REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, DECEMBER TERM, 1853. By BENJAMIN C. HOWARD, Counsellor at Law, and Reporter of the Decisions of the Supreme Court of the United States. VOL. XVI. 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 1889. Entered, according to Act of Congress, in the year 1885, 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. PETER V. DANIEL, Associate Justice. Hon. SAMUEL NELSON, Associate Justice. Hon. ROBERT C. GRIER, Associate Justice. Hon. BENJAMIN R. CURTIS, Associate Justice. Hon. JOHN. A. CAMPBELL, Associate Justice. Caleb Cushing, Esq., Attorney-General. William Thomas Carroll, Esq., Clerk. Benjamin C. Howard, Esq., Reporter. Jonah D. Hoover, Esq., Marshal. LIST OF ATTORNEYS AND COUNSELLORS. ADMITTED AT ADJOURNED DECEMBER TERM, 1853. James B. Campbell,...........................South Carolina. C. B. F. O’Neill,.........................Pennsylvania. Charles Bayard Strode, ..... California. Nathaniel Holmes, . . . . . Missouri. Hugh Ewing,..................................Ohio. John K. Porter,...........................New York. R. T. Merrick,.............................Maryland. Truman Smith..............................Connecticut. Daniel Woodhouse,............................New York. George E. Pugh,...........................Ohio. Vachel Worthington,..........................Ohio. Sidney Bartlett,..........................Massachusetts. Nathan T. Dow,...............................Massachusetts. Louis G. Picot,...........................Missouri. Columbia Lancaster,..........................Washington Territory. L. E. Bulkeley,..............................New York. S. L. H. Ward,..............................New York. Philip J. Joachimsen,.....................New York. La Fayette Bingham, .........................Ohio. James C. Van Dyke,...........................Pennsylvania. Charles Wheeler,.............................Pennsylvania. Furman Sheppard, . . , . . . Pennsylvania. Thomas K. Smith,.............................District of Columbia. Robert Patterson Effinger, .... Indiana. John A. Linton, .............................District of Columbia. Jaird Ritchie, . . . '. . . Pennsylvania. H. Hepburn,..................................Pennsylvania. G. R. Barrett, ...........................Pennsylvania. J. Francis Clements,........................ District of Columbia. David Buel,...............................New York. LIST OF ATTORNEYS AND COUNSELLORS. E. G. Ryan, , ................................ Wisconsin. J. R. White,................................Michigan. Andrew J. McNett, . . . _ . . . New York. Benjamin D. Silliman,.......................New York. George W. Searle,...........................Massachusetts. Roland Jones, ...... Louisiana. RULE No. 63. 1st. In all cases where a writ of error or an appeal shall be brought to this court from any judgment or decree rendered thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant, as the case may be, to docket the cause, and file the record thereof with the clerk of this court within the first six days of the term; and if the writ of error or appeal shall be brought from a judgment or decree rendered less than thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant to docket the cause and file the record thereof with the clerk of this court, within the first thirty days of the term ; and if the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the cause docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause, and certifying that such writ of error, or appeal has been duly sued out and allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the cause and file the record after the same shall have been docketed and dismissed under this rule unless by order of the court or consent of the opposite party. 2d. But the defendant in error or appellee may, at his option, docket the case and file a copy of the record with the clerk of the court; and if the case is docketed and a copy of the record, filed with the clerk of this court, by either party, within the periods of time above limited and prescribed by this rule, the case shall stand for argument at the term. 3d. In all cases where the period of thirty days is mentioned in this rule, it shall be extended to sixty days in writs of error and appeals from California, Oregon, Washington, New Mexico, and Utah. A TABLE OF THE CASES REPORTED IN THIS VOLUME. [The references are to the Stab (*) pages.] PAGE. Adams et al. v. Law ........ 144 Amis et al. v. Myers ....... 492 Baltimore and Ohio Railroad Co., Marshall v. . . . 314 Bank of Pittsburg, Slicer et al. v. . . . . . 571 Barney v. Saunders et al. . . . . . . . 535 Bartlett v. Kane . . . . . . . . 263 Braden, Doe et al. v. . . . . . . . . 635 Bradley et al., Calvert et al. v. . . . . . 580 Brown, Homer v. . . . . . 354 Burgess v. Gray et al......................... 48 Calvert et al. v. Bradley et al. . . . . . . 580 Carroll y. Lessee of Carrol let al. ...... 275 Cervantes v. United States.....................619 Chapman v. Smith et al....................... 114 Chouteau v. Molony.............................203 Conrad v. Griffey...............................38 Coulter et al., Robertson v. ...... 106 Cross et al. v. Harrison.......................164 Darling, Lewis v. ........ 1 Davenport et al. v. Fletcher et al.............142 Debolt, Ohio Life Insurance and Trust Co. v. . . .416 Denise et al. v. Ruggles ....... 242 Deshler v. Dodge. . . . . . . . .622 Dodge, Deshler v. . . . . . . . . 622 Doe et al. v. Braden . . . ... . . . 635 Doe, Early v. . , . . . , , , , 610 Early v. Doe...................................610 Early v. Rogers et al. , , . . , , , 599 viii TABLE OF CASES REPORTED. PAGE. Fanning v. Gregoire et al. . . . . . . . 524 Fletcher et al., Davenport et al. v. . . . . . 142 Fourniquet et al. v. Perkins . . . . . .82 Gamache et al. v. Piquignot et al. . . . . . 451 Gibson, Pennington v. ....... 65 Gray et al., Burgess v. ...... 48 Gregoire et al., Fanning v. . . . . . . . 524 Griffey, Conrad v. ....... 38 Guitard et al. v. Stoddard ....... 494 Harrison, Cross et al. v. . . . . . . 164 Homer v. Brown ........ 354 Irwin v. United States ....... 513 Jones et al., Yerger v. ....... 30 Kane, Bartlett v. . . . . . . • . . 263 King, Steamboat New World et al. v. . . . . 469 Knoop, State Bank of Ohio v. ..... 369 Law, Adams et al. v. . . . . . . . . 144 Lawrence, Mallard et al. v. . . . . . 251 Lessee of Carrol et al., Carrol v. ..... 275 Lewis v. Darling ........ 1 Mallard et al v. Lawrence ....... 251 Many, Sizer v. ....... 98 Marshall v. Baltimore and Ohio Railroad Co. . . .314 Maxwell, Stuart et al. v. . . . . . . 150 McCabe v. Worthington ....... 86 McCormick, Seymour v. ...... 480 Molony, Chouteau v. . . . . . . . . 203 Myers, Amis et al. v. . . . . . . 492 Ohio Life Insurance and Trust Co. v. Debolt . . . 416 Pennington v. Gibson ....... 65 Pennsylvania Railroad Co., Piquignot v. . . ... 104 Perkins, Fourniquet et al. v. . . . . . . 82 Piquignot et al, Gamache et al. v. . . . . . 451 Piquignot v. Pennsylvania Railroad Co. . 104 TABLE OF CASES REPORTED. ix PAGE. Raymond, Thorp v. »................................247 Robertson v. Coulter et al. . . . . . . 106 Rogers et al., Early v. ....... 599 Ruggles, Denise et al. v. . . . . . . 242 Russell, Southard et al. v. . . . . . . . 547 Saunders et al., Barney v. ..... 535 Seymour et al. v. McCormick ...... 480 Sizer v. Many ........ 98 Slicer et al. v. Bank of Pittsburg ..... 571 Smith, Chapman v. ....... 114 Smith et al. v. Swormstedt et al. ..... 288 Southard et al. v. Russell ...... 547 Stafford et al. v. Union Bank of Louisiana . . . .135 State Bank of Ohio v. Knoop ...... 369 ■Steamboat New World et al. v. King................469 Stoddard, Guitard et al. v....... 494 Stuart et al. v. Maxwell . . . . . . .150 Swormsteadt et al., Smith et al. v...... 288 Thorp v. Raymond ........ 247 Turner et al. v. Yates . *............................ Union Bank of Louisiana, Stafford v................135 United States, Cervantes v. ..... 619 United States, Irwin v. . . . . . , .513 Worthington, McCabe v.................................. Yates, Turner et al. v. . . . . . . .14 Yerger v. Jones et al.................................. A TABLE OF THE CASES CITED IN THIS VOLUME. [The references are to the star (*) pages.] PAGE Abercrombie v. Dupuis..................... 1 Crunch, 343 ........... 340 Adams v. Brackett..-....................... 5 Mete. (Mass.), 280...... 11 Alderson v. White......... 2 De G. & S., 102 ....................... 302 Aldridge v. Williams....................... 3 How., 1............. 160k Alexander v. Wellington.................... 2 Russ. & M., 35 ...... 408. Allegheny Bank v. Hays.................... 12 Fed. Rep., 664 ........... 1 n Ambrey v. Middleton........................ 2 Eq. Cas. Abr., 479...... 11 American Ins. Co. v. Canter................ 1 Pet., 542.............. 194 Amer. Pavement Co. v. City of Elizabeth............................... 1 Bann. & A., 444.....135n, 480n Anderson v. Martindale.............. 1 East, 497 ................ 597 Andre v. Case.............................. 2 Yeates (Pa.), 100.. 619 Angus v. Smith...........'................. 1 Moo. & M., 473.......... 46 Anonymous ................................. 1 Saund., 153 ....... 596 Arthur v. Lahey........................... 6 Otto, 117............. 150n Arthur Morrison.......................... 6 Otto, 111............ 251a Arthur v. Unkart ......................... 6 Otto, 120 ............ 150« Astor v. Hoyt ....,..................... 5 Wend. (N. Y.), 603. 595 Atwell v. State........................... 63 Ala., 61.............. 39a Ayres v. Carver.......................... 17 Iowa, 594............. 288a B. Bacon v. Robertson........................ 18 How., 489 ........... 288n Bank v. Kennedy........................... 17 Wall., 19............. 14?i Bank of Augusta v. Earle ................. 13 Pet., 512.....328, 352 Bank of Cumberland v. Willis...... 3 Sumn., 472 ..................... 349 Bank of United States v. Deveaux.... 5 Cranch, 61 ......326, 344, 348 Barnitz v. Carey........................... 7 Cranch, 468........ 283 Barrowcliffe v. La Caisse Generale Assurance, &c........................ 1 City Ct. Rep. (N. Y.), 152 ... 314a Bascom v. Lane............................. 4 Am. L. J., 193; 9 West, L. J., 162 ..................... 288a Battle v. Speight.......................... 9 Ired. (N. C.), 288.281, 284 Beatty v. Kurtz............................ 2 Pet., 566............. 288a Belcher v. Linn.......................... 24 How., 508 ...263n, 272a Bench v. Biles............................. 4 Madd., 187......... 11 Benson v. Remington........................ 2 Mass., 113............ 365 Billings v. Providence Bank................ 4 Pet., 514 ............ 429 Bingham v. Cabot........................... 3 Dall., 382......... 340 Birch v. Fisher........................... 13 Serg. & R. (Pa.), 208. 619 Birdsall v. Coolidge....................... 3 Otto, 70 ........... 480« TABLE OF CASES CITED. xi PAGE. Blackburn v. S. M. R. R. Co.......... 2 Flipp., 531............. 314n Blair v. Caldwell.................... 3 Yeates (Pa.), 284 ........ 619 Blossom v. Cannon................... 14 Mass., 177 ............... 619 Blougher v. Brewer.................. 14 Pet., 178 ............... 283 Bock v. Weigant.................... 5 Bradw. (Ill.), 643........ 39n Boyd, Ex parte.............'....... 15 Otto, 615 ............... 354n Boyle v Schindel................... 52 Md., 4.................... 65n Bradburne v. Botfield........... 14 Mees. & W., 559......... 598 Bradstreet, Ex parte ................ 4 Pet., 106................ 29 Bradstreet v. Clarke ..........».... 12 Wend. (N. Y.), 602 . ... 250 Breithaupt v. Bank of Georgia...... 1 Pet., 238 ........... 348, 350 Brewster v. Hough................... 10 N. H., 139 ............399, 410 Bridge v. Sumner................. 1 Pick. (Mass.), 371 ...... 365 Brookbank v. State.................. 55 Ind., 169............... 38n Browder v. McArthur.................. 7 Wheat., 58.............. 103 Brown v. Clarke...................... 4 How., 4 ...............14n, 29 Brown v. Knapp...................... 79 N. Y., 136............... In Brown v. McGran.................... 14 Pet., 493 .............. 23 Brown v. Piper..................... 10 Otto, 42 .............. 435n Brown v. Shannon................... 20 How., 55 ............... 98n Brown v. Spofford................... 5 Otto, 484 ............. 599n Brudenell v. Boughton................ 2 Atk., 268 .............. 11 Buerch v. Imhoeuser.................. 2 Bann. & A., 454 ....... 480n Bunnell v. Magee..................... 9 Ala., 235 ............. 410 .Burbridge v. Fackler................ 2 MacArth., 407 ......... 314n Burgess v. Seligman................. 17 Otto, 34............... 416n Burson v. Dosser..................... 1 Heisk. (Tenn.), 754 ...547n Bushnell v. Kennedy.................. 9 Wall., 391 ............ 622n O. Caldwell v. Eaton.................... 5 Mass., 403 ............ 619 Calkins v. Bertrand................. 10 Biss., 449; 8 Fed. Rep., 759. . 480n Camden v. Doremus. ..............’. 3 How., 515............... 14« Capron o. Noorden.................... 2 Dall., 126............. 340 Carlisle v. Woods.................... 7 Serg. & R. (Pa.), 206 ... 578 Carpenter v. Thornton................ 3 Barn. & Aid., 52......... 78 Carpenter v. Wall................... 11 Ad. & El., 803............ 46 Carrington v. Brents................. 1 McLean, 167............... In Carter v. Nat. Bank of Lewiston.... 71 Me., 452................ 30n Catlett v. Brodie.................... 9 Wheat., 553............ 139 Cavanah v. State.................... 56 Miss., 299............... 39n Chapin v. Siger...................... 4 McLean, 378............... 47 Chappedelaine v. Deehenaux......... 4 Cranch, 306................ 350 Chappell v. Funk.................... 57 Md., 481................. 82n Charles River Bridge v. Warren Bridge, 11 Pet., 420.. .409, 429, 430, 435 442 Chase v. Davis..................... 65 Me., 102................’ In Cheney v. Cooper.................... 14 Neb., 418 ........... 354n Cheney v. Eastern Turnp. Line...... 59 Md., 566.................. 14n Cheever v. Wilson.................... 9 Wall., 121.............. 65n Chicago &c. R. R. Co. v. Lake Shore &c R. R. Co...................... io Biss., 127n............ 314n Childress v. Emory.................. 8 Wheat., 642............. 359 Chirac v. Reimcker.................. 11 Wheat., 302.............. 579 vhouteau v. Eckhart.................. 2 How., 345 .............. 508 Christy. Ex parte ................... 3 How., 292................ 287 Church v. Halcomb................... 45 Mich., 39................ In Cincinnati College v. State......... 19 Ohio, 110.............. 413 Cincinnati, Wilmington, &c. R. R. v. ^ Clinton Co .. ..................... 1 Ohio, 77................ 396 Citizens Bank v. Nantucket Steamboat Co..................... 2 Story, 32......................... 473 xii TABLE OF CASES CITED. . ' ■ PAGE. .City of Lexington v. Butler..... 14 Wall., 282 ............... 622n City of Washington v. Pratt........ 8 Wheat., 681............... 619 Clark v. Blair.................. 14 Fed. Kep., 814 ........ 82n Clark v. Hackett................... 1 Black, 77............... 65n Cleveland v. Quilty............. 128 Mass., 579..... ....... 547n Clippinger v. Hepbaugh............. 5 Watts & S. (Pa.), 315.. ,314a, 336 Clymer v. Thomas.................... 7 Serg. & R. (Pa.), 178 .. 579 Coburn v. Schroeder................ 8 Fed. Rep., 522 ......... 98n Cohens v. State of Virginia......... 6 Wheat., 399............. 287 Cole v. Turner..................... 4 Russ., 376 ............... 11 Coleman v. Tennessee............... 7 Otto, 536 ............. 164a Collins v. Mack................... 31 Ark., 684 .............. 39n Commercial Bank v. Buckingham .... 5 How., 317................. 107n Commonwealth v. Callaghan......... 2 Va. Cas., 460.............. 336 Commonwealth v. Milton............ 12 B. Mon. (Ky.), 212...... 352 Congdon i’. Goodman................. 2 Black, 574............. 107n Conner v. Mayor, &c................. 2 Sandf. (N. Y.), 355 .... 408 Conrad v. Griffey................. 11 How., 492 ......... .38, 46 Conway v. Taylor................... 1 Black, 630 ............. 524a Cook v. Burnley................... 11 Wall., 668 ............ 104a Cooke v. Pennington............... 15 So. Car., 193........... 610a Coombs v. Steere................... 8 Bradw. (Ill.), 150..... 610a Cooper v. Gillett.................. 8 Serg. & R. (Pa.), 568... 578 Corbin v. Board of Commr’s....... 1 McCrary, 527 ........... 369a Corbin v. County of Blackhawk..... 5 Otto, 666 .............. 622n Corporation of New York v. Ransom . 23 How., 489............... 480a~ Course v. Stead.................... 4 Dall., 22............... 342 Covington Bridge Co. v. Shepherd.... 20 How., 231; 21 Id., 112.. 314a Cramp v. Camp................... 74 Mo., 193................ 535a Criglers v. Alexander............. 33 Gratt. (Va.), 682 ...... 535a Curtis v. County of Butler........ 24 How., 448............... 524a Curtis v. Martin...;.............. 3 How., 106.............. 251n Cushing v. Aylwin................. 12 Mete. (Mass.), 169...... 283 Cushing v. Hurd.................... 4 Pick. (Mass.), 25 3..... 594 D. Dartmouth College v. Woodward..... 4 Wheat., 518 ...........382, 389 Daviess v. Fairbairn............... 3 How., 635.............. 160a Davis’s Appeal.................... 83 Pa. St., 348 .......... In Davis v. Gray..................... 16 Wall., 220............369a, 416n Davis v. Kimball.................. 25 Wend. (N. Y.), 259...... 47 Dayton v. Bartlett.................38 Ohio St., 363......... 535a Debolt v. Ohio Life Ins. & Trust Co... 1 Ohio, 564.......... 378, 395 Decatur v. Paulding............. 14 Pet., 499............... 272 De La Lande v. Treasurer.......... 18 How., 192 ............. 107n Demarest v. Wynkoop................ 3 Johns. (N. Y.) Ch., 129. 250 Denison v. Crawford County.......... 48 Iowa, 211.............. 314a Deshler v. Dodge.................. post, *622 .................. 442 Dexter v. Arnold................... 1 Sunin., 109a............ 579 Dinsmore v. Philadelphia R. R. Co.... 11 Phil. (Pa.), 483...... 314a Docker v. Somes.................... 2 Myl. & K., 655 ......... 543 Dodge a. Woolsey ................. 18 How., 364 .....314a, 369a, 622n Doe v. Reagan...................... 5 Blackf. (Ind.), 217..... 47 Dos Hermanns, The................. 10 Wheat., 311............. 148 Douglass v. County of Pike........ 11 Otto, 686 ............ 432a Dow v. Johnson.................... 10 Otto, 183 ........... 164?j Downman v. Rust.................... 6 Rand. (Va.), 587 ....... 11 Drakely v. Gregg.................. 8 Wall., 268.............. 23a Dred Scott v. Sandford............ 19 How., 523 .. .164a, 275a, 354a, 369n Dubois v. Dubois................... 6 Cow. (N. Y.), 496 ..77, 78, 80 TABLE OF CASES CITED. xiii E. PAGE. Earl of Bristol v. Wilsmore.......... 1 Barn. & C., 514........... 134 East Hartford v. Hartford Bridge Co.. 10 How., 535 ................. 403 Easton v. Salisbury................. 21 How., 426 ............... _86« Eaton v. Jacques.................... 2 Doug., 456 :............ 593n. Ecker v. McAllister.................. 45 Md., 290.................... 39a Edgell v. Haywood.................... 3 Atk., 358 .................. 11 Elmira, The.......................... 16 Fed. Rep., 136 ............. 599a Enfield Toll Bridge Co. v. Hartford &c. R. R. Co........................... 17 Conn., 454.................. 410 Erie R’y Co. v. Pennsylvania....... 21 Wall., 498................. 369n Express Co. v. Kountze........... 8 Wall., 342...............>. 104a F. Farni v. Tesson...................... 1 Black, 309................ 580a Farrington v. Tennessee.............. 5 Otto, 690 ...........369n, 416a Fenn v. Holme....................... 21 How., 481................. 48n Field v. Schieffelin................. 7 Johns. (N. Y.) Ch., 150.... 38 Fisk v. Arthur...................... 13 Otto, 433 ............... 150a Fletcher v. Peck..................... 6 Cranch, 135................. 384 Floyd v. Blanding................... 54 Cal., 46................. 369a Foley v. Addenbrooke................. 4 Ad. & El., 197 ............. 597 Forster v. Civill................... 20 Hun (N. Y.), 282 .......... In Foster v. Essex Bank................ 17 Mass., 479 ................. 475 Fourniquet v. Perkins................ 6 How., 206 ; 7 Id., 160 ’... 85 Franklin Bank v. Steam Nav. Co..... 11 Gill & J. (Md.), 28......... 47 Franklin Branch Bank v. State of Ohio, 1 Black, 475............... 369a French v. Hay....................... 22 Wall., 253 .................In, 65a French v. Shoemaker................. 12 Wall., 99 ............... 135n Frost v. Belmont .................... 6 Allen (Mass.), 152..... ” 314a Fuller v. Dame...................... 18 Pick. (Mass.), 470 ....... 336 G. Gamache v. Piquignot................ 17 Mo., 310.................. 512 Garrett u. Wiggins................... 1 Scam. (Ill.), 335......... 618 Gassies v. Ballon.................... 6 Pet., 761 ................ 329 Gelpeke v City of Dubuque.......... 1 Wall., 206................ ’ 432n General Pinkney, The................. 5 Cranch, 281.........„.... 408 George v. Pitcher................... 28 Gratt. (Va.), 299 ....... 38n Gerken’s Estate...................... 1 Tuck. (N. Y.), 49.......... In Gibson v. Chew...................... 16 Pet., 315................. 341 Gibson v. Chouteau.................. 13 Wall., 92 ................ 48n Gil v. Davis ...................... 12 La. Ann., 219............ 314a Glasgow v. Hortiz.................... 1 Black, 601.............. 494a Goodyear Dental &c. Co. v. Van Ant- werp ........ ................ 2 Bann. & A., 255............. 480n Gordon v. Appeal Tax Court......... 3 How., 133. ,369n, 386,401,429,430 Goszler v. Corporation of Georgetown. 6 Wheat., 596................. 403 Gottfned ». Miller ................. 14 Otto, 527 .............. 524n Grand Gulf R. R. Co. v. Marshall .... 12 How. 165 107a Grant v. Norway..................... 10 Com. B.,'688*; 2 Eng.'l,.' & Grapeshot, The....................... 9 Wall., 133 ” ” *.. . . . . ’. 164a Greeley v. Smith..................... 3 story, 76 ............... i04n Greenleaf v. Goodrich............... 11 Otto, 284................4 251a r ' Higglns......................... 20 Kan., 420................. 39a Griffith v. State ................. 37 Ark 324................... 39n xiv- TABLE OF CASES CITED. H. PAGE. Haley v. State .......................... 63 Ala., 83 ...... 38m. Hallett v. Hallett........................ 2 Paige (N. Y.), 19.... 302 Hallett v. Lee............................ 3 Ala., 28............. 133 Hamilton v. Dillin ...................... 21 Wall., 87 ............ 164m Hardeman v. Anderson...................... 4 How., 642 ........... 148 Harris v. Simonson..................... 28 Hun (N. Y.), 319...... 314m Harris v. State.......................... 30 Ind., 131.............. 38m Harrison v. M’Intosh...................... 1 Johns. (N. Y.), 380 . 634 Harrison v. Myer.......................... 2 Otto, 111............. 107n Harrison v. Page... ..................... 16 Mo., 182............. 512 Hart v. Hudson River Bridge Co..... 84 N. Y., 56 ................... 39m Hart v. Williams......................... 77 N. C., 426.............. la Hassanclever v. Tucker.................... 2 Binn. (Pa.), 525 ....... 11 Hassel r. Hassel.......................... 2 Dick., 526 ........... 11 Hatzfield v. Gulden....................... 7 Watts (Pa.), 152 ..... 336 Hayes v. Cheatham ................. 6 Lea (Tenn.), 1................ 38m Henly v. Soper............................ 8 Barn. & C., 20 ....77, 78, 80 Herrick v. Smith....................... 13 Hun (N. Y.), 446 ...... 38n Heslop v. Gatton ........................ 71 Ill., 528............... In Hickie v. Starke.......................... 1 Pet., 98............... 512 Hill v. Gust.......................... 55 Ind., 45............... 39n Hill i’. Roach........................... 72 Ind.,62 .............. 547m Hinton v. Dibbin.......................... 2 Q. B., 646............. 475 Hodgson, v. Bowerbank..................... 5 Dall., 303............. 340 Home of the Friendless v. Rouse.... 8 Wall., 438................369n, 432m Hope Ins. Co. r. Boardman................. 5 Cranch, 57 ........348, 350 Hopkins t». Lee........................... 6 Wheat., 109............ 77 Hort v. Norton............................ 1 McCord (S. C.) Ch., 22. 571 Howland v. Conway......................... 1 Abb. U. S., 281....... 39n Hoyt v. Hoyt. ........................... 17 Hun (N. Y.), 192; 85 N. Y., 149......................... In Hugh r. Higgs............................. 8 Wheat.,697.............. 79 Hughes v. Edwards............. 9 Wheat., 489........................ 580 Hughey v. Horrell....................... 2 Ohio, 378 ......... .. 619 Humphrey v. Allen........................101 HL, 497 ............... 82m Hunt v. Test.............................. 8 Ala., 719............ 336 Hunter v. State........................... 8 Tex. App., 75 ........ 39m I. lasigi r. The Collector................... 1 Wall., 375 ........... 263m Ilsley v. Stubbs.......................... 5 Mass., 282.......633, 634 Indiana R. R. Co. v. Michigan R. R. Co., 15 How., 233.............. 350 Insurance Co. v. Folsom.................. 18 Wall., 237 ............ 14n Insurance Co. v. Francis............... 11 Wall., 210............ 104m Insurance Co. v. Ritchie.................. 5 Wall., 542 ........... 314n Irvine v. Lowrey....................... 14 Pet., 293 ............ 349 Irvine v. Marshall....................... 20 How., 558 ............. 48m J. Jackson v. Ashton......................... 8 Pet., 148 ........... 342 Jackson v. Holloway....................... 7 Johns. (N. Y.), 394 . 275m Jackson v. Potter....................... 9 Johns. (N. Y.), 312 . 275» Jackson a. Steamboat Magnolia...... 20 How., 299................... 469n Jackson v. Willard........................ 4 Johns. (N. Y.), 41... 594 James v. Emery............................ 5 Price, 533 ........... 597 Jefferson Branch Bank v. Skelly.... 1 Black, 442.............369m, 524m Jenkins v. Eldridge....................... 3 Story, 181.............. 47 Jenness v. Peck.......................... 8 How., 612............ 287 TABLE OF CASES CITED. xv PAGE. Jerome v. McCarter................ 21 Wall., 29 ........................... 135n Jessup v. Carnegie................ 80 N. Y., 448 ......................... 416n Jewett v. Dringer.................. 4 Stew. (N. J.}, 586................... 547n Johnson v. M’lntire................ 1 Bibb (Ky.), 295 ......... 618 K. Kelly v. Devlin.................. 58 How. (N. Y.) Pr, 487 ................. 314n Kemper v. Cincinnati &c. Turnp. Co... 11 Ohio, 393.............. 413 Kidney v. Coussmaker............... 1 Ves., 436 .......„■..................... 11 Kimball v. Davis.................. 19 Wend. (N. Y.), 437 ..... 47 Kimball v. The Collector.......... 10 Wall., 453 .......................... 272n King, The v. Pasmore.............. 3 T. B, 246................ 389 King v. Tuscumbia &c. R. R. Co.... 7 Pa. L. J., 166............................ 1« Kinsell v. Feldman................ 28 Iowa, 497.............. 547 a Kirkpatrick v. White............... 4 Wash. C. C, 595 ......349, 350 Kitchen v. Buckley................. 1 Lev., 109 ............... 598 Kitchen v. Randolph................ 3 Otto, 88............................. 144« Knapp v. Banks..................... 2 How., 73............................... 98n Knotts v. Bailey.................. 54 Miss., 235.............................. In Kountz v. Omaha Hotel Co.......... 17 Otto, 387 ............................ 135n Kreitzer v. Bomberger............. 80 Pa. St., 59............................ 39n L. Lafayette Ins. Co. r. French...... 18 How., 404 ...............104n, 314n Lajoye v. Primm.................... 3 Mo., 368................. 510 Latshaw v. Stainman............... 11 Serg. & R. (Pa.), 357..... 579 Lawler v. Walker.................. 14 How., 149 .............. 107n Leitensderfer v. Webb............. 20 How., 176 .............. 104/t Lent v. Lent...................... 24 Hun (N. Y.), 436 " .. ...’ * * 1 275n Les Bois v. Bramell................ 4 How., 449 ............... 509 Leuty v. Hillas.................... 2 De G. & S, 122 . ,..’.. 302 Lewis v. Smith..................... 2 Serg. & R. (Pa.), 142... 578 Libby v. Burnham.................. 15 Mass., 144.............. 619 Liverpool &c. Nav. Co. v. Agar.... 14 Fed. Rep., 616.............. ' 314ZI Livingston v. Hubbs................ 3 Johns. (N. Y.) Ch., 124. 569 Louisville &c. R. R. Co. v. Letson .... 2 How., 497.314n 325 340 349 Lover. Gates....................... 4 Dev. & B. (N. C.), 363 . ’.. ’ 619 Lucas v. Brooks................... 18 Wall., 436 ........................... 14n Lupton v. Lupton................... 2 Johns. (N. Y.) Ch., 618 . 11 Lynn v. Polk....................... 8 Lea (Tenn.), 259 .................. 369a Lyon v. Hunt...................... 11 Ala., 295................ 618 • M. Mabury v. Grady................... 67 Ala., 161 .. McBratney v. Chandler............. 22 Kan., 692 314,. McCal! v. Graham................... 1 Hen. & M. (Va.), '13 ’. '. ; ’. i i'. i 571 McCalmontv Peters................. 13 Serg & R. (Pa. 196........ 578 McCargo v. Chapman................ 20 How, 555 .... ..................... 599n McClung v.Boss.. .................. 5 Wheat, 116,..........618 619 McCulloch v. Mary and.............. 4 Wheat, 316 ........... 398 409 S°we11 ^.Morrell................... 5 Lea (Tenn.), 278 ......... ’ 547a M V rn? °n.................... 4 How, 421 ............... 508 512 McKee v. Cheney . ................ 52 How. (N. Y.) Pr, 144 ’ 314n McKenzie v. Hulet................. Tavl N n m McKim r. Odom............ . .‘ 3 Fah-f KM ................ McKinney v. Neil................... f McLea^540 .’'.'.'.'.'.'.5 McKinney v. State................. 8 Tex Ann on McLanahan v. Wyant................ IPa 11?P’ ........ ii” M’Lane v. United States..........' 6 Pet, 404 ‘ ‘ * 408 XVI TABLE OF CASES CITED PAGE. Magne v. Seymour..................... 5 Wend. (N. Y.), 309 ..... 134 Maltz v. Amer. Express Co............ 1 Flipp., 612............ 314n Many v. Jagger....................... 1 Blatchf., 372........... 39a Marbury v. Madison .................. 1 Cranch, 127............. 287 Marshall v. Baltimore & Ohio R. R. Co., post, *314............. 344 Mason v. Blaireau, The............... 2 Cranch, 264............. 106 Mason v. Watts ...................... 7 Ala., 703 .............. 134 Matheny v. Golden................... 5 Ohio St., 361.......... 369a Matthis v. State.................... 33 Ga., 24 ............... 39a Maxey v. Clabaugh.................... 1 Gilm. (Ill.), 26 . ..... 619 Mayor &c. v. Longstreet............. 64 How. (N. Y.) Pr., 32 .. 524a Mayor &c. of Baltimore v. Baltimore &c. R. R. Co....................... 6 Gill (Md.), 288......... 402 Mayor &c. of Baltimore v. Weatherby. 52 Md., 451.............. 524a Mays v. Fritton..................... 20 Wall., 418.............. 14a Mays v. Wherry....................... 3 Tenn. Ch., 219 ........ 547a Mechanics’ Bank v. City of Kansas... 73 Mo., 558.......,...... 369/i Mechanics’ Bank v. Debolt........... 18 How., 383 ............. 369n Mechanics’ Bank v. Thomas........... 18 How., 385 ............. 369a Meguire v. Corwine.................. 11 Otto, 111...............314a Menard v. Massy .. . ................ 