamorgan’s petition asking a confirmation (under the act of 1805) was filed with his title papers with the recorder; and they were recorded (December 10, 1805). The imperfect title as then filed was subject to seizure and sale by execution; the ultimate perfect title demanded and granted was a confirmation and sanction by the political power 391 W1'2 SUPREME COURT. Landes v. Brant. of the imperfect title, and gave it complete legal validity; and to protect purchasers, the rule applies, “ that where there are divers acts concurrent to make a conveyance estate, or other thing, the original act shall be preferred ; and to this the other acts shall have relation,”—as stated in Viner’s Abr., tit. Relation, 290. The doctrine of relation is well illustrated in Jackson v. M' Michael, by the Supreme Court of New York, 3 Cow., 75, and recognized by the Supreme Court of Missouri in the case of Crowley v. Wallace, 12 Mo., 145. Cruise on Real Property (Vol. V., pp. 510, 511) lays down the doctrine with great distinctness. He says : “ There is no rule better founded in law, reason, and convenience than this, *970-1 that *all the several parts and ceremonies necessary to -• complete a conveyance shall be taken together as one act, and operate from the substantial part by relation.”1 For the purposes of this case, (without proposing to apply the rule to every other,) we may assume that the first act of Clamorgan was that of filing his title papers and claim with the recorder of land titles, according to the fourth section of the act of March 2, 1805 ; this was regularly done, and the papers recorded. He claimed under the second section of the act of 1805, which was amended by the act of April 21, 1806, and again by the act of March 3, 1807. As already stated, by the fourth section of this last act, the decision of the board of commissioners appointed to investigate such claims is made final against the United States, and he was entitled to a patent. His claim was fully within the provisions of the acts of 1805 and 1807. Applying the doctrine of relation, and taking all the several parts and ceremonies necessary to complete the title together, “as one act,” then the confirmation of 1811, and the patent of 1845 must be taken to relate to the first act ; that of filing the claim in 1805. On this assumption, intermediate conveyances made by the confirmee, or by the sheriff on his behalf, of a date after thé first substantial act, are covered by the legal title, and pass that title to the alienee. And on this ground the deed made by the sheriff to McNair is valid. But there is another consideration equally conclusive in favor of the sheriff's deed in the present instance. Glamorgan died in 1814 ; and by his will devised his lands to his illegitimate children, under whom the plaintiff Landes claims title. In 1845, a patent issued purporting to convey to Glamorgan, in fee simple, the land in dispute ; according to common law rules, the patent was void for want of a grantee ; and to sup- 1 Cited. Yontz v. United States. 23 How., 498. 392 DECEMBER TERM, 1850. 373 Landes v. Brant. ply this defect, Congress passed a general law (May 20,1836), declaring, “ That, in all cases where patents for public lands have been, or may hereafter be, issued, in pursuance of any law of the United States, to a person who had died, or who shall hereafter die, before the date of such patent, the title to the land designated therein shall enure to, and become vested in, the heirs, devisees, or assignees of such deceased patentee, as if the patent had issued to the deceased person during life.” Of course the assignee by a bond fide conveyance would come in before a volunteer, such as an heir or devisee. Here the assignee of the devisee is suing the alienee of the devisor. The patent issued in 1845 is the ultimate and conclusive evidence of title in this instance, as the board of commissioners had no power to grant and communicate the fee held by the *United States. Their decision was final, to this ex- r*o7z< tent; the officers of government were bound to award L the patent to Glamorgan, without any further action on the part of Congress. But this adjudication does not stand on the footing of cases where the commissioners were ordered to report, and. Congress reserved the power to confirm the report, and.thus to grant the fee by act of Congress; in such cases, this court has held that Congress had granted the fee, and that no patent was required as a further assurance of title. To what description of assignee, then, did the title enure according to the act of 1836 ? Necessarily to one claiming, not the legal, but the equitable title, existing when the patent issued; and in him the legal title is vested by the patent. The same rule was applied in the case of Stoddard v. Chambers., 2 How., 316. In 1800 a concession was made to Mordecai Bell; in 1804, Bell conveyed to James Mackay; and in 1805, Mackay conveyed to Amos Stoddard, whose heirs were the plaintiffs. The claim was filed with the board in 1808, and in 1836 it was confirmed to Mordecai Bell “ and his legal representatives.” This court held, on the foregoing state of facts, “ that when, under the act of 1836, the report of the commissioners was confirmed to Bell and his legal representatives, the legal title vested in him, and enured by way of estoppel to his grantee, and those who claim by deed under him.”1 There was no covenant for title in either the assignment from Bell to Mackay, or in that from Mackay to Stoddard, each being quitclaim assignments. So, again, in the case of Bissell v. Penrose, 8 How., 317, the same principle was maintained. In August, 1800, Tillier 1 Followed. French v. Spencer. 21 How., 240. See Berthold v. McDonald, 22 How., 339. 393 374 SUPREME COURT. Landes v. Brant. filed his claim with the board, and asked a confirmation for 800 arpents; and it continued before the different boards sitting at St. Louis until 1836, when it was confirmed by Congress. In 1818, Tillier assigned his claim to Clement B. Penrose; and in 1820, Penrose assigned his claim, acquired from Tillier, to Mary B. and Anna Penrose, who were the plaintiffs in the ejectment suit, and who recovered the land, under their deed of 1820. In every case when this court has been called on to investigate titles, where conveyances of lands had been made during the time that a claim was pending before a board of commissioners, and where the claim was ultimately confirmed in the name of the original claimant, the intermediate assignments have been upheld against the confirmee, and his heirs or devisees, in the same manner as if he had been vested with the legal title at the date of conveyance. We are therefore of opinion, that the sheriff’s deed made to McNair in 1808 must be supported on this ground also. *^7^1 *The second objection to the sheriff’s deed is, that it J was not recorded when Landes purchased from Glamorgan’s devisees. The Circuit Court instructed the jury, that, as between the devisees and those claiming under McNair, the deed was valid without recording, but that it was not valid to defeat a subsequent bond fide purchaser without notice of its existence; and further instructed the jury, that, “the deed on which the plaintiff relies was made in April, 1845, and if the plaintiff then had actual notice of the deed of 1808, it was valid also as to him, without having been recorded. And if the jury find that the defendant Brant was in the open and notorious possession and occupation of the premises when the deed of 1845 was made, and had been so for years before that time, continuously holding under the deed of 1808, then this is evidence from which, connected with other circumstances, the jury may find that the plaintiff had actual notice of the existence of the deed of 1808, when he took his deed in 1845.” The material objection to the charge is, that other circumstances taken in collection with the adverse holding were required to exist, in the opinion of the court, and that these circumstances are not enumerated. And our opinion is, that if more had been required than the open and notorious adverse possession and occupation of the premises, and the court had given an instruction in general terms as above set forth, it would be erroneous.1 If, however, the possession alone was 1 Followed. Marsh v. Brooks, 14 How., 524. 394 DECEMBER TERM, 1 850. 375 Landes v. Brant. sufficient, then the general terms “ connected with other circumstances” were prejudicial to the defendant, and fall within the general rule “that a man cannot reverse a judgment for error, unless he can show that the error was to his disadvantage.” 3 Bac. Abr., Error, K., 105. And this brings us to the question, whether open and notorious occupation and adverse holding by the first purchaser, when the second deed is taken, is in itself sufficient to warrant a jury or court in finding that a purchaser had evidence before him of a character to put him on inquiry as to what title the possession was held under; and that he, the subsequent purchaser, was bound by that title, aside from all other evidence than such possession and holding. It is conclusively settled in England, that open and notorious adverse possession is evidence of notice; not of the adverse holding only, but of the title under which the possession is held. Hiern n. Mill, 13 Ves., 120; Daniels v. Davison, 16 Id., 253; per Eldon, Lord Chancellor. And in the United States we deem it to be equally settled. The cases in New York will be found in Gouverneur v. Lynch, 2 Paige (N. Y.), 300, and in Grimstone v. Carter, 3 Id., *436, per Walworth, Chancellor. In Kentucky, in Brown v. Anderson, 4 Litt. (Ky.), 201, and Buck v. L Holloway, 2 J. J. Marsh. (Ky.), 180. Nor are we aware that a contrary doctrine is held in any state in the Union. We are therefore of opinion, that the charge given on this point was correct, so far as the plaintiff in error is allowed to call it in question. The next inquiry arises on the refusal of the Circuit Court to charge the jury that the sheriff’s sale made by John K. Walker (sheriff), in 1836, was void. The executors of Glamorgan were sued, and a recovery had against them, as executors, by Rufus Easton; and the premises in dispute were sold, and under this sale the defendant also claims title. That the lands of the deceased debtor could be seized and sold under the judgment according to the then laws of the state of Missouri, we hold to be free from doubt; so the Supreme Court of that state held in the case of Landes v. Perkins, (12 Mo.) above referred to, and in which case all the points in controversy on this branch of the title were discussed, and in our judgment properly decided; the opinion there given is in conformity to the instructions given and refused in the court below, in this case, and in which we hold there was no error. There is no other question presented by the record requiring 395 376 SUPREME COURT. Philadelphia, &c., Railroad Co. v. Maryland. examination, and it is therefore ordered that the judgment of the Circuit Court be affirmed. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Missouri, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby, affirmed, with costs. The Philadelphia, Wilmington and Baltimore Railroad Company, Plaintiff in error, v. The State of Maryland. The Philadelphia, Wilmington, and Baltimore Railroad Company was formed by the union of several railroad companies which had been previously chartered by Maryland, Delaware, and Pennsylvania, two of which were the Baltimore and Port Deposit Railroad Company, whose road extended from Baltimore to the Susquehanna, lying altogether on the west side of the river, and the Delaware and Maryland Railroad Company, whose road extended from the Delaware line to the Susquehanna, and lying on the east side of the river. The charter of the Baltimore and Port Deposit Railroad Company contained no exemption from taxation. *S771 *The charter of the Delaware and Maryland Railroad Company made 1 the shares of stock therein personal estate, and exempted them from any tax “ except upon that portion of the permanent and fixed works which might be in the state of Maryland.” Held, that under the Maryland law of 1841, imposing a tax for state purposes upon the real and personal property in the state, that part of the road, of the plaintiff which belonged originally to the Baltimore and Port Deposit Railroad Company, was liable to be assessed in the hands of the company with which it became consolidated, just as it would have been in the hands of the original company.1 * * 4 1 Applied. The Delaware Railroad Tax, 18 Wall., 228. Followed. Tomlinson v. Branch, 15 Wall., 465. In point. Central R. R. &c. Co. v. Georgia, 2 Otto, 675. Cited. Chesapeake, &c. R. R. Co. v. Virginia, 4 Otto, 726; Boston, &c. R. R. Co. v. New York &c. R. R., 13 R. I., 274. See County of Scotland v. Thomas, 4 Otto, 693. See also note to Gordon v. Appeal Tax Court, 3 How., 133; McGee v. Mathis, 4 Otto, 143; Home of the Friendless n. Rouse, 8 Wall., 430; Washington University v. Rouse, Id., 439; Tomlinson v. Jessup, 15*ld., 454; Tomlinson v. Branch, Id., 460; Atlantic &c. R. R. Co. v. Georgia, 8 396 Otto, 359; Northwestern University v. People, 9 Id., 309. In Railroad Co. v. Maine, 6 Otto, 499, it was held that where two or more corporations, subject to the payment of a certain tax—the amount to be determined by information furnished by the directors and other officers—are consolidated, with new officers who are under no obligation to furnish such information as required of the original companies, the new corporation is not entitled to the immunity from general taxation enjoyed by the original companies. “ The consolidation of the original companies,” said Mr. Justice Field, DECEMBER TERM, 18 50. 377 Philadelphia, &c., Railroad Co. v. Maryland. Also, that there is no reason why the property of a corporation should be presumed to be exempted from its share of necessary public burdens, there being no express exemption.2 This court holds, as it has on several other occasions held, that the taxing power of a state should never be presumed to be relinquished, unless the intention is declared in clear and unambiguous terms.8 Error to the Court of Appeals for the Western Shore of Maryland. This was an action of indebitatus assumpsit, brought by the defendant in error, in the Baltimore County Court, to recover certain state taxes assessed upon the real and personal property of the plaintiff in error, being in Harford County in the state of Maryland. The suit was docketed by consent, with an agreement that a judgment pro forma should be entered for the plaintiff, now “ was a voluntary proceeding on their part. * * * Having thus disabled themselves from complying with the conditions, upon the performance of which the amount to be paid as a tax to the state could be determined, they must be considered as having waived the exemption dependent upon such performance. Their exemption was qualified by their duties, and dependent upon them. They incapacitated themselves for the performance of such duties by a proceeding which they supposed would give them greater advantages than they possessed in their separate condition. * * * The provision in the act authorizing the consolidation, that the new company should have all the powers, privileges, and immunities of the original companies, must, therefore, be taken with the qualification that it should have them so far as they could be exercised or enjoyed by it, with its different officers and constitution. Where their exercise or enjoyment required other officers or a different constitution the grant was to that extent necessarily inoperative.” If two companies, each of which is entitled to certain exemptions from taxation, unite, but without forming a new corporation, but simply merge one into the other, the powers of the surviving one will be so enlarged as to include all the rights, privileges, and property of the merged corporation. The exemption from taxation which both enjoyed under their original charters cannot be withdrawn by the legislature. Southwestern R, R. Co. v. Georgia, 2 Otto, 676. S. P. Central R. Co. v. Georgia, Id., 665. 2 The charter of a bank is a franchise, which is not taxable as such, if a price has been paid for it, which the legislature has accepted with a ¿ecla ration, that it is to be in lieu of all other taxation. Jefferson Branch Bank v. Skelly, 1 Black, 436. Where the state of Ohio chartered a bank in 1845 in which charter was stipulated the amount of tax which the bank should pay in lieu of all taxes to which said company or the stockholders thereof, on account of stock owned therein, would otherwise be subject; and in 1852 the legislature passed an act levying taxes upon the bank to a greater amount and founded on a different principle, this act was in conflict with the Constitution of the United States, as impairing the obligation of a contract, and therefore void. Dodge v. Woolsey, 18 How., 331. 8 Followed. North Missouri R. R. Co. v. Maguire, 20 Wall., 61. Reiterated. , Society for Savings v. Coite, 6 Wall., 606. Cited. Tucker v. Ferguson, 22 Wall., 575; Wiggins Ferry Co. v. East St. Louis, 17 Otto, 371; Redemptorist Fathers v. Boston, 129 Mass., 180; Phillips Academy v. Exeter, 58 N. H.,307; Salt Lake Nat. Bank v. Golding, 2 UtahT., 9. S. P. Jefferson Branch Bank y. Skelly, 1 Black, 436; Gilman v. City of Sheboygan, 2 Id., 510. See also New Jersey v. Yard, 5 Otto, 104; Meyet v. Johnston, 64 Ala., 657. 397 377 SUPREME COURT. Philadelphia, &c., Railroad Co. v. Maryland. defendant in error, upon a statement of facts. An appeal was taken from this judgment to the Court of Appeals, where it was affirmed pro forma, and the present writ of error was afterwards sued out. The statement of facts was as follows : “ The Philadelphia, Wilmington, and Baltimore Railroad Company ” was formed by an agreement of union, duly made and entered into between the following corporations, to wit, the Baltimore and Port Deposit Railroad Company, the Wilmington and Susquehanna Railroad Company, and “the Philadelphia, Wilmington, and Baltimore Railroad Company,” of Pennsylvania. This agreement of union was made on the day of its date, under the authority claimed under and in pursuance of the directions of the several acts of assembly therein recited, and was entered into after the primary meetings of stockholders, as required by said several acts. A copy of said agreement is herewith produced as a part of this statement, marked exhibit A. “ The Baltimore and Port Deposit Railroad Company” was incorporated by the act of 1831, chap. 288, of the General Assembly of Maryland ; “ the Wilmington and Susquehanna Railroad Company” (one of the parties to said agreement marked exhibit A) was formed by an agreement of union duly made and entered into on the 18th day of April, 1835, between the Delaware and Maryland Railroad Company and the Wilmington and Susquehanna Railroad Company (of Delaware), in virtue and in strict pursuance of * the several *acts in said agreement of union recited, to wit, an act of the General Assembly of the state of Delaware, passed on the 24th day of July, 1835, and an act of the General Assembly of the state of Maryland, passed at December session, 1835, chap. 93, and was certified and recorded as directed by said several acts. The said corporation, “ the Delaware and Maryland Railroad Company,” was incorporated by the act of 1831, chap. 296, of the General Assembly of Maryland; “the Wilmington and Susquehanna Railroad Company ” (of Delaware) was incorporated by an act of the General Assembly of the state of Delaware, passed on the 18th day of January, 1832 ; “ the Philadelphia, Wilmington, and Baltimore Railroad Company” (of Pennsylvania) was originally chartered by an act of the General Assembly of the commonwealth of Pennsylvania, approved on the 2d day of April, 1831, by the name of the “ Philadelphia and Delaware County Railroad Company,” which, by a supplement to said act, passed the 14th day of March, 1836, was changed to the corporate name of the Philadelphia, Wilmington, and Baltimore Railroad Company. The agreement ot union by which the “Philadelphia, Wilmington, and Balti-398 DECEMBER TERM, 1850. 378 Philadelphia, &c., Railroad Co. v. Maryland-more Railroad Company,” the party to this suit, was formed, (of which said exhibit A is a copy,) was made by authority and in pursuance of the act of the General Assembly of Maryland, passed at December session, 1837, chap. 30, and other corresponding acts of the General Assembly of the state of Delaware and the commonwealth of Pennsylvania, recited in said agreement of union, marked exhibit A. All which said acts of assembly of the states of Maryland, Delaware, and Pennsylvania, above referred to, or referred to in said exhibit A, relating to the incorporation and charter of the defendant, are to be regarded as part of this statement, and, to save the trouble of transcribing them, either party may read them from the printed statutes; to have the same effect as if they were transcribed into this statement, or regularly certified copies of the same filed herewith. The railroad of the defendant extends from the city of Baltimore, in Maryland, to the city of Philadelphia, in Pennsylvania, passing through the counties of Baltimore, Harford, and Cecil, in Maryland, and thence over a part of the states of Delaware and Pennsylvania. That portion of said railroad which lies west of the Susquehanna River, that is to say, between the city of Baltimore and the said river, lying partly in Baltimore County and partly in Harford County, was made and constructed (prior to the agreement of union of which exhibit A is a copy), and owned in severalty by “ the Baltimore and Port Deposit Railroad Company.” That portion of said railroad * which lies east of the Susquehanna, and [-*070 between that river and the divisional line between the *-states of Delaware and Pennsylvania, was made by the Wilmington and Susquehanna Railroad Company, and (prior to the said agreement of union, of which exhibit A is a copy) was owned in severalty by said last-mentioned company. Previous to the consolidation of “ the Delaware and Maryland Railroad Company ” and “ the Wilmington and Susquehanna Railroad Company” (of Delaware) into one company, the line of the road which the said corporation, “ the Delaware and Maryland Railroad Company,” was authorized to make, was that part of said road which lay east of the Susquehanna, and between that river and the divisional line between the states of Maryland and Delaware, and that part of said road which the said corporation, “ the Wilmington and Susquehanna Railroad Company ” (of Delaware), was authorized to make, is that part of said road which lies between the divisional lines of the states of Maryland and Delaware and the Commonwealth of Pennsylvania each of said last-mentioned corporations, prior to the consolidation, had commenced the 399 379 SUPREME COURT. Philadelphia, &c., Railroad Co. v. Maryland. location and construction of their said several parts; but at the time of their consolidation under their agreement of union aforesaid, neither part was completed, but the whole was completed by the Wilmington and Susquehanna Railroad Company, after their agreement of union aforesaid. The River Susquehanna is passed over by the use of a steamboat belonging to the defendant, the said Philadelphia, Wilmington, and Baltimore Railroad Company, and used by said defendant for the sole and exclusive purpose of transporting persons and property across said river, from shore to shore, from the terminus of the railroad track on the other shore; said steamboat is especially constructed for its use in connection with said railroad, and has rails laid on its upper deck which are so constructed that the said rails are placed in juxtaposition with the railroad track of the railroad when the boat is in place for use, in connection with the terminus of the road on either shore ; cars are received upon the said deck of said steamboat from the railroad track on one shore, and passed over the river by the said steamboat, and on to the railroad track on the other shore from off said boat, as the means of passing cars, &c., across the river; and prior to the agreement of union, of which exhibit A is a copy, was owned jointly, but in unequal parts, by the Baltimore and Port Deposit Railroad Company and the Wilmington and Susquehanna Railroad Company, and was managed and kept in repair at the joint expense, in the proportion of their respective interest therein, by the said last-mentioned two companies. *oqa-| *The said steamboat, before and since the said agree- -* ment of union of which exhibit A is a copy, usually remained, and still usually remains, in a dock constructed in the Susquehanna River by protecting piers projecting from the Harford shore, when not actually in use ; which dock is on the west shore of the Susquehanna River, and within the limits of Harford County. That part of said road which lies east of the divisional line between the states of Delaware and Pennsylvania, and thence extending to the city of Philadelphia, was, prior to the said agreement of union of which exhibit A is a copy, constructed and owned in severalty by the said corporation, called the Philadelphia, Wilmington, and Baltimore Railroad Company (of Pennsylvania). The principal office of the defendant, (ever since the agreement of union of which exhibit A is a copy,) for the transaction of the business of said company, has been established and held in the city of Philadelphia, at the eastern terminus of said railroad. The stated meetings of the board of directors, by the terms 400 DECEMBER TERM, 1850. 380 Philadelphia, &c., Kailroad Co. v. Maryland. of said agreement of union, are to be held alternately at Wilmington and Philadelphia. There are offices at Philadelphia, Wilmington, and Baltimore, at any one of which transfers of stock may be made; the stated meetings of the stockholders were to be held in the city of Wilmington. Prior to said agreement of union, the principal office of the Baltimore and Port Deposit Railroad Company was held in the city of Baltimore, and the principal office of the defendant within the state of Maryland has been, and is now, in said city, at which place one of the vice-presidents of the said corporation resides. All the corporate funds and capital stock of said defendant have been expended and contained in the location and construction of said road, and in the construction of such works and improvements as were necessary and expedient to the proper completion and use of said road, and in the purchase of cars and machinery of transportation, &c., necessary and indispensable to the completion and use of said road; and the said company has not, at any time, since the said agreement of union, owned or held, and does not now own or hold, any estate, real, personal, or mixed, other than what forms a part of, or necessarily appertains to, the construction and completion of said road, and its works and improvements, and in the purchase of cars and machinery of transportation, &c., necessary and indispensable to its use; and over and beyond its actual capital, it was found necessary to raise by loan a large additional amount for the purposes aforesaid, and which amount has been so applied. The defendant was assessed, under the act of the General Assembly of Maryland of March session, 1841, chap. *23, by the assessors, appointed under said act, for Harford County, with the sum of $127,000, as shown by a copy of said valuation and assessment, filed herewith as a part of this statement, marked exhibit B. The several parcels or tracts of land, valued for 200 acres at $10 per acre, as held and occupied by said company from the Gunpowder Falls to the Susquehanna River, lie within the limits of Harford County, and consist of the land held and occupied by said company for the bed of its railroad, water stations, depots, and ticket-offices of said company; portions of which said land were acquired under condemnations for the use of said company, under the provisions of the said act of the General Assembly of Maryland, of December session, 1831, chap. 233, and other portions of which were acquired by agreement with the owners thereof. The title acquired in each case of agreement with the owner being consummated by deed of bargain and sale to the president and directors of said company and their successors, in the ordinary terms of a conveyance in fee. Vol. x.—26 .401 381 SUPREME COURT. Philadelphia, &c., Railroad Co. v. Maryland. The houses and other improvements on the road, and at Havre de Grace, and the depots, ticket-offices, and water stations of said company, lie within the limits of Harford County. The railroad track iron, within the limits of Harford County, valued at 895,000, consists of the rails actually laid down and in use as the track of said railroad within the limit aforesaid. And the steam ferry-boat at Havre de Grace, valued at 815,000, is the steamboat hereinbefore mentioned, used as aforesaid for the sole and exclusive purpose of transporting persons and property across the River Susquehanna, from the terminus of the railroad track on one shore to the terminus of the railroad track on the other shore, in the manner hereinbefore mentioned; said steamboat is, and continually since its use as aforesaid has been, duly enrolled and licensed at the custom-house in Baltimore, according to the act of Congress. The capital stock of the defendant, under the agreement of union, (of which exhibit A is a copy.) is divided into 45,000 shares of 850 each, which stock is held by various persons, many of whom reside in the state of Maryland, and others of whom, and a large majority of whom, reside in other states, and in Europe, and was so held at the time of said union. The stockholders residing in the city of Baltimore, in Maryland, had actually been assessed to the extent of the stock by them respectively held, no objection being taken to said assessment, nor any appeal prosecuted therefrom ; no assessment has been made on the stock of any of the stockholders residing in Harford County, or Cecil County, if any reside there, nor on the stock of non-resident stockholders. It is further admitted, that the taxes assessed and levied upon the *oqoi *said property of the said defendant were for state pur- -1 poses for the years 1842, 1843, 1844, and 1845, and that the same were assessed and levied by the commissioners of Harford County, under the act of the General Assembly of the state of Maryland, passed at March session, 1841, chap. 23, and that the said paper, marked exhibit B, filed as a part of this statement, is a correct statement of the rate and amount of taxes so assessed and levied, and that said rate of taxation is the same as that imposed for said years upon all real and personal property (not expressly exempted by said act of assembly) in said state. It is further agreed, that if the court shall be of opinion, on the aforegoing statement, that the said property of said defendant is liable to be assessed for taxes for general state purposes, under the act of assembly aforesaid, that then judgment be rendered for the plaintiff for 81455.19 and costs; but if the court shall.be of opinion that the said property of the said defendant is not liable to be 402 DECEMBER TERM. 1 85 0. 382 Philadelphia, &c., Railroad Co. v. Maryland. assessed and taxed as aforesaid, but the same is exempt from such assessment and taxation under the charter of the defendant, or the said act of the General Assembly of Maryland of March session, 1841, chap. 23, then judgment to be given for defendant. Geo. R. Richardson, Attorney for. Plaintiff, Reverdy Johnson, for Defendant. Exhibit A, referred to in the foregoing statement, is as follows, to wit:— “Agreement between the Wilmington and Susquehanna Railroad Company, the Baltimore and Port Deposit Railroad Company, and the Philadelphia, Wilmington and Baltimore Railroad Company. “ Copy.—Articles of union made and concluded this 5th day of February, in the year of our Lord 1838, between the Wilmington and Susquehanna Railroad Company, the Baltimore and Port Deposit Railroad Company, and the Philadelphia, Wilmington, and Baltimore Railroad Company, by virtue and in pursuance of an act of the General Assembly of the state of Delaware, entitled ‘A further supplement to an Act entitled an Act to incorporate the Wilmington and Susquehanna Railroad Company,’ and of an act of the General Assembly of Maryland, entitled ‘An Act to authorize the union of the Baltimore and Port Deposit Railroad Company, the Wilmington and Susquehanna Railroad Company, and the Philadelphia, Wilmington, and Baltimore Railroad Company,’ and of an act of the General Assembly of Pennsylvania, entitled ‘ An Act supplementary to the Act incorporating the Philadelphia, Wilmington, and Baltimore Railroad Company.’ * “ First. The said three corporations are hereby r*ooo united, and from and after the first election of direc- *-tors hereinafter provided for in the third article shall be merged into one body corporate, under the name and style of the Philadelphia, Wilmington, and Baltimore Railroad Company, and the stocks of the said three corporations so united shall form one common stock, and all the estate, real, personal, and mixed, and the rights, privileges, advantages, and immunities belonging to each of the said corporations, become and be vested in the said body corporate, and the debts and liabilities of each of the said corporations shall be deemed, and are hereby declared to be, the debts and liabilities of the said body corporate. ‘‘Second. The stock of the said body corporate is hereby divided into shares of fifty dollars each, of which the present 403 383 SUPREME COURT. Philadelphia, &c., Railroad Co. v. Maryland. stockholders of the Wilmington and Susquehanna Railroad Company are hereby declared to be entitled, in all, to sixteen thousand shares, the present stockholders of the Baltimore and Port Deposit Railroad Company to nineteen thousand shares, the present stockholders of the Philadelphia, Wilmington, and Baltimore Railroad Company to ten thousand shares, including those forfeited heretofore, which are to be held for the use of this corporation; and certificates of stock, as may be regulated by the president and directors of the said body corporate, shall be granted and issued accordingly to each of the said stockholders so soon as the said stockholders shall have paid up all installments due upon the shares of stock held by them respectively, and shall have surrendered the certificates previously issued.to them as stockholders in the respective companies hereby united; and the capital stock of the said corporation shall consist of such number of shares as aforesaid, subject to the right and privilege of increasing the same from time to time, according to the provisions of the respective charters of the said companies hereby united. “ Third. There shall be fifteen directors to manage the affairs and business of the said body corporate, and a meeting of the stockholders of the three corporations hereby united for the election of the first directors shall be held at Wilmington on Wednesday, the 14th day of February, instant, of the time and place of which meeting notice shall be given by the present president of the Wilmington and Susquehanna Railroad Company by advertisement in at least three newspapers, at which meeting fifteen directors shall be elected by the said stockholders, voting in person or by proxy, and each share being entitled to one vote; and the directors so elected shall hold their offices until the ensuing annual meeting of the stockholders, and until their successors are elected. *004-1 *“ Fourth. The stated meetings of the stockholders J shall be held in the city of Wilmington, on the second Monday of January in each and every year hereafter, at which time and place an annual election of directors shall be made by the stockholders, and fifteen days’ notice of the time and place of each stated meeting shall be given by advertisement in at least three newspapers ; the election shall be by ballot, and each share of the stock shall entitle the holder thereof to one vote, to be given either in person or by proxy, provided it has been held for three calendar months before the time of voting ; the directors shall, after the first and each subsequent election, choose by ballot one of their own number to be president of the said body corporate, who shall serve one year, or 404 DECEMBER TERM, 1 850. 384 Philadelphia, &c., Railroad Co. v. Maryland. until the election of a successor; the omission to hold an election for directors at the time prescribed shall in no wise affect the said body corporate, but such election may be had upon due notice from the said president and directors, published as aforesaid, at any time within three months after the time so prescribed as aforesaid. “The directors shall hold their offices for one year, and until a new election shall take place, and the powers of the said president and directors shall be the same as are now vested in the president and directors of the Wilmington and Susquehanna Railroad Company; the president may be removed from his office by a vote of two thirds of all the directors. The directors may, in each year that they may deem it advisable, elect a vice-president from their own number, who, in the absence of the president, shall have all the powers of the president, and shall be liable to removal in like manner as the president. Five directors shall constitute a quorum for the transaction of business. The directors may, if they shall deem it advisable, appoint an executive committee, consisting of six members, from the states of Pennsylvania, Delaware, and Maryland, for such time, and for the performance of such duties, as any resolutions of the directors, or any by-law, may prescribe and assign; and the president, or vice-president, and any two members of said committee, shall constitute a quorum thereof. All officers and agents of the corporation, other than directors, shall be appointed by the directors, who may prescribe and exact such security as they may deem proper for the performance of their duties. “ Fifth. The stated meetings of the board of directors shall be held alternately at Wilmington and Philadelphia, and special meetings may be held either at Wilmington, Philadelphia, or Baltimore. The corporation shall have offices opened at Wilmington, Philadelphia, and Baltimore, at either of which transfers *of stock may be made, under such r*oor regulations as the board of directors may prescribe. *- “ Sixth. All by-laws shall be made, altered, or repealed only by a majority, consisting of not less than two-thirds of all the directors; it being understood that no by-law shall contravene any of these terms or stipulations; and the existing by-laws of the.Wilmington and Susquehanna Railroad Company shall, until altered or repealed as aforesaid, be the by-laws of this corporation; and all rules and regulations necessary for the management and conduct of the business of the company, not provided for in a by-law, may be made by the directors. “ In witness whereof, the said corporations, parties to this 405 385 SUPREME COURT. Philadelphia, &c., Railroad Co. v. Maryland. agreement, have caused their respective corporate seals, attested by the signatures of their respective presidents, to be hereunto affixed, the day and year first hereinbefore written. James Price, - [l. s.] Pres. Wilm. and Susqa Railroad Co. J. I. Cohen, Jr., [l. s.] Pres. Balto. and Port Deposit Railroad Co. M. Newkirk, [l. s.] Pres. Philad., Wilm., and Ralto. Railroad Co. “ In pursuance of the provisions of an act of the General Assembly of Maryland, entitled ‘ An Act to authorize the union of the Baltimore and Port Deposit Railroad Company, the Wilmington and Susquehanna Railroad Company, and the Philadelphia, Wilmington, and Baltimore Railroad Company,’ said corporations do hereby certify, under their respective corporate seals, attested by their respective presidents, that the within and foregoing instrument of writing is a true copy of an agreement foi the union of the said company, made and concluded on the 5th day of February, a. d., 1838. James Price, [l. s.] Pres. Wilm. and Susqa Railroad Co. J. I. Cohen, Jr., [l. s.] Pres. Balto. and Port Deposit Railroad Co. M. Newkirk, [l. s.] Pres. Philad., Wilm., and Ralto. Railroad Co. “ Received to be recorded the 12th day of February, 1838, at 5 o’clock, P. m. ; same day recorded and examined. Per Thomas Kell, Clerk. “ In testimony that the aforegoing is a true copy, taken from liber T K, No. 276, folio 392, &c., one of the [L. S.] land records of Baltimore County, I hereto subscribe my name and affix the seal of Baltimore County Court, this 3d day of December, 1846. A. W. Bradford, Clerk of Balto. Co. Court." *Exhibit B, referred to in said statement, is as fol-J lows, to wit:— “ A list of the real and personal property of the Philadelphia, Wilmington, and Baltimore Railroad Company, as per the assessors’ books on file in the office of the Commissioners of Harford County, on which taxes are due for the years of 1842, 1843, 1844, and 1845, to wit 406 DECEMBER TERM, 1850. 386 Philadelphia, &c., Railroad Co. v. Maryland. Different tracts of land, from the Gunpowder Falls to the Susquehanna, containing 200 acres, at $10 per acre,................................. $ 2,000 Track iron, &c., &c.,........................ . 95,000 Houses and other improvements on the road, and at Havre de Grace, ...... 15,000 Steamboat at Havre de Grace, ... . 15,000 $127,000 “I hereby certify, that the above is a true transcript of the property of the Railroad Company from the assessors’ books. “ Given under my hand and seal of the Commissioners of Harford County, this 1842. To state tax on $127,000. at 25 cents ner $100, $317.50 Commission at 1|, . . . . . 19.05 Interest for three years, . . . . . 60.57 1843. To state tax on the same, at 25 cents per $100, 317.50 Commission at 1|, •. ; . . . 22.22 Interest for two years,.......................40.75 1843. To state tax on the above, at 25 cents per $100, 317.50 Commission at 1|, . . . . . 22.22 Interest for one year,........................20.38 1845. State tax on the above, 25 cents in $100, . 317.50 $1,455.19 “ James Spiceb, Collector." It is agreed that any errors in the foregoing statement may be corrected by counsel, at the trial of the cause, either in the County Court, Court of Appeals, or Supreme Court of the United States; and that said statement may be added to or amended, by agreement, at any time. George R. Richardson, Attorney for Plaintiff. Reverdy Johnson, for I)efendant. The following is a summary of the act imposing the tax, as *well as of the acts incorporating the different com- r^ooy panies, so far as they bear upon the question before the court. The first section of the act of 1st April, 1841, imposing the' tax sought to be recovered, after enumerating the several kinds of property which are to be the subject of taxation, including “all stocks or shares, owned by residents of this state, in any bank, institution, or company incorporated in 407 387 SUPREME COURT. Philadelphia, &c., Railroad Co. v. Maryland. any other state or territory,” also “ all stocks or shares in any bank, institution, or company incorporated by this state,” declares that such “ and all other property of every description whatsoever shall be valued agreeably to the directions of this act, and shall be chargeable according to such valuation with the public assessment: provided,” &c. The ninth section makes it the duty of the assessor to inform himself of all property liable to assessment, and to make a return thereof under prescribed heads, the fifth of which was, “Bank stocks and other stocks particularly specified, with ther respective values.” The sixteenth section provided, that, for the valuing of stock in private corporations held by non-residents, the locality of such stock should be deemed to be at the place where the principal place of business of such corporation should be situate. The seventeenth section enacted that the president or proper officers of corporations should make out and deliver to the assessors of the proper county an account of stock in such corporation. The forty-fifth section made it the duty of the levy court or commissioners of the several counties to impose a tax of twenty cents in every $100 of assessable property, according to their valuation. The fifty-third section provided that the tax imposed “ shall be collectible and payable into the state treasury according to the provisions of this act, and be in all respects subject thereto.” The second section of the act of 1831, ch. 288, entitled “An Act to incorporate the Baltimore and Port Deposit Railroad Company,” enacted that “the subscribers of the said stock, their successors and assigns, shall be, and they are hereby declared to be, incorporated into a company, by the name of the Baltimore and Port Deposit Railroad Company, and by that name shall be capable in law of purchasing, holding, selling, leasing, and conveying estates, real, personal, and mixed, so. far as shall be necessary for the purposes hereinafter mentioned, and no further, and shall have perpetual succession, and by said corporate name may sue and be sued.” #qoo-i *The twelfth section gave authority to construct a -* road one hundred feet wide from the City of Baltimore io Port Deposit, &c. The twentieth section declared that “ the shares of the capital stock of said company shall be deemed and considered personal estate.” The act of 1831, ch. 296, entitled “An Act to incorporate 408 DECEMBER TERM, 1850. 388 Philadelphia, &c., Railroad Co. v. Maryland. the Delaware and Maryland Railroad Company,” gave a perpetual charter, and authorized the construction of a road one hundred feet wide “from some point on the Delaware and Maryland line ” “ to Port Deposit, or any other point on the Susquehanna River.” The nineteenth section, after giving authority to purchase property, charge tolls, &c., and declaring that the property specified should be vested in said company and their successors for ever, proceeds: “ And the shares of the capital stock of said company shall be deemed and considered personal estate, and shall be exempt from the imposition of any tax or burden by the state’s assenting to this law, except upon that portion of the permanent and fixed works of said company which may lie within the state of Maryland; and that any tax which shall hereafter be levied upon said section shall not exceed the rate of any general tax which may at the same time be imposed upon similar real or personal property of this state for state purposes.” The act of 14th March, 1836, ratifies and adopts the act of the General Assembly of Delaware, passed 24th July, 1835, which provided for the union of the Wilmington and Susquehanna Railroad Company (incorporated by the General Assembly of Maryland) into one company, to be styled “the Wilmington and Susquehanna Railroad Company,” and which also provided that “ the holders of the stock of the said railroad companies, so united as aforesaid, shall hold, possess, and enjoy all the property, rights, and privileges, and exercise all the power granted to and vested in the said railroad companies, or either of them, by this or any other law or laws of this state, or of the state of Maryland.” The act of 1837, ch. 30, authorizes the union of the Baltimore and Port Deposit Railroad Company, and the Wilmington and Susquehanna Railroad Company, with the Philadelphia, Wilmington, and Baltimore Railroad Company, and provides that said “body corporate so formed shall be entitled within this state to all the powers and privileges and advantages now belonging to the two first above-named corporations.” The cause was argued by Mr. Meredith, for the de- r^oon fendant *in error, and submitted on printed points by *-Mr. Reverdy Johnson, for the plaintiff in error. Mr. Meredith, for defendant in error. It will be contended by the defendants in error,— 1st. That the property assessed for the state taxes, for the recovery of which this suit was brought, was, at the time of 409 389 SUPREME COURT. Philadelphia, &c., Railroad Co. v. Maryland-said assessment, liable to state taxation. Laws of Maryland, March Session, 1841, ch. 23; McCulloch v. State of Maryland, 4 Wheat., 436 ; Providence Bank v. Billings., 4 Pet., 563, 564; Passenger Cases, 7 How., 402; Nathan v. State of Louisiana, 8 How., 80; Battle v. Corporation of Mobile, 9 Ala., 234; Howell v. State of Maryland, 3 Gill (Md.), 14. 2dly. That the property so assessed was not exempted from taxation by any contract or agreement binding on the state of Maryland. Laws of Maryland, 1831, ch. 288; 1831, ch. 296; 1835, ch. 93; 1837, ch. 30; Providence Bank v. Billings, 4 Pet., 514; Charles River Bridge v. Warren Bridge, 11 Pet., 420; McCulloch v. State of Maryland, 4 Wheat., 436; Bulow v. City Council, 1 Nott & M. (S. C.), 527; Angell & Ames on Corp., 435, 459, 462, 467, and cases referred to ; Blatchford v. Mayor of Plymouth, 3 Bing. (N. C.). 691; Dwarris on Stat., 9 Law Lib., 50 et seq.', Kirby n. Potter, 4 Ves., 751; Wildman v. Wildman, 9 Id., 177; Rawlins v. Jennings, 13 Id., 45; Page v. Leapingwell, 18 Id., 467 ; Reed v. McGrew, 5 Ohio, 380; Pembroke v. Duxbury, 1 Pick. (Mass.), 199. There are several questions which might be raised in the court below, but which would not be properly raised here. The only question is that which gives this court jurisdiction. The Baltimore and Port Deposit Railroad Company had granted to them a perpetual charter, without any bonus to the state. But the charter contained no exemption from state taxation. The act of 1831, ch. 296, gave to the Delaware and Maryland Railroad Company a perpetual charter. The nineteenth section declares that the shares of the capital stock shall be considered personal estate. There is obscurity in this section. The object would seem to have been to convert the shares into personal estate in order to subject them to execution, Maryland not having passed any law till after this charter subjecting stocks, &c., to execution. The same section also declares, that such shares shall be exempt from the imposition of any tax, &c. It would seem from this that the legislature meant to exempt stock in the hands of the stockholders. Then comes the exception, that the legislature reserves the *8001 right to *tax the permanent and fixed works of the com-pany, which would indicate that everything else was exempted. And yet that would be a grant of an exemption by implication, there being no express words. The plaintiffs claim an exemption which was not originally granted to them, but was granted to another company, which was subsequently merged in the present company. How was this exemption transferred? 410 DECEMBER TERM. 1 850. 390 Philadelphia, &c., Railroad Co. v. Maryland. The act of 1835, ch. 93, incorporates the legislation of Delaware on the same subject. That act creates a new corporation. In 1837, when the last union was asked for, Maryland provided that the three corporations should be merged in and form one body corporate, and that it should have all the powers, privileges, and advantages of the two former companies, namely, the Baltimore and Port Deposit Railroad Company, and the Wilmington and Susquehanna Railroad Company. Now the only exemption which could be transferred was that of the Delaware and Maryland Railroad Company, (because the other company had no exemption,) which had been merged in the Wilmington and Susquehanna Railroad Company. But the exemption of the former was gone necessarily, because it was only the stock of that company which was exempted. The moment, then, the stock was destroyed by the merger of that company in another, or the transfusion or intermingling of it with that of the other companies, its distinctive character was destroyed. Reed v. McGrrew and Pembroke v. Duxbury are full to the point. And in the Charles River Bridge case this court held, that, by the charter to the Charles River Company, the franchise which had originally existed in Harvard College was extinguished. So here, by these new charters, the original exemption was extinguished. But suppose it to have been transferred, how will it avail the present company ? The property here assessed was not that which originally belonged to the Delaware and Maryland Company, but to the Baltimore and Port Deposit Company, which latter had, as I have shown, no exemption at all. The only doubt is as to the steamboat. But it has been decided that a tax of this kind does not interfere with the regulations of commerce. It does not appear that this steamboat ever belonged to the exempted company. On the contrary, from the kinds of property authorized by the charter, it would seem otherwise. The charter was to construct a road from the divisional line to the Susquehanna River, and no farther. The property to be used was such as was required for this road, not for crossing the river. Non constat, then, that this steamboat ever belonged to the exempted company. *J/r. Johnson, for the plaintiff in error. r*QQ1 The only question is, whether, by contract between *■ the plaintiff in error and the state, the plaintiff was not exempt from the taxation, the amount of which it was the purpose of the suit to exact. The judgment being against the plaintiff in error, who claimed the exemption under the alleged contract, and its protection under the Constitution 411 891 SUPREME COURT. Philadelphia, &c., Railroad Co. v. Maryland. of the United States, it must be reversed if their ground can be maintained. First, Was there a contract, and second, Is it impaired by the tax in question ? This is to be ascertained by referring to the several acts of Maryland, under which the plaintiff’s franchise is held. If these contain the contract relied upon, the point is made out. That a state may contract in the form of a legislative act, and so as to deprive herself in a particular instance of the right to exercise her taxing power, are not now open questions. It is the settled doctrine. Dartmouth College v. Woodward, 4 Wheat., 518; New Jersey v. Wilson, 7 Cranch, 164. Is there, then, such a contract in this case ? Before the present company existed, the right to make the road from Baltimore to Philadelphia was in various companies, chartered for certain portions of the road, by Maryland, Delaware, and Pennsylvania. These, by an agreement authorized by laws of the same state, were united into one on the 5th of February, 1838, under the name of the plaintiff in error; the agreement is in the record. By the terms of this association, and the several acts legalizing it, it will be seen that all the privileges and exemptions possessed by any one of the companies under its own charter became vested in the united body, and co-extensive with the entire route of the road. The act of Maryland of 1831, chap. 288, contains the exemption from taxation upon which reliance is placed. The tax levied is not on the real or fixed property only, owned by plaintiff in error, and being within the limits of Harford County, but upon the iron rail, &c., and the steamboat at Havre de Grace. The land is taxed, and also three other items ; this, it is submitted, is a clear violation of the exemption referred to. That the exemption, but for its qualification in the section making it, would have embraced the entire property, real and personal, of the company, is perfectly clear. The question then is, Was it the object of the qualification to take out of the exemption any thing else than the new land ? It is submitted, that the rail-track, iron and wooden, and the steamboat, are the fixed property, within the meaning of the exemption. To give it *f^at interpretation, would be to make the exemption -> annul the entire section, and render the exemption altogether nugatory. Mr. Chief Justice TANEY delivered the opinion of the court. 412 DECEMBER TERM, 1 850. 392 Philadelphia, &c., Railroad Co. v. Maryland. The plaintiff in error is a corporation composed of several railroad companies which had been previously chartered by the states of Maryland, Delaware, and Pennsylvania; and which, by corresponding laws of the respective states, were united together, and form one corporation under the name and style of the Philadelphia, Wilmington, and Baltimore Railroad Company. The road of this corporation extends from Philadelphia to Baltimore.1 One of the companies which now forms a part of this corporation was originally the Baltimore and Port Deposit Railroad Company, and was chartered by Maryland by an act passed in 1831, chap. 288. The road constructed by this company extended from Baltimore to the Susquehanna, lying altogether on the west side of the river. The Delaware and Maryland Railroad Company was another of the original corporations, and was also chartered by Maryland by the act of 1831, chap. 296. It extended from the Delaware line to the Susquehanna, and lies on the east side of the river. This company was afterwards, by the act of 1835, chap. 93, and a corresponding law passed by the state of Delaware, united with the Wilmington and Susquehanna Railroad Company, which had been previously chartered by Delaware; the two companies when united taking the corporate name of the latter. Afterwards, by an act of Assembly of Maryland, of 1837, chap. 30, and corresponding laws passed by Delaware and Pennsylvania, the last-mentioned company, together with the Baltimore and Port Deposit Railroad Company, was authorized to unite with the Philadelphia, Wilmington, and Baltimore Railroad Company, which had been previously chartered in the states where it was situated; and these united companies were incorporated into one, under the name and style of the last-mentioned company, and the corporation thus formed is the plaintiff in error. In 1841, since the union of these companies, an act of Assembly of Maryland was passed, imposing a tax for state purposes upon the real and personal property in the state. Under this law, the portion of the road which belonged to the Baltimore and Port Deposit road, before the union last above mentioned, has been assessed as a part of the taxable property in the state, in the manner set forth in the schedule contained in the record. It is admitted that it has been assessed at the same rate with that of individuals, and as prescribed by the law. 1See Philadelphia &c. R. R. Co. v. Harris, 12 Wall., 82. 413 *393 SUPREME COU RT. Philadelphia, &c., Railroad Co. «. Maryland. *The question submitted to this court is, whether this property of the plaintiff in error is liable to be so taxed, under the grants contained in the different charters above referred to. The charter, of the Baltimore and Port Deposit Railroad declared that the property in this road when constructed should be vested in 'the company, and that the shares of the company should be deemed and considered as personal property. But there is no provision in the law exempting its stocks or its property, real or personal, from taxation. And certainly there is no reason why the property of a corporation should be presumed to be exempted, or should not bear its share of the necessary public burdens, as well as the property of individuals. This court on several occasions has held, that the taxing power of a state is never presumed to be relinquished, unless the intention to relinquish is declared in clear and unambiguous terms. In the act incorporating this company, there is nothing from which such an inference could possibly be drawn ; and, standing upon this charter alone, the tax was without doubt lawfully imposed. Neither can such an inference be drawn from any thing contained in the subsequent law by which this company became finally consolidated with the plaintiff in error. It remained a separate corporation, without any alteration in its charter in this respect, until the union was formed by the act of 1837; It was situated altogether in the state of Maryland. The Wilmington and Susquehanna Railroad Company was partly in Maryland and partly in Delaware, and owed its existence to a separate charter. And the law which authorizes these two companies to unite themselves with the plaintiff in error declares that this new corporation, that is, the Philadelphia, Wilmington, and Baltimore Railroad Company, shall be entitled within this state to all the powers and privileges and advantages at that time belonging to these two companies. It grants it nothing more. Now, as these companies held their corporate privileges under different charters, the evident meaning of this provision is, that whatever privileges and advantages either of them possessed should in like manner be held and possessed by the new company, to the extent of the road they had respectively occupied before the union; that it should stand in their place, and possess the power, rights, and privileges they had severally enjoyed in the portions of the road which had previously belonged to them. And this intention is made still more evident by the fourth section of the law, which makes the new corporation Responsible for the con- -I tracts, debts, obligations, engagements, and liabilities 414 DECEMBER TERM, 1850. 394 Philadelphia, &c., Railroad Co. v. Maryland. at law or in equity of the several companies, and declares that it shall hold and be entitled to all the estate, real, personal, and mixed, choses in action, &c., belonging to or due to the several companies. The plaintiff in error, therefore, took the property of the Baltimore and Port Deposit Railroad Company with all the liabilities to which it was subject in the hands of that company. The act which incorporated the Delaware and Maryland Railroad provided that the shares in that company should be deemed and considered personal estate, and should be exempt from any tax or burden, “ except upon that portion of the permanent and fixed works which might be in the state of Maryland.'’ And the laws of 1835, which authorized the union of this company with the Wilmington and Susquehanna Railroad Company, secured to the united company the property, lights, and privileges which that law or other laws conferred on them or either of them. The original exemption, therefore, of the Delaware and Maryland Railroad Company, as far as it went, was extended to the Wilmington and Susquehanna Railroad Company, and has been continued to the plaintiffs in error. But as the right of taxation on that part of the road is not in question in this suit, we forbear to express an opinion upon it, For if this restriction could be supposed to exempt from taxation the description of property enumerated in the schedule, or any part of it, it could not affect the question before us. The provisions of this charter have never been extended to the portion of the road on the west side of the river, which was constructed under the charter of the Baltimore and Port Deposit Railroad. As that company held it, so it is now held by the plaintiff in error, with the same privileges, powers, and liabilities. And as the property assessed was liable to taxation in the hands of the original corporation, it is equally liable in the hands of the company with which it is now consolidated. The judgment must therefore be affirmed. Order. This cause came on to be heard on the transcript of the record from the Court of Appeals for the Western Shore of Maryland, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Court of Appeals in this cause be, and the same is hereby, affirmed, with costs and damages at the rate of six per centum per annum. 415 *395 SUPREME COURT. Baltimore and Susquehanna Railroad Co. v. Nesbit et al. *The Baltimore and Susquehanna Railroad Company, Plaintiff in error, v. Alexander Nesbit and Penelope D. Goodwin. The state of Maryland granted a charter to a railroad company, in which provision was made for the condemnation of land to the following effect: namely, that a jury should be summoned to assess the damages, Which award should be confirmed by the County Court, unless cause to the contrary was shown. The charter further provided, that the payment, or tender of payment, of such valuation should entitle the company to the estate as fully as if it had been conveyed. In 1836, there was an inquisition by a jury, condemning certain lands, which was ratified and confirmed by the County Court. In 1841, the legislature passed an act directing the County Court to set aside the inquisition and order a new one. On the 18th of April, 1844, the railroad company tendered the amount of the damages, with interest, to the owner of the land, which offer was refused; and on the 26th of April, 1844, the owner applied to the County Court to set aside the inquisition, and order a new one, which the court directed to be done. The law of 1841 was not a law impairing the obligation of a contract. It neither changed the contract between the company and the state, nor did it divest the company of a vested title to the land. The charter provided, that, upon tendering the damages to the owner, the title to the land should become vested in the company. There having been no such tender when the act of 1841 was passed, five years after the inquisition, that act only left the parties in the situation where the charter placed them, and no title was divested out of the company, because they had acquired none.1 The states have a right to direct a re-hearing of cases decided in their own courts. The only limit upon their power to pass retrospective laws is, that the Constitution of the United States forbids their passing ex post facto laws, which are retrospective penal laws. But a law merely divesting antecedent vested rights of property, where there is no contract, is not inconsistent with the Constitution of the United States.2 This case was brought up from Baltimore County Court by a writ of error issued under the twenty-fifth section of the Judiciary Act. The facts in the case are stated in the opinion of the court, to which the reader is referred. It was argued by Mr. Campbell and Mr. Yellot, for the plaintiff in error, and Mr. Johnson, for the defendants in error. The counsel for the plaintiff in error made the following points:— 1 Cited. Beveridge v. West Chicago Park Comm’rs, 7 Bradw. (Ill.), 467. 2 Distinguished. Forster v. Forster, 129 Mass., 566. Cited. State Bank of Ohio v. Knoop, 16 How., 408; 416 Gelpecke v. City of Dubuque, 1 Wall., 204; Drehman v. Stifle, 8 Id., 603; State ex rel. v. New Orleans, 32 La. Ann., 715; Peerce v. Kitzmiller, 19 W. Va., 573. DECEMBER TERM, 1850. 395 Baltimore and Susquehanna Bailroad Co. v. Nesbit et al. 1st. That the charter was a contract between the state of Maryland and. the railroad company, and that the act of 1841, which varies the terms of that contract without the company’s assent, is a law impairing the obligation of the contract, and therefore unconstitutional and void. Green v. Biddle, 8 Wheat., 84 ; Dartmouth College v. Woodward, 4 Id., 647, 663, 668, 669, 699, 710, 711, 712. 2d. That the title to the land condemned having vested by the confirmation of the inquisition, and the tender of the money anterior to the action by the Baltimore County Court, under the *act of 1841, that act is unconstitutional, because it divests vested rights, and in this way impairs [*396 the obligations of contracts. Mr. Johnson contended,— That there is nothing of the character of a contract in the charter, that, by the Constitution of the United States, deprives the legislature of the state of the power to order a re-hearing of the case. Satterlee v. Matthewson, 2 Pet., 380 ; Livingston's Lessee v. Moore et al., 7 Id., 469 ; Wilkinson v. Leland, 2 Id., 627 ; S. C., 10 Id., 294 ; Watson v. Mercer, 8 Id., 88 ; Charles River Bridge v. Warren Bridge, 11 Id., 420. Mr. Justice DANIEL delivered the opinion of the court. This case comes before us from the District of Maryland, upon a writ of error to the court of Baltimore County, prosecuted under the twenty-fifth section of the Judiciary Act. The facts from which the questions to be adjudged arise are the following:— The legislature of Maryland, by a law of the 18th of February, 1828, incorporated the plaintiff in error by the name and style of the Baltimore and Susquehanna Railroad Company, for the purpose of constructing a railroad from the city of Baltimore to some point or points on the Susquehanna River. To enable this company to acquire such land, earth, timber, or other materials as might be necessary for the construction and repairing of the road, the law above mentioned, by its fifteenth section, authorized the company to agree with the owners of the land and other materials wanted, for the purchase or use thereof; and in the event that the company could not agree with the owners, or that the owners were femes covert under age, insane, or out of the county, this section provided that a justice of the peace of the county, upon application, should thereupon issue his warrant to the sheriff to summon a jury, who, in accordance with the directions contained in the same section of the statute, should value the Vol. x.—27 417 396 SUPREME COURT. Baltimore and Susquehanna Railroad Co. v. Nesbit et al. damages which the owner or owners would sustain, and that the inquisition, signed and sealed by the jury, should be returned by the sheriff to the clerk or prothonotary of his county, to be filed in court, and that the same should be confirmed by said court at its next session, if no sufficient cause to the contrary be shown. The section further provides, that “ such valuation, when paid or tendered to the owner or owners of said property, or to his, her, or their legal representatives, shall entitle the company to the estate and interest in the same thus valued, as *QQ71 *fully as if if haci been conveyed by the owner or J owners of the same; and the valuation, if not received when tendered, may at any time thereafter be recovered from the company without costs by the said owner or owners, his, her, or their legal representatives.” It appears that, under the authority of the statute above cited, an inquisition was (upon the application of the plaintiff in error) held by the sheriff of Baltimore County, on the 13th of December, 1836, upon the lands of the defendants in error as possessed by Alexander Nesbit in the character of trustee, and by Penelope D. Goodwin as cestui que trust, and the damages assessed by the jury upon that inquisition, for the land to be appropriated to the use of the plaintiff in error, were to the said Alexander Nesbit nothing, and to the said Penelope D. Goodwin five hundred dollars; that this inquisition having been returned to the court of Baltimore County, the following order in relation thereto was made on the 24th of April, 1837: “ Ordered, That this inquisition be ratified and confirmed, no cause to the contrary having been shown.” Subsequently to this order of confirmation, it appears that payment of the money assessed for damages to the lands of the defendants was not tendered by the plaintiff, nor any measure whatever in relation to this inquisition adopted by them, prior to the 18th day of April, 1844, on which last day the plaintiff by its agent tendered to the defendant Penelope D. Goodwin the sum of $500, the principal of the damages assessed, with $220.42 as interest for seven years four months and five days on the amount of that assessment, making an aggregate of $720.42. In the meantime, between the date of the inquisition and the tender just mentioned, viz., at their December session of 1841, the legislature of Maryland passed a statute, by which they directed, “that the Baltimore County Court should set aside the inquisition found for the Baltimore and Susquehanna Railroad Company condemning the lands of Penelope D. Goodwin of said county, and that the said court direct an inquisition de novo to be taken, and that such pro-418 1 DECEMBER TERM, 1 8 5 0. 397 Baltimore and Susquehanna Railroad Co. v. Nesbit et al. ceedings be had as in cases where inquisitions in similar cases are set aside.” In obedience to the statute last cited, the court of Baltimore County, upon the petition of the defendants in error, presented to them on the 26th of April, 1844, entered a rule upon the plaintiff in error to show cause, on the 11th day of. May succeeding, why the inquisition should not be set aside, and an inquisition de novo directed as prayed for, and, after hearing counsel for and against the application, did, on the 13th of May, 1847, order and adjudge, that the inquisition returned in that case be set aside, and that hereafter the *court will upon application of the petitioners provide r^ono for the taking of an inquisition de novo, according to law. L The court of Baltimore County is admitted to be the highest in the state in which a decision upon this matter could be had, there being no appeal allowed from its judgment. The plaintiff in error insists,— 1st. That, its charter being a contract between itself and the state, the act of 1841, having varied that contract without the assent of the company, was a law impairing the obligation of a contract, and therefore unconstitutional and void. 2d. That the title to the land condemned having vested by the confirmation of the inquisition, and the tender of the money anterior to the judgment of the Baltimore County Court under the act of 1841, this act of the legislature is unconstitutional, because it divests vested rights, and in this way impairs the obligation of contracts. In considering the two propositions here laid down by the plaintiff in error, the first criticism to which they would seem to be obnoxious is this, that they assume as the groundwork for the conclusions they present, that which remains to be demonstrated by a fair interpretation of the legislative action which it is sought to impugn. For instance, with respect to the first proposition, admitting the charter of the plaintiff to be a contract, the reality and character of any variation thereof by the legislature must be shown, before it can be brought within the inhibition of the Constitution. So, too, with respect to the second charge, it must certainly be shown that there was a perfect investment of property in the plaintiff in error by contract with the legislature, and a subsequent arbitrary divestiture of that property by the latter body, in order to constitute their proceeding an act impairing the obligation. of. a contract. The mode of proceeding prescribed by the fifteenth section of the charter of incorporation, for the acquiring of land and other materials for constructing the road, has been already stated. Let us now inquire by what acts to be performed by 419 398 SUPREME COURT. Baltimore and Susquehanna Railroad Co. v. Nesbit et al. the company, and at what period of time, the investiture of such land and other property in them was to become complete,—what conditions or stipulations were imposed on the plaintiff in error as necessary to the completion of their contract. This will be indispensable in order to ascertain whether any variation of these conditions, amounting to an infraction of the contract, has been made by the Maryland legislature. After declaring that the inquisition, when returned, if no objection be made, shall be recorded, the fifteenth section pro-vides *that the payment or tender of the valuation to J the owner of the land, &c., shall entitle the company to the estate and interest in the same as fully as if it had been conveyed by the owner or owners thereof. Thus it appears that it is the payment or tender of the value assessed by the inquisition which gives title to the company, and consequently, without such payment or tender, no title could, by the very terms of the law, have passed to them. Have the legislature by any subsequent arrangement abrogated or altered this condition, or the consequences which were to flow from its performance? From the period of the assessment to the 18th of April, 1844, this record discloses no evidence of any acceptance by the company of the proceedings under the inquisition, or such at least as could bind them. It can hardly be questioned, that, without acceptance by the acts and in the mode prescribed, the company were not bound; that if they had been dissatisfied with the estimate placed upon the land, or could have procured a more eligible site for the location of their road, they would have been at liberty before such acceptance wholly to renounce the inquisition. The proprietors of the land could have no authority to coerce the company into its adoption. This being the case, there could up to this point be no mutuality, and hence no contract, even in the constrained and compulsory character in which it was created and imposed upon the proprietors by the authority of the statute. This view of the matter seems to accord with the opinion of the Chancellor of Maryland in his construction of this very charter, in the case of Compton v. The Baltimore and Susquehanna Railroad Company, where he uses this language: “ In the taking of an inquisition under this and similar statutory provisions, it must appear that the authority given has been pursued; and as under a writ of ad quod damnum there should be no unreasonable delay, much less could any fraudulent practice be allowed to pass without check or rebuke.” 3 Bland (Md.), 391. Five years after this inquisition, during all which interval this company neglects or omits the fulfilment of the essential condition on performance of which its 420 DECEMBER TERM, 1 -tracts, nor do public laws, nor commissions authorizing citizens to exercise particular offices, amount to contracts. In affecting to treat them as such consists the great error of the late Canal Board. Commissions bear no analogy to contracts. Ihere is no mutuality nor obligation on the appointees to accept, and if they do accept, they are not bound to serve out their time, but they may dissolve the relation ad libitum. A contract is defined to be “ an agreement between two or more persons, upon a sufficient consideration, to do or not to do a particular thing.” There was no agreement on the part 431 410 SUPREME COURT. Butler et al. v. Pennsylvania. of the present plaintiffs to serve for a year, nor was there any law compelling them to serve longer than it was their pleasure, and no penalty was incurred if they refused to accept. This, we think, furnishes a triumphant answer to the labored and learned argument which has been drawn from the supposed inconvenience and hardship of the position of the present plaintiffs, whose official lives were placed at the mercy of the legislature. The premises are unsound. There was no hardship, because there was no obligation on the part of any citizen to accept, or, after accepting, to hold the office. They had power to take it up, and had “ power to lay it down.” Whoever did accept were bound or presumed to know that the law placed the office and the emoluments absolutely at the will of the legislature. There are certain penalties annexed to a refusal to serve in many of the subordinate offices in Pennsylvania, and yet it has never been supposed that the addition or annexation of a line for not serving prevented the legislature from regulating the fees of those officers.—by the by, infinitely stronger cases for invoking the exercise of the rule relied upon than is this case. In The Commonwealth v. Bacon, 6 Serg. & R. (Pa.), 322, this question is determined in an able opinion, delivered by the late Justice Duncan:—“These services, tendered by public officers, do not, in this particular, partake of the'nature of contracts, nor have they the remotest affinity thereto. As to stipulated allowance, the allowance, whether annual, per diem, or particular fees for particular services, depends on the will of the law-makers. This has been the universal construction, and the constitution puts this question at rest in the provision for the salary of the Governor and judges. * * * These provisions are borrowed from the Constitution of the United States. It is apparent that the compensation of the governor and these judges is matter of constitutional provision ; that of all other officers is left open to the legislature. The allowance, the compensation, the salary, the fees of all *4.111 °ther officers, and *members of the legislature, depend J on the legislature, who can and who do change them, from time to time, as they conceive just and right.” Commonwealth v. Mann, 5 Watts & S. (Pa.), 418: “The point that it is a contract, or partakes of the nature of a contract, will not bear the test of examination.” Barker v. City of Pittsburg, 4 Pa. St., 51: “ That there is no contract, express or implied, for the permanance of a salary, is shown by the constitutional provision for the permanence of the salaries of the Governor and judges as exceptions.” 3d. All commissions (regardless of their form, or by whom 432 DECEMBER TERM, 1850. 411 Butler et al. v. Pennsylvania. issued) contain, impliedly, the constitutional reservation, that the people at any time have the right, through their representatives, to alter, reform, or abolish the office, as they may alter, if they choose, the whole form of government. In our magna charta it is proclaimed (2d section of the Bill of Rights, under the 9th Article of the Constitution of Pennsylvania), that “ all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of these ends they have at all times an unalienable and indefeasible right to alter, reform, or abolish their government, in such manner as they may think proper.” It has been well said, by one of the ablest judges of the age, that “ a constitution is not to receive a technical construction, like a common law instrument or a statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them.” Per Gibson, C. J., in Commonwealth v. Clark, 7 Watts & S. (Pa.), 133. The first section of the act of 1843, under which this controversy has arisen, entitled “ An Act to reduce the expenses and provide for the election of the Board of Canal Commissioners,” declares, “That, at the next annual election, the qualified voters of the several counties of this Commonwealth shall vote for three persons as Canal Commissioners, who shall perform all the duties now enjoined by law on the Canal Com-sioners of this Commonwealth; * * * * who shall enter upon the duties of their office on the second Tuesday in January succeeding their election; * * * * and that the pay of the said Canal Commissioners, as well as the present Canal Commissioners, from and after the passage of this act, shall each be three dollars per day.” Whether this act was politic or impolitic, certainly the legislature neither transcended their power, nor violated any contract made or authorized by them. Mr. Alricks then proceeded to comment on the Pennsylvania authorities of 6 Pa. St., 80; 10 Id., 442. *The right to graduate the emoluments of office is an [*412 element of sovereignty; and the reasoning of the late .Chief Justice Marshall, in the Providence Bank v. Billings, 4 Pet., 514, applies with equal force to the case under consideration. The taxing power is of vital importance, and essential to the existence of the government. “As the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be pre- Vol. x.—28 433 412 SUPREME COURT. Butler et al. v. Pennsylvania. sumed, in a case in which the deliberate purpose of the state to abandon it does not appear.” There is a numerous class of cases to the same effect. The Portland Bank v. Apthorp, 12 Mass., 252; 1 Hill (N. Y.), 616 ; 2 Id., 353; 25 Wend. (N. Y.), 686; The State v. Franklin Bank, 10 Ohio, 91; State v. Mayhew, 2 Gill (Md.), 487. “ In grants by the public, nothing passes by implication.” United States v. Arredondo, 6 Pet., 738; Jackson v. Lamphire, 3 Id., 289. The reasoning of his Honor, Mr. Chief Justice Taney, in the Charles River Bridge v. Warren Bridge, 11 Pet., 547, I will adopt as the ablest argument that can be presented to your Honors:—“ The object and end of all government is to promote the happiness and prosperity of the community by which it is established, and it can never be assumed that the government intended to diminish its power of accomplishing the end for which it was created. A state ought never to be presumed to surrender this power, because, like the taxing power, the whole community have an interest in preserving it undiminished,” &c. The office of Canal Commissioner was “ created for the purposes of government, and the officers clothed with certain defined and limited powers, to enable them to perform the public duties which were confided to them by law.” (See opinion of the Hon. C. J. Taney, State of Maryland v. Baltimore and Ohio Railroad Company, 3 How., 550.) Whenever it ceased to be the public interest, or the policy of government, to confide the choice of Canal Commissioners to the executive, it was the duty, as it was the right, of the legislature, to change the mode of appointment, and there could be no cause for complaint when they recommitted the selection to the people. The law of 1843 is prospective in its operation, and leaves the plaintiffs in error without an apology for their claim. The legislature who passed it acted for the whole community, and if they committed an error, it was the duty of their successors, who assembled annually, and were clothed with ample power and presumed to be elected for the purpose of keeping the wheels of government in working order, to correct that error. The act of 1843 is the act of the people, who are the government, and must prevail. *4.1 *The question raised in this case has been presented to the Supreme Court of Pennsylvania in several analogous cases, and decided, in every instance, against the officer who took exception to the reduction of his salary. Those cases remain in our books of reports as settled law. The constitutionality of the act of 1843 has also been directly ruled by the same court, in a case cited here by both sides, QCom-434 DECEMBER TERM, 1850. 413 Butler et al. v. Pennsylvania. monwealth v. Mann,') and which has not been questioned. The principle has been ruled in the following cases :— Commonwealth v. Bacon, 6 Serg. & R. (Pa.), 322. “ An ordinance of the Councils, reducing the salary of the Mayor of the city of Philadelphia, after the commencement of his term of service, is valid.” Barker v. The City of Pittsburg, 4 Pa. St., 49. “ A joint resolution of the Select and Common Councils o,f the city of Pittsburg, abrogating the salary of a collector of tolls, before the expiration of the time for which he had been elected and given bond, was held, in an action by the collector for the balance of the annual salary, brought after the expiration of the term for which he had been elected, not to be unconstitutional, and that the plaintiff was without remedy.” Commonwealth v. Mann, 5 Watts & S. (Pa.), 418. The case of Commonwealth v. Bacon is referred to with approbation in the opinion of the court. Commonwealth v. Clark, 7 Watts & S. (Pa.), 127. “The act of 18th April, 1843, authorizing the election of Canal Commissioners, is constitutional and valid.” Faithful legislation is often unavoidably harsh, but is not consequently illegal. It is occasionally ruinous ; such is the case where private property is taken for public use; and yet the right of the state to take it is undoubted. The maxim of the law is, that a private mischief is to be endured, rather than a public inconvenience. The issue here is on a question of power; and by the force of great public necessity, the power to regulate the office and the salary of the officer is vested in the legislature and in the people. Examples are annually occurring of the exercise of this power, in every state government in the Union. It is a power which, if the Commonwealth can part with, it cannot be presumed to have parted with in the absence of conclusive proof of such an intention. The exercise of this power is the axis on which the fabric of our free political institutions revolves, and you cannot impair it without jarring and overturning our republican form of government. It is an essential element of sovereignty, and I am at a loss to understand how our political organization can be maintained without it. *In construing a statute like the one under considera- [-*4-14 tion, involving high political powers and sovereignty, •-the construction should be most favorable to the public interests. It rests in the plaintiffs in error to show that the legislature had the right to surrender and that they did surrender, their legislative power. 135 414 SUPREME COURT. Butler et al. v. Pennsylvania. Mr. Justice DANIEL delivered the opinion of the court. This is a writ of error to the Supreme Court of the state of Pennsylvania, under the twenty-fifth section of the Judiciary Act of 1789, for the purpose of revising a judgment rendered by the court above mentioned at the May term of that court, in the year 1848, against the plaintiffs in error, in a certain action of assumpsit instituted against those plaintiffs on behalf of the Commonwealth of Pennsylvania. By authority of a statute of Pennsylvania of the 28th of January, 1836, the plaintiffs in error were by the Governor of the state appointed to the place of Canal Commissioners; and by the same statute, the appointment was directed to be made annually on the 1st day of February, and the compensation of the Commissioners regulated at four dollars per diem each. Under this law, the plaintiffs in error, in virtue of an appointment of the 1st of February, 1843, accepted and took upon themselves the office and duties of Canal Commissioners. By a subsequent statute, of the 18th of April, 1843, the appointment of Canal Commissioners was transferred from the Governor to the people upon election by the latter, and the per diem allowance to be made to all the Commissioners was by this law reduced from four to three dollars, this reduction to take effect from the passage of the act of April 18th, 1843, which as to the rest of its provisions went into operation on the second Tuesday of January following its passage, that is, on the second Tuesday of January in the year 1844. Upon a settlement of their account as Canal Commissioners, made before the Auditor-General of the state, the plaintiffs in error, out of money of the state then in their hands, claimed the right to retain compensation for their services at the rate of four dollars per diem, for the full term of twelve months from the date of their appointment by the Governor; whilst for the state, on the other hand, it was refused to allow that rate of compensation beyond the 18th of April, 1843,. the period of time at which, by the new law, the emoluments of the appointment were changed. In consequence of this difference, and of the refusal of the plaintiffs in error to pay over the balance appearing against them on the account as stated by the Auditor-General, an action was instituted against them in the *¿1^1 name of the state, in the Court of Common *Pleas of 4 Dauphin County, and a judgment obtained for that balance. This judgment, having been carried by writ of error before the Supreme Court, was there affirmed, and from that tribunal, as the highest in the state, this cause is brought hither for revision. The grounds on which this court is asked to interpose 436 DECEMBER TERM, 1 850. 415 Butler et al. v. Pennsylvania. between the judgment on behalf of the state and the plaintiffs in error are these. That the appointment of these plaintiffs by the Governor of Pennsylvania, under the law of January 28th, 1836, was a positive obligation or contract on the part of the state to employ the plaintiffs for the entire period of one year, at the stipulated rate of four dollars per diem; and that the change in the tenure of office and in the rate of compensation made by the law of April 18th, 1843 (within the space of one year from the first of February, 1843,) was a violation of this contract, and therefore an infraction of the tenth section of the first article of the Constitution of the United States. In order to determine with accuracy whether this case is within the just scope of the constitutional provision which has thus been invoked, it is proper carefully to consider the character and relative positions of the parties to this controversy, and the nature and objects of the transaction which it is sought to draw within the influence of that provision. The high conservative power of the federal government here appealed to is one necessarily involving inquiries of the most delicate character. The states of this Union, consistently with their original sovereign capacity, could recognize no power to control either their rights or obligations, beyond their own sense of duty or the dictates of natural or national law. When, therefore, they have delegated to a common arbiter amongst them the power to question or to countervail their own acts or their own discretion in conceded instances, such instances should fall within the fair and unequivocal limits of the concession made. Accordingly it has been repeatedly said by this court, that to pronounce a law of one of the sovereign states of this Union to be a violation of the Constitution is a solemn function, demanding the gravest and most deliberate consideration ; and that a law of one of the states should never be so denominated, if it can upon any other principle be correctly explained. Indeed, it would seem that, if there could be any course of proceeding more than all others calculated to excite dissatisfaction, to awaken a natural jealousy on the part of the states, and to estrange them from the federal government, it would be the practice, for slight and insufficient causes, of calling on those states to justify, before tribunals in some sense foreign to themselves, their acts of general legislation. And *the 1 ~ extreme of such an abuse would appear to exist in the *-arraignment of their control over officers and subordinates in the regulation of their internal and exclusive polity; and over the modes and extent in which that polity should be varied 437 416 SUPREME COURT. Butler et al. v. Pennsylvania. to meet the exigencies of their peculiar condition. Such an abuse would prevent all action in the state governments, or refer the modes and details of their action to the tribunals and authorities of the federal government. These surely could never have been the legitimate purposes of the federal Constitution. The contracts designed to be protected by the tenth section of the first article of that instrument are contracts by which perfect rights, certain definite, fixed private rights of property, are vested. These are clearly distinguishable from measures or engagements adopted or undertaken by the body politic or. state government for the benefit of all, and from the necessity of the case, and according to universal understanding, to be varied or discontinued as the public good shall require. The selection of officers, who are nothing more than agents for the effectuating of such public purposes, is, matter of public convenience or necessity, and so too are the periods for the appointment of such agents ; but neither the one nor the other of these arrangements can constitute any obligation to continue such agents, or to re-appoint them, after the measures which brought them into being shall have been found useless, shall have been fulfilled, or shall have been abrogated as even detrimental to the well-being of the public. The promised compensation for services actually performed and accepted, during the continuance of the particular agency, may undoubtedly be claimed, both upon principles of compact and of equity ; but to insist beyond this on the perpetuation of a public policy either useless or detrimental, and upon a reward for. acts neither desired nor performed, would appear to be reconcilable with neither common justice nor common sense. The establishment of such a principle would arrest necessarily every - thing like progress or improvement in government ; or if changes should be ventured upon, the government would have to become one great pension establishment on which to quarter a host of sinecures. It would especially be difficult, if not impracticable, in this view, ever to remodel the organic law of a state, as constitutional ordinances must be of higher authority and more immutable than common legislative enactments, and there could not exist conflicting constitutional ordinances under one and the same system. It follows, then, upon principle, that, in every perfect or competent government, there must exist a general power to enact and to repeal laws ; and to create, and change or discontinue, the agents designated for the execution of *4-171 *t^lose laws* Such a power is indispensable for the 41 -1 preservation of the body politic, and for the safety of the individuals of the community. It is true, that this power, 438 DECEMBER TERM, 1850. 417 Butler et al. v. Pennsylvania. or the extent of its exercise, may be controlled by the higher organic law or constitution of the state, as is the case in some instances in the state constitutions, and as is exemplified in the provision of the federal Constitution relied on in this case by the plaintiffs in error, and in some other clauses of the same instrument; but where no such restriction is imposed, the power must rest in the discretion of the government alone. The constitution of Pennsylvania contains no limit upon the discretion of the legislature, either in the augmentation or diminution of salaries, with the exceptions of those of the Governor, the judges of the Supreme Court, and the presidents of the several Courts of Common Pleas. The salaries of these officers cannot, under the constitution, be diminished during their continuance in office. Those of all other officers in the state are dependent upon legislative discretion. We have already shown that the appointment to and the tenure of an office created for the public use, and the regulation of the salary affixed to such an office, do not fall within the meaning of the section of the Constitution relied on by the plaintiff's in error; do not come within the import of the term contracts, or, in other words, the vested, private personal rights thereby intended to be protected. They are functions appropriate to that class of powers and obligations by which governments are enabled, and are called upon, to foster and promote the general good; functions, therefore, which governments cannot be presumed to have surrendered, if indeed they can under any circumstances be justified in surrendering them. This doctrine is in strictest accordance with the rulings of this court in many instances, from amongst which may be cited its reasoning in the important and leading case of The Charles River Bridge v. The Warren Bridge, in 11 Pet., 420, and in the case of The State of Maryland v. The Baltimore and Ohio Railroad Company, in 3 Howard's Reports, 552, to which might be added other decisions upon claims to monopoly, as ferry privileges, in restraint of legislative action for public improvement and accommodation. In illustration of the doctrine here laid down, may also be cited the very elaborate opinion of the Supreme Court of New York in the case of The People v. Morris, reported in 13 Wend., 325. The precise question before us appears to have been one of familiar practice in the state of Pennsylvania, so familiar, indeed, and so long acquiesced in, as to render its agitation at this day somewhat a subject of surprise ; and the reasoning of the Supreme Court upon it in the case of the Commonwealth *v. Bacon, $ 6 Serg. & R. (Pa.), p. 322, is at once so clear and com- *-pendious as to render it well worthy of quotation here. 439 418 SUPREME COURT. Butler et al. v. Pennsylvania. “These services,” says Duncan, Justice, in delivering the opinion, “ rendered by public officers, do not in this particular partake of the nature of contracts, nor have they the remotest affinity thereto. As to a stipulated allowance, that allowance, whether annual, per diem, or particular fees for particular services, depends on the will of the law-makers; and this, whether it be the legislature of the state, or a municipal body empowered to make laws for the government of a corporation. This has been the universal construction, and the constitution puts this question at rest in the provision for the salary of the Governor and judges of the Supreme Court, and of the presidents of the Courts of Common Pleas. The Governor is to receive at stated times, for his services, a compensation which shall neither be increased nor diminished during the period for which he shall have been elected. The judges and presidents shall at stated times receive for their services an adequate compensation, to be fixed by law, which shall not be diminished during their continuance in office. These provisions are borrowed from the Constitution of the United States. It is apparent that the compensation of the Governor and judges is a matter of constitutional provision,— that of all other officers is left open to the legislature. The allowances, the compensation, the salary, the fees of all other officers and members of the legislature, depend on the legislature, who can and who do change them, from time to time, as they conceive just and right.” So in the case of the Commonwealth v. Mann, 5 Watts & S. (Pa.), p. 418, the court say, “ that, if the salaries of judges and their title to office could be put on the ground of contract, then a most grievous wrong has been done them by the people, by the reduction of a tenure during good behavior to a tenure for a term of years. The point that it is a contract, or partakes of the nature of a contract, will not bear the test of examination.” And again, in the case of Barker v. The City of Pittsburg, the court declare it as the law, “ That there is no contract express or implied for the permanence of a salary, is shown by the constitutional provision for the permanence of the salaries of the Governor and judges as exceptions.” 4 Pa. St,, 51. We consider these decisions of the state court as having correctly expounded the law of the question involved in the case before us, as being concurrent with the doctrines heretofore ruled and still approved by this court,—concurrent, too, with the decision of the Supreme Court of Pennsylvania now under review, which decision we hereby adjudge and order to be affirmed. 440 DECEMBER TERM, 1850. *419 Steam Packet Co. v. Sickles et al. *Mr. Justice McLEAN. In this case, I think we have no jurisdiction. There was no contract which could be impaired, within the provision of the Constitution of the United States. This is clearly shown in the opinion of the court. In such a case, I suppose the proper entry would be, to dismiss the writ of error. By the affirmance of thé judgment of the Supreme Court of Pennsylvania, we take jurisdiction. Order. This cause came on to be heard on the transcript of the record from the Supreme Court of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, affirmed, with costs. The Washington, Alexandria, and Georgetown Steam Packet Company, Plaintiffs in error, v. Frederick E. Sickles and Truman Cook. Where the declaration contained two counts; viz., the first upon a special contract that the plaintiffs had placed a machine for saving fuel on board of the steamboat of the defendants, and were entitled to a certain portion of the savings; the second upon a quantum meruit; it was admissible to give in evidence by the plaintiffs the experiments of practical engineers to show the value of the machine. Evidence had previously been given, tending to prove the value in the mode pointed out in the contract, and the evidence in question tended not to contradict, but to corroborate it. It was therefore admissible under the first count, and clearly so under the second. On the part of the defendants, the evidence of the president of the steamboat company was then given, denying the special contract alleged by the plaintiffs, and affirming a totally different one, namely, that, if the owners of the boat could not agree with the plaintiffs to purchase it, the latter were to take it away. The court should have instructed the jury, that, if they believed this evidence, they should find for the defendants. The court below instructed the jury, that, if the president of the company, acting as its general agent, made the special contract with the plaintiffs, the company were bound by it, whether he communicated it to the company or not. This instruction was right. But the court erred in saying that the plaintiffs had a right to recover on their special count, if the machine was useful to the defendants, without regarding the stipulations of that contract as laid and proved, and the determination of the plaintiffs to adhere to it. Because, by the contract, the defendants are to use the machine during the continuance of the patent right; and as no time is pointed out for a settlement, a right of action did not accrue until the whole service had been performed. Whether, if there had been a count in the declaration for the cost of the machine, and the jury had believed that the defendants had agreed to pay it as soon as it was earned, the plaintiffs might not recover to that amount, or whether such a construction could be put on the contract as proved, are 441 *420 SUPREME COURT. Steam Packet Co. v. Sickles et al. questions not before the court on this record, and upon which no opinion is expressed. *This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington. It came up upon a bill of exceptions to the admission of certain evidence, and four bills of exceptions to refusals of the court below to grant certain prayers, all of which exceptions were taken by the defendants below (the plaintiffs in error here.) But as two of the last-named bills of exceptions were not pressed in this court, it is not necessary to state them, or to state more of the case than is sufficient to show the points argued and decided by this court. In March, 1846, Sickles and Cook brought an action against the Steam Packet Company. The cause of action is thus stated in the declaration:— “ Whereupon the said plaintiffs, by Joseph H. Bradley, their attorney, complain, for that whereas heretofore, to wit, on the first day of July, 1844, the said defendants, at the county aforesaid, being the owners of a certain steamboat called the Columbia, and running in the Potomac River and Chesapeake Bay, in consideration that the said plaintiffs, being the proprietors of a certain machine called ‘ Sickles’s cut-off,’ designed to effect a saving in the consumption of fuel for steam engines, would place one of the said machines on the said steamboat Columbia, undertook and promised the said plaintiffs to apply the whole value of the saving of the fuel on board the said boat, which should be effected by the said machine, in the first place, to pay the cost and expenses of building the said machine, and putting the same.on the said boat; and thereafter, and after having paid the said costs and expenses, that they, the said defendants, would, so long as the said steamboat should continue to be employed by the said defendants, if the patent-right for the said machine should continue so long, pay to the said plaintiffs three fourths of the saving in fuel caused by said machine. And that the saving caused by the said machine, called the cut-off, on board the said boat, should be ascertained at any time the said plaintiffs should desire it, in the following manner, to wit: by taking equal quantities of wood, and using the same first with one and then with the other cut-off, (the defendants then having in use on board their said boat a machine called the throttle,) to show with which the boat would run the longest under the same circumstances. And thereupon the said plaintiffs, confiding in the said promises and undertakings of the said defendants, at great cost, to wit, at the cost 442 DECEMBER TERM, 1 850. 420 Steam Packet Co. v. Sickles et al. of two hundred and fifty dollars, did erect and build, and place on the said steamboat Columbia, at the request of the defendants, *a machine called ‘ Sickles’s cut-off; ’ which said machine, and the same hath ever since, to wit, from the L 20th day of August, 1844, continually, to the beginning of this action, been used by the said defendants in and upon the said boat; and that, on the 19th day of August, 1845, at the county aforesaid, the said plaintiffs gave notice to the said defendants that they would, on the next day, that is to say, on the 20th day of August, 1845, if they desired, make the said experiment in the said agreement mentioned, to test the relative value of the said machine; and, for that purpose, that one of the said plaintiffs would go from Washington to Baltimore, in the said boat, on the said 20th of August, 1845, and make the said experiment; and the said defendants, by their president, did then and there assent thereto, and did direct the officers of the said boat, or some of them, to aid in conducting the said experiment; and the said plaintiffs in fact further say, that one of the said plaintiffs, to wit, the said Truman Cook, did, on the said 20th day of August, 1845, proceed in the said boat from the said city of Washington to Baltimore, in the state of Maryland, and did, on the said voyage, with the assistance of the officers of the said boat, make the said experiment, and did take two piles of wood of equal dimensions and under like circumstances; the pile employed in the use of the throttle cut-off was burned in two hours and seven minutes; and the pile used by the cut-off of the plaintiffs lasted three hours and fifteen minutes, showing a saving in favor of the latter of 34 and per cent., of all which the said defendants had due notice; whereby a great amount and value of fuel b'js been saved by the said defendants, to wit, the amount of twenty-five hundred dollars; and the said plaintiffs in fact say, they were and are entitled to recover of and from the said defendants, out of the said sum of money, as well the said sum of two hundred and fifty dollars, as and for the costs and expenses of erecting and building the said machine and placing the same on the said steamboat, as also the further sum of sixteen hundred and eighty dollars and fifty cents, being three-fourths of the said savings within said period of time after the said machine was put in operation on the said boat, and while the same was used by the said defendants to the time of the bringing this suit; and being so entitled, the said plaintiffs, to wit, on the day and year aforesaid, and often afterwards, at the county aforesaid, demanded the whole of the said two sums of money, to wit, the sum of nineteen hundred and thirty-seven dollars and fifty cents, of 443 421 SUPREME COURT. Steam Packet Co. v. Sickles et al. and from the said defendants, and the said defendants utterly-neglected and refused to pay the same, or any part thereof, to *499-1 the *said plaintiffs, and still refuse, to the damage of -* the plaintiffs four thousand dollars; and therefore they sue. Joseph H. Bradley, for Plaintiffs. “ Add a count for putting the machine on the boat at the request of the defendants, with a quantum meruit. “ Joseph H. Bradley, for Plaintiffs.” The defendants pleaded non assumpsit, upon which issue was joined, and in March, 1847, the cause came on for trial. The following is the evidence offered by the plaintiffs, which, being objected to by the defendants but admitted by the court, formed the subject of the exception to evidence. “ On the trial of this cause, the plaintiffs, to maintain the issue on their part joined, offered and gave evidence tending to show that, on or about the 18th day of June, 1844, at the county aforesaid, the said plaintiffs being the owners of the patent right to a certain machine called a cut-off, of which the said Frederick E. Sickles was the inventor, and the said defendants being the owners of the steamboat called the Columbia, on which they had in use a certain machine called the throttle cut-off, the object of both of said machines being to save the consumption of fuel in the use of steam-engines, the said plaintiffs made and entered into a certain contract with William Gunton, the president of the steamboat company, and the general agent thereof, whereby it was agreed that the said plaintiffs should construct and place on board the said steamboat one of their said machines at their own cost and expense; that the same should be tried, and, if it produced any saving, that the cost of putting the said machine in operation on board the said boat, not to exceed two hundred and fifty dollars, should be first paid out of the savings of fuel effected by the said machine; that the said machine should be used by the defendants during the continance of the patent, if the said boat should last so long; and after the payment of the said costs and expenses of putting the said machine in operation on board the said boat, the savings caused thereby, in the consumption of fuel, should be divided between the said plaintiffs and defendants in the proportion of one fourth to the defendants and three fourths to the plain tiffs; and, in order to ascertain the amount of such savings, an experimental trial should be made at any time the plaintiffs should direct it, after the said machine was in successful 444 DECEMBER TERM, 1850. 422 Steam Packet Co. v. Sickles et al. operation, in the following mode: Two piles of wood should be taken of equal dimensions; one pile should be used with one of the cut-offs, and the other pile with the other cut-off, under like circumstances, and the length of time required in the consumption of the said *piles of wood, respec- (-*4.23 tively, should be taken as the evidence of the difference L in the amount of savings in the one over the other; and if the said machine produced no saving, it was to be taken off, and the boat restored to its former condition, at the expense of the plaintiffs. “ That the said contract was wholly in parol, and, within three days after it was made, the plaintiffs entered into a contract in writing with T. W. and R. C. Smith, of Alexandria, by the said plaintiffs, as follows : (copied in record;) and the said defendants caused their said boat to lie at Alexandria to have the said machine fitted to her engine ; that the said T. W. and R. C. Smith proceeded with all convenient despatch to make the said machine, and put the same on board the said boat, at the cost of $242; that the same was completed and placed on board the said boat, and in complete action, on the 9tli day of November, 1844, with the knowledge of the defendants, and that the same was continually thereafter, to the bringing of this suit, used by the said defendants on board the said boat. “ That, on the 19th day of August, 1844, the said Truman Cook, one of the said plaintiffs, gave notice, on board the said boat, to the said defendants, by William Gunton, president as aforesaid, that they desired on the next day, the same being the regular day for the passage of the said boat from the city of Washington to Baltimore, to go on the said trip and make the experiment, provided by their said contract, to ascertain the saving caused by the said machine ; and the said William Gunton, president as aforesaid, directed the officers of the said boat, or one of them, to take care that the said Cook did not throw sand in his eyes ; and on the said 20th day of August, 1844, the said Cook, one of said plaintiffs, did in fact go from the city of Washington to Baltimore on board the said boat, and the said experiment was in fact made, under the superintendence of the officers of said boat on behalf of said defendants, and by the said Cook on behalf of said plaintiffs, and the whole was, at the request of plaintiffs, carefully observed and noted by Captain Job Carson, for many years mate and captain of a steamboat, and the result of the said experiment was, that the said machine of said plaintiffs caused a saving of fuel, over and above the said ‘ throttle cut-off,’ of 34^| per cent., and full, minute, and accurate minutes of the said ex- 445 423 SUPREME COURT. Steam Packet Co. v. Sickles et al. périment, and of the result thereof, were taken and made in writing by the officers of the said boat, or one of them ; that the average consumption of wood on her said trip to Baltimore was cords, and on her trip from Baltimore was cords, and the average price of wood, during the period she *4941 ran’ from fhe $th of November, 1844, to the bringing *of -• this suit, was 8 , and, estimating the saving by the said machine at one third, it amounted to $ up to the impétration of the writ in this case. “ The plaintiffs further gave evidence to show, by practical and scientific engineers and builders of steam-engines, that the said experiment was the only mode by which the said savings could be ascertained with any degree of certainty ; that it had been resorted to and tried by them ; and one of them further proved, that, on the experiment conducted by him to test the difference between ‘Sickles’s cut-off’ and the ‘ throttle cut-off,’ in a large steamboat belonging to Baltimore, and having an engine of the same construction as that on board the Columbia, the saving of the former over the latter was 42 per cent. ; and they further proved that they were acquainted with both of the said machines, both theoretically and practically, and that no engineer would hesitate to say that ‘Sickles’s cut-off’ was far superior to the throttle, and to any other with which they were acquainted. “ They further gave evidence to show that the said machine had been applied by the plaintiffs to four other steamboats belonging to the port of the city of Washington, and the saving of fuel caused thereby ranged from 18 to 33 per cent, on board the said boats respectively, and that the saving could not be ascertained by the amount of wood actually consumed without knowing and estimating the condition of the hull, and engine, and machinery, the state of the weather, the water, the freight, and the speed of the boat ; and the only test was the experiment aforesaid, or one conducted on scientific principles which would give a proximate result. “ To introduction of which said evidence by practical and scientific engineers and others, builders of steam-engines, tending to show the operation of the said cut-off, and the savings resulting therefrom on other boats, the defendants, by their counsel, objected, because the same was inapplicable to the issue on the first count in the plaintiffs’ declaration, and that the same could not be offered on the general counts, unless the plaintiffs abandoned the first. “ Which objection the court overruled, and allowed the said evidence to go to the jury; to which ruling of the court thé defendants, by their counsel, excepted, and prayed that this 446 DECEMBER TERM, 1850. 424 Steam Packet Co. v. Sickles et al. their bill of exceptions may be signed and sealed; which is done this 25th day of March, 1847. Jas. S. Morsell, [seal.] Jas. Dunlop. [seal.]” The defendants then offered evidence which is all incorporated *into the bill of exceptions; but the following is that part upon which the prayer to the court below L rested, involving the point which was argued in this court. “ The defendants, to support the issue on their part, called William Gunton, late president of the defendants’ company, who being first sworn on his voire dire, stated that he had resigned the office of president of said company, and sold and transferred all the stock he held therein, and that he was in no way interested in the event of this suit between the said plaintiffs and the defendants; and the said witness, being sworn in chief, testified that he did not, as president of said company, or otherwise, make with the said plaintiffs the contract for the use of the cut-off called Sickles’s cut-off, on board the defendants’steamboat called the Columbia, as the same is set forth in the first count in the plaintiffs’ declaration; that some time in the spring of the year 1844 he first met with Truman Cook, one of the plaintiffs, and after having conversed several times with the said Cook on the subject of the application of the said cut-off to the engine on board the said boat, the said Cook stated that he was very desirous to bring the cut-off to the favorable notice of the officers of the government, with the view of introducing the same into use on board the national steamships, and other steam-vessels sailing on the waters of the River Potomac and the Chesapeake Bay; that he, as president of the defendants' company, agreed with the said Cook that he might place, at his own expense, the said cut-off on the engine of the said boat, and that if, on trial of the same on board the said boat, the said cut-off should be approved of, and the defendants should wish to purchase the same, the terms of such purchase should be afterwards determined on between the said parties; but if the said cut-off should not be approved of, or the terms proposed by said Cook for the use of the same by the said defendants on their said boat should be such that the said defendants could not accede thereto, the said Cook was to take the said cut-off from the said boat at his own expense, and restore the engine on the said boat to the same condition in which it was before the application of the said cut-off thereto; that the said cut-off was placed on the said engine pursuant to such last-mentioned agreement, and not in pursuance of any such agreement as is mentioned in the first 447 425 SUPREME COURT. Steam Packet Co. v. Sickles et al. count of the plaintiffs’ declaration; that afterwards, and when the witness, still being president of defendants’ said company, had had an opportunity to form some idea of the value of the said cut-off, he conversed with said Cook respecting the terms on which the same might be purchased for the use of the defendants on board the said boat, and the said Cook informed *the sa^ witness that the defendants should have the J use of the said machine on as favorable terms as the same had been disposed of to the owners of the steamboat Augusta, or any other steamboat, but did not then, or at any other time, inform the witness at what price the same had been sold to the said steamboat Augusta, or any other steamboat, or make any such definite proposition for the sale of the said machine to the defendants as would enable him to lay the same before the board of directors of the said company for their approval; and that the defendants have at no time refused the said Cook or the plaintiffs permission to remove the same from the engine on board the said boat, and restore the said engine to its former condition.” The prayer to the Circuit Court, founded on this evidence, was as follows:— “Whereupon the defendants, by their counsel, prayed the court to instruct the jury, that if the jury believe, from the evidence, that the defendants agreed with the plaintiffs that they, the said plaintiffs, might, at their own expense, place the cut-off, called Sickles’s cut-off, on the engine of the defendants’ boat, called the Columbia, that they, the said plaintiffs, might exhibit the qualities and usefulness of the said machine to the public, and thereby facilitate the introduction of the same into use on board the national steam-ships, and other steam-vessels sailing on the waters of the Potomac River and the Chesapeake Bay; and that if, on the trial of the same on board the Columbia, the said cut-off should be approved of, and the defendants should wish to purchase the same, the terms of said purchase should be afterwards determined on between the said parties; but if the said cut-off should not be approved of, or the terms proposed by the plaintiffs to the defendants, for the use thereof, should be such that the said defendants could not accede thereto, the said plaintiffs were to take the said cut-off from the said boat at their own expense, and reinstate the boat and her engine in the same condition in which she was before the application of the said cut-off thereto; and that the said cutoff was placed on the said boat pursuant to said agreement 448 DECEMBER TERM, 1 8 5 0. 426 Steam Packet Co. v. Sickles et al. and permission as aforesaid, and not pursuant to any such contract as is set out in the first count in the plaintiffs’ declaration ; and that the said plaintiffs have made no definite proposition to the said defendants for the sale and use of the said cut-off, and have not been refused permission by the defendants to remove the same from their said boat, then the plaintiffs are not entitled to recover in this action, although the jury should believe from the evidence that the said machine was approved of, and *has been used by the said defendants; which instruction the court refused to give, there being only •- ’ two judges on the bench, and they being divided in opinion on said instruction; to which refusal the defendants, by their counsel, excepted, and prayed the court that this their bill of exceptions may be signed and sealed, which is done, this 25th day of May, 1847. “James S. Morsell, [seal.] “ James Dunlop. [seal.]” Amongst the evidence brought forward by the defendants, were the two following letters, which are inserted here because they are remarked upon by the court in the decision of the remaining exception. W. Gunton to Sickles £ Cook. “ As I am, week after week, annoyed by warrants, under a pretended contract never entered into by me, respecting the cut-off placed under your direction on the steamer Columbia, and as I have repeatedly explained in writing, both to Messrs. T. W. & R. C. Smith, of Alexandria, and Mr. A. T. Smith, of this city, your agent, or attorney, what the understanding between Mr. Cook and myself was in relation to the subject, and have expressed my willingness to comply therewith, I hereby give you notice, that unless you, within ten days from this date, remove the aforesaid cut-off from the Columbia, and replace, agreeably to that understanding, her machinery in the same condition in which it was immediately before the cut-off was applied thereto, I shall promptly thereafter cause the work to be done at your expense, and hold you liable for the same, in addition to the amount of expense incurred and loss sustained, by reason of the detentions of the Columbia, mentioned in my letters to your agent, Mr. A. T. Smith, before alluded to. W. Gunton, President. “ Washington City, AAth April, 1841. “ Messrs. Sickles & Cook.” Vol. x.—29 449 427 SUPREME COURT. Steam Packet Co. v. Sickles et al. Reply to the above. “ Dr. William Gunton, President:— “We have received your note of the 14th instant, and hasten to reply to it, to avoid any future misapprehension on your part of the positions we respectively hold. You have chosen to make terms entirely different from those under which we contracted with you; have refused to execute your contract with us; have driven us to the necessity of a suit; and we are now resolved to bring the matter to an issue. *1981 *“ You complain that you are annoyed by warrants. J It is your own fault. You say that you have repeatedly [stated] to Messrs. T. W. and R. C. Smith, Alexandria, and Mr. A. T. Smith, of this city, what the understanding between Mr. Cook and yourself was in relation to this subject, and have expressed yourself willing to comply therewith. We have, as often as occasion and opportunity offered, stated to you, in the plainest terms, that your representations thus made were not the terms of our contract, and have as clearly and distinctly stated to you what that contract was. We now repeat it. We undertook to put Sickles’s cut-off on the engine of the steamer Columbia, and offered to receive 81000 for the right to use it. You, seeming to doubt the importance of the invention, declined that offer; and we then offered to put the cut-off on, taking as a compensation for its use the value of three fourths of the fuel saved by its use, deducting from the first savings 8250 for the construction of the machine, the savings to be ascertained by either of us by experiments with our cut-off and the old one attached to the engine of the Columbia, and you were to continue the use of our cut-off, provided Xve made it work well, so long as the boat continued to belong to your company. We employed the Messrs. Smith to construct the machine. These terms you accepted in the most unequivocal manner. This was all they had to do with it. They did make it, and it was applied, and has operated successfully. Persons were directed on board the boat to make accurate observations of the saving. It was found to be far greater than you had any idea of. We asked for compensation, and you denied the contract. Your own acts have compelled us to bring suit; and, in order to bring the matter to a close after that suit was brought, we took out a warrant against your company, so that either party might, by appeal, bring the question at once before the court for judicial decision. These are resisted on technical grounds, and now you give us notice to remove the cut-off. However much we might be disposed to avoid litigation, and to terminate all controversy by an amicable ad-450 DECEMBER TERM, 1 850. 