8 How., 294 .............. 512 Mercer v. Selden..................... 1 How., 37 .............. 247a Merriam v. Wolcott.................. 61 How. (N. Y.) Pr., 377.. 275a Meyer v. City of Muscatine........... 1 Wall., 393............. 369a Michigan Cent. R. R. Co. v. Michigan South. R. R. Co................... 19 How., 378 ............. 107a Mills v. Mills...................... 40 N. Y., 543 ............ 314a Milwaukee &c. R. R. Co. v. Arms... 1 Otto, 494 ............. 474a Minturn v. Larue.................... 23 How., 437............. 524a Mirehouse v. Scaife................. 2 Myl. & C., 695.......... 11 Mobile v. Eslava.................... 16 Pet., 235............... 512 Montalet v. Murray................... 4 Cranch, 46............. 341 Monteath, Ex parte................... 1 So. Car., 227 . ...... 547a Moran v. Miami County................ 2 Black, 722............ 524a Mossman v. Higginson................. 4 Dall., 12....-.......... 340 Mowry v. Whitney.................... 14 Wall., 650 ............ 480n Mulford v. Pearce.................... 2 Bann. & A., 544 ....... 480a Murray v. Hoboken Land Co......... 18 How., 284 .............48a, 635a Muscogee Lumber Co. v. Hyer....... 18 Fla., 704................ 535a N. Nations v. Johnson.................. 24 How., 203 .............. 65n New Jersey v. Wilson................. 7 Cranch, 164.... . — ..... 401 New Jersey Steam Navigation Co. v. Merchants’Bank..................... 6 How., 344................ 478 New Orleans v. Steamship Co.......20 Wall., 394 ........... 164a New Orleans v. Winter................ 1 Wheat., 91 — ........... 340 Nichols v. Postlethwait............. 2 Dall., 131.............. 11 Noonan v. Bradley........ 12 Wall., 121......................... 65a North Missouri R. R. v. Maguire... 20 Wall., 61................ 416a O. Oaksmith v. Johnston................. 2 Otto, 347 .............. 48a Ogle v. Turpin................... 8 Bradw. (Ill.), 454...... 98a Ohio &c. R. R. Co. v. Wheeler..... 1 Black, 296................ 314a Ohio Life &c. Co. v. Debolt....... post, 440 ...............369n, 622a Okeson’s Appeal..................... 59 Pa. St., 99............. la Oliver v. Piatt. .................... 3 How., 333 .............. 30a Orchard v. Hughes.................... 1 Wall., 73 ............. 135a TABLE OF CASES CITED. xvii PAGE, Osborn v. United States’ Bank...... 9 Wheat., 738 ................. 409 Oscanyan v. Arms Co................,. 15 Blatchf79.............., 314n Oscanyan v. Arms Co................... 13 Otto, 274; 2 Morr. Tr., 711.. 314n Overholtzer v. McMichael ............. 10 Pa. St., 142..410, 412, 413 P. Packet Co. v. Sickles................. 19 Wall., 617 ............ 480n Page v. Scheibel...................... 11 Mo., 167................ 511 Palmer v. Haight....................... 2 Barb. (N. Y.), 210...... 47 Parker v. Cole......................... 2 J. J. Marsh. (Ky.), 503. 275n Parker v. Overman..................... 18 How., 137 .............. 494n Parker v. Rule......................... 9 Cranch, 64.............. 618 Paul v. Virginia....................... 8 Wall., 178............. 314n Paxson v. Potts........................ 2 Green (N. J.) Ch., 313.. 11 Peck v. Parchen....................... 52 Iowa, 46................. 39n Pells v. Webquish.....................129 Mass., 469 ............. 203n Pennsylvania v. Quicksilver Co..... 10 Wall., 553...........104n, 3l4n Pennsylvania Co. v. Roy............... 12 Otto, 455 .............. 469n Pennsylvania College Cases............ 13 Wall., 214.».....'...... 369n Pentland v. Stewart.................... 4 Dev. & B. (N. C.), 386 .. 619 People v. Peacock...................... 6 Cow. (N. Y.), 74......... 250 People ex rel. Griffin v. Mayor &c. 4 N. Y., 419............... 410 Percy v. Millaudon.................... 20 Mart. (La.), 75.......... 475 Perkins v. Tourniquet................. 14 How., 313................. 85 Petrie v. Bury......................... 3 Barn. & C., 353.......... 598 Phalen v. Virginia..................... 8 How., 163 ............... 408 Phelps v. Mayer....................... 15 How., 160................ 14n Philadelphia &c. R. R. Co. v. Derby .. 14 How., 486 ....469, 469n, 474 Philadelphia &c. R. R. Co. v. Quigley. 21 How., 214............... 314n Piatt v. Oliver........................ 2 McLean, 268............. 288n Piqua Bank v. Knoop................ post, *369...............442, 446 Poole v. Fleeger...................... 11 Pet., 185................. 29 Pope v. Headen......................... 5 Ala., 433 ............ 619 Pope v. Nickerson ..'................ 3 Story, 475 ........... 473 Post v. Neafie......................... 3 Cai. (N. Y.), 22.......... 80 Powell v. Arderne..................... 1 Vern., 416............ 571 Powers v. Skinner..................... 34 Vt., 274 ............. 314n Pray v. Waterston..................... 12 Mete. (Mass.), 262*..... . ’ 283 Presgrave v. Saunders.................. 1 Salk., 5................. 634 Presser v. State...................... 77 ind., 274.................38n Prime v. Brandon Manuf. Co......... 4 Bann. & A., 391........ 314n Protector, The........................ 11 Wall., 86 .............. 142n Prout v. Roby......................... 15 Wall., 471............... 14» Providence Bank v. Billings............ 4 Pet., 514 .........387, 409, 430, 435 Pulliam v. Pulliam.................... 10 Fed. Rep., 29.......In, 535n Purcell v. Miner....................... 4 Wall., 519n............. 547n Putnam v. Clark........................ 8 Stew. (N. J.), 49....... 547» Q. Queen’s Case, The...................... 2 Brod. & B., 312....... 46 Quidnick Co. v. Chaffee............... 13 R. I., 401 .............. 82n R. Railroad Co. v. Harris................ 12 Wall., 82......... 3i4n Railroad Co. v. Horst............... 3 Otto, 296 .............. 474n Railroad Co. vLockwood................ 17 Wall., 374 ............. 474n Rankffi « Ha ?aSeS.................... 13 Fed- ReP-’ 745 ’ 8 Sawy., 266 • 314« Pankm n. Hoyt....................... 4 How., 327............. 273 Ray v. Smith.......................... 17 Wall 411................. 14n K Vol. XVI__B. xviii TABLE OF CASES CITED. PAGE. Read v. Gardner.................... 17 Wall., 409 .............. 14a Reed v. Hamet....................... 4 Watts (Pa.), 441......... 578 Rice v. Minnesota &c. R. R. Co....... 1 Black, 369............ 524a Rice v. Railroad Co................. 1 Black, 380 ............ 416?* Richmond R. R. Co. v. Louisa R. R. Co., 13 How., 71...............430 Roberts ?>. Cooper................. 20 How., 481.............. 103?i Robertson v. Land Commission......44 Mich., 278 ................ 369a Romertz v. East River Nat. Bank .... 2 Sweeny (N. Y.), 82 ....... 39a Ronkendorff v. Taylor............... 4 Pet., 349................ 618 Root v. Railroad Co................ 15 Otto, 195 .............. 480a Rowan v. Runnels.................... 5 How., 134................ 432 Rubber Co. v. Goodyear.............. 9 Wall., 805 ........... 547a Rundle v. Delaware & Raritan Canal.. 14 How., 80.....326, 338, 339, 350 Runyan v. Coster.................. 14 Pet., 122............... 352 Russel v. Southard................. 12 How., 139................ 567 Ryerson v. Eldred...................23 Mich., 537 ............. 547a S. Sadler v. Robins.................... 1 Campb., 253 ...........77, 80 Salt Co. v. East Saginaw .......... 13 Wall., 376......... 369a, 432a Saratoga, The...................... 9 Fed. Rep., 325 ......... 251a Schlemmer v. Rossler............... 59 Ind., 251 ............. 547n Schmaire v. Maxwell................. 3 Blatchf., 408........... 263a Sewing Machine Co.’s Case ........... 18 Wall., 575 ............ 314a Shaw v. Boyd ..................... 12 Pa. St., 216............. 578 Shaw v. Levy....................... 17 Serg. & R. (Pa.), 99..... 633 Sheldon v. Sill..................... 8 How., 441................ 631 Shields v. Blackburne............... 1 H. Bl., 161.............. 475 Shorter v. Smith.................... 9 Ga., 517................. 410 Shumway v. Stillman................. 4 Cow. (N. Y.), 296........ 81 Shutte v. Thompson. ............... 15 Wall., 151............... 14a Sibbald v. United States........... 12 Pet., 488................ 103 Siegrist v. Arnot.................. 10 Mo. App., 201........... 469a Simpson v. Greeley................. 20 Wall., 158 —............ 142a Slaughter-house Cases.............. 10 Wall., 291 ............ 144a Smith v. Edrington.................. 8 Cranch, 66.............. 284 Smith v. Kernochen.................. 7 How, 198................. 631 Smith v. Perine.................... 12 How., 327.............. 144 Smith v. Stevens................... 10 Wall., 321 ............. 203n Smythe v. Fiske.....................23 Wall., 381 .............. 150a Snipes v. Jones.................... 59 Ind.,251................ 547a South Pacific R. R. Co. v. Orton.. 6 Sawy., 195.............. 416n Southgate v. Montgomery............. 1 Paige (N. Y.), 45 ....... 571 Spaunhorst v. Link............. 46 Mo., 197............... 39a Spence v. United States........... Dev. C. C., 76............... 263a Stairs v. Peaslee.................. 18 How., 524 .............. 263a Stanton v. Bell..................... 2 Hawks (N. C.), 145 ...... 475 Stanton v. Embry.................... 3 Otto, 555.............14a, 314a State r. Albert.................... 73 Mo., 347................. 39a State v. Angelo.................... 32 La. Ann., 407 ........... 39a State v. Collins................... 32 Iowa, 36................. 39a State v. G. S....................... 1 Tyler (Vt.), 295 ........ 619 State v. Glynn..................... 51 Vt., 577 ................ 39a State v. Kinley.................... 43 Iowa, 294................ 39a State v. Laxton.................... 78 N. C., 564 ............. 38a State v. McDonald................... 8 Oreg., 113............... 39a State v. McLaughlin................ 44 Iowa, 82................ 39a State v. Petty.... \. 21 Kan., 54................................ 38a State v. West R. R. Co............. 66 Ga., 567 ............... 369a State v. Young . .................. 29 Minn., 539 ............. 369a State of Md. v. B. & O. R. R. Co.. 3 How., 534 .................. 408 TABLE OF CASES CITED. xix PAGE. State of New Jersey v. Wilson...... 7 Cranch, 164................ 385 State of Ohio v. Commercial Bank ... 7 Ohio, 125.........400, 413, 431 State of Ohio v. Commercial Bank.... 10 Ohio, 535 ............... 381 State of Ohio v. Granville &c. Soc. 11 Ohio, 12.................. 413 Stead v. Course..................... 4 Cranch, 403.............. 618 Steamship Co. v. Tugman............ 16 Otto, 121................ 314n Steamship Hammonia, The............ 10 Ben., 514 ............. 469n Stelle v. Carroll.................. 12 Pet., 201 ............... 595 Stewart v. People.................. 23 Mich., 63 ............... 38a Stiles v. Griffith.................. 3 Yeates (Pa.), 82......... 634 Stoddard v. Johnson................ 13 Hun (N. Y.), 606 ......... In Stourbridge Canal v. Wheely........ 2 Barn. & Ad., 793........... 388 Stover v. Gowen.................... 18 Me., 177................. 474 Strawbridge v. Curtis............... 3 Dall., 267............... 340 Sullivan v. Fulton Steamboat Co.... 6 Wheat., 450 .......340, 348, 350 Supervisors v. Kennicott............ 4 Otto, 499 .............. 103n Suydam v. Williamson............... 20 How., 439 ................ 14n T. Talcott v. Township of Pine Grove.... 1 Flipp., 128.........369n, 416n Tardy v. Morgan..................... 3 McLean, 358.............. In Tatem v. Wright..................... 3 Zab. (N. J.), 429....... 352 Taylor a. Harwell.................. 65 Ala., 10.................. In Taylor v. Morgan................... 61 Ga., 46 ................ 39n Taylor a. Salmon.................... 4 Myl. & C., 134........... 302 Taylor a. Ypsilanti................ 15 Otto, 71 .............. 432a Teese a. Huntingdon................ 23 How., 2................. 148n Telegraph Co. a. Eyser............. 19 Wall., 427 ............ 144n Tenett a. Taylor.................... 9 Cranch, 43.............. 389 Thatcher a. Powell.................. 6 Wheat., 119..........618, 619 Thomas a. Brownsville &c. R. R..... 1 McCrary, 396 ............. 314n Thompson a. Lee County.............. 3 Wall., 327 ............. 622n Thompson a. Perrine................ 16 Otto, 591............... 416n Thompson a. Roberts................ 24 How., 233 ............... 65n Thompson a. Territory............... 1 Wash. T., n. s., 547......39n fool Co. a. Norris..........•....... 2 Wall., 55 .............. 314n Town of Ohio a. Marcy.............. 18 Wall., 552 .............. 14n Town of Pawlett a. Clark............ 9 Cranch, 292.............. 389 fracy a. Wood....................... 3 Mason, 132 .............. 475 fremer a. Stewart.................. 11 Otto, 808 ............... 86n Inst a. Child...................... 21 Wall., 450 ...........‘ 314n turner a. Bank of North America.... 4 Dall., 8..... 340 341 Pyler a. Magwire................... 17 Wall., 253 ... ’ ’ ’ ’ ’'' ‘65n’ 103n U. United States a. Alien............. 14 Fed. Rep., 265 .......... 610n United States a. Arredondo.......... 6 Pet. 691 272 United States a. Breitling........ 20 How., 252.’.............. 14n United States a. Dashiel............ 3 Wall., 701 ............. 135n United States a. Dickinson.......... 2 McLean, 325.............. '47 United States a. Ermshaw........... 12 Fed. Rep., 287 ......... 272n United States a. Freeman............ 3 How., 556............... 160n United States a. Gratiot 14 pct 59ft .................. 194 United States a. Knapp.............. 1 Black, 489 ............." 547^ United States a. Morris............ 10 Wheat., 246.............. 408 tt atateS v' Pacific Railroad.. 1 McCrary, 7.............. 610n United States a. 67 Packages of Dry Goods........................... 17 How., 93............... 150n XX TABLE OF CASES CITED V. PAGE. Van Ness v. Hyatt.....,.....'.... 13 Pet., 294........... 595 Van Winkle v. Van Houten.......... 2 Green (N. J.) Ch., 172.. 11 Vasseur v. Benton................. 1 Mo., 296............... 510 Vaughan v. Central Pacific R. R. Co.. 3 Bann. & A., 31 ..... 480n Vicksburg Bank v. Slocum......... 14 Pet., 60 ............... 348 Von Hoffman v. City of Quincy.... 4 Wall., 554 ............. 369n W. Walden v. Craig.................. 9 W3eat., 576............. 579 Walker v. Reeves.................. 2 Doug., 461n............ 593 Wallen v. Williams............... 7 Cranch, 278........ .... 148 Walton v. Cronly ................ 14 Wend. (N. Y.), 63...... 595 Walton v. United States........... 9 Wheat., 657............ 29 Walworth v. Holt.................. 4 Myl. & C., 619......... 302 Waters v. Stewart................ 1 Cai. (N. Y.) Cas., 47 .. 594 Wath v. Waddle.....................* 6 Pet., 389; 1 McLean, 200 ... In Watkins v. Holman................ 16 Pet., 26............... In Watson v. Mercer................. 8 Pet., 88................ 408 Webb v. State.................... 29 Ohio St., 351......... 38n Weed v. Black..................... 2 McArth., 268 ........ 314n West v. Randall................... 2 Mason, 181 ........... 288n Western Union Tel. Co. v. Union Pacific R’y Co...................... 1 McCrary, 428 ........ 314n Weston v. City Couricil of Charleston. 2 Pet., 449............ 409 Wheeler v. Anthony............... 10 Wend. (N. Y.), 346 ....... 619 White v. Bond.................... 16 Mass., 400 ............ 594 White v. Drew..................... 9 W. Va., 695............ 547n White v. Vermont &c. R. R. Co.... 21 How., 575 ............... 622n White River Turnp. Co. v. Vermont &c. R. R. Co..................... 21 Vt., 590 ............. 410 Whitlock v. Willard............. 18 Fla., 158............ 142n Wiggins Ferry Co. v. East St. Louis .. 17 Otto, 374 ...... 524n Williams v. Peyton ............... 4 Wheat., 77............. 618 Williams v. Rawlins.............. 33 Ga., 117.............. 39n Wilson v. Brett.................. 11 Mees. & W., 113........ 475 Wilson v. City Bank............... 3 Sumn., 423 .......... 104n Wilson v. Sherman............... 1 Blatchf., 537....... In Winpenny v. French............... 18 Ohio St., 469....... 314?i Withers v. Bircham................ 3 Barn. & C., 255......... 597 Withers v. Buckley............... 20 How., 84 ............. 107n Witman v. Norton.................. 6 Binn. (Pa.), 395 ....... 11 Wood v. Dummer ................... 3 Mason, 308 ........... 288n Wood v. McCan..................... 6 Dana (Ky.), 366........ 336 Wood v. Wagnon.................... 2 Dall., 1................ 340 Worsley v. Second Municipality... 9 Rob. (La.), 324........... 410 Worthy v. The Commissioners...... 9 Wall., 611.............. 107n Wright v. Sill.................... 2 Black, 544........... 369n Wylde v. Pickford................. 8 Mees. & W., 443,461..... 475 Y. Yanke v. State................... 51 Wis., 464.............. 39n THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES AT DECEMBER TERM, 1853. John H. Lewis, Appellant, v. Sarah Darling. Where a bill in chancery was filed by a legatee against the person who had married the daughter and residuary devisee of the testator, (there having been no administration in the United States upon the estate,) this daughter or her representatives if she were dead, ought to have been made a party defendant. But if the complainant appears to be entitled to relief, the court will allow the bill to be amended, and even if it be an appeal, will remand the case for this purpose.1 Where the will, by construction, shows an intention to charge the real estate with the payment of a legacy, it is not necessary to aver in the bill a deficiency of personal assets. The real estate will be charged with the payment of legacies where a testator gives several legacies, and then, without creating an express trust to pay them, makes a general residuary disposition of the whole estate, blending the realty and personalty together in one fund. This is an exception to the general rule that the personal estate is the first fund for the payment of debts and legacies.2 Where it appear, by the admissions and proofs, that the defendant has substantially under his control a large property of the testator which he intended to charge with the payment of the legacy in question, the complainant is entitled to relief although the land lies beyond the limits of the State in which the suit is brought.3 1 Cited. May v. Le Clair, 11 Wall., 2 S. P. Davis’s Appeal, 83 Pa. St., 348; Knotts v. Bailey, 54 Miss., 235; Stoddard v. Johnson, 13 Hun (N. Y.), 606; Hoyt v. Hoyt, 17 Id., 192; Forster v. Civiel, 20 Id., 282. A money legacy, to become a charge on land, must be expressly declared so to be in the will. Gerken’s Estate, 1 luck (N. Y.), 49. S. P. Chase v. Davis, 65 Me., 102; but see Hart v. Williams, 77 N. C., 426; or there must be something in the language of the will from which an intention to create such a charge may fairly be inferred. Okeson’s Appeal, 59 Pa. St., 99. Such an intention cannot be inferred from Vol. xvi.—1 circumstances altogether extrinsic to the will. In such a case, if the personalty is insufficient, the legacies must abate. Heslop v. Gatton, 71 Ill., 528. Where a legacy is given, and is directed to be paid by the executor, who is a devisee of real estate, such estate is charged with the payment of the legacy; and the devisee, upon accepting the devise, becomes personally bound to pay the legacy; and this, although the land devised to him proves to be less in value than the amount of the legacy. Brown v. Knapp, 79 N. Y., 136. 8 Cited. French v. Hay, 22 Wall., 253; Pulliam v. Pulliam, 10 Fed. Rep., 1 1 SUPREME COURT. Lewis v. Darling. This was an appeal from the District Court of the United States for the Northern District of Alabama, exercising Circuit Court equity jurisdiction, under the act of Congress of February 19, 1831, ch. 28 (4 Stat, at L., p. 444). The following is the statement contained in the brief of the counsel for the appellant, which is adopted by the court, in their opinion. A bill was filed March 16,1846, by the appellee against the appellant—alleging, that in the year 1822, one Samuel Betts, a citizen of the State of Connecticut, but transacting business at Havana, in the Island of Cuba, as a partner in the firm of F. M. Arredondo & Son, died at Havana, leaving a will in due form of law, proven and admitted to record in that city, by *which he bequeathed to the complainant, Darling, J a legacy of $2,500. That Betts left but one child, his daughter Mary, who has since married the defendant Lewis —and that a tract of several hundred thousand acres of land, in the present State of Florida, was held and owned by the firm, of which Betts was a partner. That by a decree of the proper court of the State of Florida, Lewis, the defendant, has been declared entitled to 60,000 acres of this land, in right of his wife, the daughter of said Betts, which is worth more than $100,000; that Lewis had also received a deed of conveyance for 15,000 acres of land, valued at $50,000, which was the property of Betts, as a partner of the firm. And, in addition to this, also received large sums of money belonging to Betts’s estate. The bill prays, that Exhibit A, (a copy of Betts’s will,) and Exhibit B, (a copy of the answer of the defendant, Lewis, to a bill filed in the Superior Court of the District of East Florida, in the now State of Florida, by John John Brush “ et al.” v. Lewis “ et al.”) be considered parts of the bill. And propounds interrogatories to Lewis: 1st. As to whether Exhibit A is a correct copy of that w’hich defendant, in the case against him in Florida, had set out in his answer there, as the will of Betts? 2d. Whether the original will was in defendant’s possession ; if not, why, and where it was, and was it admitted to probate in Havana? 3d. Whether defendant received any property, lands, or moneys, 40, 45, 47; Allegheny Bank v. Hays, 12 Id., 664, 665; Taylor v. Harwell, 65 Ala., 10; Maybury v. Grady, 67 Ala., 161; Church v. Holcomb, 45 Mich., 39; Hoyt v. Hoyt, 85 N. Y., 149. Equity, acting in personam, may decree the sale or conveyance of land in another jurisdiction, and enforce such decree by attachment. Wath v. Waddle, 6 2 Pet., 389; s. c., 1 McLean, 200; Watkins v. Holman, 16. Pet., 26; Carrington v. Brents, 1 McLean, 167; or compel a party in possession of such land to give effect to a lien thereon. King v. Tuscumbia frc. R. R. Co., 7 Pa. L. J., 166; Wilson v. Sherman, 1 Blatchf., 537 ; Tardy v. Morgan, 3 McLean, 358. DECEMBER TERM, 1853. 2 Lewis v. Darling. from the estate of Betts, and if so, whether it was the property of Betts, individually, or as a partner of the firm of Arredondo & Son, and what was its value? 4th. Whether Exhibit B was a true copy of the answer it purported to be? 5th. Whether Joseph Fenwick (who by the will of Betts was appointed executor in the United States) did ever, or did then, reside in Alabama, or where he then resided? 6th. What the value of the property was,»received by defendant,from Betts’s estate ; when was it received, and what was the rate of interest in Florida and in Cuba? And prays process to procure full answers to the interrogatories, and payment of the legacy, if it appear that the defendant has received from Betts’s estate enough to satisfy the complainant. On page 5 of Record, in complainant’s Exhibit A, will be seen the appointment of Joseph Fenwick as the executor of Betts in the United States, and the legacy bequeathed, as stated in the bill. The residue of the testator’s property, after a few minor dispositions, is devised to his only child, the wife of the defendant. Exhibit B, which complainant makes a part of her bill, shows that the large tract of land mentioned in the bill did belong to the firm of Arredondo & Son, of' which Betts was a member, and sets out how Lewis, by marriage with the *daughter, the sole heir of Betts, became entitled to a portion of it. Lewis, in that answer, also states, with *-regard to the 15,000 acres mentioned in the bill in this case, that, being ignorant of the true rights of his wife, in the year 1831 he agreed with F. M. Arredondo upon the terms of a» compromise as to his wife’s interest in said lands; by which agreement he and his wife were to receive 15,000 acres, as an undivided portion of the balance of the tract, after certain; sales which had been previously made by Arredondo & Son ; and, in consideration of which, he and his wife were to relinquish forever, all rights to any further or other portion of said land, by virtue of the interest of Samuel Betts. That a deed was executed by said F. M. Arredondo, conveying to Lewis and wife, 15,000 acres of the land, and signed and delivered to Lewis, but that he and his wife had refused to execute any deed of release or relinquishment of their interest in said land—alleging as a reason for not doing so, that he ascertained Arredondo had not made full and fair representations of Betts s interest in the land, and had either by mis-! take, or with fraudulent purpose, made incorrect statements' tv re°itals °f the deed of the sales previously made, and that he (the defendant) had therefore always regarded the said deed of Arredondo to himself and wife as void, and had 3 3 SUPREME COURT. Lewis v. Darling. claimed nothing under it since he ascertained the facts above referred to, and had always refused to carry out the verbal agreement of the compromise, and averring Betts’s interest as partner to the extent of one third, in the large tract of land belonging to the firm of Arredondo & Son, he prays a decree for partition of said lands, and that the portion to which he is entitled in right of his wife, when established to the satisfaction of the court, be allotted to him by a decree to that effect. On page 11 of Record, is defendant Lewis’s first answer to the present bill, in which he totally denies having ever received one cent of value from Betts’s estate, either in real, personal, or mixed property. But this answer being objected to as insufficient and evasive, the court below, May 21st, 1846, ruled that it was insufficient—but also ruled, that the bill did not allege sufficient matter for equitable relief, it not showing that the executor had not paid the legacy, and if it had not been paid, did not show any reason for proceeding against the residuary legatee instead of the executor. Thereupon the complainant filed her amended bill, stating that no one, to her knowledge or belief, had ever taken out letters testamentary or of administration upon the estate of Betts, either in the State of Alabama or elsewhere,” and “that no person had ever paid the legacy, or any part thereof,” and that no person but defendant had ever received any part of *Betts’s estate, and called upon defendant to state, -* whether any one had taken out letters upon the estate. Defendant then puts in his second answer, stating that he was a defendant in a suit in Chancery in Florida, brought against him and others by John H. Brush and others, and that before the termination of said suit, a copy of the will of Betts was filed by him as part of the evidence of his claim, jn right of his wife. The original will was in Spanish, and he obtained a Spanish copy of it from the proper depository in the city of Havana. He believed that a Spanish copy and an English translation were filed among the papers in that suit. That the suit was not tried in the regular way—but the parties entered into a covenant or agreement, which was put upon the records of the Court of Florida, and was, by consent, made the decree of that court. That the will was not adjudicated upon ;—cannot say on his oath that the Exhibit A is a correct translation of the original—but it does not differ from the English copy filed in the Florida case. To the third interrogatory, he states, that he has received no property, lands, or moneys from the estate of Betts. That a decree in the 4 DECEMBER TERM, 1853. 4 Lewis v. Darling. Florida case had been entered by consent of parties, and that the decree gave to his wife a large amount of land—but there was no decree in favor of him—and the decree in favor of his wife was not a final one—needing the report of commissioners appointed to make partition of the land before it became a final decree. Cannot say what is the value of the land decreed to his wife, because the decree is not final, and awaits the further action of the court. He admits the Exhibit B to the bill to be a true copy of the answer filed by him in the Florida case. States that Joseph Fenwick did reside in Alabama, and believes he is dead; and that he does not know or believe that any person has taken out letters of administration upon the estate of Betts in the United States. He does not know whether there was or was not administration in Cuba—and has no information on the subject; and suggesting the want of parties, prays to be dismissed. No exception to this answer appears on record; but on the 23d November, 1847, the court decide the answer to be insufficient, and also that the bill was defective in not alleging sufficient matters for equitable relief, in not showing that the executors had not paid the legacy, and that not being shown in alleging no reasons for proceeding against the residuary legatee instead of the executor. Leave to amend was granted; but instead of so doing the complainant filed her replication, averring the sufficiency of her bill, the insufficiency of the answer, and traversing the statements of the latter. *On November 23d, 1847, the court below decreed in favor of complainant, ordering that she recover *-against the defendant $7,645.45, the amount of the legacy with interest and costs, and ordered execution to issue accordingly. On November 24th, 1847, defendant filed a petition for rehearing, alleging error in the decree; because the decree in the Florida case was not final, and he had not, as yet, received in right of his wife, or on his own account, the least benefit from that decree, nor was it certain that he ever would. For the report of the commissioners appointed to make partition in the suit in Florida had been objected to by some of the parties, and set aside by the court, and that another commission had been appointed which could not report before the next term of the court, in June, 1848; that he would, therefore, under the decree, have to pay a large sum of money to the complainant out of his own funds, when he had received nothing under the decree rendered in favor of his wife. He also states that in the case in Florida, a petition for leave to 5 5 SUPREME COURT. Lewis v. Darling. file a bill in the nature of a bill of review for the purpose of opening the decree in that court was then pending there, and submits a decision of the Supreme Court of the State of Florida, showing that by the decision of that court and the acts of assembly of Florida, the decree directing the partition of lands is not a final but an interlocutory decree. He also urges that he should not be charged with the 15,000 acres mentioned in the deed from Arredondo, because the complainant makes his answer in the Florida case a part of her bill, and in that answer it is shown, that that deed is treated as void, and he has never claimed any tiling under it, and that so far as it can be considered as a portion of his wife’s interest in the estate, it is wholly merged in the decree for 60,000 acres in the suit in Florida. On November 29th, 1848, defendant filed his affidavit, stating that since his petition for rehearing, the leave to file a bill in the nature of a bill of review in the court of Florida, referred to in said petition, had been granted in that court, that the bill had been accordingly filed, and that it had wholly suspended the execution of the decree there obtained—that he had answered that bill, and the same is at issue. That neither himself nor his wife had as yet received one dollar in real, personal, or mixed property from Betts’s estate. On December 2d, 1848, the court, upon argument of the petition for rehearing, dismissed it, and thereupon the defendant prayed an appeal. Nearly all the testimony embraced in the residue of the record appears to bear upon the partnership relations and the interest of Betts in the Florida lands, facts which are not disputed. *But on page 77 it will be seen that the proceedings -• in a case in the court below between this appellant and Burr Hubbell Betts, (who is one of the legatees in the will of Samuel Betts,) were produced in evidence in the trial, and that the bill in those proceedings, which in its general nature resembles the present bill, refers to a certain portion of the property of Betts (the deceased) which had come into the hands of the appellant by a conveyance there referred to as Exhibit C. That conveyance will be found on page 28 of record, and is a deed made by F. M. Arredondo to appellant and wife in 1831, stating that Samuel Betts had in his lifetime conveyed to the grantor certain property in trust for creditors, and the grantees having obtained from these creditors assignments of all their right and claim to the property, it was thereby conveyed to the grantees. The first appeal was not taken within the time specified by law, and another appeal was granted 23d May, 1850. 