428 Steam Packet Co. v. Sickles et al. justment, the course you have taken has determined us, and we now give you notice that we will not only not interfere with the cut-off on board the Columbia, and hereby protest against your interfering with it, but we will every week bring an action to recover the amount of saving coming to us on the terms of our contract with you. Until we can get a judicial decision in the matter, you must choose for yourself. “ Sickles & Cook. “ Washington, 15th April, 1846.” *The remaining prayer to the Circuit Court was as rO0Q follows:— L ■ “The defendants, by their counsel, further prayed the court to instruct the jury, that if the jury believe, from the evidence, that the contract set out in the first count of the declaration, and alleged to have been made by the plaintiffs and William Gunton, the president of the defendants’ said company, was never authorized by a board or quorum of the directors of said company, as provided by their charter of incorporation, and was never sanctioned or approved of by said board or quorum of the said directors, and that the said William Gunton, in making such contract with the plaintiffs, if the jury believe the same to have been made by him, did not act within the scope of his authority as such president, then the said contract is void as respects the said defendants, and the said plaintiffs are not entitled to recover under the said first count in their declaration ; which instruction the court refused, but granted the same, with the following modification : but if, from the evidence, the jury shall find that William Gunton, the president of the defendants’ company, and acting as their general agent, made with the plaintiffs the contract set out in the first count of the said declaration, and that the plaintiffs, under the said contract, put the said machine on the defendants’ boat, and the same was used by the defendants at the time and times mentioned in the said count, and that the same was beneficial to the defendants, then the plaintiffs are entitled to recover on the said first count, notwithstanding the jury shall find that the terms of the said contract were not communicated to the defendants, and the said William Gunton reported to the said defendants a different contract; to which refusal of the said instruction, and modification thereof, the defendants, by their counsel, excepted, and prayed that this their bill of exceptions may be signed and sealed, which is done this 25th day of May, 1847. “James S. Morsell, [seal.] “James Dunlop. [seal.]” 451 429 SUPREME COURT. Steam Packet Co. v. Sickles et al. The jury found a verdict for the plaintiffs, and. assessed the damages at $1800, with interest from the 9th of November, 1845. A writ of error brought these several rulings of the Circuit Court before this court for revision. It was argued by Mr. Lawrence, for the plaintiffs in error, and by Mr. Lee and Mr. Bradley, for the defendants in error. The argument on behalf of the plaintiffs in error, with respect to the admissibility of the evidence, was as follows:— *lst. The same was inapplicable to the issue on the J first count in the plaintiffs’ declaration. 2d. That the same could not be offered on the general count unless the plaintiffs abandoned the first. The plaintiffs in error insist that the court erred in allowing the evidence objected to by them to go to the jury:— 1st. Because it was in no way applicable to the issue on the special count in the plaintiffs’ declaration; it did not tend to prove any one of the allegations contained in that count, and was therefore irrelevant and collateral. The plaintiffs allege that a special mode of testing the value of their machine, in contrast with that previously used on board the defendants’ boat, was agreed upon by the parties, and constituted part of their contract; the experiment was, as they allege, to be made on board the Columbia. It was therefore wholly immaterial to the point in issue on the first or special count what had been the result of experiments made on board steamboats in Baltimore or Washington; the defendants had no notice of such experiments, were not present at them, and ought not to be affected by them. Neither was it proper to give in evidence the opinion of engineers or steamboat-builders, however well informed as to the relative value of the two machines, particularly as the plaintiffs allege a special mode of ascertaining the difference in value had been agreed on by the parties in their alleged contract. It is a familiar rule of evidence, that it must correspond with the allegations in the pleadings of the party who offers it. 1 Greenleaf on Evidence, §§ 51 and 52. This rule excludes all evidence of collateral facts; the admission of evidence of that character tends to divert the minds of the jury, to excite prejudice, and mislead them; the adverse party is taken by surprise, and cannot be prepared to rebut it. Thus, where the issue between a landlord and his tenant was whether rent was payable quarterly or half-yearly, evi 452 DECEMBER TERM, 1850. 430 Steam Packet Co. v. Sickles et al. dence of the mode in which other tenants of the same landlord paid their rent was held by Lord Kenyon inadmissible. Peake Cas., 95. So the opinions of engineers, and the results of experiments on other boats, ought not to have been allowed. 2dly. This evidence was not admissible under the quantum meruit count. Where there is an express contract, and a stipulated mode of compensation, the party rendering the services cannot waive the contract, and resort to an action on a quantum meruit, or an implied assumpsit. Champlin v. Butler, 18 Johns. (N. Y.), 169. Where the special agreement subsists in full force, the plaintiff *cannot recover under the common counts, but the r*4.9-1 remedy is on the contract. Bull. N. P., 139; Raymond *-v. Bearnard, 12 Johns. (N. Y.), 274; Jennings v. Camp, 13 Id., 94; Clarke v. Smith, 14 Id., 326; Wood v. Edwards, 19 Id., 205; Perkins v. Hart's Executor, 11 Wheat., 237. In the case before the court, the contract was subsisting and continuing; it was to last as long as the defendants should continue to employ the boat Columbia, if the patent for the machine continued so long. The plaintiffs had declared upon it as a subsisting contract. The quantum meruit count was for the same subject-matter as the special contract. In the case of Cooke v. Munstone, 1 Bos. & P. N. R., 354, the declaration contained a count on a special contract, and a count for money had and received to the use of the plaintiff; the plaintiff failed to prove the contract laid, but proved another variant from it; he claimed to recover on his common counts; the court decided that the plaintiff could not proceed on the common counts. The court said, “ The cases in which the plaintiff has been allowed to proceed on these counts are those in which the special contract is put altogether out of the case; it would be very strange to allow the plaintiffs to recover on the general indebitatus assumpsit, and still leave him to his right to recover for non-performance of his special contract; it is said he has a right to proceed at the same time on the special and on the general count, but the cases only warrant a permission to resort to the latter when the former has failed altogether. In this case, if we were to allow the plaintiff to go into the evidence he offered, it would amount to saying that there was no evidence of a subsisting special agreement, when in truth there was such evidence.” In Clarke n. Smith, 14 Johns. (N. Y.), 326, the declaration contained a count on a special agreement, and the common counts relative to the same subject-matter. The plaintiff, at 453 431 SUPREME COURT. Steam Packet Co. v. Sickles et al. the trial, proceeded to give evidence under the common counts the witness, on cross-examination, said there was a written contract between the parties, under which the work was done ; objection was then made to the plaintiff’s giving evidence under the common counts, which was overruled by the court. On appeal, this was held to be error, and it was decided, that whenever the special contract is still subsisting, and no act done or omitted by the one party which would authorize the other to consider the contract rescinded, the remedy must be on the special contract, which principle will be found to run through all the cases. While the contract is still subsisting, part performance will *4.^91 *n0^ entitle the plaintiff to resort to the common counts J to recover the value of that which he has done in part fulfilment of the contract. If the plaintiffs could not resort to the common count, they ought'not to have been allowed, the defendants objecting, to give evidence applicable only to that count. There was conflicting testimony respecting the value of the machine, and the minds of the jury must have been affected by the testimony thus improperly offered. With respect to the exception founded on the refusal of the court to grant the first prayer made by the defendants below, the error alleged was this. If the plaintiffs acted under a special agreement with the defendants in putting the said machine on the defendants’ boat, and there was any failure on the part of the defendants to comply therewith in any respect, the proper and only remedy for the plaintiffs was by action on that special agreement. Whether the agreement was such as the plaintiffs pretended, or such as the defendants pretended, while such agreement was subsisting, there could be no remedy for the plaintiffs on the common counts. If the agreement was such as the plaintiffs have set out in the first count in their declaration, and the jury believed the evidence introduced to prove the same by the plaintiffs, then they were entitled to recover on that count. But if the jury gave greater credence and weight to the evidence offered by the defendants to sustain the issue on their part, and believed the contract to be proved to be such as the defendants set up, then the plaintiffs were not entitled to recover;— 1st. Because of their failure to prove the contract set out by them. 2d. Because a different contract was proved by the defen- 454 DECEMBER TERM, 1850. 432 Steam Packet Co. v. Sickles et al. dants, of which there was no breach on their part alleged or proved, and which was still subsisting. It is clear from the terms of the agreement, as shown by the defendants’ evidence, that the machine was not put on the defendants’ bpat to be used by them under a contract of purchase, nor was the use thereof to be paid for by the defendants ; it was put on board by permission of the defendants at the request of the plaintiffs, and for their advantage; the plaintiffs were at liberty to remove it at their pleasure, If the defendants should wish to acquire the right to use it permanently, it was to be made the subject of a future agreement. If the jury believed this, and certainly the defendants’ evidence tended to prove it, and no subsequent contract was alleged or *proved, and no offer by the plaintiffs to p.qq remove the machine from the boat, and refusal by the *-defendants to allow it, either alleged or proved, then the plaintiffs made out no case against the defendants ; and, when asked by the defendants, it was the duty of the court so to tell the jury, and their refusal was an error. The court seem to have been- of opinion, that, notwithstanding the jury might believe, from the evidence, that the defendants did not contract with the plaintiffs, either for the purchase or use of the machine, and that the same was jput on board the plaintiffs’ boat for their own benefit and advantage with the public; yet, as the same had been used by the defendants, and they had derived benefit therefrom, they ought to pay for it; and, if they refused to do so, the plaintiffs had a right to recover for such ‘use. Respecting the last prayer, the plaintiffs in error contend that the court erred in refusing the instruction as originally asked for, and in giving the same with said modification. In the third section of defendants’ said charter it is provided that the affairs of the company shall be conducted by four directors and a president; that two directors and the president shall form a quorum for transacting all the business of the company. In the fifth section it is provided that the president and directors shall have full power to use, employ, and dispose of the funds and property of the company for the interest and benefit of the stockholders, and agreeably to the objects of the said act of incorporation. The president of the company has, as such, no power to bind the company by contract; he may be authorized to act as the special agent of the company in some particular case, or generally in the performance of some prescribed duties. His 455 433 SUPREME COURT. Steam Packet Co. v. Sickles et al. power as agent of the company cannot be without scope or limit. An act of the board authorizing the president to act as universal agent, with unlimited authority to act for, and dispose of, the property of the company, would be a violation of the charter, and void. If it be assumed that Mr. Gunton made with the plaintiffs the contract set out in the declaration, he acted in doing so as the president or agent of the company, and within some supposed limits. If the act done was within the scope of his authority, the company was bound by it. If, however, the act done was not within the scope of his authority, then the company was not bound by it. It is not contended that third persons are to be affected by the private restrictions which a principal may impose on his *4.34.1 *agenf j is conceded that, whenever an act is within J the scope of the agent’s authority, the principal is bound. Story on Agency, § 127. In the instruction which the court refused, they were asked to say to the jury that, if they believed from the evidence, that Mr. Gunton, in making the said contract, did not act within the scope of his authority as such president, and that the said contract was never authorized or sanctioned by the board of directors, then the same was void as respects the defendants. In refusing this instruction the court left the jury to understand that the contract was binding on the defendants; notwithstanding it was not within the scope of Mr. Gunton’s authority, as president, and so agent of the company, to make it; and the same had never been authorized or sanctioned by the board of directors. This ruling on the part of the court, as the subsequent modification shows, had its basis in an opinion held by them that the defendants, having had the use of the machine, if they were benefited thereby, were, at all events, bound to pay for it. The subsequent granting of this instruction, with the modification attached to it by the court, magnified the error of their first refusal. The plain and fair construction of the whole is this: That if the jury believe Mr. Gunton, in making said contract, acted beyond the scope of his authority, as president of the company, and that the contract was never authorized or sanctioned by the board of directors, the contract was void; yet if he, being the president of the defendants’ company, and acting as their general agent, did make the said contract, even if he did exceed his authority, and the plaintiffs, under said contract, 1.56 DECEMBER TERM, 1 850. 431 Steam Packet Co. c. Sickles et al. put their machine on the defendants’ boat, and it was used by the defendants, and was beneficial to them, then the plaintiffs are entitled to recover under the special count in the declaration ; that is, they are entitled to recover for the beneficial use on the first or special count in the declaration. One of the terms of the contract, as set out in the declaration, is, that the whole of the value of the savings which should be effected by the plaintiffs’ machine over the old throttle cut-off should be applied to pay for the cost of the machine, &c., and after that three fourths of the savings thus effected should be paid to the plaintiff, and the amount was to be ascertained in a certain way. The instructions given by the court to the jury do not limit the right of the plaintiffs to recover according to the terms of their alleged agreement, but they affirm their right to recover if the jury believed the machine was used, and was beneficial *to the plaintiffs. The court say they may recover for or the beneficial use, and that under the special contract. *-The jury are not told that the beneficial use of the plaintiffs’ machine must, in their judgment, exceed that of the old throttle cut-off. It is sufficient, in the judgment of the court, that the defendants had used the machine, and that that use was beneficial, to authorize the plaintiffs to recover to the extent of the value of such use. If the ruling of the court had been, that, if the jury believed that Mr. Gunton in making the contract exceeded his authority, and therefore that the contract was void as against the defendants, in the absence of any contract binding the defendants the plaintiffs might recover under the common count, if they believed the defendants used the plaintiffs’ machine, and it was beneficial to them, there would have been no error in their instruction ; but such is not the ruling of the court. They say, that if the machine was put on the boat under the special contract, and was used by the defendants and proved beneficial, the plaintiffs may recover the value of such use on the count on that contract. The following authorities were relied on :— Bank of Columbia v. Patterson's Adm., 7 Cranch, 306 ; Head and Amory v. Providence Ins. Co., 2 Id., 127 ; Fleckner v. Bank of U. States, 8 Wheat., 338 ; Bank of U. States v. Dandridge, 12 Id., 64. The counsel for the defendants in error, with respect to the admissibility of the evidence, conceded that the evidence was not admissible under the first count in the declaration, and that it was not offered as applicable to that count, but con- 457 435 SUPREME COURT. Steam Packet Co. v. Sickles et al. tended that it was clearly admissible under the second count. The propriety of joining a count on the special agreement with a common count cannot be doubted. It is the usual and proper course. Arch. Civ. Pl., 174. Where there is a special agreement, the rules are,— 1st. So long as the contract is executory, to declare specially ; when executed, and the payment is to be in money, the general counts may be used. Streeter v. Horlock, 1 Bing., 34, 37; Study v. Sanders, 5 Barn. & C., 628; Tuttle v. Mayo, 7 Johns. (N. Y.), 132; Robertson v. Lynch, 18 Id., 451. 2d. Where the contract has been partly performed, and has been abandoned by mutual consent, or rescinded by some act of defendant, plaintiff may use the common counts. Robson v. Grodfrey, 1 Stark., 275. 3d. Where work has been done under a special agreement, but not in the time or manner stipulated, has been accepted by and is beneficial to defendant, the common counts may be *resorted to. Keck's case, Bull., N. P., 139; Burnx. -* Miller, 4 Taunt., 745; Streeter v. Horlock, 1 Bing., 34; Jewell v. Schroeppel, 4 Cow. (N. Y.), 564; Taft v. Montague, 14 Mass., 282. These are general principles now universally admitted. But it is supposed the plaintiffs were bound to waive or abandon their first count before they could resort to the common count. Is this so ? It was contested, and they had a right to give evidence as to both. They were both good counts. It was competent for them to have the verdict entered on whichever count they pleased, or the court might have instructed the jury at the instance of either party. If the contract had been admitted, the case would have been different. Here the whole matter was in pais, and the court was right in admitting the evidence. As to the first prayer. The rules already presented furnish a conclusive answer to this. If the machine was placed on the boat under the agreement assumed by this prayer, it is still quite clear the plaintiffs were entitled to compensation for the time it was used by the defendants, if it was beneficial to them, although they should not have agreed on the terms. It proceeds on the hypothesis, that the plaintiffs would place the machine on the boat at their own expense, and for their own benefit; and if, on trial, it should be approved of by the defendants, and they should desire to purchase it, the terms of such purchase should be afterwards determined on between the parties; but if it should not be approved, or the terms proposed by said Cook for the use of the same should be such 458 DECEMBER TERM, 1850. 430 Steam Packet Co. v. Sickles et al. that defendants could not accede thereto, plaintiffs should remove it at their own expense, and replace the boat in as good condition as before. This is, however, but a partial statement of the evidence. It was approved of. The defendants conferred with Cook about the price, and he said they should have the use of the machine on as favorable terms as the same had been disposed of to the Augusta, or any other steamboat; but he did not state what those terms were. The Augusta was a boat running in the same waters; the Osceola was another. The means of ascertaining the price were within the reach of defendants. The defendants understood this to be a distinct and binding offer. They did not reject it; but continued to use the machine after these terms were proposed. It was a contract of sale or use. The plaintiffs had done their part, executed the contract, and the payment was to be made in money. They might resort to the common count. See cases under the first rule above. They gave evidence to *show the terms on which the Osceola had it. This [-*407 was the measure of the sum which they could recover L on the common count. It was competent for defendants to have proved that the terms with the Augusta were more favorable if they had chosen to do so. But the court was asked to say they could not recover at all in this action, rejecting the second count altogether. As to the fourth exception. The instruction assumes that the defendants’ president must have been authorized by a board or quorum of the directors, or his act sanctioned and approved by such board or quorum, to make it binding on the company. It admits the making of the contract. It was a contract eminently beneficial to the company, saving more than one third of the fuel. It was made by the general agent of the company in the ordinary discharge of his duties. They were bound to know its terms. If they chose to avail themselves of the benefits without inquiring into those terms, or if they believed, from the report of their said agent, that he had made a different contract, they are still bound by the contract which he did make. Bank of Columbia v. Patterson's Adm., 7 Cranch, 299; Mechanics' Bank n. Bank of Columbia, 5 Wheat., 326; Fleckner v. Bank of U. States, 8 Id., 338; Bank of U. States v. Dandridge, 12 Id., 64; Bank of Metropolis v. Gruttschlick, 14 Pet., 27. Mr. Justice GRIER delivered the opinion of the court. 459 437 SUPREME COURT. Steam Packet Co. v. Sickles et al. Sickles and Cook, plaintiffs below, filed their declaration in assumpsit, containing two counts. The first set forth a parol contract made with William Gunton, president of the steamboat company and general agent thereof, in which it was agreed that the plaintiffs should construct and place on board the steamboat Columbia a certain machine invented by Sickles, called a “ cut-off,” at their own cost; that the machine should be tried, and, if it was found to produce any saving of fuel, that the cost of putting it in operation, not exceeding two hundred and fifty dollars, should be first paid out of the savings of fuel effected by the machine; that the machine should be used by the defendants during the continuance of the patent, if the boat should last so long; and after paying for its erection, the savings caused thereby in the consumption of fuel should be divided between the plaintiffs and defendants in the proportion of one fourth to defendants and three fourths to plaintiffs. The mode of ascertaining the amount of saving is specially set forth,—and the plaintiffs aver that they erected their cut-off on said steamboat at the *4381 *cos^ $242, on the 9th of November, 1844, and that -I it was afterwards ascertained in the mode agreed upon, that the saving of fuel caused by using plaintiffs’ cut-off exceeded that of the “ throttle cut-off,” before used by defendants, by 34-t^- per cent.; and that the amount saved over and above the price of erection when this suit was brought was $2,500. For the amount of the $242, and three fourths of the latter sum, this suit is brought. There is a second count, for putting the machine on the boat at request of defendants, with a quantum meruit. On the trial of the cause below, evidence was given tending to prove the special contract as laid in the first count, and that the experiment to test the value had been made in the manner agreed upon, with the result as stated in the declaration. The plaintiffs then offered to show experiments made by practical engineers on other boats, and the result thereof, with the opinion of the said engineers as to the value of their cut-off. This evidence was objected to, and its admission is the subject of the first bill of exceptions, sealed at request of defendants. The objection to this evidence is, that the mode of ascertaining the value of plaintiffs’ cut-off is specially stated in the declaration, and no other could be resorted to. But we think that, even if there were no other count in the declaration than that on the special contract, this objection cannot be sustained. The plaintiffs had given in evidence the experiment made in pursuance of their alleged agreement, and as this testimony tended only to corroborate it, and not to contradict 460 DECEMBER TERM, 1850. 438 Steam Packet Co. v. Sickles et al. it, or enlarge the claim of the plaintiffs beyond that ascertained by the experiment made by the parties, it cannot be said to be irrelevant or incompetent; at most, it could only be said to be superfluous. But assuming that it was irrelevant on the first count, it is clearly not so as regards the common count on a quantum meruit. The plaintiffs had an undoubted right to give evidence which might enable them to recover on the latter count, in case the defendants should succeed in establishing their plea of non-assumpsit as to the first. In this view of the case, the competency and relevancy of the testimony cannot be doubted. To support the issue on their part, the defendants then called William Gunton, the late president of the company, who wholly denied that he made such a contract as that declared on by plaintiffs, and stated that plaintiffs expressed to him a desire to bring their “cut-off” to the favorable notice of the government, with a view of introducing it on board the national steam-ships. That he gave them leave to erect their machine on the boat at their own expense, and agreed that, if, on trial, the machine should be approved by the defendants, they would *purchase it, on terms to be afterwards agreed upon; p,™ but if not approved, or the terms of purchase offered *-by plaintiffs should be such as defendants would not accept, then plaintiffs should have leave to take off their machine at their own expense. That afterwards, when the plaintiffs’ terms were asked, they said defendants should have the machine on the same terms as the steamboat Augusta and other boats, but would not then or at any other time state definitely what those terms were, or what price the Augusta had given, or the plaintiffs would be willing to take, so that it could not be laid before the company for their approval. That defendants had never refused permission to plaintiffs to take away the machine from the boat, if they so desired to do. Certain letters were also given in evidence, the contents of which it is not necessary to state in order to understand the instructions given to the jury which are now the subject of exception. Four several bills of exception have been taken to the refusal of the court to give four items of instruction to the jury. Two of these only are relied on here. The first may be briefly stated thus:—That if the jury believed the testimony of William Gunton, and that the contract between the parties was such as he stated, defendants were entitled to a verdict. This instruction was refused by a divided court. We are of opinion that the defendants were clearly entitled to have this instruction given to the jury, as the testimony, if 461 439 SUPREME COURT. Steam Packet Co. v. Sickles et al. believed by them, fully supported the defendants’ plea, and showed that the plaintiffs were not entitled to recover on either count in their declaration. They could not recover on the first count, for this testimony showed that there was no such contract between the parties as that set forth in it; nor on the count on a quantum meruit, for the use of the machine, for that would be a repudiation of the contract as proved. If the plaintiffs put their machine on board of defendants’ boat for the purpose of experiment, on an agreement that defendants should pay for it if on trial they approved it, and were willing to give the price asked, otherwise the plaintiffs’should have leave to take it away,—it certainly needs no argument to show, that, without stating their terms, or offering to fulfil their contract by a sale of the machine, the plaintiffs cannot repudiate it and sue for the use of the machine. This would be a palpable fraud on the defendants. The only other exception urged to the charge of the court below is in the answer given by the court to the fourth instruction prayed; which is as follows :— “ If, from the evidence, the jury shall find that William Gunton, the president of the defendants’ company, and acting *4401 as *their general agent, made with the plaintiffs the -I contract set out in the first count of the said declaration, and that the plaintiffs, under the said contract, put the said machine on the defendants’ boat, and the same was used by the defendants at the time and times mentioned in the said count, and that the same was beneficial to the defendants, then the plaintiffs are entitled to recover on the said first count, notwithstanding the jury shall find that the terms of the said contract were not communicated to the defendants, and the said William Gunton reported to the said defendants a different contract.” We find no fault with this instruction, so far as it states the liability of defendants for the acts of Gunton as their general agent, whether he reported his agreement to the defendants 01 not. If he was their general agent, and had power to make such contract, his failure to communicate it to his principals cannot affect the case. But we are of opinion, that the court erred in stating that the plaintiffs had a right to recover on their special count, if the machine was useful to the defendants, without regarding the stipulations of said contract as laid and proved, and the fact that the plaintiffs had refused to rescind it, and had expressed their determination to adhere to it and “ to bring an action every week to recover the amount of saving on the terms of the contract.” If the plaintiffs had complied with the request of the presi-462 DECEMBER TERM, 185 0. 440 Steam Packet Co. v. Sickles et al. dent of the company, in a letter addressed to them on the 14th of April, 1841, after the dispute about the nature of the contract had arisen, and taken their cut-off from the boat, and thus put an end to the contract, the instructions given by the court would have been undoubtedly correct. But as the record shows that the plaintiffs have refused to annul the contract, a very important question arises,—whether this action and five hundred others, which the plaintiffs have expressed their determination to continue to institute, can be supported on this one contract. By the contract as proved and declared on, the defendants, after the machine has been erected on their boat, are to continue to use it “ during the continuance of the patent,” if the boat should last so long. The compensation to be paid by the defendants is to be measured by the amount of saving of fuel which the machine shall effect. The mode of ascertaining this saving is pointed out, and the ratio in which it is to be divided. The first 8250 saved are all to go to the plaintiffs, and three fourths of all the balance. But the contract is wholly silent as to the time when any account shall be rendered or payments made. The defendants have not agreed to pay by the trip, or settle their account every day, or week, or year; or at the end of 27$- weeks, the time for which this suit is instituted. The agreement on the part of the plaintiffs is, that the defendants L shall use their machine,for a certain time, in consideration of which defendants are to pay a certain sum of money. It is true, the exact sum is not stated; but the mode of rendering it certain is fully set forth. It is one entire contract, which cannot be divided into a thousand, as the plaintiffs imagine. If the defendants had agreed to pay by instalments at the end of every week, or twenty-seven weeks, doubtless the plaintiffs could have sustained an action for the breach of each promise, as the breaches successively occurred. .But it is a well-settled principle of law, that, “ unless there be some express stipulation to the contrary, whenever an entire sum is to be paid for the entire work, the performance or service is a condition precedent; being one consideration and one debt, it cannot be divided.” It was error, therefore, to instruct the jury that the plaintiffs were entitled to recover on the first count, if their machine was used by the defendants, and was beneficial to them, without regard to the fact of the rescission, or continuance, or fulfilment, of the contract on the part of the plaintiffs. Whether, if there had been a count in the declaration for the 3242, and the jury had believed that the defendants had agreed to pay it as soon as it was earned, the plaintiffs might not recover to that amount, or whether such a construction could 463 *442 SUPREME COURT. The United States v. Brooks et al. be put on the contract as proved, are questions not before us, and on which we therefore give no opinion. The judgment of the Circuit Court must, therefore, be reversed. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo. *The United States, Plaintiffs in error, v. Jehiel Brooks and others, Defendants. A supplementary article to a treaty between the United States and the Caddo Indians, providing that certain persons “ shall have their right to the said four leagues of land reserved for them and their heirs and assigns for ever. The said lands to be taken out of the lands ceded to the United States by the said Caddo nation of Indians, as expressed in the treaty to which these articles are supplementary. And the four leagues of land shall be laid off,” &c.,—gave to the reservees a fee simple to all the rights which the Caddoes had in those lands, as fully as any patent from the government could make one. Nothing further was contemplated by the treaty to perfect the title.1 This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana. The facts are very fully set forth in the opinion of the court, to which the reader is referred. It was argued by Mr. Crittenden (Attorney-General), for the United States, and Mr. Walker, for the defendants. Mr. Crittenden made the following points:— I. That the first supplementary article of the treaty does not make a grant or reservation in favor of the Grappes of four leagues of land, but the true meaning and import is simply that the Grappes shall have their right, whatever it may be, to 1 Cited. Fellows v. Blacksmith, 19 How., 372; Holden v. Joy, 17 Wall., 464 247; United States v. Payne, 8 Fed. Rep., 888; s. c. 2 McCrary, 295. DECEMBER TERM. 1 850. 442 The United States v. Brooks et al. the four leagues of land stated as being reserved to them in 1801, in the preamble; and there was, therefore, error in the refusal of the court to give the first instruction prayed for. This, it is contended, is the true construction. The language of the second supplementary article, relating to the donation to Edwards, is very different in its terms, and imports a present grant. “ There shall be reserved to Larkin Edwards, &c., one section of land.” II. That the recital of the reservation to the Grappes, in 1801 does not relieve the defendants from producing the primordial title on which they must rely, and the court, therefore, erred in refusing to give the second instruction prayed for, and in charging as it did on this point under the second head of the charge as given. The law of Louisiana, borrowed from the civil law, is against the court below. The 2251st article of the Code declares that “ récognitive acts do not dispense with the exhibition of the primordial title, unless its tenor be there specially set forth.” In this case its tenor is not set forth, and the primordial title must therefore be produced. The récognitive act is no proof of the contents of the primordial, even when the latter is fully set forth, unless it also be shown that the latter *is lost. 1 Evans’s Pothier, §§ 742, 743, p. 443 ; Brooks v. Norris, 6 Rob. (La.), 181. *- $ But had the Spanish authorities in 1801 any power to authorize and sanction the reservation ? That they had no such power has been decided many times in this court, in the case of the Perdido boundary. The country embraced within the limits of Louisiana, west of the Mississippi, stretched far beyond even the Sabine, and it was not until the treaty with Spain of 1819, that the United States relinquished their claim to it, and ceded what lay west of that river to Spain. The United States claimed it from the first. In the act of 20th February, 1811 (2 Stat, at L., 641), to authorize the people of the Territory of Orleans to form a state government, the Sabine is declared to be the western boundary of the new state. Besides, it is to be remembered, that the fourteenth section of the act of 26th March, 1804 (2 Stat, at L., 287), declares that all grants, and every act and. proceeding subsequent to the treaty of St. Ildefonso, of whatsoever nature, towards the obtaining of any grant, title, or claim to land in Louisiana, under whatsoever authority transacted or presented, shall be null and void. In addition to all this, it may here be mentioned that the Caddoes themselves never claimed Rush Island, or ever used it in any way. It was occupied by whites, and was never Vol. x.—30 465 443 SUPREME COURT. The United States ®._ Brooks et al. intended by the Caddoes to be included in the treaty or given to the Grappes. III. That by the law of Spain the Caddo Indians had no primitive title to any land, and. had no power to alienate without consent of the Spanish authorities ; and these authorities at Natchitoches had no right to sanction the donation mentioned in the preamble and supplementary article. Mitchel et al. v. The United States, 9 Pet., 714. The Spanish officers at Natchitoches had no control over the Caddoes, the territory they inhabited being within the jurisdiction of the post of Nacogdoches. See 2 Martin’s History of Louisiana, 202, 203, 261, 262; see also House Doc. No. 49, 1st Session, 24th Congress. IV. That there was error in the court refusing to give the fourth instruction prayed for, because the matters therein mentioned were part of the history and public archives of the country, on which it was the duty of the court to inform the jury. See the state papers above referred to. V. That the court erred in refusing to give the fifth instruction prayed for, and in charging as in the third point of the charge given. VI. That if there is no title in Brooks, there can be none in the purchasers under him. *4.441 *VII. That the court erred in not admitting as evi- 1 dence in the cause the letter of General Cass to Mr. Garland, of the 17th of March, 1836, and the memorial of the Caddoes to the Senate of the United States, of the 19th of September, 1837, and the report of the House and depositions therein, and in the case of Brooks v. Norris ; and in admitting copies of the affidavits of David, Trichel, and D’Ortlont. Mr. Walker's points were as follows:— 1. Defendants’ title rests upon a grant by treaty to the Grappes, a bona fide sale by them to Jehiel Brooks, and a bond fide sale of part of the land by him to the other defendants. The treaty of 1st July, 1835, being ratified and confirmed by the President and Senate, becomes the supreme law, and cannot be set aside by the courts, on any ground whatever, not even upon an allegation of fraud. Const. U. S., art. 6, § 2; Story on Const., 684, 686; Foster $ Elam v. Neilson, 2 Pet., 254, 306, 307; 6 Id., 711, 738; 3 Peters Dig., 654, 655, Nos. 1, 4, 6, 8, 11, and 12; 1 Kent, 286, 287; 6 Cranch, 136, 139. 2. The boundaries of the Indian lands ceded to the United States by the treaty are fixed therein, and cannot now be disputed by either party thereto, nor can they be altered but by the consent of both parties; the right of the Indians' to the 466 DECEMBER TERM, 1850. 444 The United States v. Brooks et al. lands ceded is admitted by the treaty, and by the general policy of the government in treating with them. Story on Const., 379 et seq., §§ 532, 535; 12 Pet., 516, 725; 14 Id., 13, 14. 3. The boundaries cannot be varied by parol proof, because,— 1st. The United States are parties to the treaty, which is in writing, and cannot be varied or contradicted by them. 2 Peters Dig., 234 et seq., Nos. 898, 903, 904, 909, 921, 922, 933. 2d. The treaty is part of the supreme law of the land, and cannot be varied or contradicted bv parol proof. 2 Peters Dig., 153, No. 35; 161, No. 128; 172, No. 238. 4. The treaty, by its terms, declared that the Caddo Indians had previously donated the lands in dispute to the Grappes, the defendants’ vendors, and confirmed that donation to them; which treaty having the force of a law, it is equal in dignity and effect to a complete grant by the United States, and they cannot go beyond that grant. 9 Pet., 746 ; Johnson v. McIntosh, 8 Wheat., 571; 6 Pet., 342; 2 How., 344. 5. The motives that induced the President and Senate to ratify the treaty containing this grant, or the reasons, if any, that should have influenced them to reject that part of the treaty, are not proper subjects of inquiry in any court, but all *such acts must be received as conclusive on all subjects within the scope of their power. 6 Cranch, 129, [*445 131; Story on Const., 567. 6. Congress cannot, by legislation in any form, divest a citizen of rights acquired under a treaty, or previous act of Congress. 6 Cranch, 132, 133, 135. 7. Brooks is a bond fide purchaser from the Grappes, who acquired a good legal title under the treaty, which title cannot be questioned by the grantors of his vendors. 6 Cranch, 133, 134; Story on Const., 567. 8. Fraud cannot be charged on Brooks, as United States commissioner, in negotiating the treaty, without charging the same on the President and Senate, for he was their agent, and they made his act their own by their confirmation of the treaty. Story on Const., 557. 9. Congress have not authorized the inquiry ot fraud to be made, but expunged it from the House resolutions, 38. Resolution of Congress, 30th August, 1842 (5 Stat, at L., 584.) 10. The fact of Brooks having been commissioner to negotiate the treaty did not disqualify him from purchasing long afterwards, and when his functions had ceased, land reserved in said treaty, and such purchase is no evidence of fraud in negotiating the treaty. 2 Peters Dig., 357; 3 Wash. C. C., 556 et seq. 467 445 SUPREME COURT. The United States v. Brooks et al. 11. The question of fraud was, however, submitted by the court to the jury, and decided in favor of the defendants, as appears by the record. 12. Report of commissioners, Doc. 1035, and record of Brooks v. Norris, not admissible. 1st. The depositions not taken in any suit nor in any issue joined before any judicial tribunal, nor any other tribunal having power to try or decide title to property. 1 Phil. Ev., 14 (and note 42), 378, 394, and 395; Const. U. S., art. 1, § 1; art. 2, § 1; art. 3, §§ 1 and 2; 2 Peters Dig., 164, No. 153. 2d. Consent to read the testimony in Brooks v. Norris does not bind the parties to admit the testimony in this suit, which is between different parties, both plaintiff and defendants. 10 Mart. (La.), 91, 92; 6 Pet., 340, 341; 2 Peters Dig., 229, No. 837; Id., 230, No. 850. Mr. Justice WAYNE delivered the opinion of the court. This is another chapter in our dealings with Indians, and it illustrates our character and theirs in such transactions. The case will be better understood from its history, than by the discussion of points which it suggests. After the narrative, our conclusion will be brief. *44«1 *The case is brought up, by writ of error, from the -* Circuit Court of the United States for the District of Louisiana. It was a petition filed by the United States in consequence of the passage of the following joint resolution of both houses of Congress, on the 30th of August, 1842:— “ B,esolved, &c., That the District Attorney of the United States for the Western District of Louisiana be, and is hereby, directed to institute such legal proceedings in the proper court as may be necessary to vindicate the right of the United States to Rush Island, which is alleged to have been improperly included in the limits of the lands ceded by the Caddo Indians to the United States, by the treaty of the 1st July, 1835, and reserved by said treaty in favor of certain persons by the name of Grappe.” (5 Stat, at L., 584). The facts in the casS .were these : On the 28th of January, 1835, the President of the United States received the following letter from the Caddo Indians :— “ To His Excellency the President of the United States. “ The memorial of the undersigned, chiefs and head men of the Caddo nation of Indians, humbly represents:— “ That they are now the same nation of people they were, 468 DECEMBER TERM, 1 850. 446 The United States v. Brooks et al. and inhabit the same country and villages they did, when first invited to hold council with their new brothers, the Americans^ thirty years (sixty Caddo years) ago ; and our traditions inform us that our villages have been established where they now stand ever since the first Caddo was created, before the Americans owned Louisiana. The French, and afterwards the Spaniards, always treated us as friends and brothers. No white man ever settled on our lands, and we wrere assured they never should. We were told the same things by the Americans in our first council at Natchitoches, and that we could not sell our lands to any body but our great father the President. Our two last agents, Captain Grey and Colonel Brooks, have driven a great many bad white people off from our lands ; but now our last-named agent tells us that he is no longer our agent, and that we no longer have a gunsmith or blacksmith, and says he does not know what will be done with us or for us. “This heavy news has put us in great trouble. We have held a great council, and finally come to the sorrowful resolution of offering all our lands to you, which lie within the boundary of the United States, for sale, at such price as we can agree on in council one with the other. These lands are bounded on one side by the Red River, on another side by Bayou Pascagoula, Bayou and Lake Wallace, and the Bayou Cypress ; and on the other side by Texas. *“ We have never consented to any reservation but [-*447 one, to be taken out of these lands, and that was made *-a great many years ago. The Caddo nation then gave to their greatest and best friend, called by them Touline, but known to all the white people by the name of François Grappe, and to his three sons then born, one league of land each, which was to be laid off, commencing at the lowest corner of our lands on the Red River, (as above described,) and running up the river four leagues, and one league from that line back, so as to make four leagues of land. We went with our friend and brother Touline (otherwise Grappe) before the Spanish authority, and saw it put down in writing, and gave our consent in writing, and the Spanish authority ratified our gift in writing. But, before the Americans came, our brother’s house was burned, and the writings we have mentioned were consumed in it. Touline (otherwise Grappe) was a half-blood Caddo ; his father was a Frenchman, and had done good things for his son when a boy. When he grew to be a man, he returned among us, and continued near to us till he died. He was always our greatest counsellor for good. 469 447 SUPREME COURT. The United States v. Brooks et al. He was our French, Spanish, and American interpreter, for a great many years; our brother now is dead, but his sons live. “We, therefore, the chiefs and head men of the Caddo nation, pray that the United States will guarantee to the sons now living of our good brother, deceased, Touline (otherwise Grappe), the whole of our original gift,—four leagues to him and to them; and your memorialists further pray, that your Excellency will take speedy measures to treat with us for the purchase of the residue of our lands, as above described, so that we may obtain some relief from our pressing necessities; and your memorialists, as in duty bound, will ever pray,” &c. This letter was signed by twenty-four chiefs. Upon the back of this memorial, the President made the following indorsement. “ The President incloses to the Secretary of War the memorial of the Caddo chiefs, for his consideration, whether it will not be proper to appoint a commissioner, to obtain a complete cession of their lands to the United States. There will be about half a million of acres, it is supposed. Care must be taken in the instructions that no reservations shall be made in the treaty; and, if the request [for one of their friends] in the memorial be adopted at all, it must be in a schedule, which may be confirmed or rejected by the Senate, without injury to the treaty. “ January 28iA, 1835. *4.4.«! *“ not be weH t° ask an appropriation -1 to cover this expense ? A. J.” On the 39th of May, 1835, Jehiel Brooks, the Indian agent, commenced a negotiation with the Caddo Indians for the cession of their land, which continued until the 1st of July, when the following treaty was made, which was ratified by the Senate on the 26th of January, 1836, and proclaimed by the President on the 2d of February, 1836. “ Andrew Jackson, President of the United States of America, to all and singular to whom these presents shall come, greeting:— “ Whereas a treaty was made at the agency-house in the Caddo nation and state of Louisiana, on the 1st day of July, 1835, between the United States, by their commissioner, Jehiel Brooks, and the chiefs, head men, and warriors of the Caddo nation of Indians; and whereas certain supplementary 470 DECEMBER TERM, 1850. 448 The United States v. Brooks et al. articles were added thereto, at the same time and place; which treaty, and articles supplementary thereto, are in the words following, to wit:— “ Articles of a Treaty made at the Agency-Honse in the Caddo Nation and State of Louisiana, on the 1st day of July, in the year of our Lord 1835, between Jehiel Brooks, Commissioner on the part of the United States, and the Chiefs, Head Men, and Warriors of the Caddo Nation of Indians. “Article 1st. The chiefs, head men, and warriors of the said nation agree to cede and relinquish to the United States all their land contained in the following boundaries, to wit: “ Bounded on the west by the north and south line which separates the said United States from the republic of Mexico, between the Sabine and Red Rivers, wheresoever the same shall be defined and acknowledged to be by the two governments ; on the north and east by the Red River, from the point where the said north and south boundary line shall intersect the Red River, whether it be in the territory of Arkansas or the state of Louisiana, following the meanders of the said river down to the junction with the Pascagoula Bayou; on the south by the said Pascagoula Bayou to its junction with the Bayou Pierre ; by said bayou to its junction with Bayou Wallace; by said bayou and Lake Wallace to the mouth of the Cypress Bayou; thence up said bayou to the point of its intersection with the first-mentioned north and south line, following the said watercourses; but if the said Cypress Bayou be not clearly definable so far, then from a point which shall be definable *by a line due west, till it intersects the said first-mentioned north and south L boundary line, be the contents of land within said boundaries more or less. “Article 2d. The said chiefs, head men, and warriors of the said nation do voluntarily relinquish their possession to the territory of land aforesaid, and promise to move, at their own expense, out of the boundaries of the United States, and the territories belonging and appertaining thereto, within the period of one year from and after the signing of this treaty, and never more return to live, settle, or establish themselves as a nation, tribe, or community of people within the same. “Article 3d. In consideration of the aforesaid cession, relinquishment, and removal, it is agreed that the said United States shall pay to the said nation of Caddo Indians the sums in goods, horses, and money hereinafter mentioned, to wit: 1 hirty thousand dollars to be paid in goods and horses, as 471 449 SUPREME COURT. The United States c. Brooks et al. agreed upon, to be delivered on the signing of this treaty; ten thousand dollars in money, to be paid within one year from the 1st day of September next; ten thousand dollars per annum, in money, for the four years next following, so as to make the whole sum paid and payable eighty thousand dollars. “Article 4th. It is further agreed, that the said Caddo nation of Indians shall have authority to appoint an agent or attorney in fact, resident within the United States, for the purpose of receiving for them, from the said United States, all of the annuities stated in this treaty, as the same shall become due; to be paid to their said agent or attorney in fact, at such place or places within the said United States as shall be agreed on between him and the proper officer of the government of the United States. “ Article 5th. This treaty, after the same shall have been ratified and confirmed by the President and Senate of the United States, shall be binding on the contracting parties. “In testimony whereof the said Jehiel Brooks, commissioner as aforesaid, and the chiefs, head men, and warriors of th^ said. nation of Indians, have hereunto set their hands and affixed their seals at the place, and on the day and year above written. (Signed,) J. Brooks.” The chiefs, head men, and warriors who signed this treaty were twenty-five in number, and it purported to be executed in presence of “ T. J. Harrison, Capt. 3d Regt. Inf. command’g detachm’t. J. Bonnell, 1st Lieut. 3d Regt. U. S. Infantry. G. P. Frile, Brevet 2d Lieut. 3d Regt. U. S. Infantry. »Aim *D. M. Heard, M. D., Acting Assistant Surgeon, U. S. A. Isaac C. Williamson. Henry Queen. John W. Edwards, Interpreter.” “Agreeably to the stipulations in the third article of the treaty, there have been purchased, at the request of the Caddo Indians, and delivered to them, goods and horses to the amount of thirty thousand dollars. As evidence of the purchase and delivery as aforesaid, under the direction of the commissoner, and that the whole of the same have been received by the said Indians, the said commissioner, Jehiel Brooks, and the undersigned, chiefs and head men of the whole Caddo nation of Indians, have set their hands and affixed their seals the third 472 DECEMBER TERM, 1 850. 450 The United States v. Brooks et al. day of July, in the year of our Lord one thousand eight hundred and thirty-five. (Signed,) J. Brooks. Tarshar, his >4 mark [seal]. Tsauninot, his mark [seal]. Satiownhown, his>4 mark [seal]. Oat, his >-ber next. M. Welch. “ New Orleans, 3d May, 1845.” This letter of credit was deposited by Barrett with the house of Worsley, Forman & Kennedy, the factors of the Louisville Manufacturing Company, who made sundry sales of bagging and rope to Barrett upon the following credits, viz.:— Up to the 22d July, 1845, and on that day, the sales of baggingand rope by plaintiffs to Barrett amounted to $891.32, for which, on that day, Thomas S. Forman, agent of plaintiffs, drey a bill on Barrett, to the order of the Louisville Manufacturing Company, due and demandable on the 20th of December, 1845, which bill was accepted by Barrett. On 28th August, 1845, Barrett drew on himself, and accepted a bill for $605.07, to the order of the plaintiffs, due 10th January, 1846. On the 18th September, 1845, Barrett drew on himself, and .accepted a bill for $531.50, to the order of the plaintiffs, due 15th January, 1846. On the 1st December, 1845, Barrett drew on himself, and The defendant, by letters to plaintiffs, offered to indorse for certain third persons, desirous of purchasing goods from plaintiffs to a specified amount; and the latter sold goods on the faith of such letters. Held, that the defendant would not be liable thereon, unless the plaintiffs, within a reasonable time, gave him notice that they had accepted his offered guaranty, or had acted upon it. Claflin v. Briant, 58 Ga., 414. See also Taylor v. Shouse, 73 Mo., 861; Platter v. Green, 26 Kan., 252; Wills v. Boss, 77 Ind., 1; s. c. 40 Am. Rep., 279; Wilcox v. Draper, 12 Neb., 138; s. c. 39 Am. Rep., 222. 485 462 SUPREME COURT. The Louisville Manufacturing Co. v. Welch. accepted a bill for $433.08, to the order of plaintiffs, due on the 20th January, 1846. The first named bill for $891.32 was not protested, having been withheld from the protest, at the instance of Barrett. The other three bills were protested at maturity. The circumstances which occurred, prior to the institution of the suit, are stated in the evidence given upon the trial, which was made a part of the bill of exceptions. On the 1st of August, 1847, the Louisville Manufacturing Company brought an action, by filing a petition against Michael Welch, in the Circuit Court of the United States for the District of Louisiana, which came on for trial in May, 1848. The following is the evidence which was given. “ And afterwards, to wit, on the 11th day of May, 1848, the testimony of W. Chambers was offered in evidence. “ I was a clerk in the houses of Worsley & Forman, Worsley, Forman & Kennedy, and Forman & Kennedy, fro hi the winter of 1842 to July, 1847. In the spring or summer of 1845, Thomas Barrett deposited with Worsley, Forman & Kennedy a letter of credit from Michael Welch, guarantying the payment of bagging and rope, which Barrett might purchase, to a certain amount, within a certain named period. On the said letter of credit, Worsley, Forman & Kennedy did, *4631 *as ^ac^ors the Louisville Manufacturing Company, ’ -* sell to Barrett, at various times, sundry invoices of bagging and rope belonging to said Louisville Manufacturing Company, for which they took his acceptances for account of said company as follows: viz., one dated 22d July, 1845, due 20-23 December, for $891.32; one dated 28th August, 1845, due 10-13 January, 1846, $605.07; one dated 18th September, 1845, due 15-18 January, 1846, $531.50; one dated 1st December, 1845, due 20-23 January, 1846, $433.08. “ Subsequently to taking the acceptance last named, they sold him bagging and rope to the amount of $78.86, which stands to his debt on open account. Mr. Welch was not notified by Worsley, Forman & Kennedy that the letter of credit had been deposited with them at the time it was deposited, nor until after the maturity of the acceptance first named above. Shortly after the maturity of the said bill, in the latter part of December or early part of January, I think between the 5th and 10th of January, I saw Mr. Welch in person; informed him of the sales of bagging and rope made by Worsley, Forman, & Kennedy to Mr. Barrett on his letter of credit; told him that the acceptance of 486 DECEMBER TERM, 1850. 463 The Louisville Manufacturing Co. v. Welch. Barrett for $891.32 was unpaid; that he would be looked to for the payment of it, and the other acceptances should they not be paid. He requested me to try and get all I could from Barrett. “On the 7th of May, 1846, I addressed him a letter urging him to settle the claim. Saw him in person, don’t recollect the date of the interview, and urged him to settle the business. He requested that he might not be pressed for payment, saying that it was a very hard case; that he did not wish to place any obstacle in the way of collecting the money ; that he had not then at command the means of paying it conveniently ; that he would have more ample means when the next cotton crop came into market. “On the 26th of April, 1847, I had an interview with Mr. Welch. He remarked that he understood the letter of credit to restrict the time of the credit which might be given for goods purchased under it to the month of December; that, under the impression, to protect himself against the liability, he retained under his control certain valuable papers of Barrett’s, until the expiration of the time to which he thought his liability extended, when, upon the assurance of Mr. Barrett that the debt was settled, he surrendered the papers. “ I remarked to him that, in the interview which I had with him in the spring of 1846, he assured me that it was not his intention to place any obstacle in the way of the collection *of the money; that he asked, as a favor, that he might not be pressed for its immediate payment, representing L that he had not then the means at command to pay it, but that he would be able to pay it with less inconvenience when the next cotton crop came into market; that he had induced the belief that he would pay it as soon as he could do so. He replied that it was at that time his intention to pay it, and that he would have done so, but that he subsequently learned that he would lose a much larger sum by Mr. Barrett; that he would be unable to bear so heavy a loss, and had come to the determination not to pay this claim, or any other claim growing out of his liability for Barrett, unless compelled by law. “ The papers to which I refer as having been in the hands of Mr. Welch, and which he said he might have retained to indemnify him, I did not understand him as saying had been placed in his hands by Mr. Barrett for that purpose, but came into his hands without any reference whatever to this liability; but that, if he had known he was liable, he could and would have retained them. “Mr. Welch did not, as well as I remember, make to me 487 464 SUPREME COURT. The Louisville Manufacturing Co. v. Welch. any promise to pay the bills, except in the manner previously referred to. “Worsley, Forman, & Kennedy, or Worsley & Forman, their predecessors in business, had previously sold to Mr. Barrett bagging and rope to a large amount, upon a letter of credit of Mr. Welch and Mr. Elgee, acting as the agent of Worsley, Forman, & Kennedy. I would not have sold goods to Mr. Barrett on time upon his individual responsibility alone. “ On the day of the maturity of the bill first maturing, the one for 8891.32, due 20-23 December, Mr. Duff, a young man who had charge of Mr. Barrett’s business, called on me and told me that Mr. Barrett was sick; that he would be unable to pay the bill on that day, and requested that Worsley, Forman, & Kennedy would take it up, representing that he would be in funds to pay it in a few days, and, as soon as he was able, would pay it. In consequence of which, the bill was taken up by Worsley, Forman, & Kennedy, as agent of the Louisville Manufacturing Company. W. Chambers. “ New Orleans, February 23, 1818. “ To be admitted as evidence, as if sworn to and given in open court. Wm. Dunbar, for Welch. Stockton & Steele, for Plaintiff. “ New Orleans, February 23, 1848. *“ And on the same day the testimony of W. W. J Whitehead was offered in evidence. “ I am acquainted with the bagging and rope trade in New Orleans; have been several times, at different* periods, in the commercial house of Worsley, Forman & Kennedy, and Forman & Kennedy; know that those articles are sometimes sold for cash, and sometimes on time. Time sales made about this period of the year are most frequently made payable about the beginning of the ensuing year, but vary as to the time; sometimes the bills are drawn payable as early as November and December, and sometimes the time is extended to January, February, and March. Time sales are also sometimes made on shorter time, to wit, thirty, sixty, ninety, and one hundred and twenty days. W. W. Whitehead. “New Orleans, May, 10, 1848.” 488 DECEMBER TERM, 1850. 