6 DECEMBER TERM, 1853. 6 Lewis v. Darling. This appeal, also, was not acted upon for the reason assigned on page 86, that a compromise was pending between the parties. In the mean time the case was docketed and dismissed under the rule of this court, and accordingly a third appeal was granted, and is now prosecuted. The case was argued by Mr. Reverdy Johnson, and Mr. Reverdy Johnson, junior, for the appellant, and by Mr. Butler, for the appellee. The points made by the counsel for the appellant were the following: 1st. The bill is materially defective for want of parties; the wife of defendant, through whom alone he claims, and whose right he represents, being an essential party to the proceedings. Story, Eq. Pl., § 75, 77, 137, 138; 22d and 52d Rules of Eq. Prac. 2d. Neither the original nor the amended bill allege that all the personal property (whatever it was) had come into the possession of the defendant, nor that the part that did come, was sufficient to pay the legacy. Story, Eq. Pl., § 241, 257. 3d. Nor do they aver that in fact there was not sufficient personal property to pay the legacy. 1 Story, Com. Eq., § 571; Hoye v. Bewer, 3 Gill & J. (Md.), 153. 4th. The effect of the plaintiff’s replication being to admit the sufficiency of defendant’s second answer, there is no evidence to authorize the decree against the defendant. Story, Eq. Pl., § 877 ; 61st Rule Eq. Prac. 5th. If this be not the effect of the replication, yet the answer is distinct and full, and there is no evidence that any property belonging to the estate of Samuel Betts, ever came into the hands of the defendant, and he cannot be held liable “ de bonis propriis.” 1st Fla., 455, Putnam v. Lewis. *The points made by Mr. Butler, for the appellee, were the following: L * First. The specific legacy is charged upon the residuary legacy of those who have a right to take it. Second. It is certain that the residuary legacy, now capable of being reduced into possession by the residuary legatee, is more than sufficient to pay off the specific legacy. Third. The replication of the complainant must be regarded as evidence in the case, as it has not been contradicted by any direct denial of the defendant, but must be regarded as a traverse of the assumptions of the answer* Story, Eq. Pl., p. 793, 794, 801, 802. Fourth. Admitting the technical truth of the defendant in 7 7 SUPREME COURT. Lewis v. Darling. his evasive answer, that the defendant (Lewis) has not received any property of the testator, Samuel Betts, still it appears that he can receive, and is entitled by law to receive, property more than sufficient to pay all the debts of the testator and the specific legacies contained in his will. Fifth. The defendant having intermeddled with, and appropriated to himself an interest in, the estate of Samuel Betts, he cannot exonerate himself from liability to creditors without making some such disclosure as would discharge him under a plea of plene administravit. Sixth. The defendant ought not to be allowed to take any exception to the bill of the complainant at this stage of the proceedings; if any exception could have been taken originally, (which the complainant contends could not,) such exception may be regarded as having been waived by the defendant. Story, PL, p. 74, 89, 301, 302. Mr. Justice WAYNE delivered the opinion of the court. We have verified the statement of the pleadings in this case attached to the brief of the counsel for the appellant, by a comparison of it with the record, and shall adopt it for the purpose of giving our judgment upon this appeal. Upon this statement, the counsel for the appellant urges five grounds for the reversal of the judgment. 1. It is said that the bill is materially defective for want of parties, that the wife of the appellant, through whom alone he claims and whose rights he represents, ought to have been made a party. 2. That there is no allegation in the original or amended bill, that all the personal property of the testator had come into the hands of the appellant, or that so much of it as he may have received, was sufficient to pay the legacy claimed by the appellee, Sarah Darling. *3. That there is no averment in the bill that there J was not sufficient personal property to pay the legacy. 4. That the effect of the plaintiff’s replication being an admission of the sufficiency of the defendant’s second answer, there is no evidence to authorize the decree against the defendant. 5. If this be not the effect of the replication, yet the answer is distinct and full, and there is no evidence that any property belonging to the estate of Samuel Betts ever came into the hands of the defendant, and that he cannot be liable de bonis propriis. We have given these points because they raise every objection which can be made against the judgment of the 8 DECEMBER TERM, 1853. 8 Lewis v. Darling. court below, either upon the pleading or the merits of the case. We will discuss them successively. The record certainly discloses the fact, that the wife of the appellant has such an interest in the controversy, that no decree can be given which will not affect it. She is the residuary legatee of her father, and all the property given by that clause of his will became hers immediately upon his death. The interest which the appellant may have in it was acquired from his marriage with her, after her father’s death. It is strictly marital, and the extent of it during the coverture, or afterwards if he lives longer than his wife, depends upon the law of the sovereignty where the real estate may be, and, so far as the personal property is concerned, upon the investiture of it in the legatee according to the law of her father’s domicil at the time of his death. Or it may depend upon a marriage contract, if any was made. We have not undertaken to say what that interest is, or may become. We have only intimated upon what it may depend; and will further say, that the children, in the event of their mother’s death, may acquire an interest in the property, independently of their father’s control. If she be already dead, then such of the children as are sui juris should be made parties to the plaintiff’s bill. And if there are other children still minors, the court should have them made parties by a guardian of its appointment, excluding their father from such an office. As the case stands, it is not too late to amend the bill by making the proper parties. The rule in equity, permitting it to be done, is this; that on the hearing of a cause, even upon on appeal, an order may be made for the cause to stand over, With liberty to the plaintiff to amend by adding proper parties, if it appears that the plaintiff is entitled to relief, but that it cannot be given for the want of proper parties. The equity of the plaintiff is sufficiently obvious in this case for the application of the rule. The proofs in the case show that she has a strong *claim upon the appellant for the |-*q payment of the legacy for which she sues him. It is *-manifest that the legacy has been made by the testator a charge upon both the real and personal estate which he means to give his daughter. It will not do, then, to permit it to be defeated in this suit by any mistake or unskilfulness in pleading. We shall then reverse the judgment appealed iom, m conformity with the first objection made against it. f U.rkWe r®mand the cause to the Circuit Court for UtT.er Proceedings, and for the proper parties to be made. e second and third objections are also exceptions to the su ciency of the plaintiff’s pleadings. It is said, that there 9 9 SUPREME COURT. Lewis v. Darling. are no averments in the bill, that all the personal property of the testator had come into the possession of the appellant. And if any part had come, that it was sufficient to pay the legacy. And further, that the bill contains no averment, that there was not sufficient personal property to pay the legacy. These objections are made upon the supposition that the legacy, in this instance, cannot be charged upon the real estate of the testator until it has been shown that there is not personal property enough to pay the legacy. That depends upon the intention, as it is to be collected from the residuary clause of the testator’s will. It is, “ And as to all the rest and remainder of my property, debts, rights, and actions, of what kind and nature soever, that may belong or appertain to me, I name and appoint as my sole and universal heiress, the above named Maria Margaret Betts, my lawful daughter, in order that whatever there may appear to appertain and belong unto me, she may have and inherit the same, with the blessing of God and my own.” Tlie testator’s real and personal property are found blended by him in the clause together. He leaves to his daughter all of his property, of every kind, which may , remain after the antecedent bequests and devises in his will have been paid and given to the objects of his bounty. His daughter is to have “ the rest and remainder of his property, debts, rights, and actions, of what kind and nature soever.” He had previously, in the will, declared that his property consisted of one third in the House established in this city under the firm of Fernando de la Maza Arredondo and Son, and that it would appear from the accounts, books, and other papers of the company. And he further declares that as both the debts due by him and to him will appear by the books of the company, that he confides it to his partners to collect and pay them. His executors were not to have any thing to do with the collection and payment of his debts. Their office was to secure any surplus which there might be after his debts were paid, and to apply it according to his will, *in the manner required by the law of Cuba, where the J testator was domiciled at the time of his death. The testator then appoints an executor to fulfil his will in the United States, where he had no personal property. Now it does not appear that either of his executors in Cuba or in the United States ever undertook to administer the testator’s estate under his will. Indeed, the reverse is to be taken for the fact, from the statement of the appellant. There can be, then, no personal property of the testator eo nomine in the 10 DECEMBER TERM, 1853. 10 Lewis v. Darling. United States over which a court of equity in the United States eould have any control for the payment of the legacy. Nor is this a suit against a party, properly representing the testator, for the application of his personal property to the payment of the legacies. Between the appellant and the testator there is no official privity to give to him any of those rights or imposing upon him any of the obligations of an executorial trust. It is a suit against a defendant who is charged with having received large sums of money for which he is accountable, and which may be applied by a court of equity to the payment of the legacies bequeathed by the testator ; and when that has been done, to the purposes of the residuary clause of his will. He is also charged with having under his control the real estate of the testator without the sanction or authority of the executor who was appointed to administer it in the United States. The proofs in the record show it to be so. In such a case such averments as are called for by the second and third objections are not necessary. If this were not so, the language of the residuary clause of the will would make such averments unnecessary. The testator has made bequests of money antecedently to that clause, without creating an express trust to pay them, and has blended the realty and personalty of his estate together in one fund in the residuary clause. That of itself makes his bequests of money a charge upon the real estate, excluding from it the previous devises of land to Fenwick, Wallace, and to John and Fernando Arredondo. The rule in such a case is, that where a testator gives several legacies, and then, without creating an express trust to pay them, makes a general residuary disposition of the whole estate, blending the realty and personalty together in one fund, the real estate will be charged with legacies, for in such a case, the “residue” can only mean what remains after satisfying the previous gifts. Hill on Trustees, 508. Such is the settled law both in England and in the United States, though cases do not often occur for its application. Where one does occur, a legatee may sue to recover the legacy, without distinguishing in his bill the estate into the two kinds of realty and personalty, because it *is the manifest intention of the testator that both should be charged with the payment *-of the money legacies. Nor does this conflict at all with that principle of equity jurisprudence, declaring that generally, the personal estate of the testator is the first fund for the payment of debts and legacies. The rule has its exceptions, and this is one of them. Ambrey v. Middleton, 2 Eq. Cas. Abr., 479; Hassel v. Has- 11 11 SUPREME COURT. Lewis v. Darling. sei, 2 Dick., 526; Brudenell v. Boughton, 2 Atk., 268; Bench v. Biles, 4 Madd., 187; Cole v. Turner, 4 Russ., 376; Mire-house v. Scaife, 2 Myl. & C., 695, 707-8; Edgell v. Haywood, 3 Atk., 358; Kidney v. Coussmaker, 1 Ves., 436 ; Nichols v. Postlethwaite, 2 Dall., 131; Hassanclever v. Tucker, 2 Binn. (Pa.), 525; Witman v. Norton, 6 Id., 395; McLanahan v. Wyant, 1 Pa., Ill; Adams v. Brackett, 5 Mete. (Mass.), 280; Van Winkle v. Van Houten, 2 Green (N.J.) Ch., 172; Downman v. Rust, 6 Rand. (Va.), 587; Lupton v. Lupton, 2 Johns. (N. Y.) Ch., 618, has been supposed to conflict with this rule, but it does not do so, for there it is said to be dependent upon the testator. The same is the case of Dudley v. Andrews, in 8 Taunt.; and Paxson v. Potts, in 2 Green (N. J.) Ch., 313, is a case in point with this case. We now proceed to the consideration of the fourth and fifth objections. It is denied in these points that there is any evidence to authorize a decree in favor of the plaintiff, even if her bill had proper parties. We think differently. The appellant is charged in the bill with having obtained a decree in a court in Florida, in behalf of his wife, for sixty thousand acres of land, it being the real estate of her father, and that it was worth m.ore than one hundred thousand dollars. He is also charged with having received large sums of money of the estate of the testator, and that he has refused to pay the plaintiff’s legacy. He is not charged with having received the money eo nomine as the personal estate left by the testator, but as money received for which he is accountable to the estate. The difference between the two is obvious. He answers that he had not received as yet, of the estate of the testator, one cent of value. And when he answers concerning the real estate, he does not deny, but admits that he had obtained a decree in the State of Florida for the land of the testator. His answers are made with such reserve that they must be considered as having been meant to keep from the plaintiff the discovery of what her bill seeks to obtain. The natural and candid reply of the appellant, from his unofficial connection with the testator’s estate, should have been a disclosure of the condition of the real estate of the testator— what had been done with it by himself; what contracts had been made by himself in respect to it; whether any arrange-*19-1 ment *or bargain had been made for the sale of any J part of it; whether any money had been received on account of it, or was to be paid to him. He should have made also a frank disclosure how the personal estate of the testator had been administered by the parties and executors 12 DECEMBER TERM, 1853. 12 Lewis v. Darling. of the testator, if they had administered it at all, and how and to what extent he had received, or arranged • to receive it, as a part of his wife’s interest in her father’s estate. This admission is found in his petition for a rehearing of this cause. In that he says that he has obtained a decree in the court of Florida, in behalf of his wife, for sixty-two thousand acres of the grant of land which had been made in 1817, to Arredondo & Son, containing two hundred and eighty-nine thousand six hundred and forty-five acres and five seventh of an acre, of which the testator owned one third—that the grant had been confirmed and held to be valid by the Supreme Court of the United States; and that the grant had been located and surveyed under the authority of the government of the United States. Now it does not matter, for the purposes of this case, (the ownerships of the testator to one third of that grant having been admitted and proved,) that the writ of partition obtained for it by the appellant in Florida is only interlocutory, in the sense that it is not final until the partition shall be made and returned to the court. The ownership of the land is determined by the decree of the supreme Court of the United States, and the testator’s legacies have been made by him a charge upon it. The ownership of the testator of a part of that land cannot be affected by any proceedings, finished or unfinished, in the courts of Florida. Further, there is proof in the record that the appellant has received for himself and his wife from Fernando M. Arredondo a conveyance for certain property which Betts, the testator, had conveyed to Arredondo and others in trust for the payment of sundry debts due at its date by the testator. Lewis, the appellant, obtains for his wife and for himself assignments from the creditors of the testator of their demands, and takes a reconveyance of the property. What that property is, does not appear, but whatever it may be it is liable, as well as the rest of the testator’s property, for the payment of the legacy. Again, the appellant admits, and the proof is that he negotiated with the partners of the testator, for a conveyance of that portion of the Arredondo grant which was conveyed to the testator in behalf of his wife. It appears to have been made by Arredondo, but not to the extent of the testator’s interest. On that account he rejected the deed .en5*ere.d f° him, and afterward obtained from the proper court in I lorida a decree for 62,000 acres in behalf of his wife in that grant. We shall not pursue this part of the case further. r#1 « 6 aie satisfied that the merits of the controversy L 13 13 SUPREME COURT. Lewis v. Darling. were not misunderstood by the learned judge in the court below. It appears then, from the admissions and proofs in this case, that the appellant has substantially under his control a large property of the testator, which we think from his will that he meant to charge with the payment of the plaintiff’s legacy, excluding, as we have said, the devises of land to Fenwick, Wallace, and Fernando and Joseph Arredondo. We repeat that it is a charge upon the rest of the real as well as the personal property of the testator. But he states that the real estate is in another sovereignty than that in which the plaintiff has sued, and is therefore out of the jurisdiction of this court to make any decree concerning it. It is true that the court cannot, in such a case, order the land to be sold for the payment of any decree which it may make in favor of the plaintiff. But it is not without power to act efficiently to cause the defendants to pay any such decree. The land may be declared to be charged with the payment of the legacy so as to compel the parties who claim the same as the property of the testator to set off or sell a part of it for such purpose. And we further say, if, in the proceedings of the court below hereafter, it shall appear that the appellant has received or made arrangements to receive any fund or money equitably belonging to the testator, sufficient to pay her the plaintiff’s legacy, that a decree may be made against him for application of it to that purpose. We do not consider it necessary to say more in the case. We shall direct the judgment of the court below to be reversed, for the want of proper parties, and that the court shall allow them to be made parties, with such other amendments to be made by the plaintiff to her bill as the court may judge have not been put in issue by the bill with sufficient precision, and that a master shall be appointed to report upon the testator’s estate, and to take an account thereof. ORDER. This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Alabama, and was argued by counsel. On consideration whereof it is now here ordered, adjudged,, and decreed, by this court, that the decree of the said District Court in this cause be, and the same is hereby, reversed with costs, for the want of proper parties, and that this cause be, anc the same is hereby remanded to the District Court, in older that proper parties may be made, and for further proceedings to be had therein, in conformity to the opinion of this cour . 14 DECEMBER TERM, 1853. 14 Turner et al. v. Yates. *Henry F. Turner, James F. Purvis, and Ster-ling Thomas, Plaintiffs in error, v. Joseph «-C. Yates. A bond, with sureties, was executed for the purpose of securing the repayment of certain money advanced for putting up and shipping bacon. William Turner was to have the management of the affair, and Harry Turner was to be his agent. After the money was advanced, Harry made a consignment of meat, and drew upon it. Whether or not this draft was drawn specially against this consignment was a point which was properly decided by the Court from an interpretation of the written papers in the case. It was also correct to instruct the jury that if they believed, from the evidence, that Harry was acting in this instance either upon his own account, or as the agent of William, then the special draft drawn upon the consignment was first to be met out of the proceeds of sale, and the sureties upon the bond to be credited only with their proportion of the residue. The consignor had a right to draw upon the consignment with the consent of the consignee, unless restrained by some contract with the sureties, of which there was no evidence. On the contrary, there was evidence that Harry was the agent of William, to draw upon this consignment as well as for other purposes. It was not improper for the court to instruct the jury that they might find Harry to have been either a principal or an agent of William. An agreement by the respective counsel to produce upon notice at the trial table any papers which may be in his possession, did not include the invoice of the consignment, because the presumption was, that it had been sent to London, to those to whom the boxes had been sent by their agent in this country. A correspondence between the plaintiff and Harry, offered to show that Harry was acting in this matter as principal, was properly allowed to go to the jury. The testimony of an attorney was admissible, reciting conversations between himself and the attorney of the other parties in their presence, which de-clarations of the attorney were binding on the last mentioned parties. Evidence was admissible to show that a charge of one per cent, upon the advance made upon the consignment, was a proper charge according to the usage and custom of the place. It is not necessary that the bill of exceptions should be formally drawn and signed, before the trial is at an end. But the exception must be noted then, and must purport on its face so to have been, although signed afterwards nunc pro tunc.1 This case was brought up by writ of error from the Circuit Court of the United States for the District of Maryland. Followed. United States v. Breit- M How., 252. Cited. Sut/dam v. Williamson, Id., 439; Maus v.Frit-on, 20 Wall., 418; Stanton v. Embry, o Otto, 555; Cheney v. Eastern Tump. Line, 59 Md., 566. As to the necessity of raking the exception at the trial, see also Camden v. Doremus, 3 How., 515; Brown v. Clarke, 4 Id., 4; Phelps v. Mayer, 15 Id., 160; Bank v. Kennedy, 17 Wall., 19; Bead v. Gardner, Id., 409; Ray v. Smith, Id., 411; Insurance Co. v. Folsom, 18 Id., 237; Town of Ohio v. Marcy, Id., 552; Lucas v. Brooks, Id., 436; Shutle v. Thompson, 15 Id., 151; Prout v. Roby, Id., 471. 15 14 SUPREME COURT. Turner et al. v. Yates. The facts of the case are set forth in the opinion of the court, to which the reader is referred. It was argued by Mr. Barroll and Mr. May, for the plaintiffs in error, and by Mr. Johnson, for the defendant in error. There was also a brief filed upon that side by Mr. 8. T. Wallis. The points on behalf of the plaintiffs in error were the following : First and fifth exceptions. That the court erred in ruling out the parol testimony offered, of the contents of the invoice sent to the defendant in error by William H. F. Turner from Chattanooga. Second, third, and sixth exceptions. That the court erred in *1*admitting the testimony to prove the separate con- -* tract alleged to have been made by Mr. Yates with H. F. Turner, &c., as set forth in the statement upon page 34 of printed record. Cole v. Hebb, 7 Gill & J. (Md.), 20 ; Davis n. Calvert, 5 Id., 269; Clark v. State, 8 Id., Ill; Magill v. Kauffman, 4 Serg. & R. (Pa.), 317, 321; Franklin Bank v. Penn. Del. $ Md. S. K Co., 11 Gill. & J. (Md.), 28; Gilpins v. Consequa, 1 Pet. C. C., 87. Fourth exception. That the court erred in admitting the evidence of usage for commission to be charged on advances on shipments made to London, because the said evidence was irrelevant. Sixth exception. That the court erred in admitting the evidence of Mr. Teackle, because it was incompetent testimony, and because it was irrelevant. Seventh exception. That the court erred in rejecting the prayers of the defendants, and in its instructions to the jury, for the following reasons : 1. Because said instructions are vague and uncertain, and therefore calculated to mislead the jury. 2. Because the first instruction is not limited to the interview (or subsequent ones) in which the defendants requested plaintiff’s counsel to see Mr. Ward. 3. Because said first instruction embraces the acts and declarations of Mr. Ward, in the interview with Mr. Teackle. 4. Because said first instruction directs the jury that the defendants are bound by the acts and declarations of Mr. Ward, although he was only retained by H. F. Turner as such, unless such limitation of retainer was stated to plaintiff or his counsel. 3 Ph. Ev., 359; 1 Greenl. Ev., § 197, 199. 5. Because the said Purvis and Thomas, two of the defendants, were not bound in law 16 DECEMBER TERM, 1853. 15 Turner et al. v. Yates. by the acts or declarations of said Ward, if the jury believed the testimony, that said Ward was not their agent or counsel, and did not claim or profess to act as such with their knowledge or consent. (Same authorities.) 6. Because, in order to make the defendants liable for the declarations of said ward, it ought to have been put to the jury to find that defendants, although present, heard such declarations, or were in a position to be able to hear, if so disposed. dale v. Spooner and others, 11 Vt., 152; Edwards v. Williams, 2 How. (Miss.), 846; Ward v. Hatch, Ired. (N. C.), 282. And so far as the second instruction is concerned, that the court erred in giving the same. Because, 1. The said instruction invades the province of the jury, by assuming as facts the making of the draft for $5,733, and also that said draft was drawn as an advance on said bacon. Lewis v. Kramer et al., 3 Md., 294. 2. The said instruction calls upon the jury *to decide a question of law, in leaving them to find what are liens on said bacon. Plater v. *-Scott, 6 Gill & Johns., 116. 3. The said instruction requires the jury to deduct from the net proceeds of sales, the draft for $5,733, without requiring them to find the fact that said Harry drew said draft, as agent of William, and had authority so to do, or the facts from which such authority may be inferred. 4. Because there was no evidence from which the jurors had the right to infer that the draft for $5,733 was in fact drawn by Harry as the agent of William, or that said draft was accepted, or paid by the plaintiff to said Harry, as agent of William, the admission of the payment of said draft being that such payment was to Harry, in his individual capacity, and not as agent. 5. Because the principle' announced in said instruction, that if the jury find Harry-acted as agent of William in the transactions after occurring m relation to the bacon at Chattanooga, then Harry had authority to draw said draft, and William and his property are bound therefor, is in conflict with the principles of law, there being no evidence in the cause from which an authority to Harry, to draw and negotiate drafts as agent of William, can be sustained. The plaintiffs in error will contend, that the agency of Harry was not otherwise than as overseer and adviser for William, in slaughtering hogs and packing the meats, and did not authorize said agent to procure advances, y pledging the meat before or after its shipment to Messrs, lay & Son. And that the character of the agency was nown to the defendant in error from the beginning. And in ascertaining whether Harry had authority to draw the ra t m question, the court are bound to exclude from their vol. xvi.—2 17 16 SUPREME COURT. Turner et al. v. Yates. consideration all the testimony limited to the proof, that Harry acted as principal, and not as agent, in drawing such draft. Sto. Ag., §§ 87, 251, 390. 6. Because the advance of $5,733, under the circumstances of the case, was a fraud upon the sureties in the bonds, if such advance was made upon William’s meat. 7. Because the said instruction does not require the jury to find that the advance of $12,000 was made in pursuance of the bond. 8. Because the court erred in allowing the plaintiff below to contend before the jury, upon two distinct, inconsistent propositions. Winchell v. Latham, 6 Cow., 689. Beake's Ex. v. Birdsall, 1 Coxe, 14. Additional objections to the Court's second instruction. 1. Because the court erred in its instruction to the jury, that only half the net proceeds of the bacon was to be credited to the defendants. The plaintiffs in error will contend that the whole net proceeds of the bacon should have been credited to the *aiiiount of the advance of $12,000, -* and the jury instructed to give a verdict for the amount found to be due by William H. F. Turner. They will contend that under the instruction, as given, the jury were bound to find a verdict against the defendants for a greater sum than was owing by William, the excess being to the extent of the other half of the net proceeds not credited. 2. They will also contend that, whether the meat belonged to William or Harry, the $5,733 draft, paid by Mr. Yates, was not a lien on the meat, because the bill of lading was not indorsed. That there can be no lien without an actual or constructive possession of the thing intended to be given in pledge, and that, in the case at bar, Mr. Yates had no such possession. 14 Peters, 445. 3. In the court’s instruction the term liens was intended to embrace the item of $5,733, under the fourth exception. The plaintiffs in error will contend that such item was a personal charge against him, to whom the advance was made, and was not a lien on the meat; and the jury should not have been instructed to deduct the same as a lien. The points on behalf of the defendant in error, were: 1. That the parol evidence referred to in the first exception was properly excluded. Because notice, at the trial table, to produce the invoice, was insufficient except under the agreement, and the agreement referred only to papers in the actual possession of the parties. The agreement rested obviously on the good faith of the parties and their counsel; and the declaration of the 18 DECEMBER TERM, 1853. 17 Turner et al. v. Yates. plaintiff below, that the paper was not in his possession, was primd facie sufficient to establish that fact, and exclude the paper from the effect of the agreement. Because, even if the notice had been sufficient to justify parol proof of a paper constructively in the possession of the plaintiff below, the invoice in question was not so constructively in his possession, having been forwarded to accompany meat, destined for the Messrs. Gray, and received by them, and being therefore, by legal presumption, in their possession. It will be further argued, that the plaintiffs in error were not prejudiced by the exclusion of the parol proof, even if it was admissible under the other proof in that stage of the cause, because it afterwards appeared that the invoice had been actually transmitted to the Messrs. Gray, and was still in their possession, which would have made the parol proof incompetent, even if it had been admitted, under the notice to Yates. It will further be contended that no prejudice resulted to the plaintiffs in error, in any event, from the rejection of the proof, ^because its whole purpose was to show notice $ to Yates, that the meat on which he advanced $5,733 *-was William Turner’s, not Harry’s, and the court rightly instructed the jury, afterwards, that it made no difference, for the purposes of the case, to which of the Turners the meat in fact belonged. 2. That the plaintiffs in error could under the circumstances be entitled to a credit, on the bond in suit, of the proceeds or any part of the proceeds of the shipments to the Messrs. Gray, unless the meat so shipped belonged'to William H. F. Turner; that the proof offered by the defendants in error, and the admission of which forms the matter of the second exception, was offered in connection with other direct proof stated in advance, and afterwards adduced, showing that there was a separate contract with Harry F. Turner for the shipment of meats and receiving advances thereon, which separate contract was known to the plaintiffs in error (Henry F. lurner himself being one of them,) when they signed the bond in suit; that the defendants in error, with this knowledge, and forewarned of the difficulties which might result from the two coexisting contracts, insisted nevertheless on becoming sureties in the mode proven ; that by the very terms of the bond they constituted Harry F. Turner (one of themselves) their agent, as to William H. F. Turner’s business, end placed him in the position of deceiving or misleading xates in regard thereto, and of managing and shipping the meat as his own or his son’s—which they were forewarned 19 18 SUPREME COURT. Turner et al. v. Yates. might happen; that they were thus bound by Harry F. Turner’s action in the premises; that the correspondence between Harry F. Turner and Yates furnished the only positive evidence of the capacity in which Turner shipped the meat and asked and received Yates’s advance thereupon, and such correspondence was therefore clearly admissible, for that purpose, which was the only purpose for which it was offered, and went directly to the question of the right of the plaintiffs in error to be credited on the bond with any part of the shipments to the Messrs. Gray. That the letters of Turner, and the Messrs. Gladsden, who shipped for him at Charleston, inclosing the bills of lading, and relating to the shipment of the meat, were part of the res gestce, and bore directly on the points for which the proof was offered. That the accounts of sales of the bacon, rendered by the Messrs. Gray, had been previously spoken of by Robert Turner, the witness of the plaintiffs in error, and were admissible on that ground, as well as part of the res gestce. That the letters of Harry F. Turner to Yates, about the meat, and in regard to drawing thereupon, had been spoken of *191 *by tbe same witness, and were admissible, on that -I score, if on none other. That the capacity in which Harry F. Turner acted at Chattanooga, had been proven by Wilkins and James S. Turner from said Harry F. Turner’s acts, and his letters, accompanying his acts and transactions there, were competent to go to the jury for the same purpose. 8. That the evidence of Mr. Thomas was clearly admissible for the purpose for which it was offered. 4. That the proof in the fourth exception of the custom in Baltimore to charge one per cent, on advances, upon shipments to London, and that the plaintiff (below) claimed it, on his advance of $5,733, was admissible, because the advance of $5,733 was properly made, and the plaintiff being entitled to charge for it in account was entitled to the usual commission upon it. The plaintiffs in error themselves, had proven, by the production of Mr. Yates’s letter, that such a percen age was chargeable. . 5. That the evidence, as to the invoice claimed to be a missible by the fifth exception, was properly rejected, tor ie reasons previously stated, (No. 1.) and because it was no rebutting evidence, and was inadmissible at that stage o cause. . i i 6. That the evidence of Mr. Teackle, sought to be.exra or. sums m°ney as may be owing to the said sa:jeS\ e S.aid William H. F. Turner, evidenced as afore-„„ expiration of the said twelve months, or in e said William H. F. Turner should fail to omit to pay 23 22 SUPREME COURT. Turner et al. v. Yates. said sum or sums of money, at said time, if the said Sterling Thomas and James F. Purvis, or either of them, shall well and truly pay to the said Yates, his executors, administrators or assigns, so much of said sum or sums of money as may then be owing, as shall amount to six thousand dollars and interest, in case so much be owing, with full legal interest thereon, or such sum or sums of money as may be owing with interest thereon, in case the same should amount to less than six thousand dollars, then this obligation to be null and void, otherwise to remain in full force and virtue in law. Harry F. Turner, [seal.] Sterling Thomas, [seal.] James F. Purvis. [seal.] The defence was that, seven hundred boxes of bacon had been consigned by William Turner to Gray & Co., in London, for sale, and having been sold, the whole of its proceeds ought to be credited against the advance of twelve thousand dollars mentioned in the condition of the bond. The plaintiff did not deny that the merchandise was received by Gray & Co. for sale, and sold by them, but insisted that the property belonged to Harry, and not to "William Turner, and so no part of its proceeds were thus to be credited; and that, if bound to credit any part of these proceeds, there was first to be deducted the amount of a draft for $5,733, drawn by Harry Turner on the plaintiff specifically against this property, which draft the plaintiff was admitted to have accepted and paid. *231 *Upon this part of the case, the district judge who J presided at the trial ruled: “If the jury believe that the defendants executed and delivered the bond now sued upon, and that Harry F. Turner, in the transactions, after occurring, in relation to the bacon at Chattanooga, was either the principal in such transactions, or acted as agent of William H. F. Turner, then defendants are entitled only to be credited for one half the net amount of the shipments of bacon made by them, after deducting from the proceeds of sales of such bacon all hens thereon, including in such liens the draft of $5,733 drawn as an advance on such bacon.” . This ruling having been excepted to, several objections tois correctness have been urged at the bar by the counsel oi t e plaintiffs in error. The first is, that the bond does not show the advances were actually made, and, therefore, the judge ought to ave directed the jury to inquire concerning that fact. It is a s 24 DECEMBER TERM, 1853. 23 Turner et al. v. Yates. ficient answer to this objection to state what the record shows, that, in the course of the trial, the plaintiff, having put in evidence drafts corresponding with those mentioned in the bond, amounting to $12,000, the defendants admitted their genuineness, and that they were all paid at the times noted thereon. The fact that $12,000 was advanced was not therefore in issue between the parties, and there was no error in not directing the jury to inquire concerning it. It is further objected that in his instruction to the jury the judge assumed that the draft of $5,733 was drawn against this consignment, instead of leaving the jury to find whether it was so drawn. The draft itself and the letter of advice were in the case. The draft requested the drawee to “ charge the same to account as advised.” The letter of advice states: “I have this day drawn on you at ninety days for $5,733, being ten dollars and fifty cents per box on 544 boxes singed bacon, &c.” This was a part of the merchandise in controversy. It was clearly within the province of the court to interpret these written papers, and inform the jury whether they showed a drawing against this property. When a contract is to be gathered from a commercial correspondence which refers to material extraneous facts, or only shows part of a course of dealing between the parties, it is sometimes necessary to leave the meaning and effect of the letters, in connection with the other evidence, to the jury. Brown n. McGrran. 14 Pet., 493.1 . But this was not such a case; and we think the judges rightly informed the jury that this draft was drawn against this property. Whether, being so drawn, it bound the property and its proceeds, so that in this action its amount was to be deducted *therefrom, depended upon other consider-ations, which are exhibited in the other part of the L instruction. Assuming, what we shall presently consider, that there was evidence from which the jury might find that Harry, who drew the draft, was either himself the owner of the property, and so the principal, or if not, that he was the agent of William, there can be no doubt of the correctness of this instruction, unless there was something in the case to show at the owner of the consignment could not bind its subject y a draft made and accepted on the faith of it. This is not ° b® presumed; and if the two defendants, who were sureties °f th b°nd’ assert that they had a right to have the whole ™ +e Pr ting the Exhibit C to bill, and the sale of the ’fi p jee(i contract thereby shown ; and also Exhibit D 0 u , Drop_ of trust from Camp to him, stating that he soldall the pro^ erty embraced in that deed (except a few ar 34 DECEMBER TERM, 1853. 32 Yerger v. Jones et al. to) for 85,234.23, and retained out of said proceeds, agreeably to the provisions of the deed, 81,868.47, as a reasonable compensation for gathering the crops and selling the property, and refers to his Exhibit H, as his account of sales, with his charges for expenses and trouble. He then states, that a short time after the execution of the deed of trust, two parties having executions against Camp, levied upon certain articles contained in the deed of trust; for which they and the sheriff levying, were sued by the defendant, and judgment for 81,607.38 obtained against them, which sum the defendant collected; but he claims that counsel-fees for prosecuting that matter, the amount of which is not yet ascertained, should be deducted from the amount of the judgment; states that, with these exceptions, nothing else had been received by him on account of the land, and there still remained a balance due; admits that Camp died insolvent; that at the time of his death, and for many years previous, he resided in Alabama ; he died intestate, and no administration had ever *been taken out upon his estate; that complainant’s r*oo father lived in Tennessee, and there died, while the b complainant was quite a small boy, and that he is a minor; that, some years ago, Camp brought complainant to Alabama, “where he kept and treated him as a member of his family, and seemed to control him and his property.” But he denies that Camp was ever appointed guardian of the complainant, either by any court, or the will of the father; or that he ever was his guardian. The contract for the land and the deed of rust securing the purchase-money, were both made in Ala-ama, and all the property embraced in the latter, and sold un ei said deed, belonged to Camp individually, and not in the capacity of guardian. e stages: The purchase was made by Camp, to be paid or out of his own individual property, and not out of that of comp am ant. The land was worth what Camp agreed to pay, qai Was no frau(l contemplated by the purchase or the tliju m “®ron tbc part of Camp or the defendant. He insists and < 1S i*- f°r balance of the purchase-money is binding, convert i reac^ness, upon the payment of the balance, to neces^t e bind according to the contract; suggesting the to theVii Camps personal representative a party be dismissed^ a^ fraud and combination, prays to withVnef ^ovember, 1852, the court dismissed the bill ’ and the complainant appealed to this court. Th a cause was argued by Mr. liaverdy Johnson, and Mr. 35 35 33 SUPREME COURT. Yerger v. Jones et al. Reverdy Johnson, Jr., for the appellant, and Mr. Badger, for the appellees. The counsel for the appellant made the following points: 1st. The bill and answer showing that Camp, the guardian, died insolvent, and that there was no administration upon his estate, the bill is not defective for want of his personal representative as a party. 1 Story, Eq. Pl., § 91. 2d. The relation of guardian and ward subsisting in fact between Camp and the complainant, (though Camp may never have been legally appointed guardian,) Brandon dealing with the guardian, as such, and having, therefore, full noticS of the fiduciary capacity in which he acted, cannot in equity, while seeking to maintain the contract, deny the existence of the guardianship. 1 Story, Eq. Jur., § 511; 2 Id., § 1356; Field v. Schieffelin, 7 Johns. (N. Y.) Ch., 150; Lloyd v. Exr of Cannon, 2 Desaus., 232; Drury v. Connor, 1 Har. & G. (Md.), 220 ; Bibb v. McKinley, 9 Port. (Ala.), 636. 3d. By the contract itself, (Exhibit C,) and the deed of trust of 23d August, 1843, (Exhibit D,) apart from the declarations of Brandon, in evidence, he and his representatives are est°PPe(l *denying that Camp was the guardian of -I complainant. 1 Phillip’s Evid., 367; Cowen & Hills Notes to same, 1st Part, 372. 4th. The contract for the purchase is not binding upon the complainant, and Camp being insolvent at the time, and largely indebted to the complainant, equity will regard the payments on the purchase made under the trust deed (Exhibit D) as so much money paid out of the ward’s funds on account of the land, and will decree them to be reimburse 2 Story, Eq. Jur., §§ 1257 and 1357 ; 2 Kent, Com., 229; Cw-thorn v. McCraw, 9 Ala., 519. 5th. The contract should be set aside, because the evidence shows that the investment was injurious to the infant e land not being worth 88,000. 6th. The amount, claimed by Brandon as a reasonable co pensation under the deed of trust, is exorbitant, being n® than twenty per cent, on the amount of sale and is tins tained by the evidence. The counsel for the appellee made the following points. First. That Camp was not the guardian of appe an , will of his father not appointing him guardian. ey Smith, 2 Dev. & B. (N. C.) Eq., 325. Secondly. That there is no proof admissible again in Au-pellees, that at the time of the contract for t e an 36 DECEMBER TERM, 1853. 34 Yerger v. Jones et al. gust, 1843, Camp was indebted to appellant at all; and if there were such proof, it cannot be heard by the court for want of an allegation in the bill of the existence of such indebtedness at that time, the only averment in the bill being that at the time of his death, which the bill avers took place in October, 1845, more than two years thereafter, he was so indebted. Thirdly. That it is proved the land was fully worth the price agreed to be given for it. Fourthly. That it is fully proved that all the property conveyed by the deed of trust to secure payment of the purchase-money of the land, belonged to Camp in his own right, and none of it ever belonged to appellant. As, therefore, Camp might have applied these funds of his own to purchase the land for himself, it is absurd to suppose it an injury to the appellant to apply them in making the purchase for the benefit of appellant. Fifthly. That there is no evidence, at all events none admissible against the appellees, that any thing whatever was paid to William Brandon, on account of the purchase, from any other source than the sale of the property conveyed by the deed of trust; and, therefore, that no money, funds, or effects of the appellant, in the hands of Camp, or elsewhere, were paid to or received by Brandon. *And, therefore, it will be insisted that the appel-lant s bill is without support in any point material to *-the relief asked by him, supposing such relief could be rightfully claimed upon his bill, if proved to be altogether true. . it will be further insisted, that if the case made by the bill and the proofs were that Camp, being the guardian of appellant, and having funds of his ward in his hands, had purchased the land for his ward, and paid for it with those funds, with an intent to convert the funds into real estate, the appellant would not be entitled, upon these facts merely, to call for an account of the money from Brandon; for such purchase might be a wise and judicious investment: as if the waid had slaves without lands on which to employ them, and money with which lands could be purchased ; and Brandon c°u only be liable for partaking in an apparently injurious pp ication of the ward’s funds, in itself implying a breach of ?s * *Y.weve.r’ it might be a question whether the ward might ’ on j118 arrival at age, repudiate the purchase as between tho ^ua, lan an(i himself, and call upon the guardian to keep rifflu^1 a bup pstion in 11 Howard, did not determine that the evidence q 44 DECEMBER TERM, 1853. 41 Conrad v. Griffey. was totally inadmissible for any purpose by either party, at any time, but only that it was not admissible for the plaintiff in the cause for the purpose for which he offered it. An array of authorities in support of these elementary principles of the law of evidence, would be deemed disrespectful to the court. Jfr. Gilbert, for defendant in error, made the following points: First. To authorize proof of previous acts or declarations of a witness, for the purpose of invalidating his testimony, the witness must, previous to the introduction of such evidence, be examined as to the matter. The attention of the witness, Nutz, not having been called to the letter offered in evidence, and no opportunity allowed to explain what he intended by it, such letter was inadmissible in evidence to discredit him. A witness should always be allowed to explain what he has said or done concerning the matter under investigation, otherwise his reputation might suffer wrongfully. If his attention is not called, by cross-examination, to the supposed contradiction, he will have no opportunity to explain seeming contradictions, or errors, by making more full statements, or showing the connection of things, or defining his meaning of expressions and the terms he may have used. No man always conveys his ideas in the same language. Many, even of the most learned, fail to *express themselves clearly and [-*49 properly. In such case, a few explanatory words may *-reconcile seeming contradictions. It would be unjust that e party should suffer where he has no means of giving an explanation, which may be most ample; and cruel to a witness to discredit him, thereby injuring his character, without a owing him an opportunity to show that he has committed no ault. .Hence the rule that contradictory statements and C-J ° an lncoijsistent character cannot be given in evidence, 1 out preparing the way for its admission by cross-exam in-as supposed contradictory statements. np 1 T?? ?V’’ P’ says: “Thus it appears that a wit-tnrv to regularly cross-examined as to the contradic-formo a eme.n^s supposed to have been made by him on a admii-f ^c?asi°u, before such contradictory statements can be And th' in1eY<^erJce to impeach the credit of his testimony, torv Rtat TU 6 x 1 been extended not only to such contradic-and nota^11611 iS’ b,11? a^so to other declarations of the witness, words ” °ne by hlm through the medium of declarations or scoe, Crim. Ev., p. 182, says: “But in order to let in 45 42 SUPREME COURT. Conrad v. Griffey. this evidence, in contradiction, a ground must be laid for it in the cross-examination of the witness who is to be contradicted. When a witness has been examined as to particular transactions, if the other side were permitted to give in evidence declarations made by him respecting those transactions at variance with his testimony, without first calling the attention of the witness to those declarations, and refreshing his memory w’ith regard to them, it would, as has been observed, have an unfair effect upon his credit.” In the Queen’s case, 2 Brod. & B., 312, (6 Com. Law, 130, 131,) Abbott, C. J., said: “ If the witness admits the words or declarations imputed to him, the proof on the other side becomes unnecessary ; and the witness has an opportunity of giving such reason, explanation, or exculpation of his conduct, if any there may be, as the particular transaction may happen to furnish.” In Angus v. Smith, 1 Moo. & M., 473, (22 Com. Law, 360,) Tindal, C. J., said : “I understand the rule to be, that before you can contradict a witness by showing that he has at some other time said something inconsistent with this present evidence, you must ask him as to the time, place, and person involved in the supposed contradiction.” Cowen & Hills Notes, 774, 775; Williams v. Turner, 7 Ga., 348; Doc v. Reagan, 5 Blackf. (Ind.), 217; Johnson v. Kinsey, 7 Ga., 428; Franklin Bank v. Steam Nav. Co., 11 Gill & J. (Md.), 28, Palmer v. Haight, 2 Barb. (N. ¥.), 210, 213; McKinney v. *.0-1 Neil, 1 McLean, *R.,540 ; Moore v. Battis, 11 Humph. -* (Tenn.), 67; The United States v. Dickinson, 2 McLean, 325; Chapin n. Si ger, 4 McLean, 378, 381; Wienzorpflm n. State, 7 Blackf. (Ind.), 186; Check n. Wheatley, 11 Humph. (Tenn.), 556 ; Beebe v. DeBaun, 3 Eng. R., 510; McAteerV' McMulen. 2 Barb. (N. Y.), 32; Clementine v. State U Mo. 112; Regnier v. Cabot, 2 Gilm. (Ill.), 34; King v. Wicks, M Ohio, 87. , The rule is the same whether the evidence offered by way of contradiction rests in parol, or is in writing. In Roscoe Crim. Ev., p. 182, he says: “So, what has been said ten by a witness at a previous time maybe given in evi e to contradict what he has said on the trial, if it rela e ° matter in issue.” . . . “But in order to let in this evidence in contradiction, a ground must be laid for *n * c,cr b amination of the witness who is to be contradicte . 3 Stark. Ev., 1740, 1741. “Where the question is so nected with the point in issue that the witness may tradicted by other evidence, if he deny the facL e ., jn requires that the question should be put to e 46 DECEMBER TERM, 1853. 43 Conrad v. Griffey. order to afford him an opportunity for explanation, although the answer may involve him in consequences highly penal.” Same, p. 1753, 1754. The Queen’s case, 2 Brod. & B., 284, (6 Eng. Com. L., p. 112,) proceeds throughout upon this principle. Green., vol. 1, p. 579, in relation to laying a foundation by cross-examination, before offering contradictory evidence, says: “This course of proceeding is considered indispensable, from a sense of justice to the witness; for as the direct tendency of the evidence is to impeach his veracity, common justice requires that by first calling his attention to the subject he should have an opportunity to recollect the facts, and, if necessary, to correct the statement already given, as well as by a reexamination to explain the nature, circumstances, meaning, and design of what he has proved elsewhere to have said. And this rule is extended, not only to contradictory statements by the witness, but to other declarations, and to acts done by him through the medium of verbal communications, or correspondence, which are offered with a view either to contradict his testimony in chief, or to prove him a corrupt witness himself, or to have been guilty of attempting to corrupt others.” In Carpenter v. Wall, 11 Adol. & E., 803, (39 Eng. Com. Penman, C. J., the other judges concurring, said: When words are to be proved as having been uttered by a witness, it is always expected that he shall have an opportunity to explain.” Regina N. St. George, 9 Car. & P., 483, (38 Eng. Com. L., 198) : Johnson v. Todd, 5 Beav., 600, 602, cited *}e®nh 011 ^v” P* ’ Conrad v. Griffey, 11 How., 480. 1 Greenl. on Ev., p. 579, in note beginning at the . bottom of the page, where it is said the rule in the L 44 yueen s case is adopted in the United States, except in Mame and Massachusetts, and cites 2 Cowen & Hill’s notes on Phil. Ev., p. 774. Jenkins v. Eldridge, 2 Story, 181, 284, Story, J. says: “If one party should keep back evidence which the other might p am, and thereby take him by surprise, the court will give bp i tUch evidence, without first giving the party to co e° u an °PPoltunity of controverting it. This fine i a one in cases where otherwise gross injustice may be done.” 6 v. Car. & P., 789 (32 Com. Law, 737). wri finer neSS rna(^e a previous contradictory statement, in on a 1Pa^.er relevant to the issue, he may be asked, his hand Jta^lnat10n\ wither the paper containing it is in 1 mg; and if he admit it, that will entitle the 47 44 SUPREME COURT. Conrad v. Griffey. other side to read it; and if he contradicts the evidence of the witness, he may be called back to explain it.” 4 Har. Dig., 2948, No. 11.* Yeos v. The State, 9 Ark., 42. “Where a witness has made a different statement from the one made by him on the trial, he is not thereby discredited, unless the discrepancy is wilful.” Story v. Saunders, 8 Humph. (Tenn.), 663. “When the deposition of a witness is taken, evidence of his having made contradictory statements are not admissible to impeach his testimony, unless an opportunity to explain had been first offered him.” The contradictory statement offered in this case was the witness’s testimony on a previous trial. In Everson v. Carpenter, 17 Wend. (N. Y.), 419, referring to the requisites for admitting a written instrument by way of contradiction, Cowen, J., said: “ It was introduced, with the proper preliminary question to the witness, whether he had made the indenture and the representation about to be imputed to him. He answered with such explanations as occurred to him. Here was all the precaution required by this kind of examination by the Queen's case and others. In Kimball v. Davis, 19 Wend. (N. Y.), 437, Nelson, C. J., considered this question at length, in a case where the defendant offered to prove that witnesses who had been examined under a commission, had subsequently made statements contradicting their written testimony. The marginal note of this decision is in these words : “ The declarations of witnesses whose testimony has been taken under a commission, made subsequent to the taking o their testimony, contradicting or invalidating their testimony as Contained in the depositions, is inadmissible in evi -* deuce, if objected to ; the only way for the party 0 avail himself of such declarations, is to sue out a second com mission ; such evidence is always inadmissible until the wi ness whose testimony is thus sought to be impeache , a been examined upon the point, and his attention paiticu ai y directed to the circumstances of the transaction, so as to nish him an opportunity for explanation or exculpation. This case went to the Court of Errors, and is repor e the 25th of Wend. (N. Y.), 259, where it was affirmed, vva worth, Chancellor, there said : “ I concur with the up Court in the opinion that it was improper to give ,ie tions of the witnesses in evidence without giving ,elH’ first place, an opportunity to explain ; and the ac _ witnesses had been examined under a commission i 48 DECEMBER TERM, 1853. 45 Conrad v. Griffey. vent the operation of the principle upon which the rule is founded.” Edwards, Senator, said he was satisfied with Chief Justice Nelson’s reasoning on this question. Howell v. Reynolds, 12 Ala., 128. “ The rule that a witness cannot be contradicted by proof of previous counter declarations, either written or verbal, applies to testimony taken by deposition, and if such supposed contradictory declarations exist at the time the deposition is taken, the witness, must have an opportunity afforded him of explaining it, if in his power. “ The reason of the rule is, that he may have it in his power to explain the apparent contradiction, and the rule is the same, whether the declaration of the witness supposed to contradict his testimony be written or verbal.” 3 Stark. Ev., 1741. “ The question is usually made when the witnesses are examined orally in open court, and in our opinion it must also apply to testimony taken by deposition, as the deposition is a mere substitute for the witness ; and we can perceive no reason why a witness testifying in this should not be entitled to the same protection as if he had testified orally, in the presence of the court and jury. If this paper existed when the plaintiff was notified that the deposition of the witness was to be taken, and was informed by the interrogatories of the testimony the witness was expected to give, it was his uty to give him an opportunity of explaining it, if he could, an reconciling it with the evidence he then gave, if there was any real or apparent contradiction between them.” Tk* dus^ce McLEAN delivered the opinion of the Court. is is a writ of error to the Circuit Court of the United states, tor the Eastern District of Louisiana. 