465 The Louisville Manufacturing Co. v. Welch. “ The above evidence is taken by consent of parties, and it is agreed that it may be read on the trial of the case of the Louisville Manufacturing Company v. Welch, as testimony, by either party. Stockton & Steele, for Plaintiffs. Wm. Dunbar, for Defendant. “ New Orleans, May 10, 1848. “ And further on the same dav, the testimony of D. Griffon was offered in evidence. “I certify that the two accounts, A and B, are taken from the books of the late Thomas Barrett, and are a true copy of the same, and that they contain a full and correct statement of the accounts of Thomas Barrett and Michael Welch, Esq. I was a clerk in the house of Thomas Barrett during the period of the above two accounts, and know them to be correct, having compared them with the books. There were not, at any time, any funds or notes placed in the hands of Mr. Welch to secure him for his guaranty of the 3d May, 1845; if there had been, I should have known it. I have known that' Captain Welch traded from Alexandria to New Orleans as captain of a steamboat, and was here every eight or ten days, from the 3d of May, 1845, up to this time. D. Griffon. “ New Orleans, 23c? February, 1848. “We agree that the above evidence may be used as if the witness was sworn and examined in open court in the case of the Louisville Manufacturing Company v. Mr. Welch, and that *the accounts A and B be taken without requiring the [-*4^ production of the books of Barrett. l Stockton & Steele, for Plaintiffs. Wm. Dunbar, for Defendant.” “ New Orleans, February 23, 1848.” (Then followed a transcript of long accounts between Welch and Barrett.) The following bill of exceptions was taken upon the trial* “ Be it remembered, that on the trial of this cause, and before the jury retired, the plaintiffs by their counsel, Stock-ton & Steele, requested the court to charge the jury as follows :— “ 1., That the statement made by defendant to witness 489 466 SUPREME COURT. The Louisville Manufacturing Co. v. Welch. Chambers, who had called on behalf of plaintiffs to demand payment, that on the assurance of Barrett that the debt had been paid, he, Welch, had given up papers and security, by which he could have secured himself from loss, was an acknowledgment that he had due notice of the fact that the plaintiffs had sold the goods to Barrett on the faith of the letter of credit. “ 2. That if notice of the purchase of goods from plaintiffs on the letter of credit was given within a reasonable time by Barrett to defendant, it enured to the benefit of plaintiffs as effectually as if the notice had been given him directly from the plaintiffs. “3. That the immediate and strict notice required to be given by the holder of a protested bill of exchange or promissory note is not requisite in cases of guaranty. “ 4. That if there was no other notice, that given by plaintiffs at the time of the protest of the first bill, or shortly before or shortly after the date, was sufficient. “5. That the statement made by Welch, the defendant, to witness, Chambers, while the latter was acting for plaintiffs in endeavoring to collect the debt, that he had not then the means to pay the debt, but after another cotton crop he would be able to pay, and that ‘ he did not wish to throw any obstacles in the way of the collection of the debt,’ was a waiver of all objections to the payment thereof, was an acknowledgment of his legal liability, and a promise to plaintiffs to pay them the debt. “ 6. That the failure to protest any of the bills of exchange was not a giving of further time to the debtor, Barrett, and the liability of the defendant was in no way affected thereby. “ 7. That the giving a reasonable credit to Barrett on the sales was no violation of the rights of Welch, and that the credits in this case were reasonable. *44 $* That the mistake of Welch as to the fact of the -* debt having been paid does not release his obligation. “Whereupon the court instructed the jury as desired by the plaintiffs in their second, third, and sixth points of instruction, but refused to give any of the other instructions asked by the plaintiffs; to which ruling of the court, the plaintiffs by their said counsel excepted, tendered this their bill of exception, and prayed that it might be signed, which is done accordingly. “ And be it further remembered, that at the same time the defendant, by William Dunbar, his counsel, asked the court to charge the jury as follows :— “ 1. That upon acceptance by the plaintiffs, or their agents, 490 DECEMBER TERM, 1850. 467 The Louisville Manufacturing Co. v. Welch. of the letter of credit, notice should have been given in a reasonable time to the defendant that they had accepted the guaranty, and that they meant to furnish Thomas Barrett with bagging and rope upon the faith of defendant's guaranty. “ 2. That after the bagging and rope had been furnished by them, they should have given immediate notice to the defendant of the amount furnished, and the sum of money for which they looked to the defendant for payment. “ 3. That the credit to Thomas Barrett should not have been extended beyond the term mentioned in said letter of credit, viz., the 1st of December, 1845, the term mentioned in said guaranty. “ 4. That if the defendant had been released or discharged by the failure of the plaintiffs or their agents to give the proper notices to the defendant as before charged, the obligation of the defendant on the guaranty could be revived, or the laches or neglect of the plaintiffs, or their agents, waived only by a promise of the defendant to pay with a full knowledge of all the circumstances ; and that the promise must be explicit, and made out by the most clear and unequivocal evidence. “5. That if the jury believe that time was given by the plaintiffs or their agents to Thomas Barrett, at the maturity of any of the drafts or notes sued on, without the consent of the defendant, the defendant is hereby relieved from the payment of any one of them upon which said time was given. “Whereupon the plaintiffs objected to the court givingsuch instructions so asked, by the defendant through his said counsel, but the court overruled said objections of the plaintiffs, and gave to the jury all the said instructions so asked as aforesaid by the defendant; to which ruling and instructions by the court the plaintiffs by their said counsel excepted, tendered this their bill of exceptions, and prayed the same might be signed, which is done accordingly. The court, in refusing to give the fifth instruction asked by the plaintiffs, stated to the jury that it was *a question of fact for their own deter-mination, and that for that reason he refused to give L 4t)o that instruction. “Theo. H. McCaleb, U. S. Judge." The jury found a verdict for the defendant, and the plaintiffs sued out a writ of error, under which the case was brought to this court. It was argued by Mr. Butterworth, in a printed brief, for the plaintiffs in error, no counsel appearing for the defendant. 491 468 SUPREME COURT. The Louisville Manufacturing Co. v. Welch. The points made by the counsel for the plaintiffs in error were the following, viz.:— I. That the court erred in refusing to charge the jury as follows:— 1. “ That the statement made by defendant to witness Chambers, who had called on behalf of the plaintiffs to demand payment, that on the assurance of Barrett, that the debt had been paid, he, Welch, had given up papers and security, by which he could have secured himself from loss, was an acknowledgment that he had due notice of the fact that the plaintiffs had sold the goods to Barrett on the faith of the letter of credit.” 2. “ That if there was no other notice, that given by the plaintiffs at the time of the protest of the first bill, or shortly before or after that date, was sufficient.” 3. “That the statement made by Welch, the defendant, to the witness Chambers, while the latter was acting for the plaintiffs in endeavoring to collect the debt, that he had not then the means to pay the debt, but after another crop of cotton, he would be able to pay, and he did not wish to throw any obstacles in the way of the collection of the debt, was a waiver of all objections to the payment thereof, was an acknowledgment of his legal liability, and a promise to plaintiffs to pay them the debt.” 4. “ That the giving a reasonable credit to Barrett on the sales was no violation of the rights of Welch, and that the credits given in this case were reasonable.” 5. “ That the mistake of Welch as to the fact of the debt having been paid does not release his obligation.” II. The court erred in charging the jury as follows : 1. “That the credit of Thomas Barrett should not have been extended beyond the term mentioned in said letter of credit, viz., the 1st of December, 1845.” Upon this assignment of errors, we have only a few words of remark to offer to the court. The conversation of Welch with Chambers, referred to in the first item of instructions to the jury asked by plaintiffs, *4691 *sh°ws conclusively that Welch had had securities, or J means of indemnity, in his hands against loss on account of this guaranty; that he had intended to hold on to them; and that he gave up these securities to Barrett only on the assurance of Barrett that the debt had been paid to the plaintiffs. It seems, then, that Welch not only had notice^ but he had reaped the fruits which the law intends shall be gathered from notice, security against loss. If he afterwards, gave up these 492 DECEMBER TERM, 1 850. 469 The Louisville Manufacturing Co. v. Welch. securities to Barrett, on his assurance that the debt had been paid, it was his own folly and misfortune; but the very reason which Welch assigned to Chambers for having given up the securities necessarily establishes the fact of due notice. That Welch intended to hold on to these securities is established by the fact that he gave them up on the assurance of Barrett that the debt had been paid. The court should have given the jury the instruction contained in the fourth item of instructions asked for by the plaintiffs. However, we do not deem it material, as what is said above is, in our opinion, conclusive on the matter of notice. The same reason also relieves us from any necessity to remark upon the instructions given the jury at the instance of defendant, in regard to notice. The conversation of Welch with Chambers, in our opinion, clearly establishes, also, that Welch acknowledged his indebtedness, and promised to pay the defendant; and, therefore, the fifth item of instruction to the jury, asked by the plaintiffs, should have been given by the court. Welch said that he had not then money to pay the debt; that after another crop of cotton he would be able to pay, and that he did not wish to throw any obstacles in the way of the collection of the debt. This was certainly equivalent to a direct acknowledgment of, and promise to pay, the debt. He did not wish to throw any obstacles in the way of the collection of the debt. Collection of the debt from whom ? From a third person over whom he could have no control? From Barrett, who was assuredly bound, and the collection of the debt from whom, Welch could in no way whatever retard or obstruct? It would be unphilosophical to suppose, that Welch did not speak only in reference to his own liability, and to the collection of the debt from himself. It was tantamount to saying, I know I am liable for the debt; but I have no present means with which to pay; after another cotton crop, I shall be able to pay. I have no intention to dispute the debt. I do not dispute the debt. The judge of the court of first instance assigned in the bill of exceptions, as a reason for refusing to give this instruction *to the jury, that it was matter of fact, and therefore to be judged of by the jury only. l We answer, that it is the province of the court to determine what words and circumstances amount to a promise to pay, or a waiver of a right. This is made plain, when the supposed promise to pay, or waiver, has been reduced to writing. In such case, it is clear that the court must instruct the jury as 493 470 SUPREME COURT. The Louisville Manufacturing Co. v. Welch. to the point of its being in law a promise or not, or a waiver or not. The court in such case instructs the jury, that if they believe the instrument of writing to have been executed by the party against whom it is adduced, then such instrument amounts in law, or does not amount in law (as the case may require), to a promise to pay, &c. Now, we cannot conceive any reason which could give this power to the court in the case of a written instrument, and yet refuse it in case the obligation is evidenced only by parol; the question in each case is, Do the words, whether written or not, under the circumstances, amount, in law, to a promise, &c.? The court should then, in our opinion, have instructed the jury, that, if they believed that Welch stated to Chambers that he had not then the means to pay the debt, but after another cotton crop he would be able to pay, and that he did not wish to throw any obstacles in the way of the collection of the debt, or spoke to him in words to that effect, then such words amounted to a waiver of all objections to the payment of the debt, to an acknowledgment of his legal liability therefor, and to a promise to the plaintiffs to pay them. The rule attempted to be applied to this case, by the defendant, as to the necessity of knowledge on the part of Welch of all the circumstances, &c., is not applicable here, because that rule applies only when the party promising has done so without the knowledge of the fact, that notice had not been given according to law in order to bind him. But in the case at bar, the statement of Welch himself to Chambers show that he had had due notice ; for Welch tells Chambers, that, on the assurance of Barrett that the debt had been paid, he had given up the securities, &c., which establishes that notice had been given, and that it came to his, Welch’s, knowledge. We think it fully established that this item of instruction should have been given the jury. The seventh item of instruction asked for by the plaintiffs assumes that the giving a reasonable credit to Barrett on the sales was no violation of the rights of Welch. The sales in this case were made to Barrett between the 3d May and 1st December, 1845; the four obligations of Barrett were taken, falling due on the 20th December, 1845; 10th January, 1846; 15th January, 1846; and 20th January, 1846. *The court refused to give the instruction; andon the contrary, at the instance of the defendant, instructed the jury that the credit given Thomas Barrett should not have been extended beyond the term mentioned in the letter of credit, viz.; the 1st of December, 1845. 494 DECEMBER TERM, 1850. 471 The Louisville Manufacturing Co. v. Welch. The case of Samuell v. Howarth, mentioned in Fell on Guaranties, pages 165, 166, 167, is directly opposed to the ruling of the Circuit Court in this case. The time within which sales were to be made under the guaranty in that case extended from 2d April, 1814, to 2d April, 1815. Goods were furnished during that period on cer* tain credits, to be then paid for, with bills at three months, which bills were accordingly drawn and accepted, &c. These bills were again renewed from time to time; and the fresh bills again renewed, till June, 1816. The Lord Chancellor said, as no stipulation was made as to the terms of credit, he would suppose them to be in the usual course of trade. In that case, in consequence of the frequent and unusual extension of the time of payment, by repeated renewals of the bills, the guarantor was held to have been discharged. There is no necessity for a guaranty, when the terms of sale are cash ; the very nature of the undertaking presupposes a credit; indeed, guaranty can exist only in cases in which credit is given. Now, the guaranty in the case at bar extended to sales made at any time between its date, 3d May, 1845, and the 1st of December of the same year. It is apparent, then, that the latter part of the term, according to the ruling of the Circuit Court, could have no effect at all. By the terms of the guaranty, the sales made on the 30th of November are as fully protected as those made on the 4th day of May; but the ruling of the court would confine the sales of the 30th of November to the short credit of twenty-four hours. We have not a doubt this ruling of the Circuit Court is erroneous. The eighth item of instruction asked for by plaintiffs assumes that the mistake of Welch as to the fact of the debt having been paid does not release his obligation. The court refused to give this instruction. Welch, in conversation with Chambers, the agent of plaintiffs for collection of the debt, stated to Chambers, that on the assurance of Barrett that the debt had been paid, he, Welch, delivered up to Barrett securities, &c., by means of which he could have secured himself from loss. *We are at a loss to conceive how the mistake of Welch as to a fact, to look to which was his duty, can L in any degree affect the rights of the plaintiffs, who had neither any interest, nor any authority, to meddle with the 495 472 SUPREME COURT. The Louisville Manufacturing Co. v. Welch. matter of indemnity against loss furnished by Barrett to Welch. Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the Circuit Court held by the district judge in and for the District of Louisiana. The suit was brought upon the following letter of credit signed by the defendant, and dated New Orleans, 3d May, 1845 : “ I hereby guaranty the payment of any purchases of bagging and rope which Thomas Barrett may have occasion to make between this and the 1st of December next.” It appeared that this letter of credit, soon after it was given, was deposited by Barrett with a house in New Orleans, who, as the factors of the plaintiffs, sold, at different periods, within the time prescribed, several parcels of bagging and rope, and delivered the same to Barrett on the faith of it, giving the usual credit on the sales of goods of this description, and taking his acceptances for the price, payable at the expiration of the credit to the order of the plaintiffs. There were four different parcels sold at different times, and the usual credit given, on each of the sales, extended beyond the 1st of December, the time mentioned in the guaranty. No notice was given to the defendant by the house in New Orleans, nor by the plaintiffs, of the acceptance of his letter of credit, or of the sales made to Barrett on the faith of it. Shortly after the maturity of the first acceptance, which was in the latter part of December, the clerk of the New Orleans house called on the defendant, and gave him notice the acceptance was unpaid, and that he would be looked to for payment; and also for the payment of the acceptances then running to maturity, if unpaid when they fell due. The defendant desired the clerk to obtain all he could from Barrett towards the payment. Subsequently, and after all the acceptances had become due and were dishonored, the clerk had a second interview with him, when he expressed a wish that he might not be pressed for the payment immediately, observing that he did not wish to interpose any obstacle to the collection of the demand; that he had not the means of paying the amount then conveniently; but would have them at the coming in of the next cotton crop. At a still later interview, the defendant expressed the opinion, that his letter restricted the time of credit to Barrett for the goods to be purchased to the 1st of December, stating *470-1 that, *under this impression, he had delivered up to him -* certain securities at the expiration of the period of the 496 DECEMBER TERM, 1850. 473 The Louisville Manufacturing Co. v. Welch. credit given, which he held.as an indemnity, Barrett assuring him at the time that the demand had been settled. The evidence being closed, the following instructions were among others, prayed for, on the part of the plaintiff, and refused. 1. That the giving a reasonable credit to Barrett on the sales was no violation of the rights of the defendant; and that the credits in this case were reasonable. 2. That the mistake of the defendant as to the fact of the demand having been paid did not release his obligation. And the court gave, among others, the following instructions :— 1. That after the bagging and rope had been furnished by the plaintiffs, they should have given immediate notice to the' defendant of the amount furnished, and the sum of money for which they looked to him for payment. 2. That the credit to Barrett should not have extended beyond the term mentioned in the said letter of credit, to wit, the 1st of December. The jury found a verdict for the defendant. I. We are of opinion, that the court below erred in the construction given to the terms of the letter of credit. It guarantied the payment of any purchases of bagging and rope that Barrett might have occasion to make between its date and the 1st of December. The limitation is as to the time within which the purchases were to be made ; not as to the time of the credit to be given to the purchaser. As credit was contemplated, indeed was the special object of the guaranty, that which was given upon the sales of goods of this description in the ordinary course of trade must have been intended. And, for aught that appears in the case, this was the credit given. The time for which credit was to be given upon the purchases is left indefinite in the instrument, and must receive a reasonable interpretation; one within the contemplation of the parties ; and that obviously is as we have stated. Samuell n. Howarth, 3 Meriv., 272. There might be some doubt upon the language used by the court below on this point, whether, in charging that the credit to Barrett should not have been extended beyond the 1st of December, it was not intended to refer to the purchases of the goods, and not to the period of credit given. But when taken in connection with the seventh instruction prayed for and refused, all ambiguity is removed. Besides, no. question appears to have been raised, that the *price was claimed for any goods sold beyond the limit of the guaranty. L ^<4 Vol. X.—32. 497 474 SUPREME COURT. The Louisville Manufacturing Co. v. Welch. II. We are also of opinion, that the court erred in the instruction, that, after the bagging and rope had been furnished to Barrett, the plaintiffs should have given immediate notice to the defendant of the amount furnished, and of the sum of money for which they looked to him for payment. The rule as laid down by this court in Douglass and others n. Reynolds and others (7 Pet., 126) is, that, in a letter of credit of this description, all that is required is that, when all the transactions between the parties under the guaranty are closed, notice of the amount for which the guarantor is held responsible should, within a reasonable time afterwards, be communicated to him. What is a reasonable time must depend upon the circumstances of each particular case, and is generally a question of fact for the jury to determine. Lawrence v. McCalmont et al., 2 How., 426. It was also ruled in that case, that, when the- debt fell due against the principal debtor, a demand of payment should be made, and in case of non-payment by him, that notice of such demand should be given in a reasonable time to the guarantor, and that otherwise he "would be discharged from his liability. When the case came before the court a second time, and which is reported in 12 Pet., 497, the principle here stated was somewhat qualified, the court holding that, in case of the insolvency of the principal debtors, and total inability to respond to the surety before the debt fell due, the demand and notice might be dispensed with. The court refers to a class of cases both in England and in this country, drawing the distinction between the liability assumed by a guarantor, and that of the drawers or indorser of commercial papers ; the former being held liable on his guaranty in the absence of any demand and notice, unless some damage or loss had been sustained by reason of the neglect; while, in order to charge the latter, strict demand and notice must be shown according to the law merchant. The authorities are very full on this head, and are founded upon sound and substantial reasons. 8 East, 242 ; 2 Taunt., 206; 3 Barn. & C., 439, 447 ; 1 Id., 10; 5 Mau. & SeL, 62 ; 5 Man. & G., 559; 9 Serg. & R. (Pa.), 198; 1 Story, 22, 35, 36 ; Chit, on Bills, 324; Chitty, Jr., 733; 3 Kent. Com., 123. When this case was before the court the second time, one of the grounds upon which a new trial was ordered was the refusal of the court below to instruct the jury, that, if they found the principal debtors, at or previous to the time the *4751 Paymen^ °f *the debt fell due, insolvent, the omission J to demand payment and give notice to the guarantor 498 DECEMBER TERM, 1850. 475 The Louisville Manufacturing Co. v. Welch. did not discharge him from his liability. The rule, therefore, above stated, was not only laid down very distinctly, but applied in that case in the final disposition of it by the court. The same doctrine is very fully stated and enforced by Mr. Justice Story in Wilder v. Savage, already referred to; and also laid down in his work on Promissory Notes (§ 485), and by Chancellor Kent in his Commentaries (Vol. III., p. 123.) The same course of reasoning and authority would seem to be equally applicable to the notice required of the goods furnished or credits given under the guaranty, and on the faith of it at the close of the transactions, and of the amount for which the party intended to look to the guarantor for payment, so as to advise him of the extent of his liabilities. We perceive no reason why the rule in respect to notice should be more strict in this stage of the dealings of the parties, than at the time when the debt becomes due; or that the guarantor should be discharged for the delay in giving this notice, when no loss or damage has resulted to him thereby. He has already had notice of the acceptance of the guaranty, and of the intention of the party to act under it. The rule requiring this notice within a reasonable time after the acceptance is absolute and imperative in this court, according to all the cases; it is deemed essential to an inception of the contract; he is, therefore, advised of his accruing liabilities upon the guaranty, and may very well anticipate, or be charged with notice of, an amount of indebtedness to the extent of the credit pledged.1 Still, it may be reasonable that he should be advised of the actual amount of liability, when the transactions are closed; and, if any loss happens in consequence of the omission to give the notice within a reasonable time, the fault is attributable to the laches of the creditor, and must fall on him. Upon this view, the doctrine governing the question of notice at the close of the dealings on the faith of the guaranty, and also at the subsequent period when the indebtedness under it becomes due, is consistent and reconcilable, and places the duty of the creditor on the one hand, and the obligation of the guarantor on the other, in both instances, upon those general principles which have always been applied to contracts of this description, and preserves and maintains throughout the settled distinction on the subject of notice between the liability assumed by the guarantor, and that of the drawer or indorser of commercial paper. This intermediate notice required in this court does not 1 Quoted. Davis v. Wills, 14 Otto, 166. 499 475 SUPREME COURT. The Louisville Manufacturing Co. v. Welch. appear to be a necessary step to charge the guarantor accord-*^° the English cases, as notice of acceptance and -> intention to act upon the guaranty is regarded as sufficient, until the debt becomes due and payable; then reasonable notice of the default of the principal to pay must be given, as otherwise, if loss or damage should happen in consequence of the omission, it would operate as a discharge to that extent. Returning, then, to the case in hand, we think the court erred in charging the jury in respect to this intermediate notice of the goods furnished, and of the sum for which the plaintiffs intended to look to the defendant for payment, in holding that it should be given immediately upon the closing of the dealings under the guaranty; as reasonable notice, in the cases in which it is required, is all the diligence that is essential in order to comply with the rule. According to the instruction, the jury must have understood that notice to charge the defendant should have been as strict as in the case of a drawer or indorser of a bill of exchange. . The eighth instruction refused, to wit, that the mistake of the defendant as to the fact of the debt having been paid did not discharge him, is not very intelligible; but, as a proposition standing alone, should have been given or explained. The refusal implied that the mistake operated to discharge the defendant, which we presume was not intended. The instruction is incautiously drawn, and was, doubtless, connected with some other matters that have not been brought into it. It was probably connected with the facts embodied in the first instruction, in which the court was requested to charge that the admission of the defendant to the clerk that he had given up certain papers to Barrett which would have indemnified him, on his assurance that the debt had been settled, was an acknowledgment of due notice that the plaintiffs had sold the goods on the faith of the letter of credit. This instruction was properly refused, as the inference sought to be drawn from the statement was not a matter of law. At most, it could only be a question for the jury, accompanied with proper directions of the court as to the law. The admissions were made more than a year after the debt had become due, and the failure of Barrett to make payment. The time when the defendant possessed this knowledge was material in order to make out due notice, and this is not embraced in the proposition upon which the court was called upon to charge. If submitted to the jury, this must necessarily have entered into the instructions that should have been given to them. 500 DECEMBER TERM, 1 85 0. 476 Gayler et al. v. Wilder. The court was also right in refusing the fifth instruction, as it respected the promise of the defendant to the clerk to pay, as the effect of the promise, if made, depended upon the question *whether it was made with a full knowledge of all the facts going to discharge him from his obligation. 1 This question was, therefore, properly submitted to the jury. But, upon the grounds above stated, and principally the misconstruction of the terms of the letter of credit, which was fatal to the right of the plaintiffs, and the error in respect to the degree of diligence to be used in giving notice of the transactions under it, the judgment must be reversed, and the case remitted, and a venire de novo awarded for a new trial. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo. Charles J. Gayleb and Leonabd Bbown, Plaintiffs in ebbob, v. Benjamin G. Wildes. An assignment of a patent right, made and recorded in the Patent-Office before the patent issued, which purported to convey to the assignee all the inchoate right which the assignor then possessed, as well as the legal title which he was about to obtain, was sufficient to transfer the right to the assignee, although a patent afterwards was issued to the assignor.1 When an assignment is made, under the fourteenth section of the act of 1836, of the exclusive right within a specified part of the country, the assignee may sue in his own name, provided the assignment be of the entire and unqualified monopoly. But any assignment short of this is a mere license, and will not carry with it a right to the assignee to sue in his own name.2 Therefore, an agreement that the assignee might make and vend the article within certain specified limits, upon paying to the assignor a cent per pound, reserving, however, to the assignor the right to establish a manufactory of the article upon paying to the assignee a cent per pound, was 1 Followed. Philadelphia, sell and transfer to the said Marquis, his heirs and assigns, one half, or an equal part, of six thousand acres of land mentioned above, situated on Black Creek in the said East Florida, which tract will be divided by the contracting parties themselves, and the division will not be made until the construction of a water saw-mill be made and erected on the said place ; and neither of the said contracting parties, without their mutual consent, will have the faculty to sell, alienate, or in any manner dispose of any part of the said tract, until after the division takes place. It is likewise agreed, that the partieswill give to each other notice of their intention to sell; each of them having in themselves, or in their attorneys, the same right and privilege which has been specified in regard to the Indian River tract. And the said Marquis, in consideration of the said sale and transfer made by said José, obligates himself to construct and erect, at his own charge and expense, on the said Black Creek, all its necessary machinery, dams and houses, which ought to be built in such a manner that the conditions of the grant be fulfilled ; and for the intent and purpose of this agreement, the works for the said mill shall have to be commenced on or before the 20th day of next April, the Marquis supplying all the means and funds necessary to obtain its perfection, in order that it may be in operation and in activity as soon as possible. The mill being completely finished will be considered as the common prop- 572 DECEMBER TERM, 1850. 546 Villalobos et al. v. The United States. erty of both parties in an equal share ; consequently they shall be equally subject to all the expenses, repairs, and management which may take place, and they will equally participate in the profits. “ And the said Marquis also obligates himself to pay to the said José the sum of one dollar, before the execution and delivery of this instrument, and he obligates himself also, that in case he should fail in any manner to fulfil the conditions of this agreement, to pay, himself, or through his assigns or attorney, by way of penalty, to the said José, his heirs and assigns, the sum of one thousand dollars, recoverable before any tribunal ; it being understood, nevertheless, that the said Marquis will be in no wise responsible, in case of prohibitions or impediments preventing him to fulfil his said engagements, if said prohibitions or impediments proceed from the Indians of that territory, or from the Spanish or American laws or governments, or if impeded by any other cause not originating in himself ; but in case the said work be not carried into effect, for default or- negligence of the said Marquis, or in case of his demise before the said mill is commenced, then said José, or his assigns, will no longer be subjected to this transfer *or agreement, which will remain null and void. And the said José likewise obligates himself, his heirs, execu- L tors, and assigns, at any time, that is to say, after the construction of the said mill in the terms and manner specified, to execute or cause to be executed, in favor of the Marquis, his heirs and assigns, the corresponding title and transfer of the two mentioned parcels of land, in conformity to the present or future laws and regulations of the Territory of Florida. “ In testimony whereof, the two mentioned parties respectively, sign and seal the present, this day, the 15th of March of the year of our Lord 1821. “José Argote Villalobos, [seal.] Marquis de Fougeres. | seal.] “ Witness :—Boudoin. Thomas Leager.” Petition. “His Excellency the Governor:—I, the Marquis de Fougeres, consul of his most Christian Majesty in Charleston, with due respect, state to your Excellency, that, for the purposes and effects which may be convenient to me, I have to solicit from the justice of your Excellency, that you may be pleased to order the protocol of the English document annexed, and the translation thereof, which document is an 573 547 SUPREME COURT. Villalobos et al. v. The United States. agreement which I have entered into with Don José Argote Villalobos, under date of the 15th of March last past, relative to the sale and transfer, which he has executed to me, of one half of a parcel of land, containing six thousand acres of land situated on Indian River, and another half of another parcel of the same extent on Black Creek ; which parcels are part of a square of five miles, which was granted by this government to the said Villalobos, on the 29th day of October, 1817. Therefore, I supplicate your Excellency to be pleased to provide, as I have at first solicited, and that afterwards such certified copies as I may want be given me, which favor I hope to receive from the justice of your Excellency. “ St. Augustine, on the 10th of May, 1821. “ As the party solicits. “ Coppinger. Juan de Entralgo, Notary of the Government. “ In St. Augustine, on the same day, month, and year, I notified the preceding decree to the Marquis de Fougeres, which I certify. “Entralgo. *548] * “ It is conformable to the originals thereof, which remain in the archives under my charge, to which I refer, and in obedience to superior order, and at the request of the party, I sign and seal the present certificate, in six leaves of common paper, as stamps are not used. “ St. Augustine of Florida, on the 14th of May, 1821. “ Juan de Entralgo, Notary of the Government." The record contained certificates of survey by George F. Clarke, accompanied with plats, one of which was as follows :— “ Don George Clarke, Lieutenant of the Militia of St. Augustine of Florida, Captain of the District of St. Mary’s, and Surveyor-General of the Province, by appointment of the Government. “ I certify that I have measured and marked the boundaries for Don José Argote, of six thousand acres of land on the south branch of the creek named Black Creek, which discharges itself into the River St. John's, on the west side, in part of a larger quantity which was granted to him by the 574 DECEMBER TERM, 1850. 548 Villalobos et al. b. The United States. government for the construction of a mill to saw timber, which land agrees in its local circumstances with the annexed plat, and its copy kept in the book of surveys in my charge. District of St. Mary’s, the 1st December, 1817. G. J. F. Clarke.”, The others were of the same tenor. There was evidence that a saw-mill was built by Fougeres on Black Creek in 1822 or 1823, and Clarke, the surveyor, testified that he had always acted upon the rule, when requested, of changing the location of grants, and that it was. the practice of his predecessor. There was a large mass of documents in the record, consisting of grants, decrees, certificates of surveys relating to other land and other persons than those concerned in this case, and which were introduced for the purpose of showing the practice of departing from the calls of the concession in certain cases. There was evidence that the land on Trout Creek was poor, whilst the tracts surveyed in lieu thereof were of the best quality. It was in proof that Black Creek was some thirty miles from Trout Creek, and Indian Creek about one hundred miles from Black Creek, and still further from Trout Creek, and the survey in Alachua still more remote. The court decreed that the claim of the petitioners was not valid, and that it be rejected, from which decree this appeal was taken. *The cause was argued by Mr. Yulee and Mr. Ber- r#K4n rien, for the appellants, and by Mr. Crittenden, Attor- *-ney-General, for the appellees. Mr. Yulee, for appellants. This was not strictly what is known as a mill-grant, but was absolute and without condition. In all cases of mill-grants, strictly so called, there was an express and distinct condition, without a compliance with which the grant was to be void. Such was the case of Percheman, and also of Sib-bald. It will be found in all cases that have come before the court, that an express condition was contained in the grant itself. In this case it was not so. The grant in this case is equally strong with that in the case of Arredondo. The words are. simple, “I grant,” “ concedo.” U. States . v. Richard, 8 Pet., 470; U. States v. Kingsley, 12 Id., 476; U. States n. Drummond, 13 Id., 84; U. States v. Burgevin, Id., 85; U. States v. Breward, 16 Id., 143; U. States v. Low, Id., 162; ¿7. States v. Sibbald, 10 Id., 313; U. States v. Seton, Id., 309. 575 549 SUPREME C OURT. Villalobos et al. v. The United States. There being no condition in the grant itself, the only other condition that can be made is that created by some law or ordinance of Spain. But this court has decided that no condition can be implied, in the case of the United States v. Hanson, 16 Pet., 199. The Governor had absolute power to make grants in absolute terms, and so this court has held. But if there is any condition to be implied, it must be subsequent and not precedent, as in the case of Arredondo. The grant was of a present title, and could only be defeated by proceedings instituted for that purpose, if it was a condition subsequent. In the Arredondo case, the court announced its intention to treat liberally all the rights protected by the eighth article of the treaty with Spain. Now the court will construe more strictly a grant with condition as against the United States, and more liberally as respects the grantor, because the condition tends to defeat an estate already vested and in use. The eighth article of the treaty refers to those grants as annulled which had a condition limited in its terms within a certain time in which it was to be performed. But in this case a mill was built, and therefore it is immaterial whether there was a condition precedent or subsequent. Sibbald's and Kingsley s cases. It is said that the mill was not built on the spot required by the grant. In reply it may be said, that the grant did not require any mill to be built, but that was regulated in a separate clause. But the site of the mill, as laid down in the grant, was occupied, and therefore *5501 *was built on Trout Creek. It was, however, a com- -1 pliance with the policy of Spain that the mill should be built anywhere. Although a legal compliance with the condition could not be performed, a compliance cy pres is sufficient. Sibb aid's case; U. States v. Arredondo, 6 Pet., 691. The rule of the common law is not the same as the rule of the civil law in the construction of grants. Under the civil law, they are construed liberally rather than strictly. Domat, page 13, introductory chapter ; also, page 39, section 12. As to surveys. The grant is assumed to be at Trout Creek, and the survey was not. This case is parallel to that of Sib-bald. The petition in this case is for five miles square of land, or an equivalent (should be its equivalent; see equivalente'). In Sibbald's case the petition is for a square of five miles, or its equivalent. The grant was for the land, withbut any reference to the equivalent. And the court say, “ The treaty grant conferred lands to those in possession of them, and of course the confirmation refers to lands of which they were then in possession.” 576 DECEMBER TERM. 1 850. 550 Villalobos et al. v. The United States. The practice was to change the location of grants when necessary, and such changes were always recognized by the Spanish governors, provided the quantity were conformed to. This is the testimony of the Surveyor-General. QMr. Yulee referred to several instances in which changes of location were confirmed.) This, according to the rule laid down by the court in the Arredondo ease, is a legislative ratification of the principles on which the reports were founded. At any rate, it is a custom. It is not under the Spanish, as in the common law, that universal usage is required. Ten years are enough. White, p. 360. It is to be presumed that the Surveyor-General did not exceed his powers. There was not vacant land enough at Trout Creek, for the location of the five miles square. In Sibbald's case, the location was to be made at Little Trout Creek, and the court sanctioned the change of location. The brief of the Attorney-General imputes fraud. The survey was made before 1818, before any negotiations were opened for the transfer of the country. Again, the party immediately proceeded to build the mill, which they would not have hazarded if there had been fraud in the grant. Again, it is presumed that the Governor acted in good faith. Yet the parties went boldly to him to state all that had been done. . Also, the continued practice shows there was no fraud. Mr. Crittenden, contra. L *551 The grant shall always suppose defined the thing granted. Now in this case the grant is for five miles square on Trout Creek. But it is attempted to get rid of the precision of this grant by referring to the petition. In Sibbald’s case there is a reference in the grant to the petition, and it becomes a part of the grant. Here there is no such reference. There the petitioner asked for two and a half miles square or its equivalent, and the grant was according to the petition. In this case he asked for the same, but the grant gives him the right to five miles on Trout Creek. The petitioners have not so located it. They have proved that this is very poor land, and they have searched about for other land, and the nearest that they have hit upon is thirty miles distant. The title here is derived from the surveyor rather than from the Governor. The instructions to the surveyor directed him to make the survey according to the grant. If he made it Vol. x.—37 577 551 SUPREME COURT. Villalobos et al. v. The United States. differently, it was then a grant from the surveyor. It is said that such had been the practice, and an instance is cited where a survey had been made differently from the grant and afterwards confirmed by the Governor. This was a new grant. It proves nothing more than the liberality of the Governor. This survey was just one month before the time after which all these grants are condemned. Mr. Clarke, the surveyor, being called as a witness, stated that he did not make the survey, nor know who did. But the ground I rely on is, that the surveyor had no authority to make this new grant. I do not question the power of the prince to make a grant of land surveyed differently from the original grant. But is any thing of the kind shown here ? On the contrary, the papers in this case show a direction to survey a particular grant, in a particular pláce, and the surveyor makes it in another place and another manner; and no subsequent grant of these surveyed premises is shown. It rests, therefore, entirely in the action of the surveyor. By the same right that the surveyor changed the location, could he not have changed the quantity ? It is said that Spanish law makes ten years a custom; and the doctrine of the other side is, that any officer who should adopt any practice, and should continue it for ten years, however great the malfeasance or misfeasance, still, if he can succeed in continuing it for ten years, it stands up at the end of that time in all the purity of legitimacy and law. But such is not the practice under the Spanish law. It must be done in good faith. Mr. Crittenden cited U. States v. Hanson, 16 Pet., 201; ♦ceo-i *U. States v. Seaton, 10 Id., 311; U. States v. Forbes, J 15 Id., 182; U. States v. Breward, 16 Id., 146; U. States v. Kinsley, 12 Id., 485, 486; U. States v. Mills's Heirs, lb., 215; U. States v. Burgiven, 13 Id., 86; U. States v. Wiggins, 14 Id., 351; U. States v. Delespine, 15 Id., 333; White’s Recopilación, 250-258. Mr. Berrien, in reply. 1. The petition and decree gave a valid title to 16,000 acres of land, without reference to location. It was inchoate in one sense, that petitioners might, on application to the Spanish government, if it had continued, have obtained a perfect title; but it gave a right of property protected by the treaty, and recognized by this court. It is then equal to an absolute title. Belassus v. U. States, 9 Pet., 117, 132. See the treaty of 1819, more express than that of 1803. 2. The transfer of a moiety to Fougeres, under the sanction 578 DECEMBER TERM, 1850. 552 Villalobos et al. v. The United States. of Governor Coppinger, vested that moiety in him, and was a recognition of the title. This was conformable to the usages of the Province. Mitchel v. IT. States, 9 Pet., 741. The treaty only restricts the power of the Governor in making grants after the 24th of January, 1818. All his other powers remain intact. This location was after the 24th of January, 1818, and this court has decided that he could not change a location after that date, because that would be to make a new grant. But the Governor could recognize a transfer of an already existing grant. He could make a decree allowing a sale, as in the case of Fougeres. He could decide a question of meum and tuum between two Spanish subjects. Otherwise, thp most serious injury would result to the Marquis de Fougeres. 3. It was a grant of the land, and not merely of the trees growing on it. U. States v. Richards, 8 Pet., 470; U. States v. Seton, 10 Id., 309. 4. It was an absolute, unconditional grant. It is not in the form used in grants conditioned to take effect on the building of a mill. In Bethune's case the grant was “ on the express condition, that he is to set up said machine within the time which I grant him.” And in Kingsley's case, “ but upon the express condition that, until he builds said machine, this concession will be considered as not made, and of no value nor effect, until the happening of that event.” In this case the grant is without condition. It gives authority to build a mill, and it grants 16,000 acres of land, but does not require the mill to be built, nor make the one dependent on the other. The building of a mill is not a condition precedent or subsequent. The court cannot annex such a condition to the grant from the authority to build a mill (10 Pet., 306). The Governor judged *of the consideration on which he issued r*cco his grant, and, exercising like authority, could make a *-gratuitous concession. This court has repeatedly said, that the Governor would be presumed to have acted within the scope of his authority in making grants. 5. No specific location of the 16,000 acres was designated. The petition asked for “ the right to build a mill,” and a grant of five miles square or its equivalent.” The concession gives the right to build the mill at the place designated; and also the use of the pine-trees in a square of five miles, “ which is granted to him,” without designating any particular location. In construing the grant, the court must give effect to the words “or its equivalent.” It was five miles square at Trout Creek, or its equivalent elsewhere. The authority to build a mill 579 553 SUPREME COURT. Villalobos et al. v. The United States. was limited to a particular place, Trout Creek. But the grant of the 16,000 acres of land was not so limited. 6. The mill was built in sufficient time. There was no limitation of time in the concession. Governor Coppinger had no power to alter the terms of the concession after the 24th of January, 1818. The right of the grantee was protected by the treaty, and could not be disturbed by the Spanish authorities after that time. If he had the power to limit, he must have had the correlative power to enlarge, the time, and thus in effect to make a new grant. But the grant was absolute, not on condition of building a mill. If there had been a condition unlimited as to time, the utmost that could be done would be, to require that it should be done in a reasonable time. The treaty must take effect, either from the ratification by both parties in 1821, or from the exchange of flags in 1822. The mill was commenced in the winter of 1822. A treaty, as between the contracting parties, operates from its date; but as respects individual rights, it can only take effect from the ratification by both parties. U. States v. Arredondo, 6 Pet., 748. This court has disclaimed the power to enforce a forfeiture for a condition broken. U. States v. Sibbald, 10 Pet., 322. 7. If there was a change of location, it was warranted by the Spanish usages and customs, to which this court has always given effect. The court is to carry into effect the treaty, and to protect property protected by the treaty, whether complete or inchoate, if property by the Spanish laws and usages. What are the laws and usages? In the language of this court (6 Pet., 714), “ the laws of an absolute monarchy are the will and pleasure of the monarch, expressed in any way,” &c. We are not swearing away the law, as the Attorney-General supposes, by the introduction of evidence of usages and customs; but by showing what the usages and customs were, we *show what the law was. This.court has said, that, -1 in the examination of these claims, it will look into the Spanish customs and usages. The question here is, What was the usage, of the Spanish executive officer, in regard to the acts of his subordinates ? Mr. Justice CATRON delivered the opinion of the court. In October, 1817, Coppinger, Governor of Florida, was applied to by Villalobos for leave to build a saw-mill on Trout Creek, at a proper site for a mill there existing; with a corresponding right to five miles square of land, or an equivalent, for a competent supply of timber; on which application the Governor decreed as follows:— 580 DECEMBER TERM, 1850. 554 Villalobos et al. v. The United States. “Taking into consideration the benefit and utility which would result to the Province in its improvement, if what Don José Argote Villalobos proposes should be accomplished, it is granted to him, without prejudice to a third person, that he may build a water saw-mill on the creek of the River St. John’s, named Trout Creek; and also to make use of the pine-trees which are comprehended in a square of five miles, which is granted to him, which advantages he shall enjoy for the said water saw-mill, without any other person having the right to diminish it in any respect. And for his security, let the corresponding certificate be despatched to him from the secretary’s office.” 1. No mill was built on Trout Creek, nor any attempt made to do so ; but sixteen thousand acres of land were surveyed for Villalobos by some deputy surveyor of the Surveyor-General, George F. Clarke, and certified by the latter, in three separate parcels ; one on Black Creek, for six thousand acres ; one on Indian River, for six thousand acres ; and the third in Alachua, for four thousand acres. The nearest of said surveys to Trout Creek is about thirty miles off, and the farthest is more than one hundred miles distant. The lands as surveyed are claimed by Villalobos and the Marquis de Fougeres, to whom Villalobos conveyed a moiety of his claim in March, 1821. This latter survey lies within territory then held by the Seminole Indians. A mill was built by the Marquis on Black Creek, on the survey there made for six thousand acres, say in 1822 and 1823. Whether the surveys were regularly returned to the office of the public archives, or to the government secretary’s office, does not appear; there is no evidence that they were returned to either by the Surveyor-General, the proof being, that they were filed in the office of the public 'archives as part of the evidences of claims that had been submitted to the register and receiver when acting as commissioners on Florida claims. *One thing, however, is certain, that the change of pggg location never received any direct sanction from the *-Governor of the Spanish province during the time his powers existed to act in the matter. On this state of facts, the question is, whether the Surveyor-General had any authority to make the change, and thereby bind the Spanish government to complete the title ; if he had such power, then the American government is equally bound. By the eighth article of the treaty of 1819 it is stipulated, that “ all grants of land made before the 24th day of January, 1818, by his Catholic Majesty, or by his lawful authorities, shall be ratified and confirmed to the persons in possession of 581 555 SUPREME COURT. Villalobos et al. v. The United States. the lands, to the same extent that the same would be valid if the territories had remained under the dominion of his Catholic Majesty.” This court has uniformly held, that where the land was granted by a concession, and. a survey had been made of it by the Surveyor-General, in reasonable conformity to the grant, before the 24th of January, 1818, that such survey should be recognized as valid, and deemed to have severed the land from the public domain. That the surveys made for Villalobos were not in reasonable conformity to the grant made for 16,000 acres on Trout Creek, is not assumed on part of the claimants; they rest their right to a confirmation for the three tracts surveyed on the ground, that the Surveyor-General had power, by force of the grant, to change the location, and to locate the land granted in as many parcels as he saw proper to designate. To show the existence of this power in the Surveyor-General, he was examined as a witness in the present controversy, and proved that he had, in various instances, made similar changes, and that none of them had been rejected, or objected to, by the Spanish governors. Antonio Alvarez, the keeper of the archives, was also examined on this point; he testifies, that there exist in the archives a few instances where changes of location had been made by the Surveyor-General without an order of the Governor for the change; but this was done under peculiar circumstances, as where the land granted had been taken by a previous concession. From the long experience this court has had in the investigation of Spanish titles, as claimed in Florida, as well as from the practice in regard to which the witnesses depose, we are of opinion, that the Surveyor-General had no authority to change the location of the grant, and to split up the surveys, as was done in this instance. The question has been settled by this court in the cases of United States v. Huertas (9 Pet., *5561 *171) and United States v. Levy, (13 Pet., 83). The J surveys in this instance abandoned the grant; no aid is asked from it, but the sole act of the Surveyor-General is relied on for a decree completing the title, and, if confirmed by us, must be sanctioned as the origin of Villalobos’s title; and that no such power can be exercised by this court was held in the Case of Forbes (15 Pet., 172). The grant was for a tract comprehended in a square of five miles; and although an equivalent was solicited, none was granted except in case vacant land enough could not be found at Trout Creek to satisfy the grant in one body, and a square form; nor is there any evidence that such deficiency existed. 582 DECEMBER TERM, 1850. 556 Villalobos et al. v. The United States. It is proved that the lands on Trout Creek are poor, and of little or no value, and that those surveyed are of the best quality known in Florida; and manifestly, that the change of survey had in view the acquisition of valuable lands for the purposes of speculation, and not to secure pine-trees, out of which to saw lumber; so that these surveys have neither merit in fact nor the sanction of law to uphold them. 2. As the want of a survey does not defeat the grant, as this court held in the Cases of Arredondo (13 Pet., 133) and of Buyck (15 Pet., 224), the next and remaining question is, whether the grant itself can be located. For although the petition proceeds on the surveys, yet this court having the case before it as on bill in chancery, we would be disinclined to bar the claim on a technical ground. If it had merits, and these could not be reached on the pleadings as they stand, the court on hearing could order amendments, so that the merits could be reached ; and to this end the cause could be remanded to the court below; nor do we apprehend even this to be necessary in a case like the present. The surveys being rejected, the grant may be resorted to, and a survey ordered, if the land granted can be identified. It is therefore necessary to examine the claim on the face of the grant. For a description of the place where the land was solicited, and which is adopted by the Governor’s decree, we must look to the memorial of Villalobos. He says, “ that he has fixed his intentions to establish a mill for sawing timber, on a creek of the River St. John’s named Trout Creek, which affords a site fit for the purpose; ” and he supplicates the Governor to grant permission to build the mill at that place, with a corresponding right to five miles square of land for a competent supply of timber. The grant refers to no one part of Trout Creek more than another, at which the site for the mill is, and where the land *should be surveyed; there is no identity of place, nor a possibility to locate the grant by survey. No claim *-has ever been before this court that is more vague. In cases of a vague description, this court has uniformly held that no particular land was severed from the public domain by the grant, and that no survey could be ordered by the courts of justice. Buyck v. United States, 15 Pet., 224; United States n. Delespine, 15 Id., 333; United States v. Miranda, 16 Id., 156, 157. On all the grounds presented, we are of opinion that the court below decided correctly in rejecting this claim; and it is therefore ordered, that the decree of the District Court be affirmed. 583 557 SUPREME COURT. St. John o. Paine et al. Order. This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Superior Court in this cause, be, and the same is hereby, affirmed. Edward B. St. John, Claimant of the Steamboat Neptune, Appellant, v. Zebulon A. Paine, Sarah Norwood, John Bucknam, Andrew Bradford, and Augustus Norton, Libellants. The following are the rules which ought to govern vessels when approaching each other:— 1. Of Sailing Vessels.—A vessel that has the wind free, or sailing before or with the wind, must get out of the way of the vessel that is close-hauled, or sailing by or against it ; and the vessel on the starboard tack has a right to keep her course, and the one on the larboard tack must give way, or be answerable for the consequences. So, when two vessels are approaching each other, both having the wind free, and consequently the power of readily controlling their movements, the vessel on the larboard tack must give way, and each pass to the right. The same rule governs vessels sailing on the wind, and approaching each other, when it is doubtful which is to windward. But if the vessel on the larboard tack is so far to windward that, if both persist in their course, the other will strike her on the lee side, abaft the beam or near the stern, in that case the vessel on the starboard tack should give way, as she can do so with greater facility and less loss of time and distance than the other. When vessels are crossing each other in opposite directions, and there is the least doubt of their going clear, the vessel on the starboard tack should persevere in her course, while that on the larboard tack should bear up or keep away before the wind. These rules have their exceptions in extreme cases, depending upon the special circumstances of the case, and in respect to which no general rule can be *5581 down *or applied. Either vessel may find herself in a position 1 at the time when it would be impossible to conform to them, without certain peril to herself or a collision with the approaching vessel. Under such circumstances, the master must necessarily be thrown upon the resources of his own judgment and skill in extricating his own vessel, as well as the vessel approaching, from the impending peril. These cases cannot be anticipated, and therefore cannot be provided for by any fixed regulation. They can only be examined, and the management of the vessel approved or condemned, as the case may arise.1 2. Of Steam-Vessels meeting Sailing Vessels.—Steam-vessels are regarded in the light of vessels navigating with a fair wind, and are always under obligations to do whatever a sailing vessel going free or with a fair wind would be required to do under similar circumstances. Their obligation extends 1 Cited. The Ann Caroline, 2 Wall., 545; Bentley v. Coyne, 4 Id., 511; The 584 Maria <& Elizabeth,! Fed. Rep., 254. See The Eairbanks, 9 Wall., 422. DECEMBER TERM, 1850. 558 St. John v. Paine et al. still farther, because they possess a power to avoid the collision not belonging to sailing vessels, even with a free wind, the master having the steamer under his command, both by altering the helm and by stopping the engines. As a general rule, therefore, when meeting a sailing vessel, whether close-hauled or with the wind free, the latter has a right to keep her course, and it is the duty of the steamer to adopt such precautions as will avoid her.2 3. Of Steamers meeting each other.—It is the duty of each vessel to put the helm a-port.8 4. Of keeping Watch.—The pilot-house of a steamer is not the proper place at which to station a watch at night. A competent and vigilant look-Qut stationed at the forward part of the vessel, and in a position best adapted to descry vessels approaching at the earliest moment, is indispensable to exempt the steamboat from blame, in case of accident in the night-time,-while navigating waters on which it is accustomed to meet other craft.4 The owner is responsible for damage resulting not only from want of care and attention on the part of the persons in charge of the vessel, but also from the want of proper knowledge and skill to enable them to manage her according to established nautical rules. 2 Followed. Steamer Oregon v. Rocca, 18 How., 572. Inapplicable. Propeller Monticello v. Molli-son, 17 How., 154. Cited. New York &c. U. S. Mail S. 8. Co. v. Rumball, 21 How., 385; New York &c. Transp. Co. v. Philadelphia “ Thinks there were from two hundred to two hundred and fifty passengers on board the Neptune; not a great many ladies. “ Collision was caused by schooner not setting a light, and not altering her course when she saw the Neptune. “ Not aware of any thing that could have been done on Neptune that was omitted to avoid the collision, according to his judgment and experience ; and every thing was afterwards done in their power to save life and property on schooner. Schooner sunk in about eight minutes after collision. “ Houghton (clerk of boat) and Davis (a passenger) were in wheel-house at the time, with witness and man at wheel. Witness first discovered schooner. Captain Davis had turned in, at back part of wheel-house, twenty or twenty-five minutes before collision. Masters usually retire after boat gets well into the Sound. “ Witness had sailed the boat before that as master, but came on board that day as pilot; was appointed by Mr. Law. No time was specified nor wages. Witness was at that timé ■employed on board Massachusetts, and it was understood that both boats belonged to same concern. Witness was transferred to the Neptune. Both boats had been running to same places. Does not know that they had been in opposition. Does not know that Harris, second pilot, had been on this boat before. He was also transferred from Massachusetts. Thinks that w’as Captain Davis’s first trip, at that period; Captain Rollins had been master before; understood that he and his pilots had been transferred to the Oregon that day; thinks it was about first of flood when he left New York, but does not recollect about it. Did not notice that particularly. Light-boat about fifty-five miles from New York. Thinks collision was a mile or a mile and a half from light-boat. . . 