18 a^i°n was brought to recover the balance of three 10u^d seven hundred and eighty-one dollars and p \ cents, claimed to be due under a contract to *-anf118 V lveF’an(l set up, on the plantation of the defend-mill 1? -i e Par}sh M Baton Rouge, a steam-engine and sugar-sarv er8’ w^ee\8’ cane carriers, and all other things neces- Tbp^r uSar"miL ; all which articles were duly delivered, defence ° endan^ *n answer set up several matters in bv thp T ariges on the rejection of evidence offered Pears in th^h-u^ Pn ^ie before the jury, and which ap-the dpnn«u; 1 It excePtions. The plaintiff read in evidence on the 28thO1rOT Leonard N. Nutz, taken under a commission ing. Tit Hp°/ iln€2 11852’ and filed the 9th of July succeed- Vol xvt eia an^ ^en °^ere^ evidence a letter of the ■“"* 49 46 SUPREME COURT. Conrad v. Griffey. witness dated at New Albany, on the 3d April, 1846, with an affidavit annexed by him of the same date, addressed to the plaintiff Griffey. As preliminary proof to the introduction of said letter, the defendant adduced the bill of exceptions signed upon a former trial of this cause, and filed on the 23d February, 1849, showing that the letter had been produced by the plaintiff in the former trial, and read by his counsel in evidence as the letter of Nutz, in support of a former deposition made by him. And the said letter and affidavit were offered by the defendant to contradict and discredit the deposition of the witness taken the 28th June, 1852; but upon objection of counsel for the plaintiff that the witness had not been cross-examined in reference to the writing of said letter, or allowed an opportunity of explaining the same, it was rejected. At the former trial the letter was offered in evidence by the plaintiff in the Circuit Court, to corroborate what Nutz, the witness, at that time had sworn to; and the letter was admitted to be read for that purpose by the court. On a writ of error, this court held that the Circuit Court erred in admitting the letter as evidence, and on that ground reversed the judgment. Conrad v. Griffey, 11 How., 492. The rule is well settled in England, that a witness cannot be impeached by showing that he had made contradictory statements from those sworn to, unless on his examination he was asked whether he had not made such statements to the individuals by whom the proof was expected to be given. 1 the Queen’s case, 2 Brod. & B., 312; Angus v. Smith, 1 M°°’ & M., 473 ; 3 Stark. Ev., 1740,1753,1754 ; Carpenter v. Wall, 11 Ad. & El., 803. . . . This rule is founded upon common sense, and is essen ia to protect the character of a witness. His memory is re ire s e by the necessary inquiries, which enables him to explain ie *171 *statements referred to, and show they were J under a mistake, or that there was no discrepancj tween them and his testimony. This rule is generally established in this as . England. Doe v. Reagan, 5 Blackf. (Ind.), 217; ran Bank v. Steam Nav. Co., 11 Gill & J- (Md.), 28; a m Haight, 2 Barb. (N. Y.), 210, 213; 1 McLean s, 540 ; 1 •’ 325; 4 Id., 378, 381; Jenkins v. Eldridge, 2 Story, 1«1, ’ Kimball v. Davis, 19 Wend. (N. Y.), 437; 2 •’ “ The declaration of witnesses whose testimony taken under a commission, made subsequent to .e ‘ .jmony their testimony, contradicting or invalidating tieir ,. as contained in the depositions, is inadmissi e, 50 DECEMBER TERM, 1853. 47 Conrad v. Griffey. to. The only way for the party to avail himself of such declarations is to sue out a second commission.” “Such evidence is always inadmissible until the witness, whose testimony is thus sought to be impeached, has been examined upon the point, and his attention particularly directed to the circumstances of the transaction, so as to furnish him an opportunity for explanation or exculpation.” This rule equally applies whether the declaration of the witness, supposed to contradict his testimony, be written or verbal. 3 Stark. Ev., 1741. A written statement or deposition is as susceptible of explanation, as verbal statements. A different rule prevails in Massachusetts and the State of Maine. The letter appears to have been written six years before the deposition was taken which the letter was offered to discredit. This shows the necessity and propriety of the rule. It is not probable that, after the lapse of so many years, the letter was in the mind of the witness when his deposition was sworn to. But, independently of the lapse of time, the rule of evidence is a salutary one, and cannot be dispensed with in the courts of the United States. There was no error in the rejection of the letter, under the circumstances, by the Circuit Court; its judgment is therefore affirmed, with costs. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the astern District of Louisiana, and was argued by counsel. ’ c?nsiderati°n whereof, it is now here ordered and ad-jucged, by this court, that the judgment of the said Circuit o . 8 cause be, and the same is hereby, affirmed, with as s and interest, until paid, at the same rate per annum a . similar judgments bear in the courts of the State of Louisiana. 51 48 SUPREME COURT. Burgess v. Gray et al. *4«‘l Launders Burgess, Plaintiff in error, v. John J M. Gray, Thomas Burgess, Jr., Aaron Burgess, Simeon Burgess, James Burgess, Jr., Samuel T. Northcut, alias Northcraft, Silas Husky, Aaron A. Smirl, George Arnold, Austin M. Johnston, George W. Ogden, John C. Harrington, John Watson, Lewis Bush, and James G. Cromme. No equitable and inchoate title to land in Missouri, arising under the treaty with France, can be tried in the State Court. The Act of Congress, passed on the 2d of March, 1807, (2 St. at L., 440,) did not propria vigors vest the legal title in any claimants; for it required the favorable decision of the Commissioner, and then a patent before the title was complete. The Act of 12th April, 1814, (3 St. at L., 121,) confirmed those claims only which had been rejected by the Recorder upon the ground that the land was not inhabited by the claimant of the 20th of December, 1803. Where it did not appear by the report of the Recorder that a claim was rejected upon this specific ground, this act did not confirm it. The question whether or not the Recorder committed an error in point of fact, was not open in the State Court of Missouri upon a trial of the legal title. The mere possession of the public land, without title, for any time, however long, will not enable a party to maintain a suit against any one who enters upon it; and more especially against a person who derives his title from the United States.2 This case was brought up from the Supreme Court of the State of Missouri, by a writ of error issued under the 25th section of the Judiciary Act. The facts of the case are stated in the opinion of the court. It was argued by Mr. Garland, for the plaintiff in e^r0^ and by Mr. Darby, for the defendants in error. Mr. Garlan laid down the three following propositions:— First Proposition. This claim, was confirmed by the 2d sec . of the act 3d of March, 1807, which is in these words: “ That any person, or persons, and the legal represent a ive of any person of persons, who, on the twentieth ay December, one thousand eight hundred and three, a , ten consecutive years, prior to that day, been in possession a tract of land not claimed by any other person, and no ceeding two thousand acres, and who were on that < aj r 1 Murrai/ v. Hoboken Land fyc. Co., 18 How., 284. 8 Applied. Oaksmith v. Johnston, 2 Otto, 347. The power of Congress in the disposition of the public lands cannot be defeated or obstructed by any occupation of the premises before 52 the issue of the patent, under State legislation, in whatever for nal such occupation be asserted. G 6- son v. Chouteau, 13 Wall., »A 1 S. P. Irvine v. Marshall,^ How., » Fenn v. Holme, 21 Id-, 481. DECEMBER TERM, 1853. 48 Burgess v. Gray et al. ing in the territory of Orleans, or Louisiana, and had still possession of such tract of laud, shall be confirmed in their titles to such tract of land: Provided, that no claim to a lead mine or salt spring shall be confirmed merely by virtue of this section: And provided also, that no more land shall be granted by virtue of this section than is actually claimed by the party, nor more than is contained within the acknowl-edged and ascertained boundaries of the tract claimed.” The Supreme Court of Missouri, commenting on this section *say: “The words which declare that a certain class of claims ‘ shall be confirmed,’ are only a direc- L tion to the board of commissioners to confirm the claims which may be brought within the class of evidence produced before them, and by no means import a present confirmation, by direct action of Congress upon the claims.” .Whether the words in this section are merely directory I will hereafter examine, but that this may import a present confirmation has been decided by this court. In Rutherford v. Greene’s Heirs, 2 Wheat., 196, it is so decided. The Legislature of North Carolina had made a donation of land to General Nathaniel Greene, in these wdrds: “Be it enacted that 25,000 acres of land shall be allotted for, and given to, Major-General Nathaniel Greene, his heirs and assigns, within the bounds of the lands reserved for the use of the army, to be laid off by the aforesaid commissioners.” On the part of the appellant it is contended, say the court, that these words give nothing; they are in the future, not in the present tense, and indicate an intention to give in future, . ut create no present obligation on the State, nor present in eiest in General Greene. The court thinks differently. e words are words of absolute donation, not, indeed, of any !Peciland, but of 25,000 acres in the territory set apart for e 0 cersland soldiers. . . . As the act was to be per-oimecl in future, the words directing it are necessarily in the all|.r®,tense—“ Twenty-five thousand acres of land shall be di otted tor, and given to, Major-General Nathaniel Greene.” ho fu IVj11 ‘ e answer is unavoidable—when they shall +1° e * Given how? Not by any further act, for it is na^oci6] Piactlce legislation to enact, that a law shall be act 11 n S0I.ne future legislature, but given by force of this the wnrr) uS etn said’ that to make this an operative gift, wo j‘ » hereby should have been inserted before the herebv kivGn’+ S°paS,?° rea(^’ “shall be allotted for, and are would °’ &C; Were * even true that these words it surelv can f more explicit, which it is not admitted, j no be necessary now to say that the validity of 53 49 SUPREME COURT. Burgess v. Gray et al. a legislative act depends, in no degree, on its containing the technical terms usual in a conveyance. Nothing can be more apparent than the intention of the legislature to order their commissioners to make the allotment and to give the land, when allotted, to General Greene. . . . The allotment and survey marked out the land given by the act, and separated it from the general map liable to appropriation by others. The general gift of 25,000 acres lying in the territory reserved for the officers and soldiers of the line of North *^01 ^Carolina, had now become a particular gift of 25,000 J acres contained in this survey.” In the treaty with Spain ceding the Floridas, the 8th article says: “All the grants of land made before the 25th January, 1818, &c., shall be ratified and confirmed.” The counterpart, in the Spanish language, rightly translated, reads thus: “ Shall remain ratified and confirmed.” This court, commenting on these words, in The United States v. Perchman, 7 Pet., 89, say: “Although the words, ‘shall be ratified and confirmed,’ are properly the words of contract, stipulating for some future legislative act, they are not necessarily so. Ihey may import that they ‘shall be ratified and confirmed by force of the instrument itself. When we observe that in the counterpart of the same treaty, executed at the same time, by the same parties, they are used in this,sense, we think the construction proper, if not unavoidable.” . . Here are two important cases decided by this court, in which the words, “shall be given,” and the words, “sha e confirmed,” are construed into a present grant and con nna tion, by force of the instrument itself. . Let us now see whether such is not the true cops rue ion of the statute before us. The Supreme Court of Missouu say that the words, “shall be confirmed,” are only a cuec the board of commissioners. The act of 2d Maic , ♦ created a board of commissioners to decide on c aims ? in Louisiana. The 1st and 2d sections prescribed the ciiaiac-ter of claims to be acted on, and the kind o u evfidrcii 2°ish given in their support. The supplemental act o . pi ’ 1806, modified the evidence to be given. The decisio board amounted only to a recommendation o ' & These statutes, and the restrictions in them, gi^i g » dissatisfaction, Congress passed the 4th section o , £ March 3d, 1807, in which they conferred on the ted* commissioners full powers to decide, accor ing , Spanned established usages and customs of the ten < c]ajm is ish governments, upon all claims to lailds’J®1 f pecember, made by any persons who were, on the 54 DECEMBER TERM, 1853. 50 Burgess v. Gray et al. 1803, inhabitants of Louisiana, and for a tract not exceeding the quantity of acres contained in a league square, and which does not include either a lead mine, or salt springs; which decision, when in favor of the claimant, shall be final against the United States. Here we see power conferred on the board to decide, according to the laws and established usages and customs of the French and Spanish governments. They were restricted to claims coining under those laws and usages, and what might be those laws and usages they had full power to determine. *Now the claims embraced in the second sec-tion of the same act, do not necessarily fall under this *-head; if they do, then the second section was superfluous; the board having full power, under the fourth section, to decide such claims as are described in the second. But that the subject-matter of the second section was not intended to be referred to the board, is made plain by the eighth section, which says that the commissioners shall report to the Secretary of the Treasury, their opinion on all the claims to land, which they shall not have finally confirmed by the fourth section of this act. If the law had intended that they should act on claims in i e s?cond section, that section would have been included in the above clause, and it would read, “shall not have finally confirmed by the second and fourth section of this act.” The report would be in these words: The commissioners would ave confirmed such and such a claim, by virtue of the second section of the act of March, 1807, but for such and such de-ec s. Ihis was generally the style of their negative reports, u we see that the claims under the second section, were nn Jefctsonwhich they were authorized to report adversely aROu.’ n course they were not subjects on which they would act at all. J the second section makes no allusion to the claims 71cribed’ beins recognized and valid by the laws and be C°^try ’ 011 ^be contrary, we are bound to infer r ong1ess did not consider them as so recognized, and bountv16 ed them out as the special objects of their thp Qrx* • were but two classes of claims recognized by sections both were described by the first and second writtp f aCt °f 2d of Mapch, 1805. The first was some °f survevi title, a concession or warrant, or order and pnlfGrot e second was a mere verbal permission to occupy Now the ’1 enC • Xt WaS Called a “ Settlement Right.” the head of «CqU^iS in tbe second section cannot come under d oi Settlement Rights.” A settlement right could 55 51 SUPREME COURT. Burgess v. Gray et al. not exceed eight hundred arpens, and required inhabitation and cultivation to give it validity. The claims under the second section largely exceed the quantity in a settlement right, and only required proof of possession, which does not necessarily involve inhabitation or cultivation. Hence, I conclude that the subject-matter of the second section, was not intended to be referred to the Board of Commissioners for their action. Let us now examine the second section in its own terms. If the claimant was an inhabitant of the territory at the change of government, and was still in possession at that time, if the tract claimed had acknowledged and ascertained boundaries, not exceeding two thousand acres and not ad-*521 versely claimed, *his title shall be confirmed. If the -I second section stood by itself, no one would fail to construe these words into a present grant, being in all respects similar to the two cases above cited. If then, the words of the section are sufficient to create a present grant, it is a forced construction to prevent them from having that effect, and to throw the confirmation on the future decision of a Board of Commissioners for the reasons already given. First, if the board had power to act on the subject, the second section was superfluous. Second, the eighth section implies an exclusion of the second from the jurisdiction of the board. Third, the language of the second section leads us to pie-sume that the Legislature did not think that the claims therein embraced, were recognized by the Spanish laws and usages, or they would have left them to be decided by the commissioners under their general powers. The proviso of the second section puts it beyond don » that the claims were intended to be confirmed by force o e act itself. The proviso says, that no claim to a lead mine or salt spring shall be confirmed merely by virtue of this sec ion. The necessary inference is, that a tract of land, not co ain ing a lead mine or salt spring, but in other respects e°mp y ing with its terms, shall be confirmed merely by virtue o section. It may be said, that this proviso was intende as ‘ instruction to the Board of Commissioners; but the 0 section, which confers the powers on the board, an iHifwaw limitations on them, has this very same prohibi ion. affords us good evidence of the meaning of the e^lsJ a They did not intend under any circumstances to con lead mine or a salt spring; therefore, in the secon , ’ where they intended to confirm certain claims, ® jeaj force of the section, they introduced a proviso exemp £ourth mines and salt springs from its operation; an i 56 DECEMBER TERM, 1853. 52 Burgess v. Gray et al. section, where full powers are given to the board to decide all French and Spanish claims, they introduced a claim imposing the same restriction on them, in regard to lead mines and salt springs. This is the only way, in which we can give an independent existence to the second section and preserve it from being a mere superfluity. There is nothing in the words of the section, that necessarily requires further action on the part of the Legislature or its ministerial agents. All that the claimant would have to do, when his right is brought in question, is to show that he comes within the provisions of the statutes, just as the claimants of village lots under the act of the 13th June, 1812. He will have to establish his title by showing a tract, not exceeding two thousand acres, with defined and ascertained limits ; proving uninterrupted possession for ten consecutive years ; residence in the *province and possession at the time of the change of government. These facts would work •-a title in him, having relation back to the time of the passage of the act. Second Proposition. The next statute on which we rely for a confirmation, is the second section of the act passed April 12, 1814, entitled “ An act for the final adjustment of land titles in the State of Louisiana and Territory of Missouri.” (The argument of Mr. Garland., upon this proposition, is too long to be inserted.) Third Proposition. If the court are not satisfied, that the cann of John Jarrott was confirmed by the acts we have e,e.n commenting on, there is another view of the case, to which I would now ask their attention. y the facts set forth in the petition, and admitted to be rue y the demurrer, it seems that Jarrott had been in pos-thSS1om.i? land more than ten consecutive years prior to t e , h December, 1803; that it did not exceed in quantity ° ousand acres, and that he was an inhabitant of the ter-*n Possession on that day. By the second finJ°r he ac^ 3d March, 1807, he was entitled to a con-Thpa i°^ 10m any toibunal authorized to act on the subject, and k v WaS- Presen.ted to the Recorder of Land Titles, oflTtui?1^ reJected, it was reserved from sale by the act vevpcl Q ibrUaP\1818’ third s6ctmn. It was afterwards sur-on thp k marked on the books of the Surveyor General and John Jarrott °fTth^ o?®glster’ as reserved to fill the claim of reorpRpn' p J-824 an act was passed authorizing the ecute ce*'tfdn French and Spanish claims to pros- cute them before the District Court. Various other acts 57 53 SUPREME COURT. Burgess v. Gray et al. were subsequently passed on these claims which it is not necessary to mention. On the 17th June, 1844, an act was passed reviving for five years the act of 1824. The claim of John Jarrott did not come within the purview of these statutes. The act of 26th May, 1824, gave jurisdiction to the District Court over claims to lands, “ by virtue of any French or Spanish grant, concession, warrant or order of survey legally made, granted, or issued before the 10th day of March, 1804,” by the proper authorities. Jarrott’s claim was neither a grant, a concession, a warrant, or order of survey ; it was founded on verbal permission only, and was called a settlement right; as such it was filed, and as such it was acted on by the Recorder. That it did not come under the jurisdiction of the court, is put beyond question by a comparison of other statutes on the same subject. On the 9 th of July, 1832, an act was passed creating a Board of Commissioners “to examine all the unconfirmed claims to land in that State, (Missouri,) heretofore filed in the office of the Recorder according to law, founded upon any incomplete *grant, concession, warrant, or order of survey, issued -* by the authority of France or Spain, prior to the 10th day of March, 1804.” It will be perceived that the class of claims embraced in this statute is precisely the same as that in the act of 1824, over which the District Court took cognizance. They were claims originating in a grant, concession, warrant, or order of survey, Donation or settlement claims were not embraced; accordingly Congress passed a supplemental act embracing those claims. On the 2d of March, 1833, it was enacted that the provisions of the act of the 9th of July, 1832, shall be extended o, and embrace in its operations every claim to the donation o land in the State of Missouri held in virtue of settlemen an cultivation. This supplement shows the understanding o the Legislature, and proves that Jarrott’s claim, whie“ was “donation-right,” was not embraced by the act or July, 1832, and consequently not by the act of 2btn , 1824, giving jurisdiction to the court, to precisely e s' class of claims. . . xu:* Since writing the above, I have seen the opinion court in the case of the United States v. Rillieux, ’ 189, which fully sustains the conclusion that tie Court had no jurisdiction in this case. +iipre After the act of 1818, reserving this tract from sale, tW was no other statute operating on it till the supp em $$ of March, 1833, extending the provisions of the act or donation and settlement rights. It was made j 58 DECEMBER TERM, 1853. 54 Burgess v. Gray et al. Commissioners to examine all the unconfirmed claims heretofore filed in the office of the Recorder, to take additional testimony, if they thought proper, in regard to those claims, and then to class them so as to show, first, what claims, in their opinion, would in fact have been confirmed under former authorities, and, secondly, what claims, in their opinion, are destitute of merit. They were required to proceed, with or without any new application of the claimants, and to lay before the Commissioners of the General Land Office a report of the claims so classed, to be laid before Congress for their final decision upon the claims contained in the first class. The third section then enacts, “ that from and after the final report of the Recorder and Commissioners, the lands contained in the second class shall be subject to sale as other public lands, and the lands contained in the first class shall continue to be reserved from sale as heretofore, until the decision of Congress shall be made thereon.” Jarrott’s claim was not embraced in either class, it was not acted on at all. Ihe law made it the duty of the Board to proceed without further application. The claim was regularly filed in the office of the Recorder; the Commissioners might take additional testimony if the case required it. The *represen- r*r r tatives of Jarrott had nothing to do ; they could only L wait in silence the action of the board. Their claim was overlooked or not reached; the board made their final report, and dissolved. Now, it is a well settled principle of law that no person shall suffer in his rights in consequence of the delay or neglect of government officers. This tract of land stands reserved from sale, as heretofore, to fill the claim of John Jarrott s representatives. In Menard v. Massey, 8 How., 309, this court have said: that this provision (section 6th of act 3d March, 1811) is an exception to the general powers conferred on the officers se , is not an open question ; having been so adjudged by ott case Stoddard's Heirs v. Chambers, re- »• n77 ’ and aSain, at the present term, in the case not v lV‘ ™enrose‘ Nor is it an open question, that the forop fl6 luaiT 1818, folio 3, reenacts and continues in decidprlV e*cePti°n as respects such lands. This was also of Can ? 1>e a^ov.e cases; and that such was the opinion 9th aVo nian^e®t from the third section of the act of clarpq tklf i "\un^er which the last Board acted ; for it de-as herpfnfr ^.e class shall be reserved from sale all not Now it is manifest that lands not classed at on by the Board, must continue reserved from 59 55 SUPREME COURT. Burgess v. Gray et al. sale as heretofore. We can come to no other conclusion without admitting that the neglect or delay of public officers can deprive a person of his rights, which is not consistent with law or justice. The Supreme Court of Missouri, in a similar case, have held that the lands continue to be reserved as heretofore. In Perry v. O'Hanlon, 11 Mo., 596, they say: “What then was the condition of the land, the title to which is now in controversy, in 1847, when the patent issued ? The act of July 9th, 1832, directed the Commissioners to divide the claims submitted to them Into two classes. The first class was to embrace such claims as, in their opinion, were meritorious and ought to be confirmed ; and the second class, to include such as were destitute of merit. The act declared that, after the final report of the Board, the lands embraced in the second class should be subject to sale as other public lands; that the lands contained in the first class should be reserved from sale until the final action of Congress thereon. Congress finally acted on this report in 1836 ; and the act, July 4, 1836, confirmed the claims recommended by the Commissioners, with certain exceptions specified in the act. Perry’s claim was not in the second class, for it was never rejected by the Board ; it was not in the first class, for it was not reported for confirmation. How then has the reservation been removed ? By the act of 1832, this land was expressly *reserved from sale. No proceeding under that ac J has had the effect of taking off this reservation, nor has any subsequent law been enacted having such purpose or tendency. If Perry, then, by virtue of the proceedings under the proviso to the third section, failed to acquire a comple e title to the land by purchase, it still continues under the gen eral reservation. Whether Perry’s title be good or ot er wise, until Congress shall direct the land to be brougn in market, no other individual can acquire a title. It was ex pressly reserved on account of Perry’s claim under a That reservation still remains.” . u This tract of land, therefore, stands reserved from sa e heretofore,” and all the entries made upon it are consequer y void. But the Supreme Court of Missouri tell us t eie* remedy. “ Suppose it be true,” say they, “ that t e re tion did exist, and that its effect would be to ren ei chases void, still his position (plaintiffs) in cour .. . changed thereby. The reservation confers no i e and the nullity of purchases made by the defencan enhance the merits of his title. He is still without any that we can enforce.” 60 DECEMBER TERM, 1853. 56 Burgess v. Gray et al. They came to this conclusion on the authority of cases decided by this court. “ The Supreme Court of the United States,” say they, in Les Bois v. Bramell, 4 How., 462, and in Menard n. Massey, 8 How., 307, “ distinctly declare that until an inchoate title originating under the Spanish government has been ‘ confirmed,’ it has no standing in a court of law or equity.” In the view I am now about to press upon the consideration of the court, I do not rest the case on the “ unconfirmed title filed in the Recorder’s office. The above authorities, therefore, and the principle deduced from them, are inapplicable. I maintain that we have a right to the aid of the court on the ground of possession ; legal possession of a tract of land with acknowledged and ascertained boundaries, by permission and authority of the Congress of the United States. We are tenants of the government, and have a right to be protected in our possession. The statute of Missouri says: “ The action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises.” In this case, Burgess, as representative of Jarrott, is legally entitled to the possession of the premises. Kendall, who purchased of Jarrott’s heirs, filed his claim with the Recorder under the seventh section of the act 13th June, 1812, which required him to be an actual settler on the land. As the claim was not confirmed on other grounds we aie to presume *that he complied with the law in this respect, and was an actual settler. We know, from *-tie lecord, he was. The land thus actually settled was reserved from sale by a subsequent act of Congress. It was surveyed and marked on the book of surveys, in the Regis-ei s office, as reserved from sale, to fill the claim of John airotts representative. This representative was in the ac-ua occupation and use of the land. Here, then, is a specific tact oi land in the actual occupation of Kendall, who has onty by law to hold the same until Congress shall deter-i lne ^kether or not he has a right to demand a legal title for the posse- ' eVen^ ^as Possessi°n, and a legal right to onqfar^6/8’ *n M8 petition, sets out his possession and the chair/ f Possessi°n by the defendants. After describing the of John TVen^s’ proving himself the legal representative tioner h- aiZ°^’ .^e petition then proceeds: “ And your peti-of said 1«S j een ln. Possessi°n of six hundred and forty acres a ever since he purchased it as aforesaid.” 61 57 SUPREME COURT. Burgess v. Gray et al. The petition goes on to show that the land, was marked on the books as reserved from sale, and was reserved from sale to fill the claim of Jarrott’s representatives, “ until the SOtli day of December, 1847, a period of twenty-nine or thirty years, when, in violation of law, the several acts of the Congress of the United States, and the rights of the legal representatives of the said Jarrott,” the Register suffered preemptions to be taken on it; “and the persons who took said preemptions had full knowledge at the time of the claim of John Jarrott’s legal representatives to said land, and now having possession of said land, and claiming the same as their property, (although attempted to be unlawfully obtained,) and are keeping the legal representatives of the said Jarrott out of their possession of the same, notwithstanding it is their property, and belongs to no other person whatever.” And, in conclusion, the petition prays “ that said defendants be, by verdict and judgment in your petitioner’s behalf, compelled to abandon their illegal claim to said land or any part of it: to wit, your petitioner’s six hundred and forty acres of it.” This petition is awkwardly worded, but the statute of Missouri requires no particular form, only that the petitioner shall set out his case in full, and in language so that a man of common understanding shall know what is meant. There can be no mistake as to the meaning of this petition. Burgess had bought six hundred and forty acres of this land by deed, and was in the actual possession of the same, according to the metes and bounds of his deed, when the defendants intruded and unlawfully obtained possession, and are holding the same against the lawful possession of him, the legal representative J°hn *Jarrott, and he prays that they may be a - J judged to surrender up this unlawful claim to ns land. . , . It is on this right of possession we now ask the judgmen of the court. . c „ j That the entries are void, cannot be questioned, bee dard's Heirs n. Chambers, 2 How., 284; Menard n. * assey, and Bissell v. Penrose, 8 Howard ; and Perry y. 0 Hanlon, i Mo., 585. The entries being void, our right of possession wu be recognized and enforced. . # . The political power has acted on this claim, and i cognizable by the courts of law. The claim statute to be filed with the Recorder of LandTi ® » investigated and reported to Congress. Another s dares that until the final action of Congress t ereo ructed be reserved from sale. The executive officers ar 62 DECEMBER TERM, 1853. 58 Burgess v. Gray et al. to carry these laws into effect. The Surveyor-General marks it out on the maps in his office ; draws lines around the claim, and writes on the face of it, “ Reserved from sale, to fill the claim of John Jarrott’s representatives.” Will not the courts recognize a claim in this condition, and enforce the law in regard to it ? They do not look upon it as an unconfirmed Spanish grant, having no standing in a court, but as a claim filed and reserved from sale by the laws of Congress: it has a legal existence. They enforce the laws of Congress and say: The possession of Jarrott’s representatives is recognized by statute, and is valid until the final action of Congress : in the mean time all entries on this land are without authority and void. The Supreme Court of Missouri admit that they have power to pronounce the entry of the defendants void, because the land is reserved from sale by a law of Congress ; but deny that they can go further, and protect the right of possession in the plaintiff, because he sets up nothing more than an unconfirmed Spanish grant 'which is not recognized by law. But he does more, he sets up a right of possession in this land under the law of Congress. It is admitted that the plaintiff is in possession, and has been from the beginning. It must also be conceded that the reservation was made in respept of this possession, because every law on the subject of incomplete Spanish grants is based on the idea of actual possession or inhabitation and cultivation. This reasoning is specially applicable to the present case, because it as no written evidence of title, and rests entirely on actual se tlement or possession. Here then is a claim founded in possession, only, recognized by law. If, therefore, the courts can protect the reservation by declaring all entries on it, subsequent to the reservation, void, they can likewise protect and en oice the right of possession on which the reservation was oun ed. I he same *law that gives them power to R:..rQ pro ect the reservation, gives them power to protect •- ° hnlr.88?!1011! Under If this 1)e not S0’ then a of I/1 Ot ai . Un(^er the authority of Congress can be ousted him 1S n°S^^1011’ an(^ the courts have no power to protect on a k U 18 n.°t law. An ejectment can be maintained Possession against a trespasser. In the case of acti V’ Morrison\ 11 Mo., page 6, the court say : “ As the Dears nn ^.ectm.ent is a possessory action, where no title ap-years will1 er S1-i a Pr^or possession, though short of twenty ripened over a.suhsequent possession which has not claim oF ri JV ^le, provided the prior possession be under a ThhdcnJ? and not XMuntarily abandoned........................ me is recognized by the New York courts in a variety 63 59 SUPREME COURT. Burgess v. Gray et al. of cases...................In all these cases it will be found that the defendants, against whom a recovery was permitted, were mere trespassers, and that they, or those under whom they claimed, or from whom they obtained possession, entered upon the actual or constructive possession of the plaintiff.” In the present case there is no question of title: that remains in the United States. The Supreme Court of Missouri admit that Burgess is in possession, and that the entry of the defendants is void. Then the defendants are mere trespassers on the actual and constructive possession of the plaintiff, and ought to be ejected by the present action. Mr. Darby, for defendants in error. The petition of the plaintiff shows that he has no title. His claim is not based upon a concession, and was never confirmed. The only action ever taken with the claim by the parties purporting to represent it, was when it was presented to the Recorder of Land Titles, by Kendall, after his purchase in 1812. The Recorder refused to recommend it for confirmation, and rejected it; and from that time to the commencement of this suit, a period of nearly forty years, the claim appears to have been abandoned. At least, no steps appear to have been taken to bring it before the Recorder, or any of the several boards of commissioners for confirmation. It does not appear to have been presented to Congress, or any department of the government or other tribunal, for their sanction, approval, or confirmation. The opinion of the Supreme Court of Missouri has shown, most conclusively, that it was not confirmed by the second section of the act of the 3d of March, 1807, (2 U. S. Stat, at L., 440,) as was contended by the counsel in that court, in the argument of this cause. , The plaintiff, then, has nothing more than an unconfirmed, *unprosecuted claim to land, which has been rejec e< J by the Recorder of Land Titles, and that rejection ac quiesced in for nearly forty years ; and which the defen an s, as shown by the plaintiff’s petition, have purchased, at i er ent times, of the United States, and to which they severally a title from the government.. It is manies plaintiff has no such title as will authorize a court o jus to give him the relief prayed for in his petition. » The claim was not filed under the provisions of e . Congress of May 26, 1824, giving jurisdiction to the vis Court of the United States for the Missouri District, tea ] cate and pass on these unconfirmed claims. 1 e c rnvides, consequently barred. The fifth section of tha ac p 64 DECEMBER TERM, 1853. 60 Burgess v. Gray et al. “ That any claim not brought before the District Court within two years from the passing thereof, shall be forever barred, both in law and equity ; and that no other action at common law, or proceeding in equity, shall ever thereafter be sustained in relation to said claim.” In further support of this position, the defendants refer to the case of Barry v. Gamble, 3 How., 55, and also to the case of Chouteau v. Eckhart, 2 How., 352. To show, moreover, that the plaintiff’s claim has “ no standing in a court of law or equity,” the defendants rely with much confidence on the case of LeBois v. Bramell, decided in this court at the January term, 1846, 4 How., 462. And in the case of Menard v. Massy, 8 How., 307, the same principle is still more strongly asserted and adhered to. The decision of the Supreme Court of Missouri is made in accordance with the decisions referred to, and is governed by them. The demurrers were rightfully sustained on both points. The defendants were improperly joined in the action. They held separately, each in his own right, tinder entries made at the Land Office at different times, and under preemptions allowed in favor of each of the defendants. The petition shows that they did not hold or claim title in common, but that they held separately. In conclusion, the defendants adopt, as apart of their argument,^ portion of the able opinion of Chief Justice Gamble, in delivering the opinion in this cause: The plaintiff, then, has no title which authorizes him to th <■ u re^e^ Praye(i for in this petition. But he alleges a the land was, by different acts of Congress, reserved rom sale in order to satisfy his claim, and therefore the pur-c ases made by the defendants were void. Suppose it to be Tue iat the reservation did exist, and that its effects would e o tender the purchase void, still his position in court is titinC ia??ec^ thereby. The reservation confers no ri|sft1 llm’ an(^ the nullity of purchases made by the still «-Tr S d°es no^ entiance the merits of his title. He is still without any title that he can enforce.” court* Justice TANEY delivered the opinion of the rpi • of JpffoZ™ a SU^ brought by petition in the Circuit Court in error ,C°Tr7’ ^6 State of Missouri, by the plaintiff « m?r’gainst the defendants. alias Gen-ard^^QA01^’in substance, that John Jarrott, Vol. xvi-Ls11 with the consent and permission of 65 61 SUPREME COURT. Burgess v. Gray et al. the officers of Spanish government, settled upon a tract of land in what is now Jefferson county, in the State of Missouri, and that he continued to inhabit and cultivate it until about 1796, when he was driven off by the Indians. His son Joseph succeeded him in the possession of the land, and continued to reside upon and cultivate it until he sold it to Kendall, in the year 1812. Kendall filed a notice of the claim with the United States Recorder of Land Titles, who rejected it. The right of Kendall passed by descent to his heirs at law, who sold to the plaintiff, as appears by conveyances filed with the petition. It appears, moreover, that the plaintiff has always been in possession since the purchase of Kendall’s heirs. A plat of the claim was laid down on the maps of the public lands, in the Registrar’s office, representing it as being reserved to satisfy the claim of John Jarrott’s legal representatives. After the claim had been examined and rejected by the Recorder of Land Titles, no farther action appears to have been taken on the claim. “In the years 1847-8, and 9, different portions of the same tract of land were entered at the Registrar’s office, by different individuals, under preemptions allowed to them; the entries being made at different times, each person purchasing in his own right and in his own individual name, separate and distinct from the others. The several persons making these separate and different entries are made the defendants to this suit. “ The defendants demurred to the petition, and assigned as causes of demurrer: first, that the plaintiff showed no right, in his petition, to maintain the action; second, that separate and distinct causes of action against different persons weie joined in the petition. . , “ The Circuit Court of Jefferson County, sustained the demurrers, and the plaintiff appealed to the Supreme Com of Missouri. The Supreme Court affirmed the decision o the Circuit Court, and the plaintiff has brought his case e or this court, by writ of error, to reverse the decision o Supreme Court of Missouri.” . nnnrt *£>0-3 *In proceeding to deliver the opinion of the। ’ it is proper to observe, that by the laws of lb the distinction between suits at law and in equity Jas , g abolished. The party proceeds by petition, stating u y facts on which he relies, if he seeks to recover P°sse e(js land to which he claims a perfect legal title; an e

and eight following years, and again two or Hliee 7ea! ’ He assigns no particular reason for rejecting the c al.ra’ simplv enters in his report “not granted.. And in is it was laid before Congress, together with the o lei not finally decided by the Recorder in favor of t e c ai It does not therefore appear from the report w e ie rejected because, in the judgment of the Recorcer, j. session of ten consecutive years was not sumcien y p or because no evidence was offered (and none aPPeai . , ^ie been offered) to prove that the party under w ' of claim was made was a resident of the territory on December, 1803. . ^x^pd that *On behalf of the petitioner it is conten , 64J the decision of the Recorder was eiro .fc founded upon a mistake as to a mattei o a » 68 DECEMBER TERM, 1853. 64 Burgess v. Gray et al. appears by the evidence returned with the report to the Secretary of the Treasury, that the possession spoken of was proved to have been for more than ten consecutive years before the 20th of December, 1803—and not broken, as stated in the report. This may be true. The Recorder may have fallen into error. But it does not follow that plaintiff was entitled, on that account, to maintain his petition in the Missouri court. That court had no power to correct the errors of the Recorder if he made any; nor to revise his decision; nor to confirm a title which he had rejected. That power, by the act of 1807, was expressly reserved to Congress itself; and has not been committed even to the judicial tribunals of the general government. The decision of the Recorder against him is final, unless reversed by act of Congress; and the petitioner can make no title under the United States, by virtue of the provisions in that act. It is however insisted that if it was not confirmed by the act of 1807, it was made valid by the act of 1814. And this confirmation is claimed under the first section, which confirms all claims where it appears by the report of the Recorder that it was rejected merely because the land was not inhabited by the claimant on the "20th of December, 1803. But it is very clear that this act does not embrace it. The report of the Recorder does not place its rejection merely on that ground. On the contrary, it would seem to place it upon the want of proof of continued residence upon the land or ten consecutive years ; and upon none other. may indeed have happened that the son of John Jarrott was in possession, and actually inhabited the land on the day men loned in the law; and that from ignorance of its pro-isi°ns, or from other cause, he omitted to produce proof of that 6 ^ecor(^er’ an(t that the claim was in fact rejected on thp ac.count; that question was not open to inquiry in i ,lssouri court. The act of Congress does not confirm thn DECEMBER TERM, 1853. 65 Pennington v. Gibson. Whenever, therefore, an action of debt can be maintained upon a judgment at law for a sum of money awarded by such judgment, the like action can be maintained upon a decree in equity which is for a specific amount; and the records of the two courts are of equal dignity and binding obligation.2 A declaration was sufficient which averred that “ at a general term of the Supreme Court in Equity for the State of New York,” &c., &c. Being thus averred to be a court of general jurisdiction, no averment was necessary that the subject-matter in question was within its jurisdiction. And the courts of the United States will take notice of the judicial decisions in the several States, in the same manner as the courts of those States.3 *This case was brought up by a writ of error from p™ the Circuit Court of the United States for the District ■-of Maryland. The facts of the case are set forth in the opinion of the court. It was argued by Mr. Schley, for the plaintiff in error, and by Mr. Frick and Mr. Collier, for the defendant in error. Mr. Schley stated that there were three causes assigned for the demurrer to the declaration. They were— 1. For that it appears from the declaration, that the cause of action is an alleged decree of an alleged court of equity, as set forth in said declaration; whereas, an action at law cannot be maintained in this court, on such a decree; at least without averment in pleading, that said decree, within the limits of its territorial jurisdiction, is of equal efficacy with a judgment at law. 2. For, even if an action at law can be maintained for the recovery of the sums of money directed by such alleged decree to be paid, as stated in said declaration, yet the form of ac ion adopted in this case is not the proper form of action Ior 1 he enforcement of such recovery. • r or that it does not appear in and by the said declarator!, nor is it therein averred, in any manner, that the said eged court of equity had any jurisdiction to pass a decree gainst this defendant for payment to the plaintiff of any of . ^oney in the said declaration mentioned. thp a 61 j°lnder *n demurrer, the court gave judgment upon and ^avor the plaintiff below, for $6,134.86, of th ’J k damages; the damages to be released on payment costs of suit ^nterest from 25th November, 1848, and several C?unsel pOr pla-intiff in error will insist that said -----auses of demurrer were well assigned. 203 qT V3 J,ohnson< 24 How., ’ °yle v- Schmdel, 52 Md., 4, 5. 3 Cited. Cheever v. Wilson, 9 Wall., 121. 71 66 SUPREME COURT. Pennington v. Gibson. As to the first ground. There is no averment that said “ Supreme Court in Equity of the State of New York,” is a court of record. The decree is referred to “ as remaining in the office of the County Clerk of Steuben county.” No averment that such a decree in the State of New York is of equal efficacy with a judgment at law. It is conceded that it has been held, in many cases, in this court, that a decree in Chancery is equally as conclusive as a judgment in a court of common law. In Hopkins v. Lee, 6 Wheat., 109, the decree was evidenced by the record of the proceedings in Chancery in the Circuit Court for the District of Columbia; and being offered in evidence in the same court, the only question was as to the effect of said decree as *071 evidence. *But Hugh v. Higgs, 8 Wheat., 697, is an J express decision on the very point, and sustains, the demurrer. Smith v. Kernochen, 7 How., 217, merely decided the effect, in evidence, of a decree in Chancery, as between the parties. It was not the case of an action at law grounded on a decree. On this point, the following cases will also be relied on: Carpenter v. Thornton, 3 Barr. & Aid., 52; Houl-ditch v. Marquis of Donegal, 8 Bligh, N. S., 301; and 1 Stat, at Large, 122, and notes there, will be cited. On the second point, the following cases will be cited. Walker v. Witter, 1 Doug., 1; Dupleix v. De Roven, 2 Vern., 540 ; Crawford v. Whittail, and Sinclair v. Fraser, Doug., 4. . ... , As to the ground of demurrer thirdly assigned, it will be insisted that the courts of the United States cannot judicia y know the extent or character of the jurisdiction of the sai Court of Equity; and of course cannot know whether i ia jurisdiction over the subject-matter, or over the plain i in error. There is no averment in the declaration as to tne jurisdiction of said court; nor is it even averred tha sai court was holden at a place within its jurisdiction, or said decree was pronounced within its jurisdiction, consistent with all that is averred in pleading that ie . may be merely void. The following cases wi ™ f -i Boswell's Lessee v. Otis, 9 How., 349; Allen j Blatchf., 480; D'Arcy v. Ketchum, 11 How., 165; Craf d v. Howard, 30 Me. (17 Shep.), 422; Burckle Denio (N. J.), 279; Cobb v. Haynes,8 B. Mon. y Van Buskirk v. Mulock, 3 Harr. (Del.), > p Sloper, and Herbert v. Cook, Willes, 30, 37, 0 intended Cr. M. & R., 302; s. C., 4 Tyrw., 403. It is not to be intend^ that because a court is termed a superior cou , 72 DECEMBER TERM, 1853. 67 Pennington v. Gibson. court of general jurisdiction. It may be an inferior court, and of limited jurisdiction. The counsel for the defendant in error thus stated and argued the points. The questions for argument arise upon the demurrer, which raises substantially three points, namely: 1. That an action at law cannot be maintained in the courts of the United States, upon the decree of a State court of equity. 2. That if such action be maintainable, the declaration must set forth that the decree, within the limits of the State in which it is passed, is of equal efficacy with a judgment at law; and also that the court had jurisdiction to pass the decree in question. 3. That the action, if maintainable, must be assumpsit, not debt. *lst. Under the Constitution of the United States, and the laws of Congress, the judgments of the courts L of each State are to be regarded in all other States, not as ioreign, but domestic judgments; and as equally conclusive with domestic judgments. Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnell, 3 Wheat., 234. And where the court has jurisdiction of the parties and the subject-matter, a decree in chancery is equally conclusive between the parties with a judgment at law. “ In this there is, and ought to be no difference between a verdict and judgment in a court of common law, and a decree of a court of . They both stand on the same footing, and may be h lni ev^enc® under the same limitations; and it would e iihcult to assign a reason why it should be otherwise.” Hopkins v. Lee, 6 Wheat., 113, 114. tn v ^.States. where the question has arisen, (in Ken-Yn .ouisiana’ Tennessee, South Carolina, Maine, and New CnncP+ ,e.crees Chancery have been held to be within the with 10n an(^ ac^ Congress; which make them equally as in rt gn^nts at iaw? the same dignity in all other States, and T-i;ip \ate ln which they are pronounced. See Cowen there cited °teS ®'v*’ Tart II., p. 900, and the cases comnpt^11^ s.0’fhe money decree of a court of chancery of concludvn Junsui(ffion is in every other State, the final and Ration tn asceit.ainment of a debt, upon which a legal obli-why an aotin^ ^nd there can be no sufficient reason, such a dpprT1 °* ^eht should not be maintained as well on e’ as upon a judgment at law. There may be 73 68 SUPREME COURT. Pennington v. Gibson. decrees in Chancery, which cannot well form the basis of a suit at law. Such are decrees for specific performance, or such as contain multifarious matter, or require acts and conditions to be performed by each party. But this objection cannot be made to a final decree for the payment of a specific sum of money, free from conditions or qualifications of any kind. A legal obligation to pay is necessarily implied by such a decree. “Every man is bound, and hath virtually agreed to pay such particular sums of money, as are charged on him by the sentence or assessed by the interpretation of the law. Whatever the laws order any one to pay, that becomes instantly a debt, which he hath beforehand contracted to discharge. This implied agreement gives the plaintiff a right to institute a second action, founded merely on the ground of contract, to recover such a sum. So, if he hath obtained judgment, he may bring an action of debt on this judgment, &c., &c.; and the law implies, that by the original contract of society, the *nQ-i defendant hath Contracted a debt, and is bound to -I pay it.” 3 Blackstone, Comm,, 160. It is on this ground alone, that “assumpsit” lies on foreign judgments; and why not on a decree in equity for the payment of money? , It has been said, that a legal obligation cannot be implied from a merely equitable obligation to pay; and that an action at law cannot be maintained upon a decree in equity for the payment of money founded on equitable considerations only. Carpenter v. Thorntpn, 3 Barn. & Aid., 52 (5 Eng. .A’ 225). In that case, it appeared from the record, that the bi was filed for the specific performance of an agreement to pur chase; and the decree was manifestly on the ground of a particular equity. The chief objection to the suit urge in argument, was, that it had been brought in England upon decree of the High Court of Chancery of England, course, the power to enforce its own decrees in the ern in which the suit was brought. It was determine , the circumstances of that case, that the action wou no But in a subsequent case, Henley v. Soper, 8 Barn. » 16, (15 Eng. Com. L., 147,) it was admitted and held that debt would lie on the decree of a colonial court o eqi y Newfoundland) for the payment of a specific ->a an to be due by one partnef to another. Lord Tenterden, W whom Carpenter v. Thornton was determine ,) sai , court, is a great difference between the decree ot a co court and a court of equity in this country. e ° -n cannot enforce its decrees here: a court o q j 74 DECEMBER TERM, 1853. 69 Pennington v. Gibson. country, may. In the latter case, there is no occasion for the interference of a court of law ; in the former, there is, to prevent a failure of justice. The case of Carpenter v. Thornton does not establish the broad principle for which it was cited,” that is, that no action at law could be maintained on a decree in equity. In Sadler v. Robins, 1 Campb., ^53, it was also held, that an action at law was maintainable upon the decree of a colonial court of equity. The amount of the decree in that case was indefinite. But Lord Ellenborough said, “ Had the decree been perfected, I would have given effect to it, as well as to a judgment at common law. One may be the consideration for an assumpsit equally with the other.” This question, in England, seems to have been settled by the two cases last referred to. In 7 Wentw. Pl., 95, is a precedent for an action of debt for a sum of money decreed by the Lord Chancellor to be paid to the plaintiff; and the form is attributed to Mr. Tidd. The books of precedents all contain forms of actions upon foreign decrees in equity. The only exception would seem to be the case of an action at law, brought *in the same territorial jurisdiction, to enforce a decree in equity, appearing on its face to be grounded ■- ‘ on equitable considerations only. See Carpenter v. Thornton. It has been repeatedly ruled in this country, that the action would lie upon a chancery decree ordering the payment of money. Post v. Neafie, 3 Cai. (N. Y.), 22; Dubois v. Dubois, b Cow. (N. Y.), 496; see also 19 Johns. 6N. Y.), 166, 577; ^vans v. Tatem, 9 Serg. & R. (Pa.), 252 ; Howard v. Howard, lo Mass., 196; McKim v. Odom, 3 Fairf. (Me.), 94. In the first case (Post v. Neafief Chief Justice Kent dis-sen e from the opinion of the court; but chiefly on the ground, ™ as the Supreme Court of New York, in Hitchcock & Fitch • ic en, (1 Cai. (N. Y.), 469,) had determined the judg-onJ1 S<- • sister States, to be only primd facie evidence, and nnrn +? lnfluiry upon their merits, to sustain an action at law court ' °f another State, would involve the clnaivl? the . ^uss}on and determination of questions of ex-comn/J efluitable jurisdiction, which a court of law was not • 7° PaSS uPon- The overruling of the ease of Hitch-court tk Y e.w’ and the settlement of the question by this court of +k a judgment is conclusive in every other State if a removed a? r . ere was rendered would hold it so, has Kent’s nine ?a^' ^air^ be presumed, the reason of Chancellor 26e1rXogteiCPO8t V' Neafie- See 1 Kent’ 11 the Case of McKim v. Odom, 3 Fairf. (Me.), 94, the 75 70 SUPREME COURT. Pennington v. Gibson. whole subject is most fully and learnedly discussed; and the authority is worthy of special reference. To refuse the jurisdiction contended for, it is obvious would, in this country, amount in many cases to an absolute denial of justice. In some of the States there is no court of equity, so called; and if a plaintiff in such States, to enforce a decree in equity obtained lawfully in another State, may not resort to a court of law, where the defendant has removed from and holds no property in the State in which the decree was passed, but has both residence and property in the State in which he must be sued at law, if at all—there is, to all practical intent, a right, for which there is no remedy. In the American cases cited, the distinction taken in Carpenter v. Thornton, between decrees passed upon legal and equitable considerations, does not seem to have been regarded; but the distinction, even if well founded, cannot apply to this case. For from any thing that appears to the contrary on the record, the obligation ot the defendant in equity (plaintiff in error) upon which the decree was passed, might have been binding in law as well as in equity. -i *2d. If the action can be maintained, it is not neces- -* sary to set forth in the declaration, that the decree sued on is of equal efficacy in the State in which it yas passed, with a judgment at law; or that the court had jurisdiction to pass the decree. By the act of May, 1790, it is provided, that the judicial proceedings of the State courts shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts o the State, from which the records are or shall be taken, they are conclusive in the State where pronounced, they are so everywhere. If open to examination there, they are so everywhere. A decree in chancery is, from its nature, equa y conclusive with a judgment at law. 6 Wheat., 113, &c. may not have equal efficacy in the State in which it is passe , with a judgment at law, in respect to the mode and means its enforcement: but it is of like conclusiveness, as res a judicata,” provided the court had jurisdiction of t e par and subject-matter. It is averred by the declaration m case, that the decree in question was duly signed an enrt » &c.; and as the record of the judicial proceedings o & . State, (every presumption being in favor of the J1!1?®. 0Vgr it is primd facie evidence that the court had $96 the parties and subject-matter; (see 4 Cow. (JN. •), ’ and 8 Id., 311,) and it is conclusive upon them while not^ versed, set aside, &c., unless that evidence e re that issue is matter of defence, and must be so 76 DECEMBER TERM, 1853. 