598 DECEMBER TERM, 1850. *571 St. John v. Paine et al. * “ A drunken man fell into dock fifteen or twenty minutes before leaving New York, and was drowned. “ Did not know or hear on board that the Neptune leaked when she left New York. “ Sound eight or nine miles wide at place of collision. Thinks the Neptune was a very little nearest south side of Sound, and on usual course he has been in the habit of taking on board steamboats. Judges his position from what had observed days going through the Sound. Did not at time see the shores. Thinks discerned Connecticut shore, but not plainly. No recollection of looking at Long Island side. Connecticut shore about five miles off; could see it plainest above. “Could see light-boat, probably three or four miles off, and Stratford light,about five miles. When he first saw schooner, she bore east by north from the Neptune, directly ahead. Could not tell how she was steering, or whether going up or down the Sound. Did not look at her with his night-glass; had no time; his whole attention was directed to attempting to clear her; and took what he thought proper measure, by throwing wheel starboard. Judged she was going up or down the Sound, and that was the precaution always taken to clear them ; probably one hundred to one hundred and fifty yards off when discovered how she was heading, but could not tell distance with any certainty. Put his wheel hard a-starboard, and thinks that altered his course four to four and a half points, and got his wheel so before saw how schooner was heading. As wind was, judged she must be going up or down the Sound; and besides, if running across Sound, sails would have shown differently. Steamer struck stem on, supposes starboard side of her stem, as that was more indented than the other. “ Thinks schooner would be running six or seven miles per hour. Hit her on larboard side, nearly between her two masts. “ Should judge schooner was heading about northwest when they struck. Her boom was not thrown off much. She would lie up to about northwest on that wind; and struck her nearly midships, about at right angles. “ Can’t say what would have been the effect if he had not altered his course, vessels were so near to each other. “ If schooner had not altered her course, steamer would have cleared her. Saw schooner alter her course a minute or a minute and a half before striking. Presumes she was previously heading west, or within half a point of that. “Discovered she was going up the Sound two or three minutes after he saw her; not over three or four minutes, he 599 ) 571 SUPREME COURT. St. John v. Paine et al. should think, from time he saw her till they struck. If he had thrown *his wheel larboard, should have escaped J her; but that would have been contrary to usage of passing vessels. “ If the schooner had kept her course just as she was struck, the steamer would probably have cleared her, if she had not altered her own course; and thinks would have cleared her fifteen feet. “ Thinks rang bell to stop in one minute after saw how schooner was, perhaps one hundred to one hundred and fifty yards off; rang bell to back as soon as he supposed engineer had time to stop. Knew by motion of boat that engine bad stopped. Can always tell in wheel-house whether engine is in motion. Had not left wheel-house, except to take supper; had not laid down, or sat down. “ It is usual for sailing vessels to alter their course, or set a light, when they see a steamer coming. “ Was not requested by passengers to go into Stratford Point after accident. Did not tell any of them that he knew little of the coast. Did not tell any one that he was not a regular pilot. Had nothing to say to passengers. Did not say he could not put into New Haven. “Watch was set about eight o’clock. Did not notice black cloud after put back for New York. “ Did not consider collision a severe one. Captain reported stern leaked some. Weight of steamboat, not going very fast, would break in an old vessel, without steamer feeling the blow much. “ It is usual for sailing vessels to set lights in passing steamboats, or coming up to them; commonly set in shrouds or rigging. Considers it duty of vessels to show lights, according to practice in Sound. “ If he had known the course of schooner, should have thrown his wheel as he did, because schooner might have hauled off on wind. . Stern of steamboat injured very little; put on a small piece to repair her. “ Vessels on wind can keep away quicker than luff. “ With the wind that night, schooner could hold about a west course; would probably fall off a little south; so would naturally waive a little, as wind was more or less fresh.” In February, 1847, the cause was argued in the District Court, when the court adjudged that the libellants recover their damages sustained by the collision, and that it should be referred to a commissioner to ascertain and report the amount of damages sustained bv the libellants. 600 DECEMBER TERM, 1850. 572 St. John v. Paine et al. In April, 1847, the commissioner made the following report in the case :— * Commissioner s Report. r • P573 “ In pursuance of a decretal order made in the above- L entitled cause, by which, among other things, it was referred to the undersigned, one of the commissioners of this court, to ascertain and report the amount of damages sustained by the libellants by means of the collision in the pleadings mentioned : “ I, George W. Morton, the commissioner to whom the above matter was referred, do report, that I have been attended by the proctors for the libellants and claimant, and have taken and examined the testimony offered by the respective parties, and do find that the damages sustained by the libellants, exclusive of interest, amount to the sum of $3,547.67, which sum is made up of the following items :— The value of the vessel at the time she was lost, . $2,500 00 75 barrels of codfish, at $3 per barrel, . . 225 00 200,000 laths, at $1.50 per 1000, . . . . 300 00 6625 pickets, at $6.25 per 1000, ... 41 40 35 tons plaster, at $2.25 per ton, . . . . 78 75 30 empty beer-barrels, at $2 each, ... 60 00 2 beer-barrels partly full, at $2 each, . . . 4 00 Value of the stores on board, . . . . 33 00 Freight on 75 barrels codfish, at 2s. per barrel, . 18 75 $3,260 90 $3,260 90 Freight on 200,000 laths, at 40 cents per 1000, . 80 00 “ 6625 pickets, at $2 per 1000, . 13 27 “ 35 tons plaster, at $2.50 per ton, 52 50 “ 32 beer-barrels, at 25 cents, . 8 00 $3,414 67 Articles on board belonging to Augustus Norton, estimating the quadrant at $16, . . . 123 00 Cash in his trunk,.................................... 10 00 $3,547 67 $3,547 67 45 57 $3,593 24 601 573 SUPREME COURT. St. John v. Paine et al. “ Amounting in the whole, without interest, to 83,547.67. All which is respectfully submitted. “George W. Morton, U. S. Commissioner. u April 30, 1847.” *5741 *^n MaY’ 1$^7, the District Court confirmed the J report of the commissioner, with interest from the 7th of February, 1847, and costs. The claimant appealed to the Circuit Court, which, in November, 1847, affirmed the decree of the District Court, The claimant then appealed to this court. It was argued by Mr. Wood, for the appellant, and Mr. ffil-let, for the appellees. Mr. Wood contended that, from the evidence (which he examined), the following facts were shown to exist in the case:— The schooner lole was sailing, towards New York, in Long Island Sound, steering her course west; but her actual course, by reason of lee-way, &c., west by south. The wind fresh from the north. Sailing at rate of seven miles an hour. Under these circumstances, the wind was fair for the schooner, that is, she had what is technically called “a free wind,” or “ had the wind free.” The steamboat Neptune, with from 200 to 300 passengers, was going “ down Sound ” from New York, on her proper course, east or east by north. Her speed about ten miles an hour. The collision was about ten o’clock. The two vessels were therefore approaching each other at a combined rate of seventeen miles per hour. The night was clear towards the west, north, and south, but dark towards the east by reason of a “ bank ” or cloud in that direction, which, at or about the time of collision, rendered objects invisible. Libellants’ witnesses do not contradict this. The direction of the wind and course of the schooner were such as to present her sails edgewise to the officers of the steamboat, so as to increase the difficulty of seeing her. The position of her sails, however, indicated to the officers of the steamboat, when they did see her, that the schooner was sailing nearly towards them, or nearly from them, and not across the Sound. The courses of the two vessels were nearly on the same line (in opposite directions), that is, on lines which, when the x schooner was first discovered by the officers of the steamboat, 602 DECEMBER TERM, 1850. 574 St. John v. Paine et al. converged very nearly to each other; so that the schooner was at first seen directly ahead of the steamboat, or a little on her starboard bow. The steamboat was discovered by the crew of the schooner when several miles distant. The officers and crew of the steamboat did not and could *not see the schooner until within a distance not greater than from one quarter to three eighths of a mile. L At the instant the schooner was discovered, the course of the steamboat was changed to windward (that is, to northeast), to avoid the schooner. Under the circumstances, this was the prudent and proper course. The steamboat did prudently all that was possible to avoid the collision, and to save life and property after the collision. The steamboat was properly officered and manned. The schooner did nothing to avoid the collision; but either kept her course (notwithstanding she saw the steamboat approaching for nearly half an hour), or she designedly luffed, or was suffered to luff, so as to cross the steamboat’s bows. The schooner neither carried lights nor showed one, when she saw the steamboat approaching. She ought at least to have showed a light, when her crew witnessed the approach of the boat for nearly half an hour. Upon this state of facts, J/r. Wood arranged his argument under the following points, viz.:— I. To enable the owners of the lole to recover in this case, there must-have been wilful misconduct on the part of the Neptune, or negligence on her part, accompanied with freedom from blame on the part of the lole. There is no pretence for a charge of wilful misconduct. II. No blame or negligence can be imputed to the Neptune. 1. She was sufficiently manned with skilful and experienced seamen. 2. She was well and sufficiently lighted, and in the proper place. The court erred in assuming that the atmosphere was thick, as well as cloudy, ahead. 3. The Neptune had a good look-out. The night not being foggy or hazy, a look-out on her deck below was unnecessary. The look-out in the pilot-house was'proper and sufficient. The court erred in supposing a closed window intervened on the said 14th of July. 4. She was properly navigated as to speed. Though she went faster at daylight, and in the early part of her voyage, at the period in question she was going at the 603 575 SUPREME COURT, St, John v. Paine et al. rate of ten miles the hour; which was not too fast, taking into view the general well-known usage in this country, and the character of the evening, which enabled the lole or any other vessel approaching her to see her at a great distance, and on their showing a light would enable her to see them. The Perth, 3 Hagg. Adm., 417. eterirn-i *5. The Neptune was properly navigated, as to course, -• which was east by north, by the compass, and continued so until she discovered the lole. The lole was approaching her on a west course, by the compass. Allowance being made for lee-way of both vessels, which amounted to about half a point, they were going the same course reversed, with a variation of about half a point. III. The Neptune first perceived the lole at a distance from her of one quarter to three eighths of a mile, and could not see her at a greater distance, by reason of the cloud in the east. IV. At this time the lole appeared to the Neptune to be approaching or receding in nearly the same line, her sails being seen edgewise, and the Neptune appeared to be in the act of crossing her line to the northward, she being seen over the starboard bow of the Neptune, which is fully established by the specific observations of the witnesses. V. The evidence that the Neptune, at the distance of six miles from the lole, was on a line south of that of the lole, and so as to pass the lole to the south of her, is too weak to overcome the clear and decisive evidence on the last point, even assuming them to be competent witnesses. These witnesses were interested and incompetent. To hit the lole as she did, (the lole keeping her course,) and to come up directly towards her, the Neptune must have changed her course to due north, or north by west, which is not only improbable,. but contradicted decidedly by the evidence. VI. Assuming it to be true, and that the Neptune changed her course to the northward, some five or six minutes prior to the collision, it was so changed as to bring her in the position stated in the fourth point; and she was in that position when the lole was first discovered by her, as the evidence decisively shows. VII. If the Neptune changed her course five or six minutes before the collision, so as to bring her in the position stated in the fourth point, she was not in fault in making the change, because she did not (and could not) then see the lole. VIII. And it was the duty of the Neptune, when she first 604 DECEMBER TERM. 1 850. 576 St. John v. Paine et al. perceived the lole, to endeavor to pass her, and not to stop or slack her speed. 1. By stopping her course, she would have been in danger of being run into while at rest by a moving body, thereby endangering the lives of her passengers; it being the duty of passenger vessels to use every precaution of diligence, industry, and skill to save the lives of their passengers. 2 Kent Com., 601, 602; Cristie V. Griggs, 2 Campb., N. P., 79. *2. By slackening her course she would have been less able to avoid collision than by continuing, or even •-accelerating, her speed. IX. The Neptune, when in the position stated in the fourth point, was correct in putting her helm a-starboard. 1. It was highly expedient that both vessels, on account of the proximity, should be active in endeavoring to avoid collision, and that neither should keep her course, and the Neptune was bound to act on that supposition. The Friends, 1 Wm. Rob., 482. 2. It was proper that the Neptune should go to the windward ; the deviation in that direction on her part was easier, as she was crossing the line of the lole in that direction, and the lole could bear away to the leeward more readily than she could luff towards the wind. The Shannon, 1 Wm. Rob., 469, 470. 3. This movement was not only more convenient, but conformable to the general practice of the Sound, which is a wide sea, and rules are modified by practice in particular localities. The Trinity House regulation is applicable only to narrow channels. 1 Wm. Rob., 489. 4. The general rule that a vessel should pass to the right is not imperative, but a rule of convenience, which yields to circumstances, when both should be active. Abbott on Ship., 476; 3 Car. & P., 529; The Friends, 1 Wm. Rob., 482; The Woodrop Sims, 2 Dods., 86; The Cynosure, 7 Law. Rep., 222. X. The Neptune would have avoided the lole, if the lole had even kept her course; more especially, if she had borne away to the leeward, when she saw the change of course of the steamboat towards the north, by her lights.' And it was her duty to bear away, as she could easily perceive the change of the Neptune’s course. The Cynosure, 3 Car. & P., 529. XI. The lole, according to the preponderating weight of the evidence, neither kept her course nor bore away from the wind, but, from the agitation of her helmsman, or some other cause, she luffed into the wind, across the course then pursued by the Neptune. The blow was received by the steamboat on the starboard side of her bows 605 577 SUPREME COURT. St. John v. Paine et al. XII. The lole was in fault,— 1. In not keeping a look-out, and discovering the clouds in the east; and in not forthwith showing a light when she discovered the Neptune, it being her duty, and the practice of the Sound, in such circumstances, to show a light. And it was more important for her to exhibit a light to the steamboat, than for the latter to show a light to her. *$’ I’1 no^ bearing away when the Neptune changed -* her course; which change she perceived, or might have perceived, with a proper look-out. 3. In neglecting her helm, bringing her to the wind, and crossing the track of the Neptune. See eleventh point. XIII. The lole being in default, cannot recover, even assuming there is fault on the part of the Neptune ; it not appearing there was any wilful design on the part of the Neptune to injure. Rathbun n. Payne, 19 Wend. (N. Y.), 399; Barnes v. Cole, 21 Id., 188; Simpson v. Hand, 6 Whart. (Pa.), 311; Reeves v. Constitution, Gilp., 579; Broadwell v. Swigert, 7 B. Mon. (Ky.), 39; The Celt, 3 Hagg. Adm., 322, 323; The Cynosure, 7 Law Rep., ,222; Cook v. Champlain Transp. Co., 1 Den. (N. Y.), 99; Brown v. Maxwell, 6 Hill (N. Y.), 592; Hartfield v. Roper, 21 Wend. (N. Y.), 618; Brownell v. Flagler, 5 Hill (N. Y.), 282; Spencer v. Utica and Schenectady Railroad Co., 5 Barb. (N. Y.), 337. XIV. If the damage is the result of accident, there can be no recovery; and accident is to be presumed, till the contrary is shown. Mr. Gillet contended that, according to the evidence, the following was the state of facts:— 1. The collision took place in Long Island Sound, on the 14th of July, 1846, between nine and ten o’clock, p. m., the Neptune cutting the lole nearly in two between the fore and main rigging, and sinking her immediately, with her cargo and two passengers. The crew saved themselves by climbing upon the Neptune. This position is not disputed. 2. The lole, at the time of the collision, had passed about one mile south of the Middle Ground light-boat, and was west of her. The lole was steering directly west. 3. The wind was blowing fresh from the north, and the lole was running close on the wind. 4. The lole did not change her course or luff before the collision, but her sails were full when it took place. 5. The steamboat changed her course to the windward by putting her wheel hard a-starboard when within a quarter to three eighths of a mile from the schooner. 606 DECEMBER TERM, 1 850. 578 St. John v. Paine et al. 6. The steamer would have cleared the schooner, if the former had not changed her course. 7. There is no custom requiring a schooner in the Sound to carry lights when sailing. 8. The night was not so dark as to render lights at all necessary. 9. It is the duty of a steamboat, when a schooner is sailing on the wind, if necessary to avoid collision, to change her *course so as to avoid the latter, and it is not the duty of a schooner to change to the leeward. L 10. Claimant’s witnesses state, that, when they first saw the lole, she was a quarter to three eighths of a mile off, dead ahead. If this evidence is true, the steamer ought to have ported her helm and gone to the south. Upon this state of facts, Mr. Gillet made the following points:—- 1. The schooner performed her duty in every respect, and had a right to keep her course to the west. Story on Bai'lm., § 611; The Thames, 5 Rob., 345; The Jupiter, 3 Hagg. Adm., 320 ; Handaysyde v. Wilson, 3 Carr. & P., 528. 2. It is incumbent on the steamboat to account for her situation, and to satisfy the court that there was no mismanagement, or mistake, or blame that can be reasonably imputed to her. The Perth, 3 Hagg. Adm., 414, 417. 3. The steamboat did not perform her duty, but was in fault in not keeping a better look-out, in changing her course to the windward, and in not turning to the leeward, (that is, to the south,) and in not earlier stopping her engine and backing when she saw the danger. The Iron Duke, 9 Jur., Abbott on Shipp., 234; Story on Bailm., § 611; 3 Kent, Com., 230, 5th ed.; The Cynosure, 7 Law Rep., 222; The Jupiter, 3 Hagg., 330 ; 2 Wend. (N. Y.), 452; The Friends, 1 Wm. Rob., 481, 483; The Shannon, 1 Wm. Rob., 467 ; 1 Law Rep., 313, 318; The Gazelle, 1 Wm. Rob., 475 ; Lowrey v. Steamboat Portland, 1 Law Rep.,'313, 318; The Gazelle, 1 Wm. Rob., 475; Conkling’s Adm., 305-311. 4. The witnesses for the steamboat state, that, when they first discovered the schooner, she was dead ahead, from a quarter to three eighths of a mile off. If so, it was the steamer’s duty to have ported her helm and gone to the larboard of the schooner. She- was bound to take the utmost care. The Gazelle, 1 Wm. Rob., 475; The Perth, 3 Hagg. Adm., 414. Mr. Justice NELSON delivered the opinion of the court. 607 579 SUPREME COU RT. St. John v. Paine et al. This is an appeal from a decree of the Circuit Court of the United States for the Southern District of New York. The suit was commenced in the District Court in admiralty against the steamboat Neptune by the appellees, who were the owners of the schooner lole, for damages done by a collision on Long Island Sound, off Stratford Point, on the evening of the 14th of July, 1846. The lole was laden with a cargo of lumber, plaster, and fish in barrels, and was of about eighty tons burden. *5801 *The Neptune had on board from 200 to 250 pas-sengers. The schooner was struck neai‘ midships, on the larboard side, and immediately sunk, carrying with her a woman and child, who were lost. The libel charges that the schooner was on her voyage up the Sound to New York ; and that about a mile south of the light-boat stationed off the Middle- Ground, a shoal at that place, and nearly opposite Stratford Point, some sixty miles from New York, she was steering about a west course, the wind being from the north, and the night clear, so that a vessel could be descried at a considerable distance ; and that while sailing upon this course with a fresh wind, going at from six to eight knots an hour, and a short time after the schooner had passed the light-boat, between the hours of nine and ten o’clock at night, she was negligently run down by the Neptune, which vessel was proceeding down the Sound from New York, and struck against her hull, head on, between the fore and main rigging on the larboard side, with such force and violence as to break open her hull, and cut her nearly in two, so that she filled and sunk immediately. The allegations of the answer are, that the Neptune had sailed from New York at five o’clock of the afternoon of that day, bound for Newport and Providence (R. L), and had proceeded on her voyage until within about a mile from Stratford light-boat, when, at or about eight or ten o’clock in the evening, a vessel was descried about a quarter of a mile ahead, which turned out to be the lole in question. That immediately on seeing the vessel, the course of the Neptune was changed to windward for the purpose of giving her the course she was running. That when the Neptune was about ten or twelve lengths from the schooner, it was seen that she had changed her course, and was luffing up into the wind so as to cross the bows of the steamboat. That when first seen, the lole was running west by south, from which she changed suddenly to about northwest; that, on seeing she had changed her course, the bell of the Neptune was immediately rung to stop her, and all efforts made to avoid the collision ; but that 608 DECEMBER TERM, 1850. 580 St. John v. Paine et al. the schooner came directly across the bows of the steamboat, and, the latter having still some .headway, a collision could not be avoided. It will be seen from these allegations of the respective parties, that the issue between them, and upon which the case must turn in favor of the one or the other, is a very simple one, whether we have regard to the law or to the facts. The statement of the lole is, that she was proceeding on a west course up the Sound, nearly close-hauled to the wind, with her starboard tacks on board, at the rate of about seven knots *an hour ; and that, while keeping on this course, the Neptune, in an improper manœuvre to cross her L trail, and pass to the windward, struck her near midships on the larboard side, and sunk her. The allegation of the Neptune does not vary substantially from this statement, except that it charges the collision to the fault of the lole in not keeping on her course, but suddenly changing it by throwing her head into the wind, and thereby placing her athwart the track of the steamboat as she was in the act of passing to the windward. The general question involved in the case is, which of these vessels has been in fault ; and this will depend upon the evidence produced by each in the court below, together with the application of the rules of navigation to be observed by them at the time of the collision, and with a view to avoid it, having regard to their relative position and course ; and, more especially, the application of these rules under the facts and circumstances, in a case where the colliding vessel is propelled by steam, and the other by sails. Among the nautical rules applicable to the navigation of sailing, vessels are the following, viz. :—A vessel that has the wind free, or sailing before or with the wind, must get out of the way of the vessel that is close-hauled, or sailing by or against it ; and the vessel on the starboard tack has a right to keep her course, and the one on the larboard tack must give way, or be answerable for the consequences. So, when two vessels are approaching each other, both having the wind free, and consequently the power of readily controling their movements, the vessel on the larboard tack must give way, and each pass to the right. The same rule governs vessels sailing on the wind and approaching each other, when it is doubtful which is to windward. But if the vessel on the larboard tack is so far to windward that, if both persist in their course, the other will strike her on the lee side abaft the beam or near the stern, in that case the vessel on the starboard tack should give wav, as she can do so with greater facility and less loss of Vol. x.—39 609 581 SUPREME COURT. St. John b. Paine et al. time and distance than the other. Again, when vessels are crossing each other in opposite directions, and there is the least doubt of their going clear, the vessel on the starboard tack should persevere in her course, while that on the larboard tack should bear up, or keep away before the wind. The. Friends, 1 Wm. Rob., 483; The Traveller., 2 Id., 197; The Ann and Mary, Id., 189; The Chester, 3 Hagg. Adm., 316 ; The Jupiter, Id., 320; The Celt, Id., 327; The Woodrop Sims, 2 Dod., 86 ; The Thames, 5 Rob., 345; 3 Car. & P., 528 ; 9 Id., 601; 12 Moo., 148; 3 Kent Com., 230. jfcKon-i *These rules have their exceptions in extreme cases, J depending upon the special circumstances of the case, and in respect to which no general rule can be laid down or applied. Either vessel may find herself in a position at the time when it would be impossible to conform to them without certain peril to herself, or a collision with the approaching vessel. Under such circumstances, the master must necessarily be thrown upon the resources of his own judgment and skill in extricating his own vessel, as well as the vessel approaching, from the impending peril. These cases cannot be anticipated, and therefore cannot be provided for by any fixed regulation. They can only be examined, and the management of the vessel approved or condemned, as the case may arise. But no one can look through the reports in admiralty in England without being struck with the steadiness and rigor with which these general nautical rules have been enforced in cases of collision, under the advice of the Trinity masters of that court, or fail to be impressed with the justice and propriety of such application, and the salutary results flowing from it. In the case of the Traveller, an exception was set up by the colliding vessel, on the ground that the other, when first descried, was about two points on her lee bow. This was denied. But the court declined to enter into a minute examination as to which of the statements was correct, observing that it had been distinctly laid down, over and over again, that when two vessels on opposite tacks are approaching each other, and there is a probability of collision, it is the duty of the vessel on the larboard to give way at once, without considering whether the other vessel be one or more points to leeward. And, in the case of the Friends, the court, where an exception was attempted to be engrafted on the Trinity rules, in submitting the case to the Trinity masters, recommended that, for the sake of the safe navigation of the Thames and the great interests which are daily and hourly there at stake, 610 DECEMBER TERM, 1 850. 582 St. John r. Paine et al. the exception, if any were to be made, should be clear, definite, and intelligible, in order that it might, at the first glance, be known to the mercantile and maritime world ; that unless it were so, it was obvious that persons in all cases would endeavor to form exceptions for themselves, and instead of certainty they would have uncertainty ; instead of security, danger. And in the case of the Ann and Mary, decided in 1843, the Trinity masters observed to the court, speaking of the rule that the vessel on the larboard tack must give way, and where they had applied it with great rigor, that the golden rule so long established must be strictly adhered to, which was, that the vessel *on the larboard tack is to give way and r*too the vessel on the starboard tack to hold on ; and. that L the new rule which had been lately made for steam-vessels, namely, each to put the helm a-port, under all doubtful circumstances, assimilated with it. The vessel on the starboard tack puts her helm a-port to keep the wind, and the vessel on the larboard tack does the same to bear away. That the same rule applied to sailing, as well as steam vessels, and if it should be strictly adhered to, there would not be one thousandth part of the accidents which had occurred. These rules, which are the results of the practical experience and wisdom of navigators, cannot be too strongly impressed upon the observance of those engaged in the management of vessels on our rivers, or other waters where the course of business and trade naturally confines the navigation to a particular tract or route ; and it is the obvious duty of the courts to apply them strictly in all cases of collision, unless where a clear exception is established by the party seeking to excuse himself for a departure. Our examination thus far has been confined to the nautical rules governing the navigation of sailing vessels. We have thus confined it, because it will be found that they are generally applicable as rules regulating the navigation in cases where one of the vessels is propelled by steam. The striking difference is, that steam-vessels are regarded in the light of vessels navigating with a fair wind, and are always under obligations to do whatever a sailing vessel going free or with a fair wind would be required to do under similar circumstances. Their obligation extends still further, because they possess a power to avoid the collision not belonging to sailing vessels even with a free wind, the master having the steamer under his command, both by altering the helm and by stopping the engines. They are also of vast power and speed compared with craft on our rivers and internal seas propelled by sails, exposing the latter to inevitable destruction in case 611 583 SUPREME COURT. St. John v. Paine et al. of collision, and rendering it at all times difficult, and not unfrequently impossible, to get out of their way. Greater caution and vigilance are therefore naturally to be exacted of those in charge of them, to avoid the dangers of the navigation. This justly results from the superior power to direct and control the course and speed of the vessel, and the serious damage consequent upon a failure to avoid the dangers. As a general rule, therefore, when meeting a sailing vessel, whether close-hauled or with the wind free, the latter has a right to keep her course, and it is the duty of the steamer to adopt such precautions as will avoid her. The Shannon, *5841 $ Hagg. Adin., 173; The Perth, *3 Id., 414 ; The J Rose, 2 W. Rob., 1 ; Hawkins v. The Duchess and Orange Steamboat Co., 2 Wend. (N. Y.), 452 ; 3 Kent Com., 230 ; Abbott on Shipping, p. 228 (Boston ed., 1836). By an adherence to this rule on the part of the sailing vessel, the steamer with a proper look-out will be enabled, when approaching in an opposite direction, to adopt the necessary measures to avoid the danger, as she will have a right to assume that the sailing vessel will keep her course. If the latter fails to do this, the fault will be attributable to her, and the master of the steamer will be responsible only for a fair exertion of the power of his vessel to avoid the collision under the unexpected change of the course of the other vessel, and the circumstances of the case. Recurring now to the facts attending the collision, as disclosed in the court below, and applying the rules of navigation as above stated, and which should have been observed by the respective vessels, we shall be enabled to determine without much difficulty which of them has been in fault. The lole had on board her starboard tacks, and was nearly close-hauled to the wind, and, as we have seen, had a right, and indeed was bound, to keep on her course ; and it was the duty of the Neptune to adopt the proper measures to avoid her. There is some discrepancy in the evidence, but the clear weight of it is, that she kept her course till the collision occurred. She was not descried by the hands on board the Neptune till the two vessels were from one fourth to three eighths of a mile apart, with a combined speed of sixteen or seventeen miles the hour. She was then, as they supposed, directly ahead. The wheel of the Neptune was immediately put hard a-starboard, with a view to pass the schooner to the windward ; and it is supposed by the hands on board that this manœuvre would have cleared her, had she not at the same time changed her course by heading more into the wind. As we have already said, this allegation is not borne out by the 612 DECEMBER TERM. 1850. 584 St. John. v. Paine et al. evidence. On the contrary, the strong probability is, according to the testimony, that the hands on board the Neptune at the time they first descried the schooner mistook her position, and, instead of being on a line with her, that the Neptune was to the leeward, and that, in changing her course and coming up to pass to the windward, they naturally supposed the schooner had changed her course also. Besides, she was in fault in attempting to pass the lole to the windward. Even admitting that she was not mistaken in the position of this vessel, and that she was dead ahead, it was the duty of the Neptune to bear away; and to pass on the larboard side. As we have seen, the observance of no *one of the rules of navigation is more strongly recom- r*eo-mended, or more steadily enforced, in the admiralty, L than this one, where two vessels are approaching in opposite directions, and there is danger of a collision. It is observable in this connection, that the pilot in charge of the Neptune seems not to have been properly instructed in his duty in the emergency after the schooner had been discovered ahead, or if he had, that he neglected it; for we find him testifying that, if he had known her course, (which he did not when he gave the order,) he should have thrown his wheel as he did, because the schooner might have hauled off on the wind. And the other pilot on board expressed the opinion, that there was no difficulty whatever in her keeping away and avoiding the Neptune, after seeing her two or three miles off. They seem to have entertained the opinion that, according to the rules of navigation, it was the duty of the sailing vessel to give way when meeting a vessel propelled by steam; and this even when she was on the starboard tack and nearly elosehauled to the wind. Now, the owner is responsible for damage resulting not only from want of care and attention on the part of those in charge of the vessel, but also from the want of proper knowledge and skill to enable them to manage her according to established nautical rules. Error of judgment will be no defence, especially if resulting from incompetency. And erroneous opinions of duty on the part of those in the immediate management and control of the vessel naturally turn a doubt, arising from conflicting evidence upon a question whether or not a proper direction was given in the emergency, against them. We are also satisfied, that the steamboat was in fault in not keeping at the time a proper look-out on the forward part of the deck; and that the failure to descry the schooner at a greater distance than half a mile ahead is attributable to this neglect. The pilot-house, in the night, especially if dark, 618 585 SUPREME COURT. St. John v. Paine et al. and the view obscured by clouds in the distance, was not the proper place, whether the windows were up or down. The view of a look-out stationed there must necessarily have been partially obstructed. A competent and vigilant look-out stationed at the forward part of the vessel, and in a position best adapted to descry vessels approaching at the earliest moment, is indispensable to exempt the steamboat from blame in case of accident in the night time, while navigating waters on which it is accustomed to meet other water craft. There is nothing harsh or unreasonable in this rule; and its strict observance and enforcement will be found as beneficial to the interest of the owners as to the safety of navigation; *a remark equally true in respect to every other nauti-• cal rule, which the results of experience have shown enter so materially into the proper management of the vessel. It has been insisted, that the schooner was in fault in not carrying a light, so as to enable the vessels approaching to see her at a greater distance. But all agree that it was a clear, starlight night, and hence there could be no difficulty, with a proper look-out, in seeing to a sufficient distance to enable the steamer to make the proper movement to avoid her. It is not usual for sailing vessels to carry lights on such a night. It is true, some of the witnesses on the part of the Neptune speak of a black cloud in the eastern horizon, which obscured the view from vessels going in that direction. But the allegation is not maintained by the evidence to an extent that would justify us in attributing to it any material importance. Upon the whole, we are satisfied the decree below is right, and must be affirmed. Mr. Justice DANIEL dissented from the opinion of the court in this case, and also in that of Newton v. Stebbins. For his opinion, see the conclusion of the last-mentioned case, which follows the present. Order. This cause came on to be heard on the transcript of the record from the Circut Court of the United States for the Southern District of New York, and was argued 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 affirmed, with costs and damages at the rate of six per centum per annum. 614 DECEMBER TERM, 1850. 586 Newton v. Stebbins. Isaac Newton, Claimant of Steamboat New Jersey, Appellant, v. John H. Stebbins. Where a sailing vessel was descending the Hudson River with but a trifling wind, and chiefly by the force of the current, and came into collision with a steamer ascending the river, the question in the case was, whether or not the accident happened, notwithstanding every proper precautionary measure had been taken on the part of the steamboat to pass the sloop in safety, in consequence of an improper movement of that vessel by the mismanagement and unskilfulness of the persons in charge of her. If the sailing vessel kept her course, it was the duty of the steamboat to avoid her. The evidence showing that the steamer did not take *proper precautionary measures to avoid the sloop while endeavoring to pass her, the respon- 1 sibility of the collision must rest upon the steamer. The steamer was in fault for not slackening her speed, on meeting a fleet of sailing vessels in a narrow channel of the river, she then going at the rate of from eight to ten knots the hour. She was also in fault, in not having a proper look-out at the forward part of the vessel, there being no one but the man at the wheel on deck.1. This was an appeal from the Circuit Court of the United States for the Southern District of New York. Like the preceding case, it arose from a collision which took place between a steamboat and a sailing vessel. The circumstances under which the collision took place, as claimed to exist by the respective parties, are thus set forth in the libel and answer. The libel was filed in November, 1845. “ To the Honorable Samuel R. Betts, Judge of the District Court of the United States for the Southern District of New York. “•The libel and complaint of John H. Stebbins, of Coey-mans, mariner, owner of the sloop Hamlet, whereof the libellant was master, her tackle, apparel, and furniture, against the steamboat New Jersey, whereof one Beebe now is or late was master, her engine, boiler, tackle, apparel, and furniture, now within this district, and also against all persons lawfully intervening for their interest therein, in a cause of collision, civil and maritime; and thereupon the said John H. Stebbins alleges and articulately propounds as follows:— “ 1st. That some time in the month of October last the said sloop Hamlet (whereof the said libellant was master) was at the port of Bristol on the Hudson River, and destined on a voyage thence to the port of New York, with a cargo of flagging and other stone on board; and was at the time a tight, stanch, and well-built vessel, of the burden of ninety tons, or 1 Followed. The Ant, 10 Fed. Rep., 297. 615 587 SUPREME COURT. Newton v. Stebbins. thereabouts, and was then completely rigged and sufficiently provided, and then had on board, and in her service, a full and competent crew for the navigation of said sloop on the voyage above mentioned. “ 2d. That in the said month of October the said sloop, provided and manned as aforesaid, sailed from the port of Bristol on her aforesaid voyage to the port of New York, and in the prosecution of the said voyage, as he is informed and believes, the said sloop proceeded at the rate of about four or five miles per hour, until she arrived at a point on the Hudson River called Blue Point; that at that point the wind failed, and the said sloop then proceeded with the force of the current and very little wind about one or two miles an hour; that on her arrival at said point, and while the said vessel was *coo-i within the jurisdiction *of this court, the person in J charge of the said sloop observed the said steamboat coming up the river at the rate of about twelve or fifteen miles per hour, and nearer to the east shore of said river than the said sloop, and directed the man at the helm to head the said sloop more to the west shore of said river, which was done; that when said steamboat New Jersey arrived within a short distance of the said sloop, she altered her course to the westward, and negligently and carelessly headed across the bows of said vessel, and attempted to pass to the westward of said sloop; in consequence of which negligent conduct of those in charge of said steamboat, the said steamboat struck the end of the said sloop’s bowsprit, carrying away about ten or twelve feet of the said bowsprit and the stays attached thereto, forcing the bows of the said sloop round so that she struck the sloop on the larboard bow, doing such injury to the said sloop by said collision, that the sloop immediately sunk, with her said cargo. “ 3d. That at the time the damage mentioned in the preceding article happened, it was impossible for the said sloop Hamlet to get out of the way of the said steamboat New Jersey, the said sloop having little comparative way on, and being at the time to the westward, and out of the course of the said steamboat, and there being room enough for the said steamboat to have passed to the eastward of said sloop, as she might and ought to have done. That if the persons having charge of the said steamboat New Jersey had taken proper precaution to keep clear of the said sloop, which it was their duty to have done, the damage in the next preceding article set forth would not have happened. “4th. That the said sloop, at the time of the receiving of the damage above mentioned, was a tight, stanch, and strong 616 DECEMBER TERM, 1 850. 588 Newton v. Stebbins. vessel, and that the libellant then was, and now is, the true and lawful owner of said sloop, her tackle, apparel, and furniture. “5th. That by the collision aforesaid, and the consequent sinking of said sloop, with her cargo, the libellant has sustained damage to the amount of three thousand five hundred dollars. “6th. That all and singular the premises are true, and within the admiralty and maritime jurisdiction of the United States and of this honorable court; in verification whereof, if denied, the libellant prays leave to refer to pleadings and other proofs to be by him exhibited in this cause. “ Wherefore, the libellant prays, that process in due form of law, according to.the course of courts of admiralty, and of this honorable court in cases of admiralty and maritime jurisdiction, may issue against the said steamboat New Jersey, her *engine, boilers, tackle, apparel, and furniture, where- pcgg soever the same may be found; and that all persons having, or pretending to have, any right, title, or interest therein may be cited to appear and answer all and singular the matters so articulately propounded; and that this honorable court would be pleased to pronounce for the damages aforesaid, or for such other and different relief to the libellant in the premises as shall to law and justice appertain, and also to condemn the said steamboat, her engine, tackle, apparel, and furniture, and the persons intervening for their interest therein, in costs. “ John H. Stebbins.” To this libel, Isaac Newton filed the following answer:— “ January Term, 1846. “ To the Honorable Samuel R. Betts, Judge of the District Court of the United States within and for the Southern District of New York : “And now Isaac Newton, intervening for his interest in the steamboat New Jersey, appears before this honorable court, and for answer to the libel and complaint of John H. Stebbins against the said steamboat New Jersey, her engine, boilers, tackle, apparel, and furniture, and against all persons lawfully intervening for their interest therein, alleges and articulately propounds as follows :— “ 1st. That this respondent was the owner of said steamboat, her boiler, engine, &c., in October last, at the time of the alleged collision of said sloop Hamlet, in the libel men- 617 589 SUPREME COURT. Newton ». Stebbins. tioned, and the New Jersey, and before that time, and afterwards until the sale of said steamboat to William B. Dodge and John S. Moore, on or about the 19th day of November last; and that since such sale by this respondent to said Dodge and Moore, this respondent has been and still is bound to indemnify and save the said Dodge and Moore harmless against any claim or demand which the said libellant, or any other person, may have against said steamboat, her boiler, engine, &c., by reason of any such collision, and has been ever since such sale, and still is, interested in said steamboat, her engine, tackle, apparel, and furniture, as mortgagee for the purchase money. “ 2d. This respondent also admits that the libellant was the master of the said sloop Hamlet; but he says, on information and belief, that said libellant was not in command on board said sloop at the time of the collision in question, nor at any time during her said trip or voyage. This respondent also admits that said sloop was at Bristol, on the Hudson, as alleged in the first article of said libel, and destined on a trip *kqa-i or voyage *thence to New York, with a cargo of some J sort on board, but he is not informed, save from the libel, and therefore will leave the said libellant to prove, of what her cargo consisted; and this respondent denies, on information and belief, that said sloop was, as alleged in said libel, tight, stanch, and well built; and he also denies, on information and belief, that said sloop was completely rigged and sufficiently provided; and especially does he deny that she had on board, and in her service, a full and complete crew for the navigation of said sloop on her destined voyage ; and he avers, as he is informed and believes, that she was not sufficiently manned, that the master was not on board of her, and no competent person in charge of said sloop on said voyage. “ 3d. This respondent further says, that, as he is informed and believes, on the afternoon previous to the collision in question, the New Jersey started from New York at or about five o’clock, with a tow-boat of about two hundred tons burden, bound for Hudson, and at the time of said collision, which arose from running the sloop into the said steamboat, as hereinafter mentioned, the said steamboat was within about half 2. mile from a point on the Hudson known as Blue Point, a distance of about eighty miles from New York ; that the time of the collision in question was about two o’clock in the morning ; that at the time of collision, and a short time previous to the collision, and for three or four miles before the sloop struck the steamboat, the steamboat was on the west side of the river, and westward of the course of the sloop, with her tow-boat on 618 DECEMBER TERM, 1850. 590 Newton ». Stebbins. her west side; that said steamboat had had a fair tide until a little before the collision happened, but at the time of the collision it was slack water; that a short time previous to the collision, and that at the time thereof, the wind was from the westward and blowing a stiff breeze ; t.hat the steaiher, a short time previous to the collision, was slowed, and was stopped about the time of the collision; that the steamboat did not cross the bow of the sloop, nor the course the sloop was running at the time the sloop came in sight, and that the collision arose from the short luffing of the sloop, through the fault and wilfulness, carelessness, mismanagement, or misdirection of the person or persons in charge of the sloop, which the persons in charge of the steamboat could not have foreseen nor guarded against, whereby the said sloop was run into the said steamboat by the person in charge of said sloop, and with so much force and violence as to drive the bowsprit of the sloop into the steamboat, and do a great damage to said steamboat; or that the said collision arose otherwise from the fault, mismanagement, misdirection, or incompetency of the person or persons *in charge of the said sloop, and that the said collision happened without any fault, misdirection, or misman- L agemen t of the persons in charge of said steamboat. And this respondent further answering says, that he is not informed of the rate at which the said sloop was proceeding before and after their arrival off Blue point, but he has reason to believe, and does believe, that the said sloop was proceeding much more rapidly through the water, both before and after their arrival off Blue Point, than as aforesaid is stated in said libel; and he denies, on information and belief, that the wind failed as said sloop arrived at the point. And this respondent denies, on information and belief, that the said steamboat, with her tow-boat, at the time she came in sight of the sloop, or at any time on her said trip or voyage from New York, either did or could have proceeded at the rate of near twelve or fifteen miles per hour, but she was moving at a much slower rate, and very slow; and he likewise denies, as he is informed and believes, that said steamboat was at any time after her coming in sight of said sloop nearer to the east shore of said river than said sloop; but whether or not the person or any persons having charge of said sloop directed the man at the helm thereof to head the sloop more to the west shore of said river, and whether the same was done in manner and form as alleged in said libel, this respondent is ignorant, and would leave said libellant to prove the same ; but he is informed and believes that as said steamboat, going up the river, was passing said sloop to the west of said 619 591 SUPREME COURT. Newton v. Stebbins. sloop, and said sloop, going down the river, was passing to the east of said steamboat, the course of said sloop was suddenly altered, through the manifest fault and carelessness, mismanagement, or misdirection of the persons in charge of said sloop, and so directed to the westward as to run her into said steamboat ; and this respondent further says, as he is informed and believes, that as the said steamboat was passing said sloop to the westward, with her tow-boat in tow on her west side as aforesaid, the said sloop being headed toward the eastward, before the sudden change of direction of said sloop as aforesaid, he is informed and believes that said steamboat was directed farther, and as far as possible,„ to the westward to keep clear of said sloop, and that she was not directed westward so as to cross the bow of said sloop; and that the said steamboat was not negligently or carelessly, or otherwise, headed across the bows of said vessel, nor was it attempted to pass said steamboat to the westward across the bow of the sloop, or the course of the sloop; and this respondent denies, on information and belief, that it was in consequence of any negligent conduct or fault of those in charge of said steamboat said steamboat struck *the end of said sloop’s bow- -> sprit, and says, as he is informed and believes, that the allegation is more correct, as it is in accordance with the fact, to say, that the end of the- bowsprit of the sloop struck the steamboat, than that the steamboat struck the end of the bowsprit of the sloop, which is not true, as this respondent is informed and believes. And this respondent admits that said sloop sunk at or soon after the collision; but he says, as he is informed and believes, it was through the weakness and insufficiency of the said sloop, and through the carelessness and mismanagement and insufficiency of those who had charge of her. “ 4th. This respondent further says, that, as he is informed and believes, it is not true, as alleged in the third article of said libel, that it was impossible for said sloop Hamlet to get out of the way of the said steamboat, for the reasons supposed in that article, nor for any reason whatever; but, on the contrary thereof, this respondent is informed and believes that said steamboat was pursuing her course, on the westerly side of the river, as aforesaid, and that said collision was occasioned entirely by the fault, misdirection, mismanagement, or incompetency of the persons having charge of the sloop, in suddenly altering and varying her course as aforesaid, and in not keeping on her course as the said sloop ought and might have done, and for which she had sufficient headway; or otherwise through the fault, misconduct, mismanagement, or 620 DECEMBER TERM, 1850. 502 Newton v. Stebbins. incompetency of the person having charge of said sloop. And he further says, that if the person or persons in charge of said sloop had used proper precaution or reasonable skill or care, as in duty bound to do, to avoid said collision, said collision might and would not have happened. And this respondent further says, as he is informed and believes, thflt every precaution was taken and effort made, and all reasonable care, skill, and diligence used, by the persons having charge of said steamboat, to avoid such collision. “ 5th. This respondent, on information and belief, denies that said sloop, at the time of said collision, was tight, stanch, or strong, but, on the contrary thereof, was old, weak, and insufficient; and this respondent says that he is not infoimed, except from the libel, whether the said libellant was, at the time of said collision, or since has been, the owner of the said sloop, her tackle, apparel, and furniture, and therefore does not admit the same, but leaves him to prove the same as he may’be advised. “ 6th. Whether the said libellant has sustained damages to the amount of $3,500, or to any amount, by the collision aforesaid, and the sinking of said sloop with her cargo, this Respondent is not informed, save by said libel, and does r*rno not admit the same, and leaves him to prove the same *-as he may be advised; but this respondent insists, that neither said steamboat New Jersey, nor this respondent, is liable for any part of such damage, if any there be. “ 7th. That the said collision, as this respondent is informed and believes, occurred within the body of the county of Ulster or of Duchess, in the state of New York, and not within the admiralty and maritime jurisdiction of this maritime court, and that therefore this honorable court has not jurisdiction, and ought not to proceed to enforce the claim alleged in the libel aforesaid against said steamboat, or against this respondent intervening for his interest therein; and this respondent claims the same benefit of this exception as if he had demurred to said libel, or pleaded specially to the jurisdiction of this court. “ 8th. That all and singular the premises are true ; in verification whereof, if denied, the said respondent craves leave to refer to the depositions and other proofs to be by him exhibited in this cause. “ Wherefore this respondent prays, that this honorable court would be pleased to pronouce against the libel aforesaid, and to condemn the libellant in costs, and otherwise right and justice to administer in the premises. “ J. Newton.’’ 621 ta 593 SUPREME COURT. Newton v. Stebbins. To this answer the libellant filed a general replication. Twenty-five witnesses were examined, some of them being persons who were on board of vessels very near the Hamlet at the time of the collision, and others persons who were on board of the steamboat. In order to show the contradictory nature of the evidence, the following depositions are inserted : For the libellant:— “William Hallarbeck, sworn. Was pilot of Eliza Wright; first saw steamboat when a little below Blue Point, at about Barnegat, close in to east shore, and kept right along up east shore to opposite Sands’s Dock, and then sheered over northwest. Witness about one third across river from west shore when steamboat came towards him heading about for him ; came within three lengths of sloop. Witness shook his light, and she took a sheer west, cleared witness about as far off. Hamlet was then half way between witness and shore, a little astern of witness; steamboat kept her course west, and tried to pass Hamlet’s bow; saw them strike steamboat. Hit bowsprit of Hamlet, and slewed her right round to westward; saw her sink within a minute or two; wind was very light and baffling, northeast and northwest, and every way. Witness’s *"04-1 boom *at time, off east; was going three to four miles through water. Witness a little above the White House, nearly opposite to it. “ Cross-examined.—Not quite a mile from White House, to Blue Point three quarters mile. Witness about length ahead of Hamlet, and she about half way between White House and Blue Point, and about one third of a mile from witness; she had no lights in her rigging; saw her bowsprit; night was then lit up a good deal. Witness’s sloop steered well, about abeam; was going four miles to Hamlet’s three, per hour; steamboat had tow-boat on west side; did not stop for collision ; did not observe vessels particularly after they struck and got clear; could see hull of steamboat a mile; a small' flat between White House and Blue Point, not extending one half length of sloop into river. “ Thinks steamboat passed him at rate of ten or eleven miles; does not know that she stopped her wheels before striking Hamlet; did not seem more than a minute after passing before she struck Hamlet; was room for steamboat to pass Eliza Wright on east side. “Robert F. Osborn, sworn. Master of sloop Van Buren; was coming down river night of collision; about half across river from Blue Point, when first saw steamboat; she was then on east shore, near Barnegat, one third from shore; was then coming directly up the river, as he judged; very soon 622 DECEMBER TERM, 1 850. 594 Newton v. Stebbins. she altered so as to run more to west, and then again to about northwest; was astern of Hamlet, «and a little east of her, about to end of her boom. “ Steamboat passed witness’s bow; did not then know Hamlet. “ Steamboat was steering well into west when she struck sloop ; saw her strike ; was then thirty or forty rods off; did not, to witness’s knowledge, stop her wheels before striking ; judged she was going nine or ten knots ; blow slewed Hamlet west; witness jibed over to clear steamboat, and kept away ; was about abreast of sloop when she sunk; steamboat was close along side of her; mast was over steamboat. Sloop went down, head first. Witness thinks he was running about two miles; wind north, directly down river, and light; had kept close with Hamlet from Crumelbow. Cross-examined.—Thinks course of river about north and south at that place. Witness’s sloop minded her helm when lie kept away; believes steamboat backed her wheels after collision; sloop sunk within two or three minutes; steamboat lay some time after; barge of steamboat on larboard side; did not see any light in rigging of Hamlet. “ Jonathan Reeve, sworn. Was pilot of Van Buren. Witness *was at helm ; at time of collision, one quarter to one third from western shore, across river, right after L Hamlet thirty or forty rods, perhaps, off; saw two vessels come together; should think steamboat was going eight or ten knots, steering west-northwest to northwest course. “ Hamlet heading directly down river; wind unsteady at time ; witness going about two knots ; saw steamboat a mile and a half off, and thought she was on east side, and going up that side, as witness’s sail shut her in ; boom off east. Captain Osborn called to witness she was crossing river, and she soon opened to witness’s view; did not observe that steamboat stopped her wheels till she struck ; turned sloop round ; head same way with steamboat; then thought she backed her wheels, and that started sloop a little backward, which rolled over to windward ; then rolled back her mast towards steamboat, and sunk immediately; did not know sloop at time; had to keep away to get from steamboat. “ Cross-examined.—Does not think was length of sloop from steamboat when passed her; witness did not alter course of sloop before collision.” For the claimant:— “ George Dobson, sworn. Second pilot of Buffalo; was pilot of New Jersey night of collision; was at wheel at time 623 595 SUPREME COURT. Newton v. Stebbins. of collison, and from New York, except time of taking his tea; saw Hamlet a mile or more ahead, she being most to west of all the vessels; great many vessels coming down ; made course to clear her, as he had all the rest from Clinton’s Point up; had plenty of room, as if she had kept her course he should have had nearly one-third of river; first she luffed, and witness hauled more west to avoid her; she had been running straight down the river, and was perhaps one-third of a mile off when she changed her direction ; when she luffed she bore more for steamboat; should have gone clear had she kept her course; fearing she would not clear steamboat, slowed her, and hallowed to sloop to keep away ; then stopped steamboat, and hailed again to keep away, and saw man shove his helm down (which would luff her up) ; it luffed her directly round ; the instant witness saw him put his helm down, rang the bell twice to back, and sloop came head into her, as nearly head on as he could judge, might be a little glancing, and she ran against steamboat; hailed with loud voice; thinks would have cleared without trouble if sloop had not luffed last time ; after helm was put down, nothing more could be done on New Jersey than was done; her direction could not be changed, and could aid in avoiding sloop only by backing. *'QP1 *“ Cross-examined.