71 Pennington v. Gibson. is not necessary to aver in pleading, by the declaration, that there was jurisdiction to pass the decree, in a suit on such decree, any more than to aver the jurisdiction to render a judgment, in a suit on such judgment: nor to allege the conclusiveness of the one, any more than that of the other. As the plea to an action of debt upon the judgment of another State must be “nul tiel record” and not “nil debet” so the plea to an action on a decree of another State must be of like import. In either case, of course, a special plea to the jurisdiction would be good: and if the conclusiveness of either cause of action is to be called in question, it may, and must be done as matter of defence. No precedent can be found of debt on judgments or decrees, where the jurisdiction is averred in the declaration. In England, there is a distinction between superior and inferior courts. In the former every thing is intended to be within the jurisdiction; in the latter, every material fact must be alleged to be within the jurisdiction. It is necessary, therefore, in a suit in a superior, upon the judgment of an inferior court, to allege not merely that the latter had jurisdiction, but that the “ original cause of action arose within the jurisdiction, &c.” Read v. Pope, 1 Cr. M. & R., 302. (Exchequer.) *So, in pleading the judgments of courts of limited r*™ and special jurisdiction, it may be necessary to state *-the facts upon which the jurisdiction is founded; but, with respect to courts of general jurisdiction, the rule is, that they are presumed to have jurisdiction until the contrary clearly appears. The want of jurisdiction must be averred, as mat-/-1.. defence. “Every presumption is in favor of the juris-1C ion of the court. The record is primd facie evidence of i , and will be held conclusive, until clearly and explicitly disproved. 4 Cow. (N. Y.), 294, 296; Cowen & Hill’s Notes, Part IL, 905, 906. e have considered this case on the assumption that the Su. ?n }va? that °f a chancery court, exercising gen-courfe^Ult^-«iurisdicti°n- But in fact, it was passed by a ffenpr no separate equity jurisdiction, but having fonnZZ111 lc^0n over the whole cause of action, whether called w°n or ecpiitable considerations. Its decree, so chanopr as,as much a judgment at law as it was a decree in New ° ^er^n io tents and purposes, in the State of that State’ aU<* was made so by the constitution and laws of relationo^+h COqUd'8’ suPreme and inferior, considering their e States, are supposed to have judicial knowl 77 72 SUPREME COURT. Pennington v. Gibson. edge of the constitutions, laws, and public usages of all the States. Whatever question may be as to the propriety of the State courts taking such judicial notice, there can be none in regard to this court. See Cowen & Hill’s Notes, Part. II., pp. 901, 902. The New Constitution, the Judiciary Act, and Code of Procedure of the State of New York, may therefore properly be examined, to ascertain the jurisdiction of the court which passed the decree on which this action was brought. The New Constitution of New York, adopted November, 1846, Art. 6, § 3, provides : “ There shall be a supreme court, having general jurisdiction in law and equity.” Sect. 6. “ The legislature shall have the same power to alter, and regulate the proceedings in law and equity, as they have heretofore possessed.” Art. 14, § 8: “ The offices of Chancellor, Vice-Chancellor, &c., are abolished, from and after the first Monday in July, 1847.” The Judiciary Act, passed after the adoption of the New Constitution, (Laws of 1847, c. 280, § 16,) provides. “ The Supreme Court, organized by this act, shall possess the same powers and exercise the same jurisdiction, as is now possessed and exercised by the Supreme Court, and Court of Chancery, &c., and all laws relating to the present Supreme Court, and Court of Chancery, and the jurisdiction, powers and duties of said courts, &c., shall be applicable to the Supreme Court, organized by this act, &c., so far as the same can be so applied, and are consistent with the Constitution, and the provisions of this act. .fcwo-i *The Code of Procedure, passed April 12, 1848, c. 379, § 62, provides: “The distinction between actions at law and suits in equity, and the forms of all such ac^ons and suits, as heretofore existing, are abolished; and there shall be in this State hereafter but one form of action foi ie enforcement or protection of private rights, and the re res or prevention of private wrongs, which shall be denomina e a civil action.” , • Sec. 62. “ The party complaining shall be known as p tiff, &C.” _ , , . Sec. 119. “The first pleading on the part of the plaintiff the complaint.” . p Sec. 120. “ The complaint shall contain, 1. The title ot cause, &c. 2. A statement of the facts constituting _ of action, &c. 3. A demand of the relief to which the piam tiff supposes himself entitled. If the recovery o demanded, the amount thereof shall be state . jpcree This act (§ 391) went into effect July 1,1848. The de^ of the Supreme Court, in this case, was sig 78 DECEMBER TERM, 1853. 73 Pennington v. Gibson. April 30, 1849. At the time of its rendition, the distinction, in New York, between actions at law and suits in equity was abolished, and there was but one form of action in all civil cases. The decree, therefore, so called, was of “ equal efficacy ” with a judgment at law. It was passed by a court of general jurisdiction, whose judgments were conclusive in New York; and moreover, by whatever technical title known, it was a final judgment for the payment of money, rendered by a court having no separate equity jurisdiction or powers, though properly exercising complete jurisdiction over the parties and subject-matter. In no other court in New York could it be a matter of inquiry, whether that judgment was founded upon legal or equitable considerations. How then, in any other State court, or court of the United States, could it be viewed as a decree in chancery, founded upon equitable considerations only? What other action could be maintained in another State for its enforcement, than an action at law, there being only one form of civil action, for that purpose, in the State of New York? 3d. Debt is the proper remedy; assumpsit would not lie. The latter is maintainable only upon the judgment of a foreign court, which is not regarded as a record, nor as a spec-\a u only as primd facie evidence of a simple contract debt; as in England, upon an Irish judgment, or Scotch deci ee ; or in this country, before the Revolution, upon judgments of other States. Chit. Pl., vol. 1, p. 106. But the judgments of other States are not now regarded as oreign judgments, but as of the same nature and effect as ^omestic judgments. The original debt is therefore thereby merged, and the plaintiff must resort to his highest remedy. The decree is a record, (and there is here *-, ® ProPey averment, prout patet per cecordum, fic.,') and e or scire facias is the only remedy on such records. in the case of Hugh v. Higgs and Wife, 8 Wheat., 697, the J011 ^aS case’ to recover money due under the decretal „ i a court equity* It was conceded by both the fm* th6 ’ aS s^a^e^ by the court, that the action would not lie snnnn! j10ne7 orc^ere(l to be paid by the decree ; but it was had h 6 an(* *S° arSue(h that the record showed that money took t-j611 rec®lve^ by the defendant upon transactions which in amn^Ce ^er , e decree, and the right to recover was put ln argument on that ground. this pLohowever, that if assumpsit would lie in rentlv with6 aS° ?ou^ be maintained; for it lies concur-assumpsit, upon all foreign judgments, decrees of 79 74 SUPREME COURT. Pennington v. Gibson. colonial courts, &c.; in fact, on all judgments or decrees, upon which assumpsit would lie. Chit. Pl., vol. 1, p. 111. Mr. Justice DANIEL delivered the opinion of the court. The defendant in error, a citizen of the State of New York, instituted in the Circuit Court an action of debt against the plaintiff in error, a citizen of the State of Maryland, to recover the amount of a decree, with the costs thereon, which had been rendered in favor of the defendant against the plaintiff in error by the Supreme Court in equity in the State of New York. The averments in the declaration are as follow: That at a general term of the Supreme Court in Equity of the State of New York, one of the United States of America, held at the court house in the village of Cooperstown, in the county of Otsego, in the State of New York, on the first Monday in November in the year 1848, present William H. Shankland (and others) Justices, it was ordered, adjudged and decreed, by the said court, in a certain suit therein pending, wherein the said Lyman Gibson was complainant, and the said Josias Pennington (and others) were defendants, that the said Lyman Gibson recover against the said Josias Pennington, and that the said Josias Pennington pay to the said Lyman Gibson, the amount of the consideration money paid by the said Lyman Gibson to a certain Samuel Boyer, as agent and attorney of the said Josias Pennington, as should appear by the several indorsements upon the contract mentioned and se forth in the bill of complaint, and produced and proved as an exhibit in said suit, with interest on the several paymen and indorsements respectively, amounting in the ® on the 25th day of November, 1848, to the sum of $0,4 • ’ and also that the said Josias Pennington pay ° -I said complainant his costs in said suit, whici w taxed at the sura of $661.68, as by the said decree du ysl£ . and enrolled at a special term of the Supreme Court in eq aforesaid, held on the 30th day of April in the year ’ « the village of Bath, in the county of Steuben, in e New York, and now remaining in the office ot tie Steuben county aforesaid, will on reference appear. To the declaration as above stated, the defen an , er, plaintiff in error, demurred; and upon a joinder in the court overruled the demurrer of the said e e grr01.5 gave judgment for the plaintiff, the now de eni +offetber for the debt and costs in the declaration se » with costs of suit. , . „, pauses of The defendant in the Circuit Court assign demurrer the three following: 80 DECEMBER TERM, 1853. Pennington v. Gibson. 1. For that it appears from the said declaration that the cause of action in this case is an alleged decree of an alleged court of equity, as set forth in the said declaration, whereas an action at law cannot be maintained in this court on such a decree; at least without an averment in pleading that said decree within the limits of its territorial jurisdiction is of equal efficacy with a judgment at law. 2. For even if an action at law can be maintained for the recovery of the sums of money directed by such alleged decree to be paid, as stated in said declaration, yet the form of action adopted in this case is not the proper form of action for the enforcement of such a recovery. 3. For that it does not appear in and by the said declaration, nor is it averred in any manner, that the said alleged court of equity had any jurisdiction to pass a decree against this defendant for payment to the plaintiff of any of the sums of money in the said declaration mentioned. In considering these causes of demurrer, the attention is necessarily directed to the ambiguous terms assumed in the first assignment, by propounding a proposition general or universal in its character, and afterwards conceding a modification or change in that proposition inconsistent not merely with its scope and extent, but with its essential force and operation, f or instance, it is first stated that “the cause of action is an alleged decree of an alleged court of equity, whereas an action at law cannot be maintained in this court on such a decree.” e can interpret this proposition to have no other intelligible meaning than this, and to be comprehended in no sense more restricted than this, namely, that an action at law cannot be maintained in a court of law when the cause of action shall e a decree of the court of equity. In other words, that the i+Jk - er °* the foundation, or cause of action, namely, eing a decree of a court of equity, must, in every •-cans lnsl^ce’ deprive the court of law of cognizance of the u e’ Proposition, thus generally put, is then followed J*ua i caVon in these words, “ at least without an aver-j- ,. pleading, that the deeree within its territorial juris-lanmiao-18e(lua^ efficacy with a judgment at law.” By this fied or r universal.ity the previous proposition is modi-sion tha^ ei .j011tradicted, for it contains an obvious conces-regard to ?50V1<^en a particular efficiency can be affirmed with deerpp I ’ an ac^.on at law may be maintained even upon a tion that S ®xamine the correctness of the general posi-eree in eonit^ 10n at law cannot be maintained upon a de- Vol. xvi -^-6 an(* W^’ *n next place, inquire how far 81 76 SUPREME COURT. Pennington v. Gibson. the jurisdiction of the court pronouncing this decree, and the efficiency of its proceedings with reference to the parties before it, may be inferred or rightfully taken notice of, from its style or character, or from proper judicial knowledge of the subject-matter of its cognizance, independently of a particular special averment. We are aware that at one period courts of equity were said not to be courts of record, and their decrees were not allowed to rank with judgments at law, with respect to conflicting claims of creditors, or in the administration of estates; but these opinions, the fruits of jealousy in the old common lawyers, would now hardly be seriously urged, and much less seriously admitted, after a practice so long and so well settled, as that which confers on courts of equity in cases of difficulty and intricacy in the administration of estates, the power of marshalling assets, and in the exercise of that power the right of controlling the order in which creditors, either, legal or equitable, shall be ranked in the prosecution of their claims. The relative dignity of courts of equity, and the binding effect of their decrees, when given within the pale of their regular constitution and jurisdiction, are no longer subjects for doubt or question. We hold no doctrine to be better settled than this, that whenever the parties to a suit and the subject in controversy between them are within the regular jurisdiction of a com to equity, the decree of that court solemnly and finally, pronounced, is to every intent as binding as would be the ju g raent of a court of law, upon parties and their interests regu larly within its cognizance. It would follow,.therefore, ia wherever the latter, received with regard to its digni Y aa conclusiveness as a record, would constitute the foun a 10 for proceedings to enforce it, the former must be e as equal authority. These are conclusions which reason justice and consistency sustain, and an investigation wi s them to be supported by express adjudication. J true that, owing to the peculiar character o q jurisprudence, there are instances of decisions y cou equity which can be enforced only by the au^0”/ , g of ceedings of these courts. Such, for example, is . . of cases for specific performances; or wherever ie narty, the court is to be fulfilled by some persona ac <. eyr and not by the mere payment of an ascertain^ sui _ But this arises from the nature of the act decre of the formed, and from the peculiar or extraorc irlai-YP to the court to enforce it, and has no relation whatsoever to 82 DECEMBER TERM, 1853. 77 Pennington v. Gibson. comparative dignity or authority between judgments at law and decrees in equity. We lay it down, therefore, as the general rule, that in every instance in which an action of debt can be maintained upon a judgment at law for a sum of money awarded by such judgment, the like action can be maintained upon a decree in equity which is for an ascertained and specific amount, and nothing more ; and that the record of the proceedings in the one case must be ranked with and responded to as of the same dignity and binding obligation with the record in the other. The case of Sadler v. Robins, 1 Campb., 253, was an action upon a decree of the High Court of Chancery in the Island of Jamaica, for a sum. of money ; “ first deducting thereout the full costs of the said defendants expended in the said suit, to be taxed by one of the masters of the said court; and also deducting thereout all and every other payment which S. & R-, or either of them, might on or before the 1st day of January, 1806, show to the satisfaction of the said master, they or either of them had paid, &c.” In this case, Lord Ellen-borough said, “ had the decree been perfected, I would have given effect to it as to a judgment at law. The one may be the consideration for an assumpsit equally with the other. But the law implies a promise to pay a definite, not an indefinite sum.” The case of Henly v. Soper, 8 Barn. & C., 16; of Dubois v. Dubois, 6 Cow. (N. Y.), 496, and of McKim v. Odom, 3 Fairf. (Me.), 94, are all expressly to the point, that the action of debt may be maintained equally upon a decree in chancery as upon a judgment at law. But if this question had been eft jn doubt by other tribunals, it must be regarded as settled or itself by this court, in the explicit language of its decision case of Hopkins v. Lee, 6 Wheat., 109, where it is decs ared as a general rule, “that a fact which has been directly ned and decided by a court of competent jurisdiction, cannot e contested again between the same parties, in the same or in any other court. Hence a verdict and judgment of a court record, or a decree in chancery, although not binding on nprai^erx’i an end f° all *farther controversy con- wa suif1111 r Z P°Bits decided between the parties to such L a vp'rd’ + j . ere i8’ and ought to be, no difference between pnnr. 1Cr a .lodgment in a court at law and a decree of a and hi stand upon the same footing, and if Z ij°i i*1 eyidence under the same limitations; otherwispU tZ assign a reason why it should be he rule has found its way into every system of 83 78 SUPREME COURT. Pennington v. Gibson. jurisprudence, not only from its obvious fitness and propriety, but because, without it, an end could never be put to litigation. It is therefore not confined in England or in this country to judgments of the same court, or to the decisions of courts of concurrent jurisdiction; but extends to matters litigated before competent tribunals in foreign countries.” The case of Dubois v. Dubois, 6 Cow. (N. Y.), was an action of debt upon a decree for a specific sum, by a surrogate of one of the counties of the State of New York. One of the objections in that case was, that the action of debt could not be maintained; and another that no jurisdiction was shown by the declaration. The Supreme Court, in its opinion, say: “ The principal question raised is, whether debt will lie. The general rule is, that this form of action is proper for any debt of record, or by specialty, or for any sum certain. It has been decided that debt lies upon a decree for the payment of money made by a court of chancery in another State, and no doubt the action will lie upon such a decree in our domestic courts of equity. The decree of the surrogate, unappealed from, is conclusive, and determines forever the rights of the parties. It maybe enforced by imprisonment, and, is certainly evidence of a debt due ; whether the surrogate s court be a court of record need not be decided. It has often been said, that a court of chancery is not a court of record. It is sufficient that a decree in either court, unappealed from, is final—debt will lie.” In opposition to the doctrine we have laid down, the case of Carpenter v. Thornton, from 3 Barn. Aid., 52, has been cited, to show that the action of debt wi not lie upon a decree of a court of equity. But with respec to the case of Carpenter v. Thornton it must be remar e , that Lord Tenterden, who decided that case, has, in the su sequent case of Henty v. Soper, 8 Barn. & C., 20, exp ci y denied that the former case can be correctly understoo as ruling any such doctrine or principle as that for which i ia been here adduced. In Henty v. Soper, his lordship says o Carpenter v. Thornton, “ I think it does not establish t e ro principle for which it is cited. It appears by the repor a then expressed myself with much caution, and I do no that I ever said that a decree of a court of equity xing balance due on a partnership account could not be en . *'70-1 a court of law ^unless the items of the accoun c 791 sued for. My judgment proceeded on the P^ticala cumstances of that case ; the bill was for the speci p . ance of an agreement, which is a matter entire y o* jurisdiction. But it is a general rule that i a p tiiat count be settled, and a balance struck by c ue » 84 DECEMBER TERM, 1853. 79 Pennington v. Gibson. balance may be recovered in an action at law.” In support of the objection that the action in this case is founded on a decree in chancery could not be maintained, the counsel for the plaintiff in error has cited the case of Hugh v. Higgs and Wife, reported in 8 Wheat., 697. This is a short case, presenting no precise statement of the facts involved in it, and as far as the facts are disclosed by the report, they are given in a somewhat confused and ambiguous form. It is true that the objection to the action, as founded on a decree in chancery, is said by the court to have been urged in its broadest extent. But if we look to the decision of this court, and the reasoning upon which that decision is rested, we find the objection to the judgment of the Circuit Court, or rather the principle of that objection, narrowed and brought considerably within the extent of the objection itself. For this court say that the judgment of the Circuit Court must be reversed for error in the opinion which declares, that the action is maintainable on the decretal order of the Court of Chancery. It might very well be error to allow the action of debt upon a decretal order of the chancery, and yet perfectly regular to sustain such an action upon the final decree. The former is subject to revision and modification, the latter is conclusive upon the rights of the parties. There is yet another ground Tv0!1 this case Hugh v. Higgs and Wife, so imperfectly s ated, might form an exception to the rule which authorizes actions of debt upon decrees in equity. In the case last mentioned, the action at law was brought and the judgment r 175; 1 Paige (N. Y.), And (N* Y->.156; and Ch- M®, 88. this is ?LOne f°r a rehearing was overruled in 1847, tained a?a^°n w a rebearing should not have been enter-3 Edw CH the sarne cause- lb Ves., 214; EsnecSi79’ 480; Walk’ (Miss.) Ch., 309. has proceeded t n?t1a shearing be allowed after the party proceeded to take an account before the master. 3 89 83 SUPREME COURT. Fourniquet et al. v. Perkins. Johns. (N. Y.) Ch., 365, 366 ; 11 Ves., 602; 3 Barb. (N. Y), 232. The case of Consequa v. Fanning, 3 Johns. (N. Y.) Ch., 364, is not dissimilar to the case before the court, as it was there a decretal order to account, and the defendants had attended the master; and after report returned, filed petition for rehearing. It was granted, but on stringent terms. See the case. The case of Hunter v. Carmichael, 12 Sm. & M. (Miss.), 726, is very like the present case, though less objectionable, where the chancellor set aside an interlocutory decree (but n°t *dismiss the bill) without motion, petition, or J other cause assigned, or appearing on record. The case is carefully considered by the Supreme Court, with its accustomed ability. In their opinion, they say : “ The order seems without any foundation to support it. No petition is filed, no proofs exhibited, no ground laid, no reasons assigned, no excuse offered for delay, no cause of any kind shown. This seems to us not the exercise of a “sound judicial discretion,” but the exertion of power without legal warrant. If this order be sustained, then the rights of the parties, in some degree, rest not upon fixed and established rules of law, but upon the varying opinions of the court. The parties could not know on what to repose, and certain reliance on judicial proceedings would be greatly diminished. We do not mean to say it is not in the power of the Chancery Cour to set aside an interlocutory decree, but only that some cause must be shown sufficient to authorize the act. Where t ere is error upon the face of the decree, or report under i , a is in itself sufficient ground for the court to act on. Bu . n such error appears in this case...........The order se mg aside the interlocutory decree without cause, is e^ionea ' It is therefore reversed, and cause remanded for fur er p a" very similar case is that of Moore v. Hilton, (Va.), 30. The court say that where new evidence is broug forward as a ground to change an interlocutory ecre। , application must be made on motion, or notice o re cause on the new evidence, or by petition for rehearing. The counsel for the defendant in error replied to this a g The counsel for appellants concedes that an decree continues subject to the chancellor s P° p amend, or set aside, at any time before fina > 90 DECEMBER TERM, 1853. 84 Fourniquet et al. v. Perkins. urges that the power must be rightfully exercised, or it becomes usurpation. Taking the position of the counsel as correct, the question recurs, whether this power was rightfully exercised ; and on his own statement, connected with the record, it appears that the court heard his argument on the merits, and became satisfied on a review of its opinion, and on the authority of two cases decided since the interlocutory decree was rendered, that it had erred in its construction of the releases, and its decision on their effect as a legal bar to the complainants’ demand, and therefore corrected its error and dismissed the complainants’ bill. In this view of the merits, the court below has since been sustained by the opinion of this court in 14 Howard. If appellants’ position be *sustained, it would now be r*or necessary to reverse the final decree of the lower court, and to send the case back with directions to carry out the erroneous interlocutory decree to an erroneous final decree, in order that this court might then reverse the erroneous final decree rendered in accordance with its own mandate, and restore the final decree which it had previously reversed. The complainants’ brief, after urging the irregularity of the action of the lower court in reversing its interlocutory decree, 18 ^onfined to reiterating the argument and authorities already a U to Julia Soulard, widow, and James G. Soulard and others, heirs of Antoine Soulard, deceased, relates back to the mie of filing the petition for confirmation, and passes to t e con firmees the title to the land thereby confirmed, so as_ o cu out all titles and claims thereto originating after the mg said petition. ,, r j Second. If the jury believe from the evidence that thenan *qqi *sued for was patented by the United f 881 22d day of December, 1845, to the widow and heirs Antoine Soulard, deceased; that such patent was f land surveyed for said patentees in pursuance o a , confirmation made by the Supreme Court of the ni e ’ and that such decree of confirmation was fonn e o tion for a confirmation filed in the United Sta es the District of Missouri, on the 22d day of Angus , , patent conveyed to the patentees a better 1 ® made sued for than that derived from an entry o tpn4-;ssued on after the said 22d of August, 1824, or from a patent i.suea 8"n"Fif.the jury believe from the evidence that Antoine 94 DECEMBER TERM, 1853. 88 McCabe v. Worthington. Soulard, on the 22d day of August, 1824, petitioned the District Court of the State of Missouri for the confirmation of his title to a claim of 10,000 arpens of land; that said Antoine Soulard died, and the suit was revived and prosecuted in the name of his widow and children ; that the said District Court decreed against the said claim ; that said suit was appealed to the Supreme Court of the United States, within one year from the time of the rendition of said decree by the District Court; that said Supreme Court afterwards decided in favor of the said claim, and by a decree confirmed the same to said widow and heirs; that the surveyor of public lands for the State of Missouri caused the lands specified in said decree to be surveyed for said confirmees;—if the jury find these facts to be true, then the said widow and heirs of Antoine Soulard had, by virtue thereof, a better title to the land included in such survey than the defendant can have to any part of it by virtue of an entry made after the said 22d of August, 1824, or by virtue of a patent issued on the said entry. Fourth. The title under the confirmation of the Supreme Court of the United States to the representatives of Antoine Soulard is a better title than that of the defendant. Fifth. The act of May the 26th, 1824, passed by the Congress of the United States, reserved from sale the lands included within the bounds of all claims of the character em-raced within the provisions of the first section of that act, rom the time of the filing of the petition for confirmation of such claims in the District Court of Missouri, until such time as said claims should be finally decided against the claimants. ixth. Any entry of land made within the limits of any c aim, ot the character embraced within the provisions of the nrst section of the act of May 26th, 1824, after the filing of r e Pe 1 I0?1 the claimant in the District Court, as provided ac\and before said claim shall be finally decided • e * ajmant, is avoid entry, and the patent issued rpfn2°a +S a •V01d Patenti Which instructions the court r~cn thpr«e 4- fi g1V-e ’ which refusal the plaintiff then and I-tneie at the time excepted. instrultions^towiU ™°tion °f defendant» gave the following Reeorruf°j 3?.e ^°^ard claim was not filed with the Julv 1808 ,?and Titles in St. Louis prior to the first day of sale-’ and Said c^a^m was n°t by law reserved from sale as other publicTan^ by laW’ WaS subjected to oulard s claim was not reserved from sale, then the 95 89 SUPREME COURT. McCabe v. Worthington. entry of the defendant, if made according to law, being older, is a better title than the plaintiff’s confirmation. 3. The patent of the defendant is primd facie evidence that this entry was regular and lawful. 4. The act of Congress of 26th May, 1824, under which Soulard’s claim was confirmed, did reserve from sale the land covered by said claim, and any sales of such lands regularly made prior to the confirmation, convey to the purchaser a better title than said confirmation, such claim not having been filed with the recorder prior to July 1st, 1808. 5. The commencement of a suit by Soulard in the United States Court, for the purpose of obtaining a confirmation of his claim, did not operate as notice of his claim, so as to affect a title otherwise regularly obtained from the United States; and sales of such land, made after the commencement of this suit, stands upon the same ground as if made before such suit was commenced. To the giving of which instructions the plaintiff then and there at the time excepted. Upon these exceptions the case went up to the Supreme Court of Missouri, where the judgment of the court below was affirmed. And to review this decision the case was brought here. It was argued by Mr. Greyer, for the plaintiff in error, and Mr. Wells, for the defendant in error. Mr. Greyer, for the plaintiff in error. The Supreme Court of the State of Missouri on the appeal, decided that the claim of Antoine Soulard, at the date of the act of 1824, had no legal existence ; the United States were under no obligation, moral or political, to make any provision for its recognition or confirmation; it was forfeited, by reason of its owner failing to give notice of it within the time pr scribed by law. That the act of 1824 conferred a gratmty, and the claimants under it, especially those in e G Soulard, were applicant to the bounty or favor o ong • The land Maimed was public, liable to sale and ent y -I as other public lands, pending the suit. The plaintiff in error submits that the decree o co , tion made by the court on the 21st of January, , . in Julia Soulard, widow, and James G. Soul&fd’ arJUnited heirs of Antoine Soulard, deceased, all the ti e o nce. States in the land in controversy, as it was a i ending the meat of the suit, and consequently that the sale p g suit was void. 96 DECEMBER TERM, 1853. 