—That night went on board New -* Jersey; been three or four years in People’s line ; Mr. Van Santvoord sent witness to boat; does not know whether he is owner in line or not; he is one of the principal managers ; Drew another, and then chief director; heard he was owner; witness hired to him as runner, but good deal of time has been pilot; has also been captain ; passed more vessels that night than he ever before saw on river; first part of night very dark and bad, but had become more clear at time of collision ; nothing to call witness’s attention particularly to Hamlet; does not recollect passing any vessels in immediate vicinity of Hamlet; passed some below ; did not pass any vessel close to eastern shore of Sands’s Dock ; was then one-third river off west shore ; began at Clinton Point to lay his course gradually across river, so. as to get on west side ; wanted to get to windward of vessels which had generally jibed ; could in such state generally run over to west shore ; sloop nearer the shore when she struck than when she sunk; thinks she sunk nearly one-third of river off shore ; she was dragged off by backing of New Jersey, he thinks all of 200 feet or more, before she went down ; sloop luffed twice ; second time came dead up and direct into New Jersey; New Jersey backed twice, once when sloop was sinking. 624 DECEMBER TERM, 1 850. 596 Newton v. Stebbins. “Been on river seventeen or eighteen year$ pretty steady, in all twenty-five years. “ Has run season as pilot, sometimes not on same boat.” In July, 1846, the cause came on to be tried in the District Court, when the following decree was pronounced:— “ This cause having been heard on the pleadings and proofs, and argued by the advocates for the respective parties, and due deliberation being had in the premises,— “ It is now ordered, adjudged, and decreed by the court, that the libellant recover, in this action against the steamboat New Jersey, her tackle, &c., the damages sustained by the sloop Hamlet, and the cargo on board. “ And it is further ordered, that it be referred to one of the commissioners of this court, to ascertain and compute the amount of such damages, and to report thereon to this court with all convenient speed. “ Samuel R. Betts.” On the 25th of September, 1846, the commissioner made the following report:— “ In pursuance of a decretal order, made in the aboveentitled case, on the first day of August instant, by which, among other things, it was referred to the undersigned, one of the Commissioners of this court, to ascertain and com- r#EQ7 pute the amount of damage sustained by the sloop L Hamlet, in her collision with the steamboat New Jersey, and the value of the cargo on board: “I, George W. Morton, the commissioner to whom the above matter was referred, do report that I have been attended by the proctors of the libellant and claimant, and have taken and examined the testimony offered in support of the libellant’s claim, and the testimony offered by the claimant in opposition thereto, and do find that the sloop Hamlet, at the time of the collision with the steamboat New Jersey, was worth the sum of 82,800, and the cargo on board the sum of $528.35, amounting in the whole to the sum of $3,328.35, being the damages sustained by the sloop Hamlet and cargo, in her collision with the steamboat New Jersey. “ All which is respectfully submitted. “ George W. Morton, U. S. Commissioner. “ September 25th, 1846.” Exceptions were filed to this report, and on the 14th of October, 1846, a final decree was entered in the District Vol. x.—40 625 597 SUPREME COURT. Newton v. Stebbins. Court, reducing the damages to $2,403.70, which amount it was adjudged that the libellant should recover, with costs. The claimant and libellant both entered an appeal from this decree; but the libellant not perfecting his appeal, the cause went up to the Circuit Court upon the appeal of the claimant alone. On the 10th of September, 1847, the cause was tried upon this appeal in the Circuit Court, and on the 11th of November, 1847, the decree of the District Court was affirmed, with costs. The claimant appealed to this court. It was argued by Mr. Van Santvoord, for the appellant, and Mr. Benedict, for the appellee. The points made by Mr. Van Santvoord, for the appellant, were the following:— I. To succeed, the libellant must establish to the satisfaction of the court, not only that the collision happened through some negligence of the persons in charge of the steamboat, but also that it happened without any fault of the persons in charge of the sloop. Bulloch v. Steamboat Lamar, Circ. Ct. U. S., Georgia, 8 Law Rep., 275; Abbott on Shipping, Story & Perkins’s ed., p. 228, note (2) ; Parker v. Adams, 12 Mete. (Mass.), 415, 417; Spencer v. The Utica and Schenectady Bailroad Co., 5 Barb. (N. Y.), 337, and cases cited therein. And to establish the fact to the satisfaction of the court, #cqo-i that *the fault was not on the part of the persons -• intrusted with the navigation of the sloop, the libellant must show it by evidence leaving no reasonable doubt, as the burden of proof is upon him. The Catherine, 2 Hagg., 145, 154; The Ligo, 2 Hagg., 356; Lane v. Crombie, 12 Pick. (Mass.), 177. II. Section 1 of Title 10 of the Revised Statutes of New York does not apply to the case of a sailing vessel and a steamboat. The fact of the omission by the legislature to provide for the case of a sailing vessel and steamboat, approaching from opposite directions, is the highest evidence of their intention to leave such a case to be regulated by the ordinary rules and usages of navigation in such cases. III. The case of The Friends, 1 Wm. Rob., 478, cited by the libellant below, does not apply to the case of a sailing vessel and steamboat approaching from opposite directions on the Hudson River,—for the reason, that the decision of that case rests wholly upon the view taken by the judge who 626 DECEMBER TERM, 1850. 598 Newton v. Stebbins. decided it,- of the construction and application to the case of the Trinity rules, which are of no force here. The case was one of great obstinacy and sharp practice; both;parties persisting in their course,—the steamer Menai hailing the schooner to starboard her helm, and the schooner hailing the steamer to port her helm, while either might have avoided the collision by a change of direction. The true question therefore was, Which was most to blame ? and the court, on the application of the Trinity rules, considering the schooner technically right, pronounced against the claim of the steamboat. IV. But if the rule requiring each vessel to keep to the right (which would seem to be the most usual practice on our coast, unless there is some good reason to the contrary, as in the case on appeal, Lowry v. Steamboat Portland, 1 Law Rep., 312) is applicable to the case of a sailing vessel and a steamboat, it is applicable only to the case of two vessels approaching each other in a direct line, from opposite directions, when so near that it becomes the duty of each to take proper measures to avoid a collision. See the opinion of the court, in the case of The Friends, 1 Wm. Rob., 482, showing that the case goes on the assumption that both vessels were approaching on a direct line, and so near that it was the duty of each to take proper measures to avoid a collision. V. Nor does the rule insisted on apply to the case where the vessel on the larboard tack (the steamer) is on a course so far to windward, as the vessels are nearing each other, that, *if both persist in their course, the other will pggg strike her on the leeward side abaft the beam, or near *-the stern,—in which case the vessel on the starboard tack should keep off. Report of Benjamin Rich and others to the District Court of Massachusetts, 1 Law Rep., 318. Nor (a fortiori) to the case where the vessel on the starboard tack, if kept on her course, would pass at a safe distance to the windward of the other vessel. VI. The rule of navigation specially applicable to the case of a steamboat approaching a sailing vessel, which requires a steamboat to pass the sailing vessel either on the larboard or starboard side of the sailing vessel, whichever is the best method of proceeding to avoid a collision, under any given circumstances, necessarily imposes upon the sailing vessel a corresponding obligation to keep her course, and not to change her direction as the steamboat approaches near her, across the line of direction of the steamboat. A little arithmetic will show, that a sailing vessel, proceed- 627 599 SUPREME COURT. Newton v. Stebbins. ing at the rate of three miles or two miles an hour through the water, or even less, can change her position from a point so far out of the line of the direction of a steamer approaching her, proceeding at an ordinary rate of speed, as to render a collision inevitable; and a collision thus occasioned would be justly chargeable to the fault of the sailing vessel. Three miles an hour is at the rate of 176 yards, or 528 feet, in two minutes; and two miles an hour, at the rate of 117 yards, or 351 feet, in two minutes. As to the law and rules of navigation applicable to the case, see the opinion of the District Judge in the case on appeal, of which a copy is herewith furnished. For further illustration, see also the opinion of the District Judge of New York in the case of Stout v. The Steamboat Isaac Newton, decided Dec. 23, 1848. VII. In reference to the pleadings, the rule of pleading in cases of tort is, that it is sufficient if part only of the allegations stated in the declaration or answer be proved, provided that what is proved affords a ground for maintaining the action or defence, supposing it to have been correctly stated as proved: it is quite enough in cases of tort, if the same ground of action or defence is proved as laid in the declaration or answer, although not to the extent there stated. 1 Phillips on Evidence, 200, 205. In this view, the allegation in the answer, that the steamboat was on the west side of the river for three or four miles before the collision, is not required to be proved in its full extent. It is requisite to show only that the steamboat was *6001 on west s^e r*ver’ and on a course to the -• westward of the sloop, a sufficient time to give the Sloop reasonable notice of her direction to westward. Nor, in this view, is it necessary to prove that a stiff breeze was blowing, provided there was sufficient wind to enable the sloop to control her movements and change her direction. Besides, the defence is not confined in the answer to the precise statement of the manner in which the collision happened. VIII. In reference to the evidence, the appellant will insist,— 1. That the testimony of a competent witness is to be believed, until his statement is contradicted by. other testimony or evidence, from controlling facts, entitled to greater confidence. 2. That the evident misapprehensions of witnesses are not entitled to be considered as evidence. In connection with this, see Penny Cyclopaedia, art. Motion. 628 DECEMBER TERM. 1850. 600 Newton v. Stebbins. 3. That when it shall be shown that witnesses from the sloops, in applying the terms “north” or “northwest,” “ round to westward,” &c., have reference to the direction of the sloop upon which the witness is placed (upon the assumption that its direction is due south), and not to the true point of the compass or the course of the river, allowance should be made for the deviation of the direction of the sloop, to ascertain the effect of the testimony. IX. It is shown by a decided preponderance of testimony, that the New Jersey, going up the river, hauled gradually across the river, from a point on the east side, at or below Barnegat, three miles and upwards below the sloop Hamlet, coming down the river before the wind; that she had hauled over on to the west side of the river, and within a third of the width of the river from the west shore, at or about Sands’s Dock, at least a mile and a quarter below the place of the collision, and from that point, proceeding up the river, made and kept a course well into the westward, to clear the sloop to the westward of the sloop, and on which she would have cleared the sloop to the westward, at a safe distance, but for the change of the position and direction of the sloop, from her place to the eastward of the line of direction of the steamboat across the line of direction of the steamboat, after seasonable notice to the sloop of the direction of the steamboat and so shortly before the collision as to render the collision, by reason of the misdirection of the sloop, inevitable, by the exercise of all ordinary and reasonable means to avoid the collision, which were made by the persons in charge of the steamboat. This statement involves all that is essential for the claimant to establish, and something more. X. There is no just ground for the imputation of negligence *in the navigation of the steamboat to be found in the testimony of the witnesses, of whom it can be L affirmed with any certainty that they saw the steamboat, either from her rate of speed or her course in reference to other vessels, or from any sudden and unusual course in crossing the river, or from any attempt to cross the track of the sloop or run under her bows, from any point to the eastward of the sloop, within any short distance below the sloop, nor after the sloop came in sight, a mile and upwards below the place of collision; all of which errors are clearly to be traced to the mistake of the learned District Judge in confounding two points of the river, which led him to strike out part of the river in the reach in which the collision happened, of a mile in extent, and to the reliance of the learned District and Circuit Judges upon the statements of witnesses (Worden of 629 601 SUPREME COURT. Newton v. Stebbins. the Illinois, and Betts of the Exertion), of whom it cannot be affirmed with any certainty that the steamboat whose course they describe was the New Jersey. XI. ; No blame is imputable to the steamboat in not having a look-out down and forward on the steamboat (which at best would have been a useless precaution under the circumstances), in reference to the collision, who could only have furnished the pilot with information as to the position and course of the sloop, which he had from his own observation, in good season. The Woodrop Sims, 2 Dods., 86. XII. In any view of the case, there was negligence in the navigation of the sloop,—after notice of the intended course of the steamboat, as far below as Sands’s Dock, to the westward,—in heading the sloop first southwest, and then hard in west, within a quarter of a mile of the steamboat, as stated by Bird, the look-out on the sloop, and in not keeping away, which ought to be a bar to a recovery. In this connection, see the case of Hurley v. The Steamboat New Champion, decided in the District Court of New York, 3d April, 1848, 6 N. Y. Leg. Obs., 202, as to the respective liabilities and privileges of steamboats and sailing vessels. XIII. If, contrary to the views of the appellant’s counsel, the court should conclude, after examining the evidence, that there was blamable conduct on the part of the steamboat as well as on the part of the sloop, conducing to the collision; or if, after a strict scrutiny, it is left by the evidence uncertain on which side the blame lies, in the most unfavorable aspect of the law of the case for the steamboat, the damages should be apportioned, and each side left to bear his own costs, Goldsmith, Wells, and others, owners of the Schooner Oriana, v. The Bay State, 6 N. Y. Leg. Obs., 198, and cases and author-ities *cited therein ; Story on Bailm., ed. 1846, §§ 608, -* 609, and note. XIVr In reference to the amount of damages. (This point depended upon the evidence, which is not stated, and therefore the point itself is omitted.) The counsel for the libellant made the following points:— I. Steamers being of vast power and speed, and liable to inflict great injury if not carefully managed, and being also propelled against wind and tide by an overwhelming internal agency, controllable by man, are bound to take every possible precaution in favor of vessels propelled by the uncertain and uncontrollable external winds, tides, and currents. The Perth, 3 Hagg., 415, 416; The Leopard, Daveis, 197; The Scioto, 630 DECEMBER TERM, 1850. 602 Newton ». Stebbins. Id., 361; The Shannon, 2 Hagg., 175; The Friends, 1 Wm. Rob., 478. II. It is also the duty of the owners of steamers to make the most safe and reliable preliminary arrangements, with a view to the safety of bther vessels, and especially are they bound to employ skilful, discreet, and self-possessed pilots, and the wart of such is always negligence. III. Sailing vessels are bound to presume that steamers approaching them have competent pilots, and that they will-in due time change their course, and a sailing vessel is therefore not bound to take any measures of escape; but if a steamer neglects or violates her duty till the danger becomes imminent, she will be liable for the consequences, even though the sailing vessel may make any manoeuvre which, in the distraction of such a moment, may seem to her (no matter how falsely) calculated to prevent or mitigate the accident. The Leopard, Daveis, 198. IV. In this case, it is not disputed that the sloop Hamlet, heavily laden with stone, with a light and baffling wind, at slack water, was coming down the river in the night, on the west side of the river, close in shore ; and that the steamboat New Jersey was at the same time going up the river, at quick speed, on the east side of the river, and that in eight minutes thereafter the Hamlet was sunk by a collision with the steamer, on the west shore, the Hamlet bearing all the time farther and farther west, the steamer having in the mean time crossed the river, there more than half a mile wide. V. The steamer was in charge of a pilot, who was a mere runner on the docks, a less than half-price pilot, picked up and put in charge of the boat for the occasion, without skill, without experience, constitutionally destitute of presence of mind, and unable to cope with circumstances of complication and difficulty suddenly arising. *VI . In endeavoring to reconcile the testimony, and in considering all circumstances calculated to affect the *-weight of evidence, it will be perceived that the libellant’s account of the transaction substantially reconciles all the testimony, and is established by the concurring testimony of eleven independent and impartial witnesses, who were on deck, awake, and observing the circumstances from different points, while the only testimony which can be called conflicting is from six witnesses, who were all abed below and out of sight, except one, the awkward pilot, who was the cause of the accident, and one other, who was occupied with the wheel of another boat. VII. The whole evidence shows that, nearly opposite Sands’s 631 603 SUPREME COURT. Newton v. Stebbins. Dock, only a mile and a quarter from the place of collision, the steamer, without any sufficient reason, commenced crossing gradually to the western shore, directing her course for Blue Point, till she passed the sloops Illinois and Exertion, when she bore further westward, till she came to the Temperance, where she straightened up the river till she passed the White House, when she bore rapidly to the west, endeavoring to cross the bows of the Hamlet, and in doing so ran on to the bowsprit and sunk her. Crossing the bow nearly at right angles, the upward motion of her tow on the left side, and the downward force of the sloop on the right side, turned the head of the steamer north, and carried the sloop partly round, so that she lay across the river. See Libellant’s Map. VIII. During all this time the sloop was where she had a light to be, and doing what she had a right to do,—on a course which, prima facie, it was her right and her duty to keep ; and the manœuvre (luffing) which she is said to have made was one which she should make if she made any. IX. The nearest and best course for the steamer was to continue up the eastern side of the river. This was safe for all parties ; it was her probable course, and there was no reason for her crossing over, and her doing so with the river full of vessels was a neglect of that attention and vigilance which are due to the security of other vessels, and she did it at the peril of all the consequences. X. Before the steamer passed the White House, and made the last and fatal sheer westward, there was no prospect of danger to the Hamlet. All the previous courses of the steamer gave her room enough under the sloop’s stern, but when she sheered under her bows, the danger was imminent, and the collision inevitable. With a light and baffling wind, and slack water, she had no power in a minute and a half to do any thing for her safety. XI. On questions of fact in cases of damage, where the *604.1 district and Circuit Courts, after full hearing of the -• witnesses and solemn argument, concur in a decree, the Supreme Court will not reverse it on the mere notes of the same testimony, unless a clear mistake or error be shown. The Sybil, 4 Wheat., 98 ; Cashman v. Ryan, 1 Story, 96, 97 ; Hobart v. Drogan, 10 Pet., 119 ; U. States v. 112 Casks of Sugar, 8 Id., 278. XII. This cause was decided in favor of the libellant in 1846, on a full and very expensive hearing and argument in the District Court. That decree was affirmed in 1847, after another expensive hearing in the Circuit Court, and in this court no new light has been thrown on the subject. It is a 632 DECEMBER TERM, 1 850. 601 Jfewton v. Stebbins. gross case of dilatory and litigious resistance to a just claim, and this court should affirm the decree of the Circuit Court, with costs in the District Court, the Circuit Court, and the Supreme Court, and with ten per cent, damages, under the seventeenth and twentieth rules, from the time of the decree in the District Court, and reasonable counsel fees. Rule 17, Rule 20 ; The Appollon, 9 Wheat., 362 ; Canter v. American Ins. Co., 3 Pet., 307 ; The Dundee, 2 Hagg., 140. Mr. Justice NELSON delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the Southern District of New York. The suit was commenced in the District Court in admiralty against the steamboat New Jersey, to recover damages arising from a collision on the North River, in which the sloop Hamlet was run down and sunk, in October, 1846. The libel charges that the Hamlet, a vessel laden with a cargo of flagging stones, and of ninety tons burden, was proceeding down the river for the port of New York, and had reached a place called Blue Point, on said river; that after passing that point the wind failed, and the sloop proceeded with the force of the current, and a trifling wind, at the rate of from one to two miles the hour. That on her arrival at that point, the person in charge of the sloop descried the New Jersey coming up the river at the rate of twelve or fifteen miles the hour, and nearer the eastern shore of said river than the sloop; upon which he directed the man at the helm to head her more to the west shore, which was done. That when the steamboat arrived within a short distance of the said sloop, she altered her course to the westward, and attempted to cross the bows of the sloop so as to pass between her and the western shore, and in the act of passing, struck her bowsprit, carrying away some twelve feet of the forward part of the vessel, in consequence of which she immediately filled and sunk. That at the time of the collision it was impossible for the *Hamlet to get out of the way of the steamboat, hav- pnnc ing comparatively little headway, and being near to *-the western shore; and that there was room enough for the steamboat to have passed east of her, along the eastern shore of the river. The answer of the respondent is, that, for three or four miles below the point where the collision happened, the New Jersey was coming up the river along the western shore, and westward of the course of the sloop, with a tow on her larboard of some two hundred tons burden; that it was slack water, and the wind fresh from the west; that she did not 633 605 SUPREME COURT. Newton v. Stebbins. cross the bows of the sloop, nor the course she was pursuing at the time the Hamlet first appeared in sight. But that the collision arose in consequence of the sudden luffing of the sloop, by the mismanagement of the persons in charge of her ; and that by reason of said improper manœuvres she ran her bowsprit into the steamboat, thereby doing great damage to her. These are the allegations of the respective parties in the libel and answer, as to the collision complained of. And the first observation we have to make is, that, assuming the position and course of the New Jersey to be according to the statement in the answer, it by no means exonerates her from responsibility, unless the other part of it is also maintained, namely, that it happened in consequence of the false movement of the Hamlet at the time. For assuming that the steamboat was coming up along the western shore, and was pursuing that course from the time she was first descried by the hands on board the sloop, still the latter had a right to persevere in her course down the river, notwithstanding the position and course of the New Jersey ; and the duty devolved upon her, according to the established nautical rule, to take the proper precautionary measures to avoid the danger. The fact, therefore, that the New Jersey was ascending the river on the western shore for some distance below, and had not suddenly taken a sheer across from the eastern side after having pursued it till within a short distance from the point where the Hamlet was descending, is a matter of no great importance. The real question in the case is, whether or not the accident happened, notwithstanding every proper precautionary measure had been taken on the part of the steamboat to pass the sloop in safety, in consequence of an improper movement of that vessel by the mismanagement and unskilfulness of the person in charge of her. If it did, then the damage is attributable to her own inattention and want of skill, and not to the steamboat. This must of course depend upon the evidence. *6061 *And on looking carefully through it on this point, J on which, it must be admitted, it is not entirely reconcilable, and after the best consideration we have been able to give it, we feel bound to say, that this allegation in the answer is not maintained. On the contrary, the weight of the evidence is, that no substantial change in the course of the sloop, in descending the river, took place, after the precautionary one of heading more towards the western shore, when the New Jersey was first descried, some three or four miles below. 634 DECEMBER TERM, 1850. 606 Newton v. Stebbins. This is the testimony of the two hands in charge of her at the time, confirmed by that of the masters of vessels in the vicinity, and who witnessed the collision. The only contradictory evidence is to be found in the testimony of the pilot of the New Jersey, and in some loose conversations of the two hands after the accident had occurred, which, as detailed, is very general and indefinite, and not entitled to much consideration. This conclusion is also strengthened by the concomitant circumstances. The sloop was heavily laden, and under little headway, the wind being light and baffling, and it is difficult, under such a state of facts, to believe that her course could have been suddenly changed, by the action of the helm, to the extent, and within the time, supposed by the pilot. We think, therefore, that the collision arose from the fault of the person in charge of the New Jersey, in not taking proper precautionary measures to avoid the sloop while endeavoring to pass her. We cannot omit to remark, before leaving the case, that the pilot of this vessel was greatly to blame in not having slackened her speed as he approached the fleet of river-craft which was slowly descending this stretch of the river at the time it opened to his view. The channel is about half a mile wide at this point, and there were some seven or eight vessels coming down, all within a reach of less than two miles, and, from the state of the wind, not in a condition to make effectual manoeuvres with a view to avoid immediate danger. And yet the clear weight of the evidence is, that the steamboat continued her speed, passing several of them, which narrowly escaped the danger, until she reached the sloop in question, at a rate of from eight to ten knots the hour. It is manifest to common sense, that this rate of speed, under the circumstances stated, exposed these vessels to unreasonable and unnecessary peril; and we adopt the remark of the court in the case of the Rose (2 Wm. Rob., 3), “that it may be a matter of convenience that steam-vessels should proceed with great rapidity, but the law will not justify them in proceeding with such rapidity, if the property and lives of other persons are thereby endangered.”1 *It is a mistake to suppose that a rigorous enforce-ment of the necessity of adopting precautionary mea- *-sures, by the persons in charge of steamboats, to avoid damage to sailing vessels on our rivers and internal waters, 1 Reiterated. McCready v. Goldsmith, 18 How., 91. Cited. The Colorado, 1 Otto, 701. 635 607 SUPREME COURT. Newton v. Stebbins. will have the effect to produce carelessness and neglect on the part of the persons in charge of the latter. The vast speed and power of the former, and consequent serious damage to the latter in case of a collision, will always be found a sufficient, admonition to care and vigilance on their part. A collision usually results in the destruction of the sailing vessel, and, not unfrequently, in the loss of the lives of persons on board. We think, also, that the New Jersey was in fault for not having a proper look-out at the time of the collision. The pilot at the wheel was the only one, as no other person appears to have been above or on deck. It is apparent from the evidence, that, with a competent look-out, and slackened speed of the steamboat, there could have been no great difficulty in passing this fleet of river-craft in safety. The disaster, in all probability, happened from a neglect to observe these proper precautionary measures. We think the decree below right, and that it must be affirmed. Mr. Justice DANIEL, dissenting,1 Had the cases just decided been, according to my view, regularly within the cognizance of the District and Circuit Courts, and therefore properly before this tribunal, upon the appeals taken, I could have no objection to the disposition made of those cases. The evidence appears to place the delinquency, or the wrong done, where this court has pronounced it to be; and it can scarcely be doubted, that the rules which have been prescribed for the government of vessels, propelled either by sails or by steam, when crossing each other’s tracks, will conduce to the preservation of both life and property. My dissent from the decision in these cases results from considerations much higher than any that connect themselves with the mere adjustment of private controversies. It is a deduction from my understanding of the constitutional power of this court, and of the courts whose decisions we have under review, to adjudicate upon the rights of the parties, in the exercise of that species of jurisdiction which has been, as to these cases, asserted and sanctioned. That jurisdiction I feel constrained to deny. I know that my opinions, relatively to the sources and the extent of the admiralty jurisdiction of the federal courts, have not accorded with those of the majority of this court; but on these, as on all other subjects involving the JSee The Genessee Chief v. Fitzhugh, 12 How., 4C4; Jacksoa v. The Magnolia, 20 Id., 308. 636 DECEMBER TERM, 185 0. 607 Newton v. Stebbins. integrity of the Constitution (the only true foundation of every *power in the federal government), I hold myself r*pno bound, with respect to differences of opinion, not to *-yield an acquiescence which, in matters of minor importance, would be cheerfully conceded. My own opinions relative to the admiralty jurisdiction vested by the Constitution in the courts of the United States have been heretofore too fully declared to render their repetition here in detail either proper or necessary. I content myself with a reference to them as expressed in the case of The New Jersey Steam Nav. Co. v. The Merchant's Bank, 6 How., 395, and in my concurrence with the opinion of Justice Woodbury in the case of Waring v. Clarke, 5 How., 467, and with reasserting the positions there maintained; viz., that the civil jurisdiction in admiralty of the courts of the United States, in tort or in contract, (with the anomalous exceptions of seamen’s wages and hypothecations,) is limited to transactions occurring on the high seas, and embraces no transaction occurring either on the land, or within the bays, rivers, havens, ports, harbors, or other places within the body or jurisdiction of any county, and that cases of seizure under the revenue laws do not spring from any regular class or head of admiralty powers. My conclusions, thus stated, are fortified by the strong desire to preserve in fullest vigor that admirable institution of our Anglo-Saxon ancestors, —whose elevating influence on the character even of the humblest man is perceived in his consciousness that he forms a part, an important, nay, an indispensable part, in the administration of the laws,—the venerable trial by jury ; and, in the next place, by my conviction of the duty incumbent on all to maintain, with directness and in good faith, those distinctions and distributions with respect to the judicial power which the Constitution and laws of the United States have ordained,— distributions which the power now claimed and exerted appears to confound and overthrow. Thus, in the second section of the third article of the Constitution, in a definition of the judicial power of the government, in which definition the admiralty jurisdiction is. explicitly comprised, it is declared that the judicial power shall extend “ to controversies between citizens of different states.” This distribution of judicial power by the Constitution, Congress have carried into execution by the eleventh section of the Judiciary Act, and this court in a series of decisions has maintained. Can it, then, comport with a just interpretation, either of the Constitution or of the act of Congress, or with the decisions of this court made in conformity with both, that they should all be annulled 637 608 SUPREME COURT. The United States v. D’Auterive et al. by a seeming evasion ? Can it possibly be right thus summarily to abrogate the jurisdiction of the state courts over their own territory and their own citizens? If these things can *6001 *be ¿l°ne’ follows, of course, that the trial by jury, and the requisite as to citizenship of parties, ordained both by the Constitution and laws, may be abolished by the mere will of persons interested, or by the fiat of a tribunal by which neither citizenship nor trial by jury is held in regard. It would be difficult to adduce a more striking example of the irregularities here pointed out, than is furnished by one of the cases now before us,—that of Newton v. Stebbins. This is a case which the evidence shows to have occurred between citizens of the same state, upon the narrow waters, and far within the interior of the state ; and necessarily, therefore, within the body of a county of the state. It presents within that locality an instance of simple tort, the proper subject of trespass or case at common law; yet this case, without regard to locality or citizenship, is wrested from the tribunals of the state and the common law modes of trial, and transferred to a tribunal whose peculiar and appropriate jurisdiction, we are told by the English authorities, attaches only where there is no vicinage from which the pais can be summoned. I am compelled, therefore, to deny to the admiralty the constitutional authority to take cognizance of these cases. Orde This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of New York, and was argued by counsel. On consideration whereof, it is ordered 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 and damages at the rate of six per centum per annum. The United States, Appellants, v. Jean Baptiste D’Auterive and others, Heirs and Representatives of THE LATE JEAN ANTOINE BERNARD D’AUTERIVE. Following out the principles applied to the construction of treaties in the cases of United States v. Keynes, and Davis v. The Police Jury of Concordia, in 8 Howard, this court now decides that a grant of land in Louisiana, issued by the representative of the king of France in 1765, was 638 DECEMBER TERM, 1850. 609 The United States v. D’Auterive et al. void ; the Province of Louisiana having been ceded by the king of France to the king of Spain in 1762.1 The title to the land described in this void grant was vested, therefore, in the king of Spain, and remained in him until the treaty of St. Ildefonso. It then passed to France, and by the treaty of Paris became vested in the United States.2 None of the acts of Congress have confirmed this grant. The act of 1805 (2 Stat, at L., 324) required three things in order to effect a confirmation. *lst. That the parties should be residents. 2d. That r*ain the Indian title should have been extinguished. 3d. That the land should have been actually inhabited and cultivated by the grantees, or for their use. In the present case these conditions were not complied with.8 The act of May 26,1824, in part re-enacted by the act of June 17,1844 (5 Stat. at L., 676), did not create any new rights, or enlarge those previously existing ; but only allowed claims to be presented to the court which would otherwise have been barred. This was an appeal from the District Court of the United States for the District of Louisiana. It was a petition presented to the District Court under the act of 1824, relating to land titles in Missouri, as revived and made applicable to Louisiana by the act of 1844. The history of the title claimed by the heirs of D’Auterive, so far as it may be necessary to explain the opinion of the court, was as follows. A copy of the following grant, issued in 1765, was certified by the register of the land-office at New Orleans to be found upon the records in his possession, and forming part of the archives of the office. “Charles Philippe Aubry, Chevalier of the Royal and Military Order of St. Louis, commanding for the King in Louisiana, and Denis Nicholas Foucault, being the Intendant Commissary of this Province of Louisiana. “ Upon the demand made by Messrs. D’Auterive and Masse, partners, to grant to them a parcel of land named La Prairie du Vermilion, bounded east by the River Des Tortues and the Lake Du Tasse, north by the Mauvais Bois, west by the River Vermilion, and south by a muddy prairie, considering their petition above, and in other part, and for consideration of the cession made by them to the Acadian families, recently arrived in this Province, of the land occupied by them during a long period, in the Attakapas, and in consideration also of the advantages which may result for this capital of the great establishment in vacheries that they propose themselves to do 1 Applied. Montault v. United States, 12 How., 51. Followed. United States v. Pillerin, 13 Id., 9; United States v. Ducros, 15 Id., 41. 2 Cited. United States v. Lynde, 11 Wall., 643. 3 Followed. United States v. Castaut, 12 How., 437, 441. 639 610 SUPREME COURT. The United States v. D’Auterive et al. on the said land named La Prairie du Vermilion, by the quantity of cattle they may bring to market in a short period, we have conceded, and do concede, to them, by these presents, the said land, for them and their heirs, to enjoy and dispose of the same in full ownership and usufruct, as a thing belonging to them, except against titles or possession anterior to these to the contrary ; provided that said land lies on this side oi the limits which have been established of the French and Spanish possessions in this part of the country ; and provided, also, that they do deliver to us the titles of the land which they have ceded to the Acadian families, and also under the *61 n conditions *that one year from this date they shall J establish the said vacherie ; in default whereof the said land shall become part of the king's domain, who may dispose of the same as if the said concession had never been granted, and also with the burden by them to support and pay the seigneurial rights, if any hereafter be established' in this colony. We also reserve for his Majesty all the timber necessary for the construction of forts, stores, and other public works that he has ordered to be done, or may order in the future, even for the refitting and careening of his men-of-war, whenever the same will be necessary ; and also the necessary ground for the royal highways and fortifications. “ Given in New Orleans, under the seals of our arms and the countersign of our secretaries, the 2d of March, 1765. (Signed,) Aubry and Foucault. “ Countersigned,—Soubie & Duvebge.” The decision of the court being that this grant was invalid when made, it is not necessary to trace out the assignment of his share from Masse to D’Auterive, by which it was alleged that the latter became the sole proprietor. On the 6th of February, 1835, Congress passed an act (4 Stat, at L., 749,) entitled “An Act for the final adjustment of claims to lands in the state of Louisiana.” By this act, claims recognized by former laws as valid, but which had not been confirmed, were to be presented to the register and receiver of the land-office where the lands lie, with the evidence in support of the same, who were to report the same to the Secretary of the Treasury, with their opinion of the validity of each claim, and which report was to be laid before Congress, with the opinion of the Commissioner of the General Land-Office touching the validity of the respective claims. This claim was, presented to the register and receiver, together with a great mass of evidence in its support, which 640 DECEMBER TERM, 1850. 611 The United States v. D’Auterive et al. it is not necessary here to state. On account of the voluminous nature of the papers, the claim was not included in a report made by the commissioner on the 15th of May, 1840. But in February, 1842, the then register and receiver took up the subject and made a report thereon to the Secretary of the Treasury, from which the following is an extract:— “The peculiar circumstances which seem to involve this claim, its unwarrantable neglect, firstly by the heirs themselves, and lastly by the former boards of this office, and the unsuccessful efforts of the Honorable Edward Livingston to obtain any action of Congress upon it, and the very heavy *charges and expenses which the heirs have been at in $ the protection and prosecution of their rights, have induced us to examine with the greatest circumspection and attention all the documents of title filed in this claim. We have given it throughout a mature and deliberate investigation, and, seeing the pacific views of the claimants in their renouncement of their rights to any part of the said land, to which a title has been obtained, either by French or Spanish grant, private entry, or otherwise, that may fall within the limits of their grant, and from the fact that the patent mentioned in this claim corresponds with one on the abstract of patents certified by the register of New Orleans, for the use of this office, consequently making it a complete title in form, with no act of the sovereign remaining to be done that the title of the land might be fully vested in D’Auterive, think that a confirmation of such a title is scarcely necessary, though it may be useful. Congress never asserted the right to annul, restrict, or question any genuine complete grant which has been made by the former governments ; they were regarded as sacred documents, and respected by the treaty of cession ; it was not obligatory on the holders of complete patents to file them with the registers and the receivers. By the fifth section of the act of the 2d of March, 1805, the registers and receivers were requested to make a report on all complete French and Spanish grants, the evidence of which, though not thus filed, may be found on record in the public records of such grants ; it was evident the reports on such titles were required for the purpose of ascertaining what lands had ceased to belong to the public domain. “ If the intention of Congress had been to subject these claims to their scrutiny, they would have required of the owners to file them ; if the board, on finding in the public records the evidence of a complete grant, would have made any other than a favorable report on it, Congress would never have permitted such a decision ; the boards were only to Vol. x.—41 641 612 SUPREME COURT. The United States v. D’Auterive et al. decide on the simple recorded proof, that is, the official copy of the grant, and were to consider it as conclusive evidence ; it has accordingly been decided by the Supreme Court of this state, as well as the United States court, that a complete grant is complete evidence of title without any confirmation ; and viewing the grant of the claimants, in this report, as of a similar character, and perfectly satisfied as regards the sale from Masse to D’Auterive, the testimony in proof thereof being ample and complete, we cannot do otherwise than recommend this claim for confirmation to the full extent of land that may be found comprised within the boundaries laid down in the concession.” *These proceedings were referred, in pursuance of J the law, to the Commissioner of the General Land-Office, who gave his opinion that the claim was not valid. A report was then made to Congress, but no action was there had upon the subject. Under the act of Congress passed on the 17th of June, 1844, entitled “ An Act to provide for the adjustment of land claims in the states of Missouri, Arkansas, and Louisiana,” the heirs of D’Auterive filed a petition in the District Court of the United States for the District of Louisiana, on the 16th of June, 1846. Attached to the petition was a copy of the report of the commissioners above mentioned. The petition concluded as follows :— “ The petitioners show, that it appears from said statement that the said Bernard D’Auterive occupied said land as a stockfarm, for which purpose it had been granted, up to the time of his death, which occurred in 1776; that the said D’Auterive left a widow and four small children ; that in 1779 his widow married Jean Baptiste Degruy; that the said Degruy and his wife continued to occupy said land as a stockfarm, and to cultivate a small part thereof, until 1784, when they removed to the Mississippi; that thereafter the said land, and even the stock kept thereon, were utterly neglected by said Degruy ; that in consequence thereof, and on account of their ignorance of said claim, the Spanish authorities in Louisiana granted a considerable, and the most valuable, part of said land to other persons; and that the petitioners, considering the good faith with which said titles were acquired, and to prevent the delays and expenses of litigation, claimed the confirmation of so much only of the aforesaid grant as was not held by titles emanating from the Spanish government and confirmed by the United States, and had not been sold or otherwise disposed of by the United States. 642 DECEMBER TERM. 1 850. GIB The United States v. D’Auterive et al. “ And the petitioners show, that they now again claim the confirmation of said grant with the same restrictions; that as the petitioners do not intend to interfere with the rights of any persons holding portions of said grant under confirmed Spanish titles, or under purchases from the United States, it is unnecessary to cite said persons ; and that, besides them, there are no other persons in possession of portions of said grant except certain settlers, who occupy small parts thereof with the written consent of the petitioners. “ Wherefore the petitioners pray, that the United States of America, by their District Attorney for the District of Louisiana, be cited ; that the aforesaid grant be declared valid and confirmed to the petitioners; that thereafter the Surveyor-General *of the United States for the state of Loui-siana be ordered to survey said lands; that he be fur- L ther ordered to certify, on the plats and certificates of said survey, what parts of said grant are held under confirmer Spanish titles, and what part, if any, of said grant has been sold by the United States, together with the quantity thereof. And the petitioners further pray, that it may be decreed that they, their heirs and legal representatives, shall have the right to enter the quantity of land so certified to have been sold or disposed of by the United States in any land-office in the state of Louisiana. (Signed,) L. Janin, of Counsel.” On the 10th of November, 1846, Thomas J. Durant, the District Attorney of the United States, filed an answer, denying all the allegations of the petition. In April, 1847, the depositions of sundry witnesses were taken by the plaintiffs before N. R. Jennings, Commissioner, and in December, 1847, the cause came on for trial before the District Court. On the 13th of June, 1848, the District Court gave the following judgment:— “ The court having taken this cause as above entitled under consideration, and having maturely considered the same, doth now, for reasons set forth at length and on file, order, adjudge, and decree, that the petitioners recover the land claimed in their petition, and described in the original grant or concession to them, as exhibited on pages 180 and 181 of the record of French grants ; the same having been delivered at the cession of Louisiana to the government of the United States, and deposited in the United States land-office in the city of New Orleans. 643 614 SUPREME COURT. The United States v. D’Auterive et al. “ And the court doth further order and decree, that the Surveyor-General of the state of Louisiana do survey the land so decreed to petitioners as aforesaid, and certify on the plats and certificates of survey all such parts of the said grant as may have been sold or otherwise disposed of by the United States. “ And the court doth further order and decree, that the petitioners, or their heirs or legal representatives, shall have the right to enter the quantity of land that maybe so certified to have been sold or otherwise disposed of by the United States, in any land-office of the state of Louisiana, according to the provisions of the eleventh section of the act of the 26th of May, 1824. “Judgment rendered June 13th, 1848. Judgment signed June 17th, 1848. (Signed,) Theo. H. McCaleb, [seal.] U. S. Judge.” *R1 ^"1 *From this decree the United States appealed to this -• court. It was argued by Mr. Crittenden (Attorney-General), for the United States, and Mr. Janin, for the appellees. Mr. Crittenden made the following points. I. That the said alleged grant is void, having been made by the French authorities after the Province of Louisiana had been ceded by France to Spain. By the secret treaty of Fontainbleau, of the 3d of November, 1762, the Province of Louisiana was ceded by France to Spain, and on the 21st of April, 1764, Louis the Fifteenth communicated what had been done to D’Abadie, the director-general and commandant of the Province, ordering him to deliver it up to his Catholic Majesty. The treaty has never been published, but the letter to D’Abadie will be found in the Appendix to 1 Clarke’s Land Laws, 976. This letter was printed in New Orleans, in October, 1764, and the intelligence of the cession of the Province caused great commotion and dissatisfaction among the people. D’Abadie having died, Aubrey, w'ho had been commandant of the troops and one of the council, assumed the administration of the government, and, it is alleged, made this grant to the ancestor of the peti-’ tioners on the 2d of March, 1765. Ulloa, the first Spanish governor, arrived at a subsequent period, but was compelled to retire from the country, and was succeeded by O’Rielly, under whose administration Spanish authority was secured. 644 DECEMBER TERM, I860. 615 The United States v. D’Auterive et al. The history of the events of this period will be found in the fourteenth chapter of the first volume of Martin’s Louisiana. II. That Spain never acknowledged nor recognized as valid the alleged grant thus made in derogation of her rights and authority. This is sufficiently evidenced by the fact, that her authorities granted the greatest part of the same land to other persons. That such grants had been made is admitted by the petitioners, but the force of the conclusion thence arising is sought to be evaded by saying that they were made in ignorance of this claim. There is, however, no pretence for such a supposition, for the very book of records on which the petitioners rely to establish the making of their grant must have been in the hands of the Spanish authorities, and come from them into the possession of the United States. The making of so' large a grant could not be concealed. The fact is further corroborated by D’Auterive having afterwards, in October, 1775, received a grant of a league of land from Governor Unzaga, in the neighborhood of the alleged grant. Besides, the acts of the parties show that all claim was abandoned. *111. But if the alleged grant was made by competent authority, it is void for uncertainty in the descrip- [*616 tion bf the land granted. IV. That there is no sufficient evidence of the making of the alleged grant, or of the conveyance by Masse to D’Auterive. V. That the court below had no jurisdiction in this case. Mr. Janin, for the appellees, made the following points: I. It is contended that the copy of the grant which is in evidence is not sufficient proof of its genuineness. This copy was taken from the record of French grants in the land-office at New Orleans, and is attested by the Register of that office. The appellees could not expect this objection, since this copy was admitted in evidence by consent of parties, whereby they 'were relieved from the necessity either of producing the original or of proving its loss. But were the point open for discussion, it would be easily met by the evidence. The copy was taken from the only record of French grants known to exist in the land-office. This record was always considered as genuine by the successive registers of the land-office, and referred to by them in making their reports on claims to Congress. We have the testimony of an old citizen of New Orleans, who, under the Spanish government, was the private secretary of Governor Gayoso, and occasionally was employed in the Spanish land-office, which was under the control of the 645 616 SUPREME COURT. The United States v. D’ Auterive et al. Secretary of the government. He recognizes the signature of Governor Gayoso, at the end of this and the other French and Spanish records in the land-office, and presumes, with reason, that they were signed by the Governor when he delivered the land-office to the Intendant Morales, in obedience to, the royal order of October 22, 1798 (2 White’s Rec., 497). This is beyond doubt one of the records referred to in Morales’s letters of October 16, 1797, and March 2,1799 (2 Land Laws, 541, 550); in the letter of the Secretary of the Treasury of 1805 (2 Laws, Institutions, Opinions, &c., 669); and in the fifth section of the act of Congress of March 2, 1805 (1 Land Laws, 520) ; and the authenticity of this record was fully recognized by the Supreme Court of Louisiana in the' case of Lavergne's Heirs v. Elkins, 17 La., 231. II. It is not objected that the description of the land in the grant is not sufficiently clear and definite. The land is described as follows:—A tract of land called the prairie of the Vermilion, bounded on the east by the River (now called Bayou) Tortue and Lake Tasse; at the north by the “ maw-vais bois ” (low woodland) ; on the west by the River (now called Bayou) Vermilion; and at the south by a soft prairie. These *are all natural, well-known boundaries. Bayou J Tortue and Bayou Vermilion are considerable watercourses, and are still known by the same names; so is Lake Tasse. The land granted is a prairie; its northern boundary is the first woodland—a low swamp—to the north of the prairie, and its southern boundary is the soft or salt marsh which skirts the whole sea-shore of Western Louisiana. The inspection of any Map of Louisiana can leave no doubt that a surveyor would not experience the least difficulty in locating the grant. III. The third objection is, that, the grant being complete and perfect, it requires no confirmation, and could not be made the subject of a suit against the United States under the act of June 17, 1844, and the revived act of May 26, 1824. The act of 1824 refers in terms to lands claimed “ by virtue of any French or Spanish grant, concession, warrant, or order of survey, * * * 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, had not the sovereignty of the country been transferred to the United States.” This last phrase contemplates evidently incomplete titles only, and refers therefore only to that part of the first phrase which speaks of incomplete titles, that is, “ warrants and orders of survey.” It could not refer io the owners of grants, whose title was already complete. And 646 DECEMBER TERM, 1850. 617 The United States v. D’Auterive et al. yet in the beginning of the section the holders of grants are permitted to file their claims for adjudication, though they might not be compelled to do so. This is not the only instance in the legislation of Congress which afforded to persons claiming under complete grants an opportunity of having their titles and possessions quieted by a decision of the officers of the federal government. The fourth section of the act of March 2, 1805 (1 Land Laws, 519), declares that persons claiming under complete grants mny, and those claiming under incomplete grants shall, file them, &c., &c. Nor was this a work of supererogation. By the cession, the United States acquired the dominium, all lands not previously granted were considered and treated as public property, and the grantees were put upon proof of their titles. It is true, that, by the fifth section of the same act, the boards of commissioners were directed to “ decide in a summary way * * * on all complete French or Spanish grants, • the evidence of which, though not thus filed (by the claimants), may be found of record on the public records of such grants.” Had this law been obeyed, the claimants under complete grants would have been spared infinite losses and suffering. But it remained a dead letter in practice. The commissioners and their successors acted upon no claim, *though found in these r*z>-|o records, if it was not formally filed with a claim for *-adjudication, and of claims exceeding a league square they were expressly prohibited to take cognizance. Holders of large grants were in reality remediless, until the later acts of Congress, reopening the land-offices for the adjudication of claims, without restriction as to quantity. And as the com missioners could only recommend their confirmation, and as Congress always discarded large claims in Louisiana in their confirmatory acts, the hopes of the claimants were still deferred. It is thus that large grants of land in Louisiana have uniformly proved a fatal inheritance to the descendants of the old colonists, consuming their lives and fortunes in unceasing and fruitless efforts to obtain a hearing, while the best portions of their lands fell a prey to the squatter. The only remedy left to them, a remedy worse than the evil, was to allow a portion of the land to be sold by the United States, and then to bring suit for it, a process which had to be repeated in the case of each sale, and which yet did not protect the portion of the claim not immediately included in the decision. The officers of the land department uniformly treated as public land whatever had not been recovered by a judgment. This crying evil could not be unknown to Congress, and we submit that the acts of 1824 and 1844 were * 64/ 618 SUPREME COURT. The United States v. D’Auterive et al. destined to remedy it, and that it could not be the intention of Congress to treat complete grants less favorably than incomplete ones. And again, may it not be said that this grant requires a survey to perfect at least the possession of the grantee ? And the government surveyors would not make or sanction a, survey, unless the claim was recognized by the government. This grant again required the grantees to abandon the lands they had previously owned; in compensation of which they obtained the new grant, and to establish a stock-farm. Was it then not incumbent upon them to show that they claimed nothing under the oldei' grants, a negative proof, which they could only make by asserting the abandonment and challenging the contrary proof, and that they had established a large stock-farm ? It is obvious that the object of the appellees would be attained by a decision of this court, disclaiming jurisdiction, on the ground that the grant is complete, and not embraced in the act of 1824. A decision of the federal courts, and nothing less, would be respected by the surveying department. IV. It is finally contended that this grant is invalid because it is dated the 2d of March, 1765, when Louisiana had been ceded to Spain in 1763. It is well known that Spain did not *desire or attempt to take possession until 1769, up to which time all the functions of the government were carried on by the French authorities. The French was the government de facto. “ Grants made by a government de facto are valid against the state which had the right.'* 12 Pet., 748. The validity of the acts of a government de facto has been acknowledged in many decisions of this court. Delacroix v. Chamberlain^ 12 Wheat., 600; Pollock's Lessee v. Kibbe, 14 Pet., 364; Keene v. McDonough, 8 Id., 310; The Famay 5 Rob. Adm., 113; 1 Kent Com., Leet. VIII. To these familiar authorities a striking instance may be added, drawn from modern history. We quote from Lieber s Manual of Political Ethics, Vol. L, p. 324; “When the Elector of Hesse returned in 1813 to his country, he declared the king of Westphalia, having been a usurper, to have possessed no right of selling the domains, and therefore took possession of them without any restitution of the sums for which they had been purchased. Prussia acknowledged the sales which the same kingdom of Westphalia had made of her domains. Phe Germanic Diet decided against the Electoi’ and for the purchasers, and when that prince for years declined to yield to the Diet and all the endeavors even of Austria were in vain, 648 DECEMBER TERM, 1 850. 619 The United States v. D’Auterive et al. the Diet ordered the troops of the neighboring members of the confederacy to make the Elector comply with its decision.” History affords, probably, no instance of acts of a government de facto less questionable than those of the French government in Louisiana between 1763 and 1769. The French were ready to deliver the colony, the Spaniards were not ready to receive it; the French were not usurpers, nor the antagonists of Spain, but depositaries of the power of Spain; the wheels of government could not be arrested, and it was one of its ordinary and legitimate functions to promote the settlement of the Province, to develop her industry and to secure her peace, by exchanging D’Auterive’s lands on the Upper Teche, where his stock had become troublesome to the new colonists from Acadia, for pasture lands in a more remote and still unsettled district. Neither this nor any other grant made by the French after 1763 resembled the questionable policy of the Spanish Intendant, who after 1803 sold lands in the disputed territory to replenish a suffering treasury. The history of the courts and of the land department offers no instance of a grant made by the French after 1763 that was rejected for want of authority. The question was discussed by the Supreme Court in the case of Devall v. Chopin, 15 La., 575, and decided in favor of the power. Spain, after she took possession, never questioned any of these grants; France held *the sovereignty between 1800 and 1803, and could not, pggg if she had taken possession, have contested the validity L of the grants of her former governors ; the United States succeeded only to the rights of France, and the United States at an early period, in the important act of March 2d, 1805, distinctly recognized the validity of the grants anterior to the 1st of October, 1809, made by France and Spain, during the time those respective governments had the actual possession of the colony. Possession, and not the bare right of sovereignty, was made the test of authority. We quote from the act of March 2d, 1805, 1 Land Laws, 518. Sec. 1st. “ Any person or persons, or the legal representatives of any person or persons, who, on the 1st of October, in the year 1800, were resident within the territories ceded by the French Republic to the United States, by the treaty of the. 30th of April, 1803, and who had prior to the said 1st day oi October, 1800, obtained from the French and Spanish governments, respectively, during the time either of said governments had the actual possession of said territories, any duly regis tered warrant or order of survey,” &c. Sec. 4th. “ Every person claiming lands in the above 649 620 SUPREME COURT. The United States v. D’Auterive et al. mentioned, territories, by virtue of any legal French and. Spanish grants, made and completed before the 1st of October, 1800, and during the time the government which made such grant had the actual possession of the territories,” &c. Mr. Justice DANIEL delivered the opinion of the court. The appellees, as heirs of Jean Antoine Bernard D’Auterive, claimed in the court below an extensive tract of land in the county of Attakapas, the quantity of which land is not given, though certain boundaries thereof are set forth in the instrument upon which these appellees prefer their claim. This instrument purports to be a grant from Charles Philippe Aubry, Knight of the Royal and Military Order of St. Louis, Commandant of the King in Louisiana, and Dionysius Nicholas Foucault, filling the functions of director in that province, to Messrs. D’Auterive and Masse, and bearing date at New Orleans on the 2d day of March, 1765. The proceedings for the establishment of this claim in the court below were instituted under the authority of an act of Congress of May 26th, 1824, entitled “An Act to enable claimants to land within the state of Missouri and territory of Arkansas, to institute proceedings to try the validity of their claims;” which law was in part re-enacted on the' 17th of June, 1844, and extended in its operation to the state of Louisiana. (Vide 5 Stat, at L., 676.) The purposes and the -i effect of the *law of 1824, with reference both to the -■ claims and the proceedings embraced within its provisions, have been heretofore examined by this court. They were especially considered at the last term, in the case of the United States v. Reynes, 9 How., 127, and the following con elusions were then distinctly enunciated as implied necessarily in a just interpretation of that statute. Thus (pp. 146, 147), in speaking of the statute of 1824, revived by the act of 1844, this court explicitly declare, that, “ with respect to that interpretation of these acts of Congress which would expound them as conferring on applicants new rights not previously existing, we would remark, that such an interpretation accords neither with the language nor the obvious spirit of these laws ; for if we look to the language of the act of 1824, we find that the grants, surveys, &c., which are authorized to be brought before the courts, are those only which had been legally made, granted, or issued, and which were also protected by treaty. The legal integrity of these claims (involving necessarily the competency of the authority which conferred them) was a qualification inseparably associated by the law with that of their being protected by treaty. And as to the spirit and intention of 650 DECEMBER TERM, 1850. 621 The United States v. D’Auterive et al. the law, had it designed to create new rights, or to enlarge others previously existing, the natural and obvious means of so doing would have been a direct declaration to that effect; certainly not a provision placing these alleged rights in an adversary position to the government, to be vindicated by mere dint of evidence not to be resisted. The provision of the second section of the act of 1824, declaring that petitions presented under that act shall be conducted according to the rules of a court of equity; should be understood rather as excluding the technicalities of proceedings in courts, than as varying in any degree the rights of parties litigant; as designed to prevent delays in adjudicating upon titles, as is farther shown in another part of the same sentence, where it is declared, that these petitions shall be tried without continuance, unless for cause shown. The limitation, too, maintained as to the character of claims, and that imposed upon the courts in adjudicating upon them, is farther evinced in that part of the same section which says, that the court shall hear and determine all questions relative to the title of the claimants, the extent, locality, and boundaries of the claim, and by final decree shall settle and determine the question of the validity of the title according to the law of nations, the stipulations of any treaty, and proceedings under the same, the several acts of Congress, and the laws and ordinances of the government from which it is alleged to have been derived.” *By the meaning and directions of the statute of r*f>oo 1824, as thus expounded, the claim before us must be *-judged ; and the next step in our investigation leads us to consider it as controlled by the law of nations, and the force of treaty stipulations construed in conformity with that law. The land which is the subject of this controversy was, according to the terms of the instrument adduced by the appellees in the court below as the foundation of their title, granted to their ancestor on the 2d day of March, in the year 1765. On the 3d day of November, 1762, by a treaty, or, as it is termed in the language of the king, by “ a special act ” done at Fontainebleau, Louis the Fifteenth ceded to the king of Spain the entire province of Louisiana, including the island and city of New Orleans. The character and extent of this act of cession, as evinced by the instructions from the French king, dated at Versailles, April 21st, 1764, should be noted in this place, as they are decisive of the relative positions of the parties to that act, and of the extent of their powers posterior thereto, over, the territories or persons comprised within its 651 622 SUPREME COURT. The United States v. D’Auterive et al. provisions. Nothing surely can be more comprehensive or absolute than the transfer announced by the king of France, or the declaration of his relinquishment of all power or rights in the subject transferred. The language of the French king to D’Abadie, Director-General and Commandant of Louisiana, is as follows :—“ Having ceded to my very dear and best beloved cousin, the king of Spain, and to his successors, in full property, purely and simply and without exceptions, the whole country known by the name of Louisiana ; ” he proceeds to command his Director-General, that, on the receipt of his instructions, “ whether they come to your hands by the officers of his Catholic Majesty, or directly by such French vessels as may be charged with the same, you are to deliver up to the governor or officer appointed for that purpose by the king of Spain, the said country and colony of Louisiana, and the posts thereon depending, likewise the city and island of New Orleans, in such state and condition as they shall be found to be in on the day of the said cession ; being willing in all time to come that they shall belong to his Catholic Majesty, to be governed and administered by his governors and officers, and be possessed by him in full property, and without exceptions.” The cases of the United States v. Tleynes, and of Davis V. The Police Jury of Concordia, decided at the last term of this court, devolved upon it the necessity for a particular examination of the rules and principles applicable to the construction of treaties ; and in the adjudication of the cases above mentioned, the following rules are either explicitly affirmed or *6231 *necessarily implied:—That compacts between gov- -* ernments or nations, like those between individuals, should be interpreted according to the natural, fair, and received acceptation of the terms in which they are expressed. That the obligation of such compacts, unless suspended by some condition or stipulation therein contained, commences with their execution, by the authorized agents of the contracting parties ; and that their subsequent ratification by the principals themselves has relation to the period of signature. That any act or proceeding, therefore, between the signing and the ratification of a treaty, by either of the contracting parties, in contravention of the stipulations of the compact, would be a fraud upon the other party, and could have no validity consistently with a recognition of the compact itself. As a regular corollary from these principles, and as deducible from the law of reason and the law of nations, it was ruled in the cases just mentioned, that a nation which has ceded away her sovereignty and dominion over a territory could with 652 DECEMBER TERM. 1 8 50. 623 The United States v. D’Auterive et al. respect to that territory rightfully exert no power by which the dominion and sovereignty so ceded would be impaired or diminished. Vide 9 How., 148, 149, and 289, 290, 291. In the cases just cited, and particularly in that of the United States v. Reynes, it became proper to examine the rights of a ceding and retiring government as a government de facto over the territory ceded. This examination was induced by the circumstance, that the claimant against the United States rested his pretensions in a great degree upon the position, that after the treaty of St. Ildefonso, and anterior to an actual delivery to the French authorities, the government of Spain as a government de facto retained the rights of sovereignty and dominion over the Territory of Louisiana, and, as incident thereto, the power of granting away the public domain. But this court distinguished between the proceedings of an adversary government, acting in the character and capacity of an independent perfect sovereignty, unaffected by any stipulation, and acts done in fraud or in violation of express concessions or compacts. It said that the former, as the acts of a government de facto, might be respected and sanctioned by a succeeding power; the latter could impose no obligation to respect them, because they would have been performed in bad faith, and in violation of acknowledged rights existing in others. Admitting the absolute verity of the document under which the appellees deduce their title, and about which no serious question appears to have been raised, can the validity of this title be sustained consistently with the rules and principles propounded above, and in the cases to which reference has been made? The grant *from Aubry and Fou-cault, the commandant and the director of the Province *-of Louisiana, to the ancestor of the appellees, bears date on the 2d of March, 1765, between two and three years posterior in time to the cession of the Province by France to Spain, and rather more than ten months after the order from the French monarch for the actual delivery of the territory to the Spanish authorities. Under these circumstances, then, the act of the French officers must be regarded as wholly unauthorized and inoperative to vest any title in the ancestor of the appellees, those acts being inconsistent with the existing relations between the kingdoms of France and Spain. It is true that Spain, during the continuance of her sovereignty and possession in Louisiana, might have adopted and confirmed this grant, but no such recognition thereof by Spain is shown nr pretended; so far from there being proof of such recognition, it appears that a large portion of the lands comprised within this grant was bestowed by the Spanish government 653 624 SUPREME COURT. The United States v. D’Auterive et al. upon other grantees. Neither is there in the record proof or allegation, that, during the short reign of the French republic under the treaty of retrocession, the claim of D’Auterive was sanctioned, or even brought to the notice of that republic. It follows, then, from the view of this case here taken, that the claim of the appellees cannot be sustained upon any general and controlling principle of the law of nations, nor upon any stipulation between the powers holding the Territory of Louisiana prior to its transfer to the United States. The fate of this claim must depend exclusively upon the authority and the acts of the government of this country, and we will now consider how far it is affected by those acts and that authority. It has been heretofore repeatedly ruled by this court, that the control and recognition of claims like that now before us were subjects belonging peculiarly to the political power of the government; and that, in the adjudication of those claims, the Courts of the United States expound and enforce the ordinances of the political power. Guided by these rules, and looking to the acts of the legislature, we find it declared by the act of Congress of March 26, 1804, § 14 (2 Stat at L., 287), “that all grants for lands within the territories ceded by the French republic to the United States by the treaty of the 30th of April, 1803, the title whereof was, at the date of the treaty of St. Ildefonso, in the crown or government of Spain, and every act and proceeding subsequent thereto, of whatsoever nature, towards the obtaining any grant, title, or claim to such lands, and under whatsoever authority transacted or pretended, be, and the same are hereby declared to be, and from the beginning to have been, null, void, and of no effect in law or in *equity.” Within the comprehensive language of this J provision the case before us necessarily falls; as the inefficiency of the French concession, after the treaty of Fontainebleau, to convey any title, left the title in the government of Spain, where it remained up to, and at the date of, the treaty of St. Ildefonso. The reservation in the proviso to the section just quoted, in favor of actual settlers under the laws, customs, and usages of Spain, cannot include the case under consideration, as this is not an instance of a title asserted upon any such laws or usages, or founded on mere settlement; but one professing to be founded upon the grant made by the French commandant, independently of the authority of Spain, and exceeding in extent the quantity of land awarded to settlers by the proviso above mentioned. But it has been contended in the argument filed on behalf of the appellees, that, if any defect could have been alleged against their title by reason of the absence of power in either the French or 654 DECEMBER TERM, 1850. 625 The United States v. D’Auterive et al. Spanish governments to make the grant, such defect has been cured by the legislation of Congress ; and in support of this provision we have been referred to the act of March 2, 1805 (2 Stat, at L., 324). The first and fourth sections of that act have not been fully quoted in the argument of the appellees, and it may be that an omission to examine them throughout has produced the strange misapprehension of those provisions which seems to have existed with those who rely upon their operation. Thus from the first section of the act of 1805 the following portion is quoted: “Any person or persons, or the legal representatives of any person or persons, who, on the 1st of October in the year 1800, were resident within the territories ceded by the French republic to the United States, by the treaty of the 30th of April, 1803, and who had, prior to the said 1st day of October, 1800, obtained from the French and Spanish governments, respectively, during the time either of said governments had the actual possession of said territories, any duly registered warrant or order of survey,” &c.; but this quotation omits the following terms, which essentially control every part of the section that precedes them ; viz., “ for lands lying within the said territories to which the Indian title had been extinguished, and which were on that day actually inhabited and cultivated by such person or persons, or for his or their use.” The first requisite prescribed by this section of the law as necessary to give validity to titles resting upon the actual territorial occupation of the French or Spanish authorities is, that the grantees or their representatives should, on the 1st day of October, 1800, be residents within the territories ceded by the French republic to the United States. The next condition imposed *by this statute is, that the Indian title to such lands should have been extinguished. And thirdly, that the lands thus granted should have been, on the 1st day of October, 1800, actually inhabited and cultivated by the grantees, or for their use. Without inquiring into the fulfilment of the second of these conditions, or into the necessity for its fulfilment, it will be seen that the first and the third, made essential by the statute, have been entirely unperformed. Thus it is stated in the petition of the appellees, that as early as 1784 the family of D’Auterive removed from the state of Louisiana. It is nowhere proved, or even alleged, that at any subsequent period they returned to this land, much less that in 1800, or at any other time posterior to 1784, they resided upon the same, or by themselves or by their agents, or through any instrumentality of theirs, cultivated this land. On the contrary, either of these inferences is irre-655 626 SUPREME COURT. The United States v. D’Auterive et al. sistibly excluded by the statement in the petition, that, after the removal of the family of D’Auterive, much of this land was, by the Spanish government, during its possession of the country, granted to other persons. The alleged infancy of the children of D’Auterive in the year 1784, even if there had been a saving for the benefit of infants against the requisites of the statute, could scarcely authorize a presumption in their favor, after a lapse of more than half a century, viz.: from 1784 to 1837, during which period this claim has been permitted to sleep. The fourth section of the act of Congress, also quoted in the argument for the appellees, if applicable in any sense to their pretensions, certainly adds nothing to their intrinsic force. This section is a simple requisition, that persons claiming lands within the Territory of Louisiana, by virtue of any legal French or Spanish grant made prior to the 1st day of October, 1800, may, and persons claiming lands in the said territories by virtue of any grant or incomplete title bearing date subsequently to the 1st day of October, 1800, shall, before the 1st day of March, 1806, deliver to the register of the land-office or recorder of land-titles within whose district the land may be, a notice in writing, stating the nature and extent of his claims, together with a plat of the tract or tracts so claimed; and shall, also, on or before that day, deliver to the register or recorder, for the purpose of being recorded, every grant, order or survey, deed of conveyance, or other written evidence of his claim. This section then proceeds to declare, as a penalty for noncompliance with its directions, that all the rights of the claimant derived from the first two sections of the act.(embracing all grants founded upon mere territorial occupation by France or Spain), shall become void, and for ever after be barred; and that no incomplete *6071 *grant, warrant, order of survey, deed of conveyance, w J or other written evidence, which shall not be so recorded, shall ever be considered or admitted as evidence in any court of the United States, against any grant derived from the United States. But for the act of Congress of the 6th of February, 1835, entitled “ An Act for the final adjustment of claims to lands in the state of Louisiana,”, the fourth section of the act of 1805 would have operated as a complete bar to the claim of the appellees from the 1st day of March, 1806. The act of 1835 removes that bar so far as to permit, within the space of two years from its date, the prosecution of claims similar to that of the appellees, but this act accomplishes nothing beyond this permission. It imparts no merit or strength to any claim which such claim did not previously 656 DECEMBER TERM, 1 8 5 0. 627 Robinson et al. v. Minor et al. possess. Upon a view of this case, then, we think that the decision of the District Court should be reversed, and the petition of the appellees dismissed, and that decree is accordingly hereby reversed. Order. This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the title of the petitioners is null and void. Whereupon, it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby, reversed, and that this cause be, and the same is hereby, remanded to the said District Court, with directions to dismiss the petition of the claimants in this cause. Merritt M. Robinson and Marguerite his Wife, Aurore Gayoso, Fernando Gayoso, and Felicite Gayoso, Appellants, v. Wm. J. Minor, James C. Wilkins, and Henry Chotard, Executors of the Last Will and Testament of Katharine Minor, deceased, Frances Chotard, Katharine L. Wilkins, and Wm. J. Minor. By the treaty of 1795, between the United States and Spain, Spain admitted that she had no title to land north of the thirty-first degree of north latitude, and her previous grants of land so situated were of course void. The country, thus belonging to Georgia, was ceded to the United States in 1802. with a reservation that all persons who were actual settlers on the 27th of October, 1795, should have their grants confirmed. (See also 3 How., 750.) On the 3d of March, 1803, Congress passed an act (2 Stat, at L., 229) establishing *a board of commissioners to examine these grants, whose certificate in favor of the claimant should amount to a relinquish- [*628 ment, for ever, on the part of the United States. Without such confirmation by the United States, a grant of land situated on the north side of the thirty-first degree of latitude, issued by the Governor-General of Louisiana in 1794, would have been void. But it was confirmed by the board of commissioners, and is therefore valid. The original grantee indorsed upon the grant that he had conveyed it to a woman, whom he afterwards married, and referred to another instrument of conveyance; and in all subsequent transfers there was a reference to that same instrument, reciting its date, and that it accompanied the deeds executed. The confirmation of the commissioners followed and adopted this chain of title. That instrument of conveyance being lost, it may be presumed, under the circumstances, that the original grantee intended to convey to his wife a greater estate than the law would have endowed her with upon the marriage. Vol. x.—42 657 628 SUPREME COURT. Robinson et al. v. Minor et al. Even supposing that the confirmation of the commissioners was not conclusive, yet the facts of the case show a superior equity in the title of the wife over that of the child of the original grantee ; viz., the motive which led to the conveyance ; the fact that the widow sold the property for its full value, saw the premises occupied by persons claiming them in fee for thirty years, and never informed her son that he had a right to the property after her decease. This was an appeal from the Circuit Court of the United. States for the Southern District of Mississippi, sitting as a court of equity. The circumstances of the case were these. On the 1st of July, 1794, Gayoso de Lemos presented the following petition to the Governor-General of Louisiana:— “ To the Governor-General : — Col. Manuel Gayoso de Lemos, governor of the town and district of Natchez, to your honor sayeth, that he owns at half a league from this town a tract of land which he has bought to build thereupon a house, and to raise the commodities that will do to his family; but being also in want of pasture for his horses and other quadrupeds, or animals, petitioner therefore begs of your honor to give order to the deputy-surveyor of this district to extend the boundaries of the said land to increase it to contain one thousand arpents; and petitioner will ever pray. (Signed,) Manuel Gayoso de Lemos. “ Natchez, July Isi, 1794—say 1794.” On the 8th of August following the governor issued the following order to Carlos Trudeau, the surveyor:— “ New Orleans, Sth July, 1794. “ Granted.—The surveyor having to designate the limits in the notes of survey, which shall be exhibited to me, so that a title in a due form may be extended to the party. (Signed) El Baron de Carondelet.” A plat was accordingly made out, and returned on the 3d *8901 *°f September, upon which a grant was issued. No -• translation of the old grant being in the record, the original is not inserted. On the 12th of February, 1797, the following indorsement was made upon the grant. “ Recorded. Natchez, 12th day of February, 1795. This grant is transferred to Mrs. Margaretta Watts by a written instrument made on this day. “ Manuel Gayoso de Lemos.” 658 DECEMBER TERM, 1850. 629 Robinson et al. v. Minor et al. Soon after this, either in the year 1795 or the early part of 1796,: a private marriage took place between Gayoso and Map garet Watts. The reasons for its being private are thus explained, in the deposition of Judge King, and in the letters of Gayoso himself to Mr. Wikoff, the brother of Mrs. Watts. Judge King's Testimony. “ To the first interrogatory he saith, he believes that Fernando Gayoso was born at Natchez, in the year 1796 or 1797, and that he was the legitimate son of Don Manuel Gayoso de Lemos and Margaret Watts ; and witness will proceed to state, as he is requested in the interrogatory, some of the circumstances which induce his belief. Some time in the year 1797 or 1798, Don Manuel Gayoso was made governor of the Province of Louisiana, and arrived at New Orleans in one of those, years to take charge of his government. He came to the city in a barge, and landed immediately opposite the store of witness. Witness, being acquainted with the governor, went on board the barge with others to welcome his arrival. Mrs. Gayoso (Margaret Watts) was with the governol, and had her son, the said Fernando Gayoso, then an infant, in her arms; witness, to the best of his recollection, took the child from his mother’s arms, and carried him on shore. Witness had known the said Mrs. Gayoso as Miss Margaret Watts, previous to her first marriage. Having been the bearer of a letter of introduction from General Wilkinson in 1793 to Governor Gayoso, then Governor of Natchez, witness was invited to his house, where he became acquainted with his family, then consisting of Mrs. Watts, the mother-in-law, and Miss Margaret Watts, his sister-in-law. “In the year 1796 or 1797 it was currently reported and believed in the city of New Orleans, where witness then resided, that Governor Gayoso had been privately married to Margaret Watts at Natchez, which marriage could not be publicly acknowledged, because it had been contracted without the permission of the king of Spain, or perhaps the dispensation of the *Pope was needed, as the former wife pggo of Governor Gayoso had been a sister of Margaret *• Watts, or perhaps for both these reasons. Some time after the arrival of Governor Gayoso at New Orleans, the Bishop of Havana happening to be there, and the impediments to the marriage, whatever they were, having been removed, the nuptial ceremony was publicly solemnized by the bishop. Witness was not present at the marriage, but the fact that it was celebrated was one of general notoriety, and universally believed in the city of New Orleans. Witness was frequently 659 630 SUPREME COURT. Robinson et al. v. Minor et al. at the house of Governor Gayoso in the city of New Orleans, where he saw Mrs. Gayoso (Margaret Watts) and Fernando Gayoso, and on all occasions the former was treated as the wife of the governor, and the latter as the child of their mar-> riage. Mrs. Gayoso, as witness always understood, was,» after the death of Governor Gayoso, treated by the Spanish government as his widow, and as such allowed during her widowhood a pension equal to half the annual salary of her deceased husband. Fernando Gayoso lived with his mother, during his minority, except when at school, and was always spokeii of by her as the issue of her marriage with Don Man-> uel Gayoso de Lemos. Margaret Watts left at her death several other children, issue of a second marriage. At the settlement of her succession, Fernando Gayoso was treated as one of her legitimate heirs, and as such received his portion. From all these circumstances, witness, who knew the parties from the dates already stated to those of their respective deaths, has always believed that Fernando Gayoso was the legitimate son of Don Manuel Gayoso de Lemos and Margaret Watts, his wife. Letters of Grayoso to Mr. Wikoff. (These letters were produced and proved by Eliza Parrott, the daughter of Mr. Wikoff.) “ New Orleans, 21si February, 1796. “ My dear friend,—I suppose that by this you and my dear sister are acquainted with my return from my long campaign, by a letter that our mamma wrote, as I arrived at the Natchez. Now this is to inform you that by the last packet I received my promotion as brigadier-general for my former services, and I still hope that the ensuing packet will bring me some other good news, in recompense of the successful campaign that I have finished. The last was a general promotion, in which the Governor-General of this province was made major-general,, and several others promoted. “ A neighbor of yours is just going away, so this is just to repeat to you my affection, to give my love to my dear sister, *6^11 *and to embrace your sweet children. Tell Manuel $$ -I that he must come to see his godfather. Indeed, my friend, we must continue to make ourselves happy with an interview of our families; our dear mamma will look upon such an event as the greatest blessing she could experience.: therefore you must begin to think how to bring it about. “ As I am assured that you have been puzzled by the news mamma wrote of our connection being brought to an issue, I 660 DECEMBER TERM, 1850. 631 Robinson et al. v. Minor et al. must explain it: that very day our contract was signed before many witnesses, and likewise an elegant country-house, with one hundred acres bordering the town that I settle on my dear Peggy, besides a very considerable allowance of my estate; however, for the public, I must wait for the king’s permission, which is important to Peggy to secure her the military pension ; but this will be had by the latter end of this year, and perhaps by that time some considerable alteration in my public station, which I hope may enable me to serve you. I repeat my affectionate love to my dear sister and children, and I remain, sincerely, your truest friend and humble servant. Manuel Gayoso de Lemos.” “ Natchez, March 6th, 1797. . “ My dear friend,—The American commissioner, Mr. Elicot, arrived here, and in a few days I shall set off with him to have the first conference with,the Baron near Clark’s. Perhaps we may fix the first point immediately, but it will be some time yet before we proceed any further; therefore, I -shall return to this place. In this situation I am overpowered with business. “I wait with impatience for the necessary permission to publish my marriage, which, however, is as binding now; but the public sanction is necessary; I am in hopes that it will arrive by the first packet. General Former is lately arrived here with his daughter, married to Dr. Longstreet, whom I suppose you know, though he is very young—(I mean Mr. Longstreet). He thinks of paying you a visit; it seems that he is related to you. “ My kind, affectionate regard to my sister and children; and I remain, sincerely, your most humble, obedient servant and friend. Manuel Gayoso de Lemos.” , “ New Orleans, 18th August, 1797. ' “ My dear friend,—Though as busy as you may suppose at my arrival here, I do not wish to let this opportunity pass without renewing to you and to my dear sister the sincere assurances of my affection and attachment for you. I left our *friends well at Concord, with the addition of a fine boy that four days hence will be one month old. At *-the beginning of October, I shall send my galiot for your sister, whom I did not bring down on account of the excessive heat, and because she would find the house not conveniently furnished at our first arrival. The retard of the packet from Europe was the cause of the delay of the king’s permission, as likewise of my promotion to the command of the province, 632 SUPREME COURT. Robinson et al. v. Minor et al. signed by the king the 20th of October last; however, they both arrived at the same time, and restored tranquillity to our friends. “ When we are fixed at home, I shall insist on a visit from my dear sister, &c., &c., one of these days. I shall prepare a summons, which I shall send up to Concord, to be signed by Lady Governante, as belonging to her department, to obtain the desirable end. The new governor of Texas is a friend of mine. I have already wrote to him an account of your negroes, but it would be necessary to have names and description, which, if you send to me, I’ll have circulated in all the outposts, &c. “ If I can be of any service to you, I need not add here complimentary expressions, I shall do it cheerfully. My love to my dear sister and all the little cohort. I hope she has been happily delivered, and that you all enjoy good health. “ I am, sincerely, your most humble servant and friend, Manuel Gayoso de Lemos.” On the 14th of July, 1797, Fernando was born, as appears from the following certificate :— “ Manuel Gayoso de Lemos, brigadier of the royal armies, military and civil governor of the town and district of Natchez, &c., on this Friday, 14th July, 1797, at seven minutes to one o’clock in the morning, my wife, Margaret Watts Gayoso, was delivered of a robust and healthy child, to whom I determined to give the name of Fernando. Manuel Gayoso de Lemos.” On the 10th of December, 1797, the official ceremony of marriage was performed, as shown by the following certificate : “No. 422.—On Sunday, 10th of December, of the year 1797, the most Christian Don Luis Tenalver y Cardenas, most worthy prime bishop of this Diocese of Louisiana and Marriage of Don Floridas, of the Council of his Majesty, married Lemos1 S°mS and imparted the nuptial benediction to Don Margaret Watts. Manuel Gayoso de Lemos, brigadier of the royal armies of his Catholic Majesty, civil and military governor of the *aforesaid province, a native of the kingdom of -* Galicia, and Margaret Watts, his legitimate wife, native of Baton Rouge, district of this same government. They performed confession and communion, and to certify the above, I sign. “ Fr. Antonio de Sedella. 682 DECEMBER TERM, 1 850. 633 Robinson et al. v. Minor et al. “ The above is a true copy from the original, kept in the archives of the above church for reference. New Orleans, 23d August, 1844. “Ant. Duluc, Secretary of the Vestry of the St. Louis Church''1 In July, 1799, Gayoso died, and was buried in New Orleans, being then civil and military governor of the Province of Louisiana. On the 10th of August, 1799, Margaret Watts Gayoso conveyed to Daniel Clark, Jr., for the consideration of 85,000, a certain plantation or tract of land, “known by the name of Concordia, situated, lying, and being in the Mississippi Territory, in the United States of America, about half a league northeast of the fort of Natchez, containing one thousand acres, or arpents, be the same more or less, as is fully expressed in the grant and plan of said land, No. 632, accompanying this bill of sale; ” and accompanied the sale with a general warranty. On the 15th of August, 1800, Daniel Clark conveyed the property to William Lintot for ten thousand dollars. The deed contained the following recital:— “ This indenture, made this 15th day of August, in the year 1800, between Daniel Clark, of the Mississippi Territory, of the one part, and William Lintot, of the Territory aforesaid, witnesseth : That whereas, on the 10th day of September, in the year 1794, there was granted by the Baron de Carondelet, Governor of Louisiana, unto Don Manuel Gayoso de Lemos, a tract or parcel of land, called Concord, containing by estimation, one thousand acres, with the appurtenances, situated in the district aforesaid, as per plat and grant accompanying this will more fully appear. And whereas, by an instrument of writing, which also accompanies this, dated the 12th day of February, in the year 1795, the said Don Manuel Gayoso de Lemos did, for certain considerations therein recited, convey the said land, with all the appurtenances, to Margaret Watts.; and whereas the said Margaret Watts, now the widow of the said Don Manuel Gayoso de Lemos, by her deed dated the 10th day of August, 1799, which also accompanies this, did convey the said land with the appurtenances to Daniel Clark, then junior, for the valuable consideration of five thousand dollars,” &c. *On the 15th of November, 1800, Lintot conveyed [*634 to Stephen Minor, the ancestor of the appellees. In 1802, a contract was made between the United States and the state of Georgia, by which Georgia ceded to the 663 634 SUPREME COURT. Robinson et al. v. Minor et al. United States all the territory in which the granted land was. But it was stipulated in the deed of cession, that “ all persons who, on the 27th of October, 1795, were actual settlers within the territory thus ceded, should be confirmed in all the grants legally and fully executed prior to that day, by the former British government or the government of Spain.” This agreement between the United States and Georgia will be found in 1 Land Laws, 588. On the 3d of March, 1803, Congress passed an act (2 Stat, at L., 229), entitled, “ An Act for regulating the grants of land and providing for the disposal of lands of the United States, south of the state of Tennessee.” This act established a board, before which all claims were to be brought, and the sixth section provided that, where it shall appear to the board that the claimant is entitled to a tract of land under the articles of agreement and cession with Georgia aforesaid, in virtue of a British “or Spanish grant legally and fully executed, they shall give a certificate thereof, describing the tract of land and the grant, and stating that the claimant is confirmed in his title thereto by virtue of the said articles; which certificate, being recorded by the register of the land-office, shall amount to a relinquishment for ever on the part of the United States.” In 1804, the following proceedings took place before the board:— “Monday, the 10th of September, 1804, the board met. “ No. 1220. Stephen Minor claims one thousand arpents, Spanish patent to Manuel Gayoso, dated the 12th of September, 1794, who assigned and transferred the same to Margaret Watts, afterwards Margaret Watts Gayoso, the 12th of February, 1795, who conveyed the same to Daniel Clark by deed dated the 10th of August, 1799, who conveyed the same to William Lintot, the 15th of August, 1800, who conveyed the same to the present claimant on the 15th of September, 1800 ; the patent to Gayoso, assignment to Margaret Watts, deed from Margaret to Clark, deed from Clark to Lintot, and deed from Lintot to Stephen Minor, were produced in evidence, filed with the register. “ Witness William Barland on oath says, that Margaret Watts Gayoso was an actual settler in the Mississippi Territory on the 27th of October, 1795.” And on the 18th of September, 1805, the following certificate was issued:— “ A. No. 610. Mississippi Territory. Register 1220. “ Board of Commissioners west of Pearl River, established 661 DECEMBER TERM, 1850. 634 Robinson et al. v. Minor et al. by a law of Congress regulating the grants of land, and providing for the disposal of lands of the United States south of the state of Tennessee. *“Stephen Minor claims a tract of seven hundred r^nr and fifty-six arpents of land, situated in Adams County, L near the city of Natchez, by virtue of a grant under the authority of the Spanish government, to Manuel Gayoso de Lemos, for one thousand arpents, bearing date the 12th day of September, in the year 1794, having such shape, form, and marks, both natural and artificial, as are represented in the plat annexed to said grant, and legally conveyed to the claimant. “We do certify, that the said Stephen Minor is confirmed in his title thereto by virtue of the articles of agreement and cession between the United States and Georgia. “Given under our hands, at the town of Washington, in the county of Adams, this 18th day of September, in the year 1805, and in the thirtieth year of the independence of the United States. “ Robert Williams, Thomas H. Williams, Commissioners.” It was admitted that those who claimed under Minor had been in possession since the issuance of the certificate of confirmation. In December, 1805, Margaret Watts Gayoso married Captain Stelle of the United States Army. Stelle died in 1819, and Margaret in 1829. On the 9th of May, 1832, Fernando Gayoso de Lemos, a citizen of Louisiana, filed a bill in the Circuit Court of the United States for the Southern District of Mississippi, against Job Routh, Katharine Minor, John Minor, executor of Stephen Minor, and John William Minor, of Mississippi. The bill charges that the complainant is the lawful son and only heir of Manuel Gayoso de Lemos, deceased, and that the said Manuel was, on the 27th of October, 1795, an actual settler within the territory, now the state, of Mississippi, ceded by Georgia to the United States on the 14th of April, 1802 ; that he then held a grant legally and fully executed prior to the 27th of October, 1795, by the government of Spain for 1000 àrpents of land, now situated in Adams County, Mississippi ; that he or his legal representatives were entitled to a confirmation of that grant by the articles of cession between the United States and Georgia, and that the 665 *636 SUPREME COURT. Robinson et al. v. Minor et al. said Manuel’s wife, Margaret, *the complainant’s mother, survived her husband, married James Stelle in 1804 or 1805, and died in 18’29, and that Stelle died in 1819. The bill farther states, that Stephen Minor, deceased, late of Adams County, Mississippi, became possessed of the evidences of the said Manuel’s said title, and after the death of the said Manuel, and during the infancy of the complainant, and while he resided in Louisiana, procured from the board of commissioners west of Pearl River, the issual to him, in his own name, of a certificate for 760 arpents of said land, which certificate was so unlawfully, falsely, and by imposition procured to the said Minor in fraud of the complainant’s rights, and of right belonged and ought to have issued to the complainant as sole legal heir of the said Manuel; that Stephen Minor died in 1815 or 1816, leaving his wife Katharine (one of the defendants) devisee and trustee of all his estate, and making her and John Minor (also a defendant), his executors ; and that the executors on the 25th of January, 1829, conveyed the land to the defendant William J. Minor, the son of Katharine Minor, who, on the same day, reconveyed to his mother, in whose possession it now is, with the Spanish grant, as it was before in her husband’s possession, and that before these last mentioned conveyances the parties to them were aware of the complainant’s claim. The bill further states, that Job Routh, then and now a citizen of Adams County, Mississippi, procured from the same board of commissioners, in like manner as Minor, a certificate for 244 arpents of said tract, under and by virtue of the said evidence of the said title of the complainant’s father, and has long been in possession, and that said certificate belonged and ought to have issued to the complainant. The bill prays that Katharine Minor and Job Routh may be decreed to convey the land to the complainant, and deliver him the evidence of the title to it, and to account for the rents and profits, and for general relief. After sundry proceedings of demurrers, which were overruled, and bills of revivor, which it is not necessary to state, the defendants answered, in November, 1845. The answer sets out the title at law of the appellees, beginning with the Spanish grant which lies at its foundation, tracing the assignment of that grant through its several successive holders to Stephen Minor, showing Minor’s application under it to the board of commissioners, west of Pearl River, appointed by virtue of the act of Congress of 3d March, 1803, “for regulating the grants of land, and providing for the dis-666 DECEMBER TERM, 1 850. 636 Robinson et al. v. Minor et al. posal of lands of the United States south of the state of Tennessee,” *and the certificate of the board in his favor, [-*^07 and thence deducing their title regularly from him. It L denies that the certificate was issued to Stephen Minor unlawfully, falsely, or by imposition or fraud; and avers that the Concord plantation has been in the possession of them, and those under whom they claim, since the 10th of August, 1799. The answer does not admit Fernando Gayoso to be the lawful son and heir of Manuel Gayoso, or that said Manuel married Margaret Watts, or that she left children, or the date of the death of the said Manuel or Margaret, or the age of the said Fernando at the time of the death of the said Manuel, and requires proof of the averment of the bill on these heads. The answer further denies that the said Manuel Gayoso was an actual settler, within the meaning of the act of Congress of 27th October, 1795, and that the appellees had any notice of the claim of the appellants prior to the commencement of the suit; and, in addition, relies on the failure of the appellants to file their bill within twenty years after the accrual of the right in virtue of which they claim. To this a general replication was filed, and a large mass of evidence was taken. In November, 1847, the cause was discontinued as to the heirs of Job Routh, and abated as to Austin Williams, Archibald Williams, and Elias Ogden. It then came up for argument on the bill, answers, exhibits, and proof, when the Circuit Court dismissed the bill, with costs. * The complainants appealed to this court. It was argued by Mr. Bullard, for the appellants, and Mr. J. Mason Campbell, for the appellees. Mr.Bullard, for the appellant, said, that, before stating the points of law in the case, it was proper to say, that the judge of the District of Mississippi gave as a reason for dismissing the bill, although no written opinion was delivered, the decision of this court in the case of the Lessee of Hickey and others n. Stewart and others, 3 How., 761. That case appears to be totally different from this. Starke claimed under an order of survey which had never been presented to the board of commissioners for confirmation, under the act of 1803, and this court held that the court of chancery, in taking cognizance of Starke’s claim, and establishing it by its own judgment and decree, transcended its jurisdiction. The Gayoso title, as exhibited in this case, was complete and fully executed, 667 637 SUPREME COURT. Robinson et al. v. Minor et al. as contemplated by the compact with Georgia in 1802, and was presented to the commissioners and confirmed; but con-*6^81 ^rme(^ *in favor °f the heir-at-law to whom the fee -I had descended, but to Minor, under a pretended right of Margaret Watts Gayoso, and we charge Minor as the trustee of the infant heir of Don Manuel Gayoso de Lemos. There is no analogy between the two cases. He then stated the following points:— The first, and indeed the principal, question in the case is, What degree of estate or interest did Clark, Lintot, and Minor acquire under the conveyance of Mrs. Margaret Gayoso after the death of her first husband? or, in other words, what was the extent of her right to or in the land ? I am willing to test this question either by the Spanish law, which was; at least to a certain extent, in force in the district of Natchez, or by the common law, supposed to prevail in Georgia at that time. I say to a certain extent, because I freely admit that Spain, not being the sovereign de jure, had no right to dispose of any of the public domain; but being, until 1798, the sovereign de facto, having its governor, its tribunals of justice, and a body of laws or usages in reference to which all contracts and donations were made, and which regulated all the civil transactions of the people and the mutual relations and capacities of individuals, the Spanish law was the living law of the people; by it were regulated the transfers of all property once severed from the domain, whether by contract, or last will, or ab intestato ; every question of marriage, of legitimacy, of donations, either mortis causd or inter vivos, which arose during the sovereignty de facto of Spain, ought to be tested by the Spanish law. I. What, then, was the Spanish law applicable to this case, as it relates to the degree of estate acquired by Madame Gayoso ? And here I assume, what is most favorable to the pretensions of the defendants, and rendered most probable by the evidence, that the land in question was settled on Miss Watts as a donation in consideration of marriage, or a donatio propter nuptias. Upon that supposition she acquired the land in full property, defeasible on her second marriage; in which event her right would be reduced at once to a usufruct during her natural life on a life estate, and on her decease the land would descend to the heir of the donor or first husband exclusively. I rely on the following authorities: 5 Partida, law 26, title 13 ; Commentary of Gregorio Lopes; 15 Law of Toro; Gomez ad Leges Tauri, (commentary,) note 1st. Original Roman 668 DECEMBER TERM, 1850. 638 Robinson et al. v. Minor et al. T aw:—»Justinian, Code, lib. 5, tit. 9, § 3; 2 Pothier’s Traité du Mariage, Nos. 605, 613, 614; Fibrero, part 1, chap. 3. [I. But supposing that the common law, or the law of Georgia, *is to govern, as was contended by the defen- r*z>qn dants, what interest or estate did Madame Gayoso ac-quire in the tract of land according to the evidence in the record? It will be conceded that, according to both systems of law, the only son is the heir of the father ; and leaving out of view the transfer to Margaret Watts, Fernando Gayoso would have inherited the fee simple ; and the title was perfect, according to the compact with the state of Georgia. I contend, then, that according to the common law, Margaret Watts acquired at most a life estate, with remainder over in fee to the heir-at-law of Don Manuel Gayoso de Lemos, to wit, Fernando Gayoso, and that her vendee acquired no greater interest or estate. The indorsement of Gayoso on the patent is not a deed conveying the fee simple. It conveyed no interest which would go to her heirs ; it contains no words or expressions to that effect. Standing alone, it gave her a mere life estate, with remainder over to the heirs of Gayoso. Nor is it cured by any other part of the evidence. On the contrary, it being admitted that some conveyance from Gayoso to his future wife accompanied the several mesne conveyances, and it not being produced as the highest evidence, the presumption is, it conveyed no higher interest than the indorsement itself. The recital in those deeds points to higher evidence than this mere indorsement on the patent, and cannot avail the party until he accounts for the original. Notes to Phillips on Ev., Part 2, 1236 ; 1 Greenl. on Ev., 93. III. The compact with Georgia confirms the title of Gayoso, without the necessity of any act on the part of the United States, except a mere certificate requiring no patent. See Act of 1803, § 6 (2 Stat, at L., 231). This certificate adds nothing to the validity of the original patent. See Hickie et al. v. Starke et al., 1 Pet., 94. IV. Fernando Gayoso was the infant heir of Don Manuel Gayoso at the time Minor, having possessed himself of the patent, obtained the confirmation to himself, without showing any conveyance from the original grantee, which cut off his heir at law. He will then be held to be the trustee of the legal title of the infant heir, and condemned to convey the land, and account for the rents and profits. See Graines et ux. v. Chew et al., 2 How., 650-655 ; Dormer n. Fortescue, 3 Atk., 130 : Roberdeau v. Rous, 1 Id., 543 ; Hutton v. Simpson, 2 669 639 SUPREME COURT. Robinson et al. b. Minor et al. Vern., 724 ; Townsend v. Ash, 3 Atk., 336 ; Mundy v. Mundy, 2 Ves., 122. If it should be contended that Minor was an innocent purchaser without notice, and to be protected, then we invoke the principle settled in the case of Biscoe v. The JEarl of Danbury, *6401 *1 Ch* Cas., 287, and in Willis v. Butcher, 2 Binn. J (Pa.), 466 ; to wit, that it was crassa negligentia in him not to have examined into the extent of interest owned by Madame Gayoso, for he had at least fair notice that there was some conveyance to her, and it was in his power to ascertain the extent of her interests. Minor kept the patent safe, and exhibited it to the commissioners; but he carefully kept back, and yet keeps back, the deed or instrument of writing which accompanied the patent, and by which Gayoso is pretended to have divested himself of title in favor of Margaret Watts. V. Whether this be a proper case for chancery jurisdiction, or whether the demurrer ought to have been sustained, is a question which I could wish some other person, more conversant with the doctrines and practice of courts of equity than I am, could present to the court. But it does appear to me, that, although the plaintiff exhibits a legal title, on which he might recover in an action of ejectment, yet the proceedings of Minor during the infancy of Fernando were such, in procuring a certificate in his own name, as to raise an implied trust; and that the show of title thus acquired by him throws such a shade over the title of the complainant, as on both grounds to authorize his appeal to a court of equity, and that a court of law could not give him full and complete remedy. I rely on the principles settled in the case of Graines et ux. v. Chew et al., 2 How., cited above. Mr. Campbell, for the appellees, relied upon the following points:— 1st. That the appellants’ claim, as the heirs of Manuel Gayoso through Fernando Gayoso, fails because Fernando was not born in wedlock. His birth took place on the 14th of July, 1797, in Natchez, and his parents were not married till the 10th of December following, in another territory. 2d. That even if Fernando be legitimate, his father, Manuel, was an alien, and could not transmit aught to his son by descent. Orr v. Hodgson, 4 Wheat., 460; Inglis v. The Trustees, &c., 3 Pet., 121. 3d. That even if legitimate, and capable to take by descent from his father, he is barred by limitations. Statute of Mississippi, 1818 ; Peyton v. Stith, 5 Pet., 494. 670 DECEMBER TERM, 1 850. 640 Robinson et al. v. Minor et al. 4th. That even conceding all the foregoing points in favor of the appellants, the certificate of confirmation concludes all legal and equitable rights existing anterior to its date, and vests an indefeasible title at law and in equity in the appellees, which has since been recognized by Congress. Grand Gulf Bank v. Bryan, 8 Sm. & M. (Miss.), 234; Boss v. Bar-land,]. Pet., 667; * Hickey v. Stewart, 3 How., 760; United States v. King, Id., 787; Act of 1803, ch. 27, § 5 (2 Stat, at L., 229); 9 How., 170. 5th. That even if the certificate be not conclusive, and be impeachable for fraud, there is no proof of any fraud in obtaining it, or otherwise. Mr. Justice McLEAN delivered the opinion of the court. This case involves the title to a tract of one thousand arpents of land adjoining the city of Natchez. On the 10th of September, 1794, a grant was obtained for this land from the Baron de Carondelet, Governor-General of Louisiana, by Manuel Gayoso de Lemos, who resided in Natchez. He settled on Margaret Watts, his future wife, the same tract of land, and indorsed upon the grant that it was transferred to her. They were afterwards married, and, with the view to secure to his wife a military pension, the permission of the king of Spain was subsequently obtained. In 1797, some time after the marriage, the nuptial benediction was pronounced by the Bishop of Havana, in New Orleans. In 1797 Madame Gayoso had a son, who was named Fernando. In 1798 Gayoso succeeded the Baron de Carondelet as Governor-General of Louisiana, and removed to New Orleans, where he died in 1799, his wife and son surviving him. On the 10th of August, 1799, for the consideration of five thousand dollars, Madame Gayoso conveyed the premises, with all the improvements thereon, to Daniel Clark, junior. And on the 15th of August, 1800, Daniel Clark, for the consideration of ten thousand dollars, conveyed the same to William Lintot. In this deed the original grant is referred to, and the plat. And it states, “ whereas by an instrument of writing which accompanies this, dated the 12th of February, 1795, the said Don Manuel Gayoso de Lemos did, for certain considerations therein recited, convey the said land, with all the appurtenances, to Margaret Watts ; and whereas the said Margaret Watts, now the widow of the said Don Manuel Gayoso de Lemos, by her deed dated the 10th of August, 1799, which accompanies this, did convey the said land to Daniel Clark,” &c. On the 15th of November, 1800, William 671 e ti SUPREME COURT. Robinson et al. v. Minor et al. Lintot, for the consideration of the sum of ten thousand dollars, conveyed the same land, with the same recitals, to Stephen Minor, the ancestor of the defendants. In 1805, this title having been presented to the board of commissioners west of Pearl River, by Minor, under the act of Congress of 1803, regulating the grants of land, &c., south of the state of Tennessee, was confirmed for seven hundred *6491 *an(^ fifty-six arpents. The possession of the land is J shown from the original grant to Gayoso under the titles stated. • The complainant, Fernando Gayoso de Lemos, claims the land as the son and only heir of Don Manuel Gayoso de Lemos. In his bill he represents that, after the death of his father, his mother intermarried with one James Stelle, in 1805, and that she died in the year 1829. That the defendant Minor, being in possession of the evidences of title, in fraud of his rights, he being an infant, procured from the board of commissioners a certificate for the land. That in 1815 Stephen Minor departed this life, and left Katharine Minor, his wife, a devisee and trustee of all his estate, and also executrix, and John Minor executor of his last will and testament. That conveyances were executed to the defendants, all of whom had notice of the claim of the complainant. A decree for a conveyance of the land is prayed for, &c. Fernando Gayoso having died, his heirs were made parties. On the part of the complainant, it is contended that, the original grant for the land under the Spanish government being unconditional, no confirmation of it was required by the United States. That the treaty protected such a title, and that Congress by the act of 1803 could not have intended to interfere with absolute grants, but such claims only as required confirmation by the Spanish authority. And it is urged that Spain, being in possession of the country, and exercising a government de facto over it, had the power to grant lands. That the civil law applies as well to the transfer of the land alleged to have been made by Don Manuel Gayoso to Margaret Watts, as to the original grant. These positions were sustained in the argument by much research and ability, but we are precluded from taking this view by the political action of the government, and the decisions heretofore pronounced by this tribunal. On the 27th of October, 1795, a treaty was made with Spain, which acknowledged the southern limits of the United States to extend to the thirty-first degree of north latitude. The territory belonged to the State of Georgia, but by deed bearing date the 24th of April, 1802, she ceded it to the 672 DECEMBER TERM, 1850. 642 Robinson et al. v. Minor et al. United States. In the deed of cession it was stipulated “that all persons who, on the 27th of October, 1795, were actual settlers within the territory thus ceded, shall be confirmed in all the grants legally and fully executed prior to that day, by the former British government, or the government of Spain,” &c. The land was in possession of Gayoso at the time specified, and the grant having been “legally and fully executed,” under the government of Spain, it was included in the deed of cession. *By the fifth section of the act of the 3d of March, 1803, above referred to, it is provided, “that *-every person claiming lands by virtue of any British grant,” &c., “or of the articles of agreement and cession between the United States and the State of Georgia, shall, before the last day of March, 1804, deliver to the register of the land-office, within whose district the land may be, a notice in writing, stating the nature and extent of his claims, together with a plat of the tract or tracts claimed, and shall also, on or before that day, deliver to the said register, for the purpose of being recorded, every grant,” &c.; and on failure to do so, “ all his right, so far as the same is derived from the above-mentioned articles of agreement,” &c., “shall become void, and for ever thereafter be barred; ” and it is declared that such deed, &c., which shall not be recorded, shall not be evidence in any court of the United States against any grant under the same. The sixth section provides, “ that, when it shall appear to the board that the claimant is entitled to a tract of land under the articles of agreement and cession with Georgia aforesaid, in virtue of a British or Spanish grant legally and fully executed, they shall give a certificate thereof, describing the tract of land and the grant, and stating that the claimant is confirmed in his title thereto by virtue of the said articles; which certificate, being recorded by the register of the landoffice,” who shall record it, “shall amount to a relinquishment for ever on the part of the United States.” An act supplementary to the above was passed on the 27th of March, 1804, providing for the survey of lands claimed by Spanish grants, but it has no direct bearing on the questions before us. The treaty with Spain established a disputed boundary; there was no cession of territory. The jurisdiction exercised by Spain over the country north of the thirty-first degree of north latitude was not claimed or occupied by force of arms, against an adversary power; but it was a naked possession, under a misapprehension of right. In such a case, Georgia, within whose sovereignty the country was situated, was not Vol. x.—43 673 643 SUPREME COURT. Robinson et al. v. Minor et al. bound to recognize the grants or other evidence of title by the Spanish government. In the case of Pool v. Fleeger. 11 Pet., 210, where North Carolina and Tennessee made grants for lands within the territory of Virginia, through a mistake of the boundary line, the court say, “ It is perfectly clear that the grants under which the defendants claim, being beyond the boundary of Tennessee, were inoperative.” The same doctrine has been held in relation to the Spanish grants north of the thirty-first degree of north latitude, in Henderson v. Poindexter, 12 Wheat., 530; Lessee *of Hickey et al. v. Stewart et al., J 3 How., 756; La Roche et al. v. Jones, 9 Id., 170. The title in question belongs to a class which was recognized and made valid in the cession of the territory by Georgia to the United States. This act of Georgia, though voluntary, was just. It secured to the Spanish claimant a title, which, so far as he was concerned, had been acquired in good faith, but which was void for want of authority in the granting power. In requiring the holders of complete grants to present them and the plats of survey before commissioners, under the act of 1803, Congress carried out the compact with Georgia. In reference to such titles the words of the cession were, “they shall be confirmed.” And although the forfeiture of the title, if not presented and recorded, was a rigorous provision, yet it was within the power of Congress. Until these titles were examined, and their boundaries ascertained, the government could not make a survey and sale of the lands to which there were no valid claims. It was therefore important, that all titles to which validity was given by the cession and by acts of Congress should be placed upon the public records, under the sanction or rejection of a competent board of commissioners. The ground on which the complainants chiefly rely for a decree is a presumed defect in the conveyance from the widow of Gayoso to Clark. The indorsement upon the original grant by Don Manuel Gayoso, that he had conveyed the property to Margaret Watts, referred to an instrument other than that indorsed on the grant. And we find in the deed from Clark to Lintot, and also in the deed from Lintot to Minor, there is a reference to that instrument, reciting itjs date and that it accompanied the deeds executed. And these conveyances were sanctioned by the solemn act of the commissioners when they confirmed the title to Minor. Under this title there has been a continuous possession of fifty years. The consideration paid by Clark satisfactorily shows that he supposed himself to have 674 DECEMBER TERM, 1 8 5 0. G44 Robinson et al. v. Minor et al. acquired, a complete title to the land. Under these circumstances, if the decision of the case turned upon the legal title, such title might well be presumed, whether the conveyances were executed under the laws of Spain or of Georgia. It may be presumed that in the conveyance to Miss Watts, which has by some means been lost, the forms of the civil law were pursued, as the common law was not adopted in any part of the Spanish dominions. But validity was imparted to such conveyance by the compact with Georgia, the act of 1803, and the proceedings under that act, the same as to the *original grant. There is no probability that Gayoso by the conveyance vested no higher interest than L might have been claimed by Miss Watts after her marriage with him under the civil law. The fA.ct of his having executed to her a conveyance, of which there is proof, may well justify the inference, that he gave her an absolute title to the land. But there is another and a more conclusive view of the case. If it be admitted that the complainants may go behind the confirmation of the title by the commissioners, there is nothing on which they can rest but a paramount equity. And what is the nature of that equity as made out in the proof? The heirship of the complainants may be admitted as proved, but there is no other proof of equity than a supposition unsustained by facts, and contradicted by strong circumstances, that a life estate only in the premises was vested in Madame Gayoso. This supposition is refuted by the only rational motive which can be presumed to have induced Don Manuel Gayoso to make the conveyance to his intended wife; by the fact, that, after his death, the widow sold the premises for a full consideration, and saw them occupied by persons claiming them in fee for thirty years, until her death, without setting up any claim thereto in behalf of her son, or informing him that he had a right to the premises after her decease. Under such circumstances, equity can give no relief to the complainants. The decree of the Circuit Court dismissing the bill is affirmed. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs. 6"5 446 SUPREME COURT. Motions. *John McNulty, Plaintiff in error, v. John Batty and OTHERS. (See p. 72.) Mr. Walker, of counsel for the defendants in error, moved the court to direct the clerk to what court the mandate, or other process prescribed by the forty-third rule of court, should be addressed. On consideration whereof, it is now here ordered by the court, that the clerk do not issue any mandate or other process in this case, but only a certified copy of the judgment this day rendered in this cause. Sylvester B. Preston and others, Plaintiffs in error, v. Charles Bracken. (Seep. 81.) Mr. Walker, of counsel for the defendant in error, moved the court to direct the clerk to what court the mandate, or other process prescribed by the forty-third rule of court, should be addressed. On consideration whereof, it is now here ordered by this court, that the clerk do not issue any mandate or other process in this case, but only a certified copy of the judgment this day rendered in this cause. Jesse Hoyt, Plaintiff in error, v. The United States. (Seep. 109.) Mr. Attorney-General Crittenden moved the court to dismiss this cause for irregularity in the bill of exceptions, which was opposed by Messrs. Evans and Walker, of counsel for the plaintiff in error. Whereupon this court, not being now here sufficiently advised of and concerning what order to render in the premises, took time to consider. On consideration of the motion made in this cause by Mr. Attorney-General on the 6th instant, and of the arguments of counsel thereupon had, it is now here ordered by the court, that the whole case be argued upon the bill of exceptions. 676 INDEX TO THE MATTERS CONTAINED IN THIS VOLUME. [The references are to the star (*) pages.] APPEAL OR ERROR. 1. The seventeenth section of the act of 1836 gives the right of appeal to this court, when the sum in dispute is below the value of two thousand dollars, “ in all actions, suits, controversies- on cases arising under any law of the United States, granting or confirming to inventors the exclusive right to their inventions or discoveries,” provided the court below shall deem it reasonable to allow the appeal. Wilson v.' Sanford, 99. 2. But a bill filed on the equity side of the Circuit Court to set aside an assignment, upon the ground that the assignee had not complied with the terms of the contract, is not one of these enumerated cases; and the value in dispute being less than two thousand dollars, this court has no jurisdiction over the case. Ib. AVERAGE. See Commercial Law. BOUNDARIES OF STATES. 1. The report of the commissioners appointed by this court in 7 How., 660, to run and mark the line dividing the States of Missouri and Iowa, adopted and confirmed, and the boundary line finally established. Missouri v. Iowa, 1. CHANCERY. 1. In 1803, Collins obtained from the military commandant at Mobile a permit to take possession of a lot of ground near that place, and made a contract with William E. Kennedy that the latter should improve it, so as to lay the foundation for a perfect title, and then they were to divide the lot equally. Hallett et al v. Collins, 174. 2. Kennedy’s ownership of a hostile claim, whether held then or acquired subsequently, enured to the joint benefit of himself and Collins; and when Kennedy obtained a confirmation of his title under the acts of the commissioners appointed under an act of Congress, he became a trustee for Collins to the extent of one half of the lot. Ib. 3. The deeds afterwards made by Kennedy, under the circumstances of the case, did not destroy this trust; but the assignee, having full knowledge of the trust, must be held bound to comply with it. Ib. 4. This assignee obtained releases, for an inadequate consideration, from the heirs of Collins, who had just come of age, were poor, and ignorant of their rights. These releases were void. Ib. 5. Before Kennedy conveyed to the assignee just spoken of, he had conveyed the property to another person who held it as a security for a debt; and who, when the debt was paid, transferred it to the same assignee to whom Kennedy had conveyed it. This added no strength to the title, but only gave to this assignee a claim to be reimbursed for the money which he paid to extinguish the debt. Ib. 6. The absence of the complainant from the state, and the late discovery of the fraud, account for the delay and apparent laches in prosecuting his claim. Ib. (677) 678 INDEX. COLLECTORS OF THE CUSTOMS. 1. When Treasury transcripts are offered in evidence under the act of March 3, 1797, (1 Stat, at L., 512,) although they are not evidence of the indebtedness of the defendant, as to money which comes into his hands out of the regular course of official duty, yet they are so when they arise out of the official transactions of a collector with the Treasury, and are substantial copies of his quarterly returns, rendered in pursuance of law and the instructions of the Secretary. Hoyt v. United States, 109. 2. These transcripts need not contain the particular items in each quarterly return; it is sufficient if they state the aggregate amount of bonds and duties accruing within the quarter, and refer to an abstract containing the particular items. Ib. 3. This rule can work no surprise upon the defendant, because every item which is litigated must have been previously presented to the accounting officers of the Treasury, and been by them rejected. The items must be known therefore to the defendant. Ib. 4. The acts of 1802 (2 Stat, at L., 172, § 3) and March, 1822 (3 Stat, at L., 694, 695, §§ 3, 7), limit the annual compensation of the collector to a certain sum. This limitation includes the fees as well as commission. Ib. 5. The act of 1838 (5 Stat, at L., 264) provides that the collector shall return an account under oath of these fees to the Treasury, and the act also limits the compensation. The fees, therefore, cannot be claimed in addition to the compensation. In the case in question, the time of service of the collector was whilst this act was in force, as it was extended by the acts of 1839, 1840, and 1841, and to 2d March of that year. Ib. 6. The acts above mentioned do not deprive the collector of his share in fines, penalties, and forfeitures. He is allowed to claim this share in addition to his annual compensation. Ib. 7. But this share does not include a claim to a part of the duties upon merchandise which has been seized, and in order to regain the possession of which the owner has given a bond for the payment or securities of the duties, as well as for the appraised valne of the merchandise itself. In case of condemnation, the collector is entitled to a share of the proceeds of the merchandise, the thing forfeited, but not to a share of the duties also. These are secured for the exclusive benefit of the government. Ib. 8. Nor is a collector entitled to a commission for accepting and paying drafts drawn upon him by the Treasury Department. The act of 1799 made it his duty to receive all money paid for duties and pay it over upon the order of the officer authorized to direct the payment; and the eighteenth section of the act of 1822, and the act of 1839 (5 Stat, at L., 349), contain limitations which forbid an allowance beyond the compensation prescribed by law. Ib. 9. The collector does not appear, by the evidence, to have been charged twice with the amount of unascertained duties at the Treasury Department, and, therefore, the court properly refused to submit the point to -the jury. Ib. 10. In an action brought against a collector for the return of duties paid under protest, it was not competent for him to give in evidence a letter from the Secretary of the Treasury, to show that the removal of one of the merchant appraisers was done by his order. Greely v. Thompson, 225. 11. The legality of such removal as to third persons was valid or not, according as the collector possessed legal power to make it on the facts of the case. Courts must look to the laws themselves, and not to the construction placed upon them by the heads of Departments, although these are entitled to great respect, and will always be duly weighed by the court. II). 12. Under the various acts of Congress providing for the payment of duties, the time of procurement is the true time for fixing the value, when the goods are manufactured or procured otherwise than by purchase, and are not of an origin foreign to the country whence they are imported hither. The proviso in the fifth section of the act of 1823 (3 Stat, at L., 732), relates altogether to this latter class of goods. Ib. INDEX. 679 COLLECTORS OF CUSTOMS—(Continued.) 13. The penalty provided in the act of 1842 related only to goods purchased, and not to goods procured otherwise than by purchase. Ib. 14. The regular appraisers and the merchant appraisers who may be detailed for the duty must, each one, personally inspect and examine the goods. It will not do for one to report to the other that the goods are “ merchantable,” and then to fix the value according to a general knowledge of the value of merchantable goods of that description. Ib. 15. The removal, by the collector, of one of the merchant appraisers, because he wished time given to obtain more evidence from England, and the substitution of another, was irregular, and made the whole appraisement invalid. These appraisers are temporary umpires between the permanent appraisers and the importers, and after entering on the'r duties could not be removed, either by the collector or Secretary, without some grave public ground beyond a mere difference of opinion. Ib. 16. Where the collector insisted upon either having the goods appraised at the value at the time of shipment, the consequence of which would have been an addition of so much to the invoice price as to subject the importer to a penalty; or to allow the importer voluntarily to make the addition to the invoice price and so escape the penalty, and the importer chose the latter course, this was not such a voluntary payment of duties on his part as to debar him from bringing an action against the collector for the recovery of the excess thus illegally exacted. Maxwell v. Griswold, 242. COLLISION. See Commercial Law. COMMERCIAL LAW. 1. It was a proper case for contribution in general average for the loss of a vessel where there was an imminent peril of being driven on a rocky and dangerous part of the coast, when the vessel would have been inevitably wrecked, with loss of ship, cargo, and crew, and this immediate peril was avoided by voluntarily stranding the vessel on a less rocky and dangerous part of the coast, whereby the cargo and crew were saved uninjured. Barnard v. Adams, 270. 2. The cases upon this subject examined. Ib. 3. Where the cargo was taken out of the stranded vessel, placed in another one, and the voyage thus continued to the home port, the contribution should be assessed on the value of the cargo at the home port. Ib. 4. The crew were entitled to wrages after the ship was stranded, while they were employed in the saving of the cargo. Ib. 5. A commission of two and one half per cent, was properly allowed for collecting the general average. It-rests upon the usage and custom of merchants and average brokers. Ib. 6. The following guaranty, viz., “I hereby guaranty the payment of any purchases of bagging and rope which Thomas Barrett may have occasion to make between this and the 1st of December next,” extends the liability of the guarantor to purchases upon a reasonable credit, made anterior to the 1st of December, although the time of payment was not to arrive until after that day. Louisville Manufacturing Company v. Welch, 461. 7. The vendor was not bound to give immediate notice to the guarantor of the amount furnished, or the sum of money for which the guarantor was held responsible. It was sufficient to give, this notice within a reasonable time after the transactions were closed, and the question what was a reasonable time was a question of fact for the jury. Ib. 8. If the principal debtor be insolvent at the time when the payment becomes due, even this notice is not necessary, unless some damage or loss can be shown to have accrued to the guarantor in consequence of his not receiving such a notice. And in no instance, in case of a guaranty, will the guarantor be exempt from liability for want of the notice, unless loss or damage is shown to have accrued as a consequence. Ib. 9. But when a party intends to avail himself of the guaranty by making sales on the faith of it to the person to whom it is given, such party must give notice, within a reasonable time, to the guarantor, of his acceptance and intention to act on it. Ib. 680 INDEX. COMMERCIAL LAW— (Continued.) 10. Where the guarantor took defence upon the ground that he had before notice given up securities belonging to the receiver of the guaranty which would have made him whole, the time of his doing this should have been given to the jury as an essential ingredient for their judgment upon the question whether or not he had received reasonable notice of his liability. Ib. 11. The admission of the guarantor, when called upon for payment, did not conclusively bind him as a matter of law, because it may not have been made with a full knowledge of all the facts in the case. It was therefore properly left to the jury to decide whether so made or not. Ib. 12. The following are the rules which ought to govern vessels when approaching each other. St John v. Paine et al., 557. 13. Of Sailing Vessels.—A vessel that has the wind free, or sailing before or with the wind, must get out of the way of the vessel that is close-hauled, or sailing by or against it; and the vessel on the starboard tack has a right to keep her course, and the one on the larboard tack must give way, or be answerable for the consequences. Ib. 14. So, when t wo vessels are approaching each other, both having the wind free, and consequently the power of readily controlling their movements, the vessel on the larboard tack must give way, and each pass to the right. The same rule governs vessels sailing on the wind, and approaching each other, when it is doubtful which is to windward. Ib. 15. But if the vessel on the larboard tack is so far to windward that, if both persist in their course, the other will strike her on the lee side, abaft the beam or near the stern, in that case the vessel on the starboard tack should give way, as she can do so with greater facility and less loss of time and distance than the other. Ib. 16. When vessels are crossing each other in opposite directions, and there is the least doubt of their going clear, the vessel on the starboard tack should persevere in her course, while that on the larboard tack should bear up or keep away before the wind. Ib. 17. These rules have their exceptions in extreme cases, depending upon the special circumstances of the case, and in respect to which no general rule can be laid down or applied. Either vessel may find herself in a position at the time when it would be impossible to conform to them, without certain peril to herself or a collision with the approaching vessel. Under such circumstances, the master must necessarily be thrown upon the resources of his own judgment and skill in extricating his own vessel, as well as the vessel approaching, from the impending peril. These cases cannot be anticipated, and therefore cannot be provided for by any fixed regulation. They can only be examined, and the management of the vessel approved or condemned, as the case may arise. Ib. 18. Of Steam-Vessels meeting Sailing Vessels.—Steam-vessels are regarded in the light of vessels navigating with a fair wind, and are always under obligations to do whatever a sailing vessel going free or with a fair wind would be required to do under similar circumstances. Their obligation extends still farther, because they possess a power to avoid the collision not belonging to sailing vessels, even with a free wind, the master having the steamer under his command, both by altering the helm and by stopping the engines. As a general rule, therefore, when meeting a sailing vessel, whether close-hauled or with the wind free, the latter has a right to keep.her course, and it is the duty of the steamer to adopt such precautions as will avoid her. Ib. 19. Of Steamers meeting each other.—It is the duty of each vessel to put the helm a-port. Ib. 20. Of keeping Watch.—The pilot-house of a steamer is not the proper place at which to station a watch at night. A competent and vigilant lookout stationed at the forward part of the vessel, and in a position best adapted to descry vessels approaching at the earliest moment, is indispensable to exempt the steamboat from blame, in case of accident in the night-time, while navigating waters on which it is accustomed to meet other craft. Ib. 21. The owner is responsible for damage resulting not only from want of care and attention on the part of the persons in charge of the vessel, but INDEX. 681 COMMERCIAL LAW—(Continued.) also from the want of proper knowledge and skill to enable them to manage her according to established nautical rules. Ib. 22. Where a sailing vessel was descending the Hudson River with but a trifling wind, and chiefly by the force of the current, and came into collision with a steamer ascending the river, the question in the case was, whether or not the accident happened, notwithstanding every proper precautionary measure had been taken on the part of the steamboat to pass the sloop in safety, in consequence of an improper movement of that vessel by the mismanagement and unskilfulness of the persons in charge of her. If the sailing vessel kept her course, it was the duty of the steamboat to avoid her. The evidence showing that the steadier did not take proper precautionary measures to avoid the sloop while endeavoring to pass her, the responsibility of the collision must rest upon the steamer. Newton v. Stebbins, 586. 23. The steamer was in fault for not slackening her speed, on meeting a fleet of sailing vessels in a narrow channel of the river, she then going at the rate of from eight to ten knots the hour. She was also in fault, in not having a proper look-out at the forward part of the vessel, there being no one but the man at the wheel on deck. Ib. CONSTITUTIONAL LAW. 1. In 1836, the legislature of Arkansas chartered a bank, the whole of the capital of which belonged to the state, and the president and directors of which were appointed by the General Assembly. Woodruff v. Trapnail, 190. 2. The twenty-eighth section provided, “ that the bills and notes of said institution shall be received in all payments of debts due to the state of Arkansas.” Ib. 3. In January, 1845, this twenty-eighth section was repealed Ib. 4. The notes of the bank which were in circulation at the time of this repeal, were not affected by it. Ib. 5. The undertaking of the state to receive the notes of the bank constituted a contract between the state and the holders of these notes, which the state was not at liberty to break, although notes issued by the bank after the repeal were not within the contract, and might be refused by the state. Ib. 6. Therefore, a tender, made in 1847, of notes issued by the bank prior to the repealing law of 1845, was good to satisfy a judgment obtained against the debtor by the state; and it makes no difference whether or not the debtor had the notes in his possession at the time when the repealing act was passed. Ib. 7. But although the pledge of the state to receive the notes of the bank in payment of all debts due to it in its own right was a contract which it could not violate, yet where the state sold lands which were held by it in trust for the benefit of a seminary, and the terms of sale were, that the debtor should pay in specie or its equivalent, such debtor was not at liberty to tender the notes of the bank in payment. Paup et al. v. Drew, 218. 8. And this was true, although the money to be received from the debtor was intended by the legislature to be put into the bank, and to constitute a part of its capital. The fund belonged to the state only as a trustee, and therefore was not, within the meaning of the charter, a debt due to the state. Ib. 9. By the terms of sale, also, to pay “ in specie or its equivalent,” the notes of the bank were excluded. Ib. 10. The Philadelphia, Wilmington, and Baltimore Railroad Company was formed by the union of several railroad companies which had been previously chartered by Maryland, Delaware, and Pennsylvania, two of which were the Baltimore and Port Deposit Railroad Company, whose road extended from Baltimore to the Susquehanna, lying altogether on the west side of the river, and the Delaware and Maryland Railroad Company, whose road extended from the Delaware line to the Susquehanna, and lying on the east side of the river. Philadelphia and Wil-■mington Railroad Co. v. Maryland, 376. 11. The charter of the Baltimore and Port Deposit Railroad Company contained no exemption from taxation. Ib. 682 INDEX. CONSTITUTIONAL LAW—( Continued. ) 12. The charter of the Delaware and Maryland Railroad Company made the shares of stock therein personal estate, and exempted them from any tax “ except upon that portion of the permanent and fixed works which might be in the state of Maryland.” Ib. 13. Held, that under the Maryland law of 1841, imposing a tax for state purposes upon the real and personal property in the state, that part of the road of the plaintiff which belonged originally to the Baltimore and Port Deposit Railroad Company, was liable to be assessed in the hands of the company with which it became consolidated, just as it would have been in the hands of the original company. Ib. 14. Also, that there is no reason why the property of a corporation sho ild be presumed to be exempted from its share of necessary public burdens, there being no express exemption. Ib. 15. This court holds, as it has on several other occasions held, that the taxing power of a state should never be presumed to be relinquished, unless the intention is declared in clear and unambiguous terms. Ib. 16. The state of Maryland granted a charter to a railroad company, in which provision was made for the condemnation of land to the following effect : namely, that a jury should be summoned to assess the damages, which award should be confirmed by the County Court, unless cause to the contrary was shown. Baltimore and Susquehanna Railroad Co. v. Nesbit et al., 395. 17. The charter further provided, that the payment, or tender of payment, of such valuation should entitle the company to the estate as fully as if it had been conveyed. Ib. 18. In 1836, there was an inquisition by a jury, condemning certain lands, which was ratified and confirmed by the County Court. Ib. 19. In 1841, the legislature passed an act directing the County Court to set aside the inquisition and order a new one. Ib. 20. On the 18th of April, 1844, the railroad company tendered the amount of the damages, with interest, to the owner of the land, which offer was refused; and on the 26th of April, 1844, the owner applied to the County Court to set aside the inquisition, and order a new one, which the court directed to be done. Ib. 21. The law of 1841 was not a law impairing the obligation of a contract. It neither changed the contract between the company and the state, nor did it divest the company of a vested title to the land. Ib. 22. The charter provided that, upon tendering the damages to the owner, the title to the land should become vested in the company. There having been no such tender when the act of 1841 was passed, five years after the inquisition, that act only left the parties in the situation where the charter placed them, and no title was divested out of the company, because they had acquired none. Ib. 23. The states have a right to direct a re-hearing of cases decided in their own courts. The only limit upon their power to pass retrospective laws is, that the -Constitution of the United States forbids their passing ex Dost facto laws, which are retrospective penal laws. But a law merely divesting antecedent vested rights of property, where there is no contract, is not inconsistent with the. Constitution of the United States. Ib. 24. In 1836, the state of Pennsylvania passed a law directing Canal Commissioners to be appointed, annually, by the Governor, and that their term of office should commence on the 1st of February in every year. Thé pay was four dollars per diem. Butler et al. v. Pennsylvania, 402. 25. In April, 1843, certain persons being then in office as Commissioners, the legislature passed another law, providing amongst other things that the per diem should be only three dollars, the reduction to take effect upon the passage of the law ; and that, in the following October, Commissioners should be elected by the people. Ib. 26. The Commissioners claimed the full allowance during their entire year, upon the ground that the state had no right to pass a law impairing the obligation of a contract. Ib. 27. There was no contract between the state and the Commissioners, within the meaning of the Constitution of the United States. Ib. INDEX. 683 CONSTITUTIONAL LAW—(Continued.) 28. From the year 1681 to 1783, a franchise in the ferry over the Connecticut River belonged to the town of Hartford, situated on the west bank of the river. East Hartford v. Hartford Bridge Co., 511. 29. In 1783, the legislature incorporated the town of East Hartford, and granted to it one half the ferry during the pleasure of the General Assembly. Ib. 30. In 1808, a company was incorporated to build a bridge across the river, which, being erected, was injured and rebuilt in 1818, when the legislature resolved that the ferry should be discontinued. Ib. 31. This act, discontinuing the ferry, is not inconsistent with that part of the Constitution of the United States which forbids the states from passing any law impairing the obligation of contracts. Ib. 32. There was no contract between the state and the town of East Hartford, by which the latter could claim a permanent right to the ferry. The nature of the subject-matter of the grant, and the character of the parties to it, both show that it is not such a contract as is beyond the interference of the legislature. Ib. 33. Besides, the town of East Hartford only held the ferry right during the pleasure of the General Assembly, and in 1818 the latter expressed its pleasure that the ferry should cease. Ib. 34. After the year 1818, the legislature passed several acts contradictory to each other, alternately restoring and discontinuing the ferry. Those which restored the ferry were declared to be unconstitutional by the state courts, upon the ground that the act of 1818 had been passed to encourage the bridge company to rebuild their bridge, which had been washed away. But these decisions are not properly before this court in this case for revision. Ib. 35. The town of East Hartford, having no right to exercise the ferry privilege, may have been correctly restrained, by injunction, from doing so, by the state court. Ib. DUTIES. See Collectors of the Customs. Treaties. EJECTMENT. 1. On the 30th of January, 1835, Poindexter purchased from Thomas a right of entry in certain lands in Louisiana, with authority to locate the lands in the name of Thomas, and they were so located. Subsequently to such location, viz., on the 27th of November, 1840, Thomas, by notarial act, transferred to Poindexter all the right which Thomas then had, or thereafter might have, to the land so located, and authorized Poindexter to obtain a patent in his own name. The patent, however, was issued to Thomas, and not to Poindexter. This did not vest in Poindexter a legal title, which would enable him to recover in a petitory action, which corresponds with an action of ejectment. Poindexter did not take a legal title, either by direct conveyance or by estoppel. Gilman v. Poindexter, 257. 2. On the 20th of November, 1835, Poindexter, by a conveyance of record, conveyed his right in the lands in question to Huston, and on the same day, by articles of copartnership with Huston, not of record, authorized Huston to apply these lands for the mutual benefit of Poindexter and Huston. Ib. 3. A purchaser from Huston without notice, is not affected by these articles. Ib. 4. If the defendant in an ejectment suit claims a right to the possession of land derived under a title which springs from a reservation in a treaty between the United States and an Indian tribe, and a state court decides against the validity of such title, this court has jurisdiction, under the twenty-fifth section of the Judiciary Act, to review that decision. Henderson v. Tennessee, 311. 5. But if such defendant merely sets up the title of the reservee as an outstanding title, and thus prevents a recovery by the plaintiff, without showing in himself a connection with the title of the reservee, and then a state court decides against the defendant in the ejectment, this court has no jurisdiction to review that decision. Ib. 6. In order to give jurisdiction to this court, the party must claim the right 684 INDEX. EJECTMENT—(Continued.) for himself, and not for a third person, in whose title he has no interest. Ib. EXECUTION. 1. Where the Commissioners who acted under the act of Congress passed on the 3d of March, 1807, for the adjustment of land titles in Missouri, decided in favor of a claim, and issued a certificate accordingly, this decision settled two points; namely, first, that the claimant was the proper person to receive the certificate, and second, that the title so confirmed was better than any other Spanish title. Landes v. Brant, 348. 2. But between the presentation and confirmation of the claim, the claimant had a property which was subject to seizure and sale under execution according to the then laws of Missouri; and the subsequent confirmation by the Commissioners will not destroy the title held under the sheriff’s deed. Ib. 3. Neither will a patent subsequently taken out under the title of the original claimant avoid the sheriff’s deed. Ib. 4. The claim was founded on a settlement for ten years prior to the 20th of December, 1803; and in such cases the decision of the Commissioners was final against the United States, and entitled the party to a patent, which gave a perfect legal title, and went back, by relation, to the original presentation of the petition. It consequently enured to the benefit of the alienee. Ib. *». A patent was required in cases of final confirmations, founded on settlement rights; before its issuance the title was still equitable. Ib. 6. The original claimant being dead, a patent was afterwards issued to his representatives. But an act of Congress, passed on the 20th of May, 1836, declared that, in such cases, the title should enure to the benefit of the assignee. Upon this ground, also, the sheriff’s deed conveyed a valid title in preference to an heir or devisee. The patent, when issued, . conveyed, by virtue of this law, the legal title to the person who held the equitable title. Ib. 7. The circumstance, that the sheriff’s deed was not recorded, was of no consequence as between a party claiming under that deed and the devisees of the original claimant; nor was it of any consequence as between the party claiming under that deed and an assignee of those devisees, provided such assignee had notice of the existence of the deed from the sheriff. And an open and notorious possession under that deed was a circumstance from which the jury might presume that the assignee had notice, not only of the fact of possession, but of the title under which it was held. Ib. 8. So, also, where the lands of the deceased debtor (the original claimant) were afterwards sold under a judgment against his executors (conformably to the laws of Missouri), and afterwards acquired by the same party who had purchased under the first sheriff’s sale, a refusal of the court below to instruct the jury that this sale was void, was correct. Ib. FERRIES. See Constitutional Law. FRAUD. . • 1. Where the Circuit Court instructed the jury, “that if any one of the mortgages given in evidence conveyed more property than would be sufficient to secure the debt provided for in the mortgage, it was a circumstance from which the jury might presume fraud,” this instruction was erroneous. Downs v. Kissam, 102. 2. Any creditor may pay the mortgage debt and proceed against the property; or he may subject it to the payment of his debt by other modes of proceeding. Ib. GUARANTY. See Commercial Law. IOWA. 1. The report of the commissioners appointed by this court in 7 Howard, 660, to run and mark the line dividing the states of Missouri and Iowa, adopted and confirmed, and the boundary line finally established. Missouri v. Iowa, 1. JURISDICTION. 1. Where it appears that the whole case has been certified proforma, in INDEX. 685 JURISDICTION— (Continued.) order to take the opinion of this court, without any actual division in the Circuit Court, the practice is irregular, and the case must be remanded to the Circuit Court to be proceeded in according to law. Webster v. Cooper, 54. 2. The decision of this court in the case of Nesmith and others v. Sheldon, (6 How., 41,) affirmed. Ib. 3. By a statute of Pennsylvania, passed in 1836, “ assignees for the benefit * of creditors and other trustees ” were directed to record the assignment, file an inventory of the property conveyed, which should be sworn to, have it appraised, and give bond for the faithful performance of the trust, all of which proceedings were to be had in one of the state courts. Shelby v. Bacon, 56. 4. This court was vested with the power of citing the assignees before it, at the instance of a creditor who alleged that the trust was not faithfully executed. Ib. 5. The assignees of the Bank of the United States chaatered by Pennsylvania recorded the assignment as directed, and filed accounts of their receipts and disbursements in the prescribed court, which were sanctioned by that court. Ib. 6. A citizen of the State of Kentucky afterwards filed a bill in the Circuit Court of the United States for the Eastern District of Pennsylvania, against these assignees, who pleaded to the jurisdiction of the court. Ib. 7. The principle is well settled, that where two or more tribunals have a concurrent jurisdiction over the same subject-matter and the parties, a suit commenced in any one of them may be pleaded in abatement to an action for the same cause in any other. Ib. 8. But the proceedings in the state court cannot be considered as a suit. The statute was not complied with, and even if it had been, the Circuit Court would still have had jurisdiction over the matter. Ib. 9. Where a case had been brought up to this court from the Supreme Court of the territory of Wisconsin, and was pending in this court at »the time when Wisconsin was admitted as a state, the jurisdiction of this court over it ceased when such admission took place. McNulty v. Batty, 72. 10. Provision was made in the act of Congress for the transfer, from the territorial courts to the District Court of the United States, of all cases appropriate to the jurisdiction of the new District Court; but none for cases appropriate to the jurisdiction of state tribunals. Ib. 11. By the admission of Wisconsin as a state, the territorial government ceased to exist, and all the authority under it, including the laws organizing its courts of justice and providing for a revision of their judgments in this court. Ib. 12. The act of Congress passed in February, 1848, supplementary to that of February, 1847, applies only to cases which were pending in the territorial courts, and does not include such as were pending in this court at the time of the admission of Wisconsin as a state. Ib. 18. Even if Congress had directed the transfer, to the District Court of the United States, of cases appropriate to the jurisdiction of state courts, this court could not have carried its judgment into effect by a mandate to the District Court. Ib. 14. Under the 25th section of the Judiciary Act, this court has no jurisdiction over the following question, viz., “Whether slaves who had been permitted by their master to pass occasionally from Kentucky into Ohio acquired thereby a right to freedom after their return to Kentucky ? ” The laws of Kentucky alone could decide upon the domestic and social condition of the persons domiciled within its territory, except so far as the powers of the states in this respect are restrained or duties and obligations imposed upon them by the Constitution of the Unite! States. Strader et al. v. Graham, 82. 15. There is nothing in the Constitution of the United States that can in any degree control the law of Kentucky upon this subject. Ib. 16. The Ordinance of 1787 cannot confer jurisdiction upon this court. It was itself superseded by the adoption of the Constitution of the United States, which placed all the states of the Union upon a perfect equality, G86 INDEX. JURISDICTION— (Continued.) which they would not be if the Ordinance continued to be in force after its adoption. Ib. 17. Such of the provisions of the Ordinance as are yet in force owed their validity to acts of Congress passed under the present Constitution, during the territorial government of the northwest territory, and since to the constitutions and laws of the states formed in it. Ib. 18. The seventeenth section of the act of 1836 gives the right of appeal to this court, when the sum in dispute is below the value of two thousand dollars, “in all actions, suits, controversies on cases arising under any law of the United States, granting or confirming to inventors the exclusive right to their inventions or discoveries,” provided the court below shall deem it reasonable to allow the appeal. Wilson v. Sanford, 99. 19. But a bill filed on the equity side of the Circuit Court to set aside an assignment, upon the ground that the assignee had not complied with the terms of the contract, is not one of these enumerated cases; and the value in dispute being less than two thousand dollars, this court has no jurisdiction over the case. Ib. 20. If the defendant in an ejectment suit claims a right to the possession of land derived under a title which springs from a reservation in a treaty between the United States and an Indian tribe, and a state court decides against the validity of such title, this court has jurisdiction, under the twenty-fifth section of the Judiciary Act, to review that decision. Henderson v. Tennessee, 311. 21. But if such defendant merely sets up the title of the reservee as an outstanding title, and thus prevents a recovery by the plaintiff, without showing in himself a connection with the title of the reservee, and then a state court decides against the defendant in the ejectment, this court has no jurisdiction to review that decision. Ib. 22. In order to give jurisdiction to this court, the party must claim the right for himself, and not for a third person, in whose title he has no interest. Ib. LANDS, PUBLIC. 1. On the 30th of January, 1835, Poindexter purchased from Thomas a right of entry in certain lands in Louisiana, with authority to locate the lands in the name of Thomas, and they were so located. Subsequently to such location, viz., on the 27th of November, 1840, Thomas, by notarial act, transferred to Poindexter all the right which Thomas then had, or thereafter might have, to the land so located, and authorized Poindexter to obtain a patent in his own name. The patent, however, was issued to Thomas and not to Poindexter. This did not vest in Poindexter a legal title, which would enable him to recover in a petitory action, which corresponds with an action of ejectment. Poindexter did not take a legal title, either by direct conveyance or by estoppel. Gilmer n. Poindexter, 257. 2. On the 20th of November, 1835, Poindexter, by a conveyance of record, conveyed his right in the lands in question to Huston, and on the same day, by articles of copartnership with Huston, not of record, authorized Huston to apply these lands for the mutual benefit of Poindexter and Huston. Ib. 3. A purchaser from Huston without notice is not affected by these articles. Ib. 4. Where the Commissioners who acted under the act of Congress passed on the 3d of March, 1807, for the adjustment of land titles in Missouri, decided in favor of a claim, and issued a certificate accordingly, this decision settled two points; namely, first, that the claimant was the proper person to receive the certificate, and second, that the title so confirmed was better than any other Spanish title. Landes n. Brant, 348. 5. But between the presentation and confirmation of the claim, the claimant had a property which was subject to seizure and sale under execution according to the then laws of Missouri; and the subsequent confirmation by the Commissioners will not destroy the title held under the sheriff’s deed. Ib. INDEX. 687 LANDS, PUBLIC—(Continued.) 6. Neither will a patent subsequently taken out under the title of the original claimant avoid the sheriff’s deed. Ib. 7. The claim was founded on a settlement for ten years prior to the 20th of December, 1803 ; and in such cases the decision of the Commissioners was final against the United States, and entitled the party to a patent, which gave a perfect legal title, and went back, by relation, to the original presentation of the petition. It consequently enured to the benefit of the alienee. Ib. 8. A patent was required in cases of final confirmations, founded on settlement rights ; before its issuance the title was still equitable. Ib. 9. The original claimant being dead, a patent was afterwards issued to his representatives. But an act of Congress, passed on the 20th of May, 1836, declared that, in such cases, the title should enure to the benefit of the assignee. Upon this ground, also, the sheriff’s deed conveyed a valid title in preference to an heir or devisee. The patent, when issued, conveyed, by virtue of this law, the legal title to the person who held the equitable title. Ib. 10. The circumstance that the sheriff’s deed was not recorded was of no consequence as between a party claiming under that deed and the devisees of the original claimant; nor was it of any consequence as between the party claiming under that deed and an assignee of those devisees, provided such assignee had notice of the existence of the deed from the sheriff. And an open and notorious possession under that deed was a circumstance from which the jury might presume that the assignee had notice, not only of the fact of possession, but of the title under which it was held. Ib. 11. So, also, where the lands of the deceased debtor (the original claimant) were afterwards sold under a judgment against his executors (conformably to the laws of Missouri), and afterwards acquired by the same party who had purchased under the first sheriff’s sale, a refusal of the court below to instruct the jury that this sale was void, was correct. Ib. 12. A supplementary article to a treaty between the United States and the Caddo Indians, providing that certain persons “ shall have their right to the said four leagues of land reserved for them and their heirs and assigns for ever. The said lands to be taken out of the lands ceded to the United States by the said Caddo nation of Indians, as expressed in the treaty to which these articles are supplementary. And the four leagues of land shall be laid off,” &c.,—gave to the reservees a fee simple to all the rights which the Caddoes had in those lands, as fully as any patent from the government could make one. Nothing further was contemplated by the treaty to perfect the title. United States v. Brooks, 442. 13. In October, 1817, Coppinger, the Governor of Florida, issued a grant giving the grantee permission to “build a water saw-mill on the creek of the River St. John’s named Trout Creek, and also to make use of the pine-trees which are comprehended in a square of five miles, which is granted to him,” &c. Villalobos v. United States, 541. 14. The deputy surveyor surveyed 16,000 acres of land, in three different tracts, the nearest of which to Trout Creek was thirty miles off; and this change of location never received the sanction of the Governor. Ib. 15. The decisions of this court have uniformly been, that the survey must be in reasonable conformity to the grant, whereas the one in question is not. Ib. 16. The surveyor-general had no authority to change the location ot the grant, and split up the surveys, as there was no authority in the grant to go elsewhere in case there should be a deficiency of vacant land at the place indicated by the grant. Ib. 17. The lands on Trout Creek were poor, and those which were surveyed were of the best quality. The surveys, therefore, have neither merit in fact, nor the sanction of law to uphold them. Ib. 18. Following out the principles applied to the construction of treaties in the cases of United States v. Reynes, and Davis v. the Police Jury of Concordia, in 8 Howard, this court now decides that a grant of land in Louisiana, issued by the representative of the king of France in 176o, 688 INDEX. LANDS, PUBLIC—{Continued.) was void; the province of Louisiana having been ceded by the king of France to the king of Spain in 1762. United States v. D’ Auterive, 609. 19. The title to the land described in this void grant was vested, therefore, in the king of Spain, and remained in him until the treaty of St Ildefonso. It then passed to France, and by the treaty of Paris became vested in the United States. Ib. 20. None of the acts of Congress have confirmed this grant. Ib. 21. The act of 1805 (2 Stat, at L., 324) required three things in order to effect a confirmation. 1st. That the parties should be residents. 2d. That the Indian titles should have been extinguished. 3d. That the land should have been actually inhabited and cultivated by the grantees, or for their use. In the present case these conditions were not complied with. Ib. 22. The act of May 26, 1824, in part re-enacted by the act of June 17, 1844 (5 Stat, at L., 676), did not create any new rights, or enlarge those previously existing; but only allowed claims to be presented to the court which would otherwise have been barred. Ib. 23. By the treaty of 1795, between the United States and Spain, Spain admitted that she had no title to land north of the thirty-first degree of north latitude, and her previous grants of land so situated were of course void. The country, thus belonging to Georgia, was ceded to the United States in 1802, with a reservation that all persons who were actual settlers on the 27th of October, 1795, should have their grants confirmed. (See also 3 How., 750.) Robinson v. Minor, 627. 24. On the 3d of March, 1803, Congress passed an act (2 Stat, at L., 229) establishing a board of commissioners to examine these grants, whose certificate in favor of the claimant should amount to a relinquishment, for ever, on the part of the United States. Ib. 25. Without such confirmation by the United States, a grant of land situated on the north side of the thirty-first degree of latitude, issued by the Governor-General of Louisiana in 1794, would have been void. But it was confirmed by the board of commissioners, and is therefore valid. Ib. 26. The original grantee indorsed upon the grant that he had conveyed it to a woman, whom he afterwards married, and referred to another instrument of conveyance; and in all subsequent transfers there was a reference to that same instrument, reciting its date, and that it accompanied the deeds executed. The confirmation of the commissioners followed and adopted this chain of title. Ib. 27. That instrument of conveyance being lost, it may be presumed, under the circumstances, that the original grantee intended to convey to his wife a greater estate than the law would have endowed her with upon the marriage. Ib. 28. Even supposing that the confirmation of the commissioners was not conclusive, yet the facts of the case show a superior equity in the title of the wife over that of the child of the original grantee; viz. the motive which led to the conveyance; the fact that the widow sold the property for its full value, saw the premises occupied by persons claiming them in fee for thirty years, and never informed her son that he had a right to the property after her decease. Ib. LIMITATION OF ACTIONS. 1. The absence of the complainant from the state, and the late discovery of the fraud, account for the delay and apparent laches in prosecuting the claim. Hallett et al. v. Collins, 174. MARRIAGE. 1. In order to constitute a valid marriage in the Spanish colonies, all that was necessary was that there should be consent joined with the will to marry. Hallett et al. v. Collins, 174. 2. The Council of Trent, in 1563, required that marriage should be celebrated before the parish or other priest, or by license of the ordinary and before two or three witnesses. This decree was adopted by the king of Spain in his European dominions, but not extended to the colonies, in which the rule above mentioned, established by the Partidas, was permitted to remain unchanged. Ib. INDEX. 689 MARRIAGE—(Continued.) 3. An ecclesiastical decree, proprio vigore, could not affect the status or civil relations of persons. This could only be effected by the supreme civil power. Ib. MISSOURI. 1. The report of the commissioners appointed by this court in 7 Howard, 660, to run and mark the line dividing the states of Missouri and Iowa, adopted and confirmed, and the boundary line finally established. Missouri v. Iowa, 1. MORTGAGES. 1. Where the Circuit Court instructed the jury, “that if anyone of the mortgages given in evidence conveyed more property than would be sufficient to secure the debt provided for in the mortgage, it was a circumstance from which the jury might presume fraud,” this instruction was erroneous. Downs v. Kissam, 102. 2. Any creditor may pay the mortgage debt and proceed against the property ; or he may subject it to the payment of his debt by other modes of proceeding. Ib. PATENTS. 1. The seventeenth section of the act of 1836 gives the right of appeal to this court, when the sum in dispute is below the value of two thousand dollars, “inall actions, suits, controversies on cases arising under any law of the United States, granting or confirming to inventors the exclusive right to their inventions or discoveries,” provided the court below shall deem it reasonable to allow the appeal. Wilson v. Sanford, 99. 2. But a bill filed on the equity side of the Circuit Court to set aside an assignment, upon the ground that the assignee had not complied with the terms of the contract, is not one of those enumerated cases; and the value in dispute being less than two thousand dollars, this court has no jurisdiction over the case. Ib. 8. Stimpson’s patent “for an improvement for the purpose of carrying railroads through the streets of towns, or in other situations where it may be desirable that the wheels of ordinary carriages should not be subjected to injury or obstruction,” decided to be a combination or application of means already known and in use, and not to be original as to the invention or discovery of those means. Stimpson v. Baltimore and Susquehanna Railroad Co., 329. 4. That the mode given by him for the application of those means, and the objects proposed thereby, differ materially from the apparatus used by the Baltimore and Susquehanna Railroad Company for turning the corners of streets. The latter, therefore, no infringement of Stimpson’s patent. Ib. 5. An assignment of a patent right, made and recorded in the Patent-Office before the patent issued, which purported to convey to the assignee all the inchoate right which the assignor then possessed, as well as the legal title which he was about to obtain, was sufficient to transfer the right to the assignee, although a patent afterwards was issued to the assignor. Gayler n. Wilder, 477. 6. When an assignment is made, under the fourteenth section of the act of 1836, of the exclusive right within a specified part of the country, the assignee may sue in his own name, provided the assignment be of the entire and unqualified monopoly. But any assignment short of this is a mere license, and will not carry with it a right to the assignee to sue in his own name. Ib. 7. Therefore, an agreement that the assignee might, make and vend the article within certain specified limits, upon paying to the assignor a cent per pound, reserving, however, to the assignor the right to establish a manufactory of the article upon paying to. the assignee a cent per pound, was only a license ; and a suit for an infringement of the, patent right must be conducted in the name of the assignor. Ib. 8. Where a person had made and used an article similar to the one which was afterwards patented, but had not made his discovery public, using it simply for his own private purpose, and without having tested it so as to discover its usefulness, and it had then been finally forgotten or 44 GOO INDEX. PATENTS—(Continued.) abandoned, such, prior invention and use did not preclude a subsequent inventor from taking out a patent. Ib. PLEAS AND PLEADINGS. 1. The act of Congress passed in May, 1828 (4 Stat, at L., 278), directs that the forms and modes of proceeding in the courts of the United States, in suits at common law in the states admitted into the Union since 1789, shall be the same with those of the highest court of original jurisdiction in the state. Sears v. Eastburn, 187. 2. Therefore, where the state of Alabama passed an act to abolish fictitious proceedings in ejectments, and to substitute in their place the action of trespass for the purpose of trying the title to lands and recovering their possession, the Circuit Court of the United States should have conformed, in its mode of proceeding, to the law of the state. Ib. 3. And the judgment of the Circuit Court, dismissing an action of trespass so brought, upon the ground that the law of the state was not in force in the Circuit Court, was erroneous. Ib. 4. Where the declaration contained two counts; viz., the first upon a special contract that the plaintiffs had placed a machine for saving fuel on board of the steamboat of the defendants, and were entitled to a certain portion of the savings; the second upon a quantum meruit; it was admissible to give in evidence by the plaintiffs the experiments of practical engineers to show the value of the machine. Evidence had previously been given, tending to prove the value in the mode pointed out in the contract, and the evidence in question tended not to contradict, but to corroborate it. It was therefore admissible under the -first count, and clearly so under the second. Steam Packet Co. v. Sickles, 419. 5. On the part of the defendants, the evidence of the president of the steamboat company was then given, denying the special contract alleged by the plaintiffs, and affirming a totally different one, namely, that, if the owners of the boat could not agree with the plaintiffs to purchase it, the latter were to take it away. The court should have instructed the jury, that, if they believed this evidence, they should find for the defendants. Ib. 6. The court below instructed the jury, that, if the president of the company, acting as its general agent, made the special contract with the plaintiffs, the company were bound by it, whether he communicated it to the company or not. This instruction was right. But the court erred in saying that the plaintiffs had a right to recover on their special count, if the machine was useful to the defendants, without regarding the stipulations of that contract as laid and proved, and the determination of the plaintiffs to adhere to it. Because, by the contract, the defendants are to use the machine during the continuance of the patent right; and as no time is pointed out for a settlement, a right of action did not accrue until the whole service had been performed. Ib. 7. Whether, if there had been a count in the declaration for the cost of the machine, and the jury had believed that the defendants had agreed to pay it as soon as it was earned, the plaintiffs might not recover to that amount, or whether such a construction could be put on the contract as proved, are questions not before the court on this record, and upon which no opinion is expressed. Ib. PRACTICE. 1. Where it appears that the whole case has been certified pro forma, in order to take the opinion of this court, without any actual division of opinion in the Circuit Court, the practice is irregular, and the case must be remanded to the Circuit Court to be proceeded in according to law, Webster v. Cooper, 54. 2. The decision of this court in the case of Nesmith and others v. Sheldon (6 Howard, 41) affirmed. Ib. 3. In orcler to sustain a motion of docket and dismiss a case under the forty-third rule of this court, it is necessary to show, by the certificate of the clerk of the court below, that the judgment or decree of that court was rendered thirty days before the commencement of the term of this court. Rhodes v. Steamship Galveston, 144. 4. Hence, where the certificate of the clerk stated that a final judgment was INDEX. 691 PRACTICE—(Continued.) pronounced at April term, 1850, it was not sufficient, because non constat that the April term might not have been prolonged until December. 1850. Zb. 5. The act of Congress passed in May, 1828 (4 Stat at L., 278), directs that the forms and modes of proceeding in the courts of the United States, in suits at common law in the states admitted into the Union since 1789, shall be the same with those of the highest court of original jurisdiction in the state. Sears v. Eastburn, 187. 6. Therefore, where the state of Alabama passed an act to abolish fictitious proceedings in ejectments, and to substitute in their place the action of trespass for the purpose of trying the title to lands and recovering their possession, the Circuit Court of the United States should have conformed, in its mode of proceeding, to the law of the state. Zb. 7. And the judgment of the Circuit Court, dismissing an action of trespass so brought, upon the ground that the law of the state was not in force in the Circuit Court, was erroneous. Zb. 8. The practice of bringing cases up to this court upon an agreed state of facts has been sanctioned, and is now pronounced to be correct. Stimpson v. Baltimore and Susquehanna Zlailroad Co., 329. 9. After a case has been decided, and judgment pronounced by this court, it is too late to move to open the judgment for the purpose of amending the bill of exceptions, upon the ground that material evidence which might have influenced the judgment of this court was omitted in the bill. Gayler v. Wilder, 509. 10. If there was any error or mistake in framing the exception, it might have been corrected by a certiorari, if the application had been made in due time and upon sufficient cause. But after the parties have argued the case upon the exception, and judgment has been pronounced, it is too late to reopen it. Zb. 11. Where a case had been brought up to this court from the Supreme Court of the Territory of Wisconsin, and was pending in this court at the time when Wisconsin was admitted as a state, the jurisdiction over it ceased when such admission took place. And when the writ of error .was ordered to be abated, the clerk was directed not to issue any mandate or other process, but only a certified copy of the judgment. McNulty ■/. Batty, 72; Preston v. Bracken, 81. 12. A motion being made to dismiss a cause for irregularity in the bill of exceptions, it was ordered that the whole case be argued upon the bill of exceptions. Hoyt v. United States, 109. TREATIES. 1. The second article of the treaty between the United States and Portugal, made on the 26th of August, 1840 (8 Stat, at L., 560), provides as follows, viz.:—“ Vessels of the United States of America arriving, either laden or in ballast, in the ports of the kingdom of Portugal, and, reciprocally, Portuguese vessels arriving, either laden or in ballast, in the ports of the United States of America, shall be treated on their entrance, during their stay, and at their departure, upon the same footing as national vessels coming from the same place, with respect to the duties of . tonnage, lighthouse duties, pilotage, port charges, as well as to the fees and perquisities of public officers, and all other duties and charges, of whatever kind or denomination, levied upon vessels of commerce, in the name or to the profit of the government, the local authorities, or any public or private establishment whatever.” Oldfield v. Marriott, 146. 2. This article is confined exclusively to vessels. It does not include cargoes, or make any provision for an indirect trade,—that is, it does not provide for the introduction of articles which are the growth, produce or manufacture of some third country, into the ports of Portugal in American vessels upon the same terms upon which they are introduced in Portuguese vessels, or the introduction of such articles into the ports of the United States in Portuguese vessels upon the same terms upon which they are introduced in American vessels. These classes of cases are left open to the legislation of each country. Zb. 8. The Tariff Act of Congress, passed on the 30th of July, 1846, has the following section:—“Schedule I. (Exempt from duty.) Coffee and tea, 692 INDEX. TREATIES—(Continued.) when imported direct from the place of their growth or production, in American vessels, or in foreign vessels entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges.” lb. 4. The treaty with Portugal is not one of those referred to in this paragraph. Ib. 5. Consequently, a cargo of coffee, imported from Rio Janeiro in a Portuguese vessel, was subject to a duty of twenty per cent., being the duty upon non-enumerated articles. Ib. 6. An historical account given of the course pursued by the government of the United States, showing that, since the year 1785, it has been constantly endeavoring to persuade other nations to enter into treaties for the mutual and reciprocal abolition of discriminating duties upon commerce in the direct and indirect trade. Ib. 7. A supplementary article to a treaty between the United States and the Caddo Indians, providing that certain persons “ shall have their right to the said four leagues of land reserved for them and their heirs and assigns for ever. The said lands to be taken out of the lands ceded to the United States by the said Caddo nation of Indians, as expressed in the treaty to which these articles are supplementary. And the four leagues of land shall be laid off,” &c.,—gave to the reservees afee simple to all the rights which the Caddoes had in those lands, as fully as any patent from the government could make one. Nothing further was contemplated by the treaty to perfect the title. United States v. Brooks, 442. VESSELS. See Commercial Law. WAGES. See Commercial Law.