90 McCabe v. Worthington. 1. The act of Congress, of May 26, 1824, under which the proceedings were had, was not designed to confer gratuities upon claimants, but to provide a remedy by which legal, just, and bond fide claims might be established. “ The mischief intended to be provided for by the act, was the inchoate or incomplete condition of titles having a fair, and just, and legal inception, under either the French or Spanish governments of Louisiana, but which by reason of the abdication or superseding of their governments, and by that cause only, had not been completed.” The United States v. Reynes, 9 How., 127, 145; 4 Stat, at L., 52. 2. It may be conceded that the claim of Soulard was barred as against the United States by the neglect to file notice thereof, as required by the act of March 3, 1807, yet as the bar was removed by the act of May 26, 1824, and the land remained undisposed of, the claim was restored to its original standing, precisely as if the act of 1807 had not passed. The act of 1824 enables all claimants, under incomplete titles, having a fair, legal, and just origin, to bring such titles before the courts of the United States, and there establish them by proof of the legality and justice of their origin and character, without regard to any proceedings or notice under previous acts of Congress. 3. The effect of the act of 1824, is to reserve from sale and location the lauds embraced by any incomplete title, within the description of the first section, until the final decision of he case where a suit is prosecuted, and for two years where e claimant fails to prosecute his claim under the act. See sec ions 5 and 7, and the case of Stoddard v. Chambers, 2 How., 284. ^r. Wells, for defendant in error. fnr k +i.e C01ur^ err *n refusing to give the instructions prayed ror Dy the plaintiff, or in giving those for the defendant? Raia kr 4-k • efr foulard’s claim was not reserved from Drior tn +k 01 1818’ or’ indeed, by any other act which May 26, 1824; for the only condition upon claim «k C i ,re®ervatlons were made, was that notice of the Titles nr>U u been filed with the Recorder of Land such nntlaak ^*le ^le 1st °1 'lui.y’ 1808. Of this claim no terms of th e\er ^een ^ed- it stood then by the 8U807f, L > °* t.l'e 2d March’ 1805- “d of March 1 91 provided flmt^ ., c^a!m/ section of the latter act file such nnt; the rights of such persons as shall neglect to 1808 1 shall the time therein limited (the 1st July, Vol. xvt S°/ar as ^ey are derived from, or founded on ‘ 97 91 SUPREME COURT. McCabe v. Worthington. any act of Congress, ever after be barred. and become void, and the evidences of their claims never after admitted as evidence in any court of law or equity whatever.” The claim then, at the date of the act of 1824, was wholly destitute of merit. Whatever claims it might originally have had upon the justice of the government, had long since been lost by the laches of the claimant, and by the lapse of time. Its confirmation to him then was a mere naked gratuity. 2. The act of May 26, 1824, did not make any express provision for the reservation of this or any other claim. Its provisions extended to two classes of claims—those which had been filed with the recorder, as required by law, and which were reserved by the acts of 1811 and 1818, and those which had not been so filed and reserved. And, indeed, it is the only act of Congress that has ever opened the door for confirmation to this latter class, since they were barred. The fifth section of the act provides, “That any claim to lands, tenements, or hereditaments, within the provisions of this act, which shall not be brought by petition before said courts, within two years from the passing of this act, or which after being brought by petition before the said courts, shall on account of the neglect or delay of the claimant, not be prosecuted to a final decision within three years, shall be forever barred, both at law and in equity, and no other action a common law or proceeding in equity shall ever thereafter,, e sustained in any court whatever in relation to said claims. This provision can only relate to the class of claims whic had, by former laws, been reserved from sale. As to ie other class, they were already, by the act of 1807, barre , and no new legislation was required to bar them. os® which had been reserved must continue to stand reserve until some act was passed to take off the reservation. i fifth section effectually secured that object. It cou have been intended to bar a claim already barred, an w to be sold as other public land. e n . But the fifth section only barred the claims from , adjudication. It did not provide for the sale o e within those claims. When the claim ceased to e for adjudication, it became necessary, according o other of Congress, that the land should be offered for sa e *92, *And accordingly the seventh sec^h°f ?uThathi 92J introduced for that purpose. It reads thus. each and every case tried.under the P™V1S1?^ an({ in which shall be finally decided against tec Under the each and every case in which any claim cogniz 98 DECEMBER TERM, 1853. 92 McCabe v. Worthington. terms of this act, shall be barred by virtue of any of the provisions contained therein, the land specified in such claim shall forthwith be held and taken as a part of the public lands of the United States, subject to the same disposition as any other public land in the same district.” It is this section which it is supposed operated by implication to establish the reservation of Soulard’s claim. But it is clear that it could not relate to that class of claims. It relates to claims barred by the provisions of this act. Soulard’s claim was not barred by this act, for it had been barred many years before by the acts of 1805,1806, and 1807. It had been incorporated with the other public lands, and surveyed, and offered for sale with them. No new legislation was required to put it in the market, for it was already in market, and as stated by the petitioner himself in his petition to the district court, “the quantity of one thousand nine hundred and forty-seven acres and thirty-five hundredths, had. been definitively sold by the United States,” and he gives the names of the persons to whom sold. See Record, page 7. The language of the act is, “ shall forthwith be held and taken as a part of the public lands of the United States.” Ihis language is appropriate when applied to lands which had always been reserved from sale; which had never been m market; which had been treated as private property, and never “ held and taken as a part of the public lands of the United States,” but can have no proper application to those lands which had in every respect been subject to all the laws relating to public lands since 1808. 3. But there are other provisions of the act of 1814, which preclude the idea that it was intended by Congress, that the title acquired by the claimant should ever be brought into conflict with sales made by the United States. rhe sixth section provides that the clerk of the court shall urnjsh the successful claimant with a copy of the decree, who shall deliver it to the Surveyor of Public Lands in Mis-^le surveyor shall cause the same to be surveyed. e e even th section then provides, “ That if in any case it ?OU f°JlaPPen that the lands, tenements, or hereditaments, shfiTt any claimant under the provisions of this act, no ice of all the right the plaintiff has. But in the case of Sou ai he had no right of title whatever, to the lands for which ne sued. It belonged to the government and not to him, an if it belonged to the government, then the governmen mig lawfully sell it to any one before it granted to him. . e pe tioned for a grant of the land, and when he obtained is g1 Cony don v. Goodman, 2 Black, 574; Worthy v. The Commissioners, 9 Wall., 611; De La Lande v. Treasurer of Louisiana, 18 How., 192; Withers v. Buckley, 20 Id., 84; Harrison v. Muer, 2 Otto, 111. 115 107 SUPREME COURT. Robertson v. Coulter et al. proof a judgment of forfeiture should be pronounced; upon which judgment of forfeiture it was made the duty of the court to appoint a trustee to take charge of the books and assets, and to collect all debts due such banks, and to apply the same to the payment of the debts of such banks in such manner as should thereafter be directed by law. Under this act, judgment of forfeiture had been obtained against the Commercial Bank of Natchez in the Adams County Court, the plaintiff in this suit had been appointed the trustee, all the debts of the bank had been paid, and all costs and charges incident to the trust, discharged when the present suit was instituted. The pleas which the defendant put in, raised the question as to the extent and nature of the trust created by the act of 1843: whether, on the one hand, the trustee was a mere officer of the court which appointed him for the simple purpose of receiving and collecting the assets of the bank for the purpose of paying the debts of the bank; or whether, on the other hand, he was constituted a full and complete representative of the bank for the benefit of stockholders as well as of debtors of the bank. The highest court of Mississippi has decided that the intention of the legislature, in the act of 1843, was simply to constitute an officer to collect the debts due to the bank for the sole purpose of paying the debts due from the bank, and that when that object was accomplished the trust was extinct, leaving the stockholders where the common law left them upon the dissolution of a corporation. *It *s difficult to see, from this simple statement o •J the case, what possible ground there is for the jurisdiction of this court. It is nothing more than the exposition, by the highest judicial tribunal of a State, of the meaning o a legislative act of that State. It is not contended tha 6 act of 1843 itself is invalid, for the plaintiff derives all his authority from that act. It is not pretended that the ac o 1843, as construed by the court, takes away any right secui^a by any previous act of the legislature. All that is tained is, that because the Court of Appeals have no ou? that the act of 1843 gives to Mr. Robertson, as trustee, qui« as extensive powers as he supposes that act to give » therefore this construction of the act.has taken ron} , right which his own construction had invested him wi , ‘ consequently this court has jurisdiction to ovenu e i “ill be seen, therefore, upon the face of the the high court of Mississippi was emploje in f 1843, what were the powers of a trustee under the act of 116 DECEMBER TERM, 1853. 108 Robertson v. Coulter et al. what was the nature and extent of the trust, and whether, under that act, the trust was limited to preservation of the rights of the creditors of the bank. And the court decided that the act of 1843 saved from the common-law consequences of forfeiture, the debts due to the bank for the benefit of the creditors of the bank, and for no other purpose; that upon the true construction of the act of 1843, the trust being a limited official trust, was discharged and extinguished when the object for which it was created was attained; that the trustee had no power remaining after the trust was discharged. All of which was the mere construction of a legislative act by the judicial tribunals of a State, which construction this court have no more jurisdiction to inquire into and reverse upon this writ of error, than they would have to reverse the judgment of the Queen’s Bench upon the construction of an act of parliament. As however a very metaphysical argument has been incorporated into the record under the form of a petition, it is proper to examine its soundness, so far as it may touch the jurisdiction of this court. The substance of that argument is, that by the common law debts to and from a bank were not extinguished by its disolution, but only that they could not be enforced because there was no longer a party in existence for or against whom to enforce them. That the moment a representative of the bank is created by law, those debts are revived or continued m lull vigor. From which two premises the conclusion is eaped to, that the law which takes away from such represen-.a collect for the benefit of all persons concerned *Nre ^an^’ would be unconstitutional and void. ow we deny both the premises in this argument, r*-inn nd yet say that if they were admitted, the conclusion *- 109 of°U‘ 1 i l°w ’ because where the creation and limitation IaJmA-8 aie derived from and contained within the same thp -1 i\e ac^’ 110 su°b constitutional question can arise. If restJnp1 8 were created by one act, and the limitation or therp yer? niade by another and subsequent one, then auent J1?1 AnSj6 a question as to the validity of such subse-merMni 7 d was the very predicament in the Com-^LBmk^Chamier^ 8 Sm- & M. (Miss.), 1. In that was fa. decided that under the act of 1843, the trust invested creditors, and that the trustee being creditors le Powef to sue and collect for the benefit of became x’pc+ a ?a ,an interest in the fund, that this right act of 1848 t i ac^ 1^43, and that the subsequent ’ a mg away the right to sue for and collect for 117 109 SUPREME COURT Robertson v. Coulter et al. the benefit of creditors was so far void. But in this case the whole matter is contained in the same law. And the discussion below, and the decision of the court, was to determine the result of that whole law. But it will be perceived that the argument of Mr. Yerger assumes what the whole current of decisions, and especially those of Mississippi, contradict, namely, that the dissolution of a corporation does not extinguish the debts due to and from it. See the cases cited in the decision of the court, 2 Cush. (Mass.), 321. But especially will it be seen, that the argument assumes that which was the question under discussion in the court below. It is a pure petitio principii. Mr. Yerger takes for granted that the trustee appointed by the court, under the act of 1843, was a full and complete representative, for all purposes, and for the benefit of all, of the extinct corporation. Now, that was the very question in the court below; and, so far from agreeing with the view of Mr. Yerger, the court below decided, as the court had decided in 8 Sm. & M. (Miss.), 1, that the trustee was not, upon the true construction of that act, a full representative of the bank, but was an official trustee to carry out the object of the act, namely, the payment of the creditors of the bank. And this court in effect decided the same thing in the case of Peale v. Phipps, 14 How., 374. As to that part of the argument which seems to deny the competency of the legislature to preserve so much of the effects of a dissolved bank from the effects of forfeiture as may pay the debts of the bank, leaving the interests of the stockholders to their fate at common law, I shall say but a word. If the legislature should deem it a matter of soun policy and justice, to preserve from destruction the debts ue to creditors who were innocent of any of the acts whic *11 m called for a forfeiture of the *charter, and at the same -I time to leave just where they were those persons w o had abused their trust, and made it necessary for the jo lcia tribunals to declare that trust at an end, certainly it would oe within the legislative power to do so. The interests ot s oc holders are distinct from those of creditors. The po making a distinction between them in the conserva ive vention of the legislature is very apparent. /t'28x~ie1n jLfnvp question of construction whether or not in fact the leg has so done. Mr. Porter an Mr. Wharton, against the motion. It will be observed that the plea does no Tie r rio-ht of the plaintiff to bring the suit. It expressly sets 118 DECEMBER TERM, 1853. 110 Robertson v. Coulter et al. that after his appointment, “and after the commencement of this suit, he, the said plaintiff, collected and received ” “ a large amount of money sufficient to pay,” &c. Stated in other words, the defendants’ position is, that the plaintiff had a clear title to the notes and a perfect right to bring the suit, but that afterwards, because other debtors paid their debts, it became unnecessary and consequently unlawful to prosecute the action. Let it be observed that this plea strikes directly at the rights of the stockholders. If, as alleged, the debts of the bank are paid, these are the only parties to be affected by the decision of the court on the plea. The property of this large class of claimants, who are distributed as we may suppose over the whole Union, is thus left in the possession of those most expert in obtaining this property on solemn contracts to pay it back, made with the authorized agents of the stockholders. It is, therefore, respectfully urged that the decision of the Court of Appeals affects the rights of the stockholders. The plaintiff contends that the construction given by the latter court to the statute of 1843, impairs the obligation of the contract entered into by the drawer of these notes. This coui’t will, it is true, adopt the construction given to the statute by the .Court of Appeals, but if that construction impair । obligation of a contract, this court will certainly reverse the decision of the inferior court. The authorities on this point are so numerous as to require no citation. f • .a motion like the present, to dismiss the writ for want 0 jurisdiction, we suppose it sufficient to show that the case presents a fair legal question on the constitutionality of the ississippi law. The motion can be applicable only where ere is a clear, absolute want of jurisdiction. If the ques-lon were to some extent doubtful, it should stand over until pAT? Came Up reSularly for argument. But we maintain that thjs court has jurisdiction. to debt passed to the plaintiff, it rpsno a V1°lation. of the constitutional provision m to be obligation of contracts, to allow the defendant snqfain a k °obgation on the ground assumed by him and instifnfL C°urt of Appeals, namely, that since the amount ° ^ le SU^’ toe plaintiff had collected so large an monpv render it unnecessary to collect this It admits tt be defendant. Such a plea admits the contract, and to poll a<- e Pontiff had once a right to sue upon it Xe d t e t the-debt Secured b-v ib The fact relied on is made but ai,18en’ not only after the contract had been er the action upon it had been commenced. 119 Ill SUPREME COURT. Robertson v. Coulter et al. The obstacle thus interposed is that the plaintiff, as trustee, does not need the money for certain indicated purposes. The decision of the Court of Appeals is then made discharging the defendant from liability on the note. If there was any contract whatever, (which the plea admits,) is not this impairing its obligation? Is it not destroying the contract altogether ? Can it be doubted that the title to the debt did pass to the plaintiff? If it had been intended to extinguish it, this would have been done. The death of the corporation did not extinguish the debt morally, and the statute in terms does not do so, but merely removes a legal difficulty by designating the person who is to sue for it. The very same statute which destroyed the bank, preserved the debt alive, vested the ownership of it in the plaintiff, and, by implication, required him to sue for it. He was fully authorized to recover it; when recovered, he was directed to apply it in a particular manner to do a future act which in no way concerns the defendant, for the recovery discharges him. It seems clear, therefore, that the debt did remain, and did pass to the plaintiff. If it remained at all, it remained as a unit. It could not remain for the half, and not for the whole. There is no instance of a contract being thus cut into pieces by legislative action. If recoverable at all, the whole is recoverable. If the contract stood, the amount of money which it secured must be determined by the contract, and not by the caprice, dishonesty, or energy of every other man in the community who had made similar contracts. It would be as reasonable to prescribe that a debt should remain, but that the amoun of it should depend on the state of the weather at some future time, and that, too, without naming a time. . In the defendant’s brief it is suggested that the plamtiit cannot question the validity of the act of 1843, because he derives his authority from it. Certainly he cannot, and his position does not require that he should. That act empowers him to collect the debts due to the bank, and to apply e sara to the payment of the debts of the bank. The act does n declare *that after this point has been attalI]®d’ “ shall have no power to collect, or that he s a begin to pay back to the debtors, sums previous y , If we are right in supposing the contract an en ne y, . debt a unit, the very power to collect any ara5)jin1 ,, him to collect the whole. For the surp us, r;ffhtful liable as any other trustee, to the parties havi g g C1 These'Z^s are the stockholders. This construction 120 DECEMBER TERM, 1853. 112 Robertson v. Coulter et al. commends itself to our sense of justice. It was the duty of the legislature, when that body forfeited the charter of the bank, to protect the property in which individuals were interested. The rights of the State were satisfied by the divestiture of the chartered privileges of the bank. The presumption is, that the legislature intended to do what was right, by protecting private property, and not to inflict needless and wanton injury on individual rights. The construction contended for by the defendants and adopted by the Court of Appeals is, that this debt, and all others similarly situated, are absolutely forfeited, and that the stockholders, on whose behalf the contracts were made, shall suffer the loss. Against so unjust a result, every fair presumption should be made. It will be seen, by reference to the arguments which accompany the record, that the points here taken were made in the court below. It was there argued that so much of the act of 1843 as prevented a recovery for the benefit of stockholders, and restricted it to the benefit of the creditors, was void. We beg leave to refer to those arguments, and to make them a part of this brief. Mr. Chief Justice TANEY delivered the opinion of the court. case is brought here by writ of error directed to the igh Court of Errors and Appeals of the State of Mississippi, under the 25th section of the act of 1789; upon the ground that a law of that State, under which this decision was made, impairs the obligation of contracts. is an action of assumpsit. The plaintiff declares on a promissory note made by Collins, in his lifetime, to the Com-neicia Bank of Natchez. The declaration avers that after tlX exe2utlon the n°te, and before the commencement of hani SU1 Judgment of forfeiture was rendered against the of December, 1845, according to a statute nlainffptate m Su.ch case made and provided; and that the took rL WaS- aPPointed by the court trustee, and as such bv S^n ^’s no^e ’ and that by means thereof and Dav him ie s^tute of the State, Collins became liable to PaJ nim the money. *collperh^en^ants P^eaded that the plaintiff, as trustee, had erty of th^'n r®ceived of the debts, effects, and prop- 1Q pay the debts V+il a? araount money sufficient to incident tn id the bank, and all costs, charges, and expenses plaintiff demurred™rmance trust. To this plea the 121 113 SUPREME COURT. Robertson v. Coulter et al. The Court of Appeals overruled the demurrer, and gave judgment for the defendant, upon the ground that the plea was a full and complete bar to the enforcement of the right set out in the declaration. And this judgment is now brought here for revision by writ of error. A motion has been made to dismiss the writ for want of jurisdiction. And in the argument of this motion, a question has been raised whether, by the common law, the debts due to a bank at the time of the forfeiture of its charter would not be extinguished, upon the dissolution of the corporation, and the creditors without remedy. And cases have been referred to in the Mississippi Reports, in which it has been decided that by the common law (previous to any State legislation on the subject) upon the dissolution of a banking corporation, its real estate reverted to the grantor, and its personal property belonged to the State; that the debts due to it were extinguished, and the creditors without remedy against the assets or any of them which belonged to the bank at the time of the forfeiture. But this question is not before us upon this writ of error, and we express no opinion upon it. The suit is not brought by a creditor of the bank, seeking to recover a debt due to him by the corporation at the time of its dissolution. But i is brought by a trustee appointed by a court of the State, under the authority of a statute of the State; and the ques tion before the State court, which the pleadings presented, was whether the trustee was authorized, by the law undei which he was appointed, to collect more money from e debtors of the corporation than was necessary to pay i s debts, and the expenses of the trust. , Now, in authorizing the appointment of a trustee we banking corporation was dissolved, the State had uni ou . a right to restrict his power within such limits as i 0 & proper. And the trustee could exercise no power over t assets or credits of the bank beyond that which e , thorized. The Court of Appeals, it appears, decided that we statute did not authorize him to collect moi e an , cient to pay the debts of the corporation an k charges of the trust. And, as the demurrei 0 e the mitted that he had collected enough for P. ? decourt held that he could not maintain a suit agains fendants to recover more. Q t was The question therefore presented to the Sta ^tue of merely as to the powers of a trustee, appoi nje(j upon *1141 a statute of Mississippi. His powe P have n0 114] *construction of the statute. A 122 DECEMBER TERM, 1853. 114 Chapman v. Smith et al. right to inquire whether the State court expounded it correctly or not. We are bound to receive their construction as the true one. And this statute, as expounded by the court, does not affect the rights of the creditors of the bank or the stockholders. The plaintiff does not claim a right to the money under a contract made by him; but under the powers and rights vested in him by the statute. And if the statute clothes him with the power to collect the debts and deal with the assets of the bank to a certain amount only, and for certain purposes, we do not see how such a limitation of his authority interferes in any degree with the obligation of contracts. The writ of error to this court must consequently be dismissed for want of jurisdiction. ORDER. This cause came on to be heard on the transcript of the record from the High Court of Errors and Appeals of the State of Mississippi, 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. Reuben Chapman, Governor, &c., for the use of John B. Leavitt and Rufus Leavitt, Plaintiff in error, v. Alexander Smith, Bolling Hall, Malcolm Smith, and John G. Graham. laTS °^i -Alabama, where property is taken in execution, if the sheriff e®Ju ma*te the money, the plaintiff is allowed to suggest to the court a + .e ™oney might have been made with due diligence, and thereupon the In a k 'J8 directe(i to frame an issue in order to try the fact. i. uh®n a sheriff’s bond, where the plea was that this proceeding had tion tn th- , 0tbe plaintiff and a verdict found for the sheriff, a replica-the sam 18 a^egmg that the property in question in that trial was not a bad rJt J?roP.erty mentioned in the breach assigned in the declaration, was jury lcatl0n an(t demurrable. It submitted a .question of law to the was notCthrKr'^ I)ieafie(l that the property which he had taken in execution, the nlaintiff P°Perty of the defendant, against whom he had process, and emurred to this plea, the demurrer was properly overruled. trictCnn^6 brought UP by writ of error from the Dis-Alabama1 ° United States, for the Middle District of as a su^ uPon a sheriff’s bond. Alexander Smith was 123 114 SUPREME COURT. Chapman v. Smith et al. the sheriff, and the other defendants in error his sureties. The Leavitts were citizens of New York. *11 was ^together a case of special pleading. There -I were fourteen breaches assigned in the declaration, ten pleas, with replications and demurrers on both sides. There were demurrers to the breaches, demurrers to the pleas, and demurrers to the replications, upon which sometimes one party obtained a judgment, and sometimes the other; and whilst all this was going on between the principals, the sureties kept up an outside war of their own, by pleading the Statute of Limitations which led to a succession of other pleadings. The record contained thirty-eight printed pages, which were occupied exclusively with pleas, replications, demurrers, joinders, and judgments upon them; and finally the case came up to this court upon two judgments upon demurrers. In giving a narrative of all this, the controversy between the plaintiffs and the sureties will be detached from the tangled history, and left out of this report. The facts of the case, upon which this system of pleading arose, were these: On the 28th of September, 1839, John W. and Rufus Leavitt obtained a judgment against Jeremiah M. Frion, in the Circuit Court of the County of Coosa, Alabama, for $3,472. On the 17th of the ensuing October, a writ of fieri facias was issued, and placed, on the 24th, in the hands of Alexander Smith, the sheriff. . , The return day of this writ was the fourth Monday in Maren, 1840, when the sheriff returned that he had levied, on the Is February, 1840, upon dry goods, hardware, carriages, &c. On some day after this, but when the record did not show, the time of the sheriff expired, and on the 12th of Sep era er, 1840, the sheriff, by leave of the said Circuit Court, first naa and obtained, altered, or amended his said return on sai wn by adding thereto the following words and figures, to wi . “The above goods have been claimed by A. B. Dawson Samuel Frion, assignees of J. M. Frion, defendant in ex® tion, and claim bond given to William J. ^amp e ’ sheriff, and my successor in office, September , • „ ’ J “A. Smith, late Sheriff. It is now necessary, before the next st®Pjn so referred to, to mention two statutes of Alabama, minutely stated in the opinion of the court, a other succinctly mentioned here. One is, that i a p may than the debtor, claims the property leviec P L that it make affidavit that he is the^owner, and give bo 124 DECEMBER TERM, 1853. 115 Chapman v. Smith et al. shall be forthcoming, whereupon the sheriff shall suspend the sale. The other is, that the plaintiff in the suit may make a suggestion to the next court, that the money could have been made by the sheriff by the exercise of due diligence, whereupon the court shall order *an issue to be framed to determine the fact whether or not due diligence was *-used. We now proceed with the narrative. At the April term, 1843, of the Circuit Court for the County of Coosa, John W. and Rufus Leavitt made a suggestion, in conformity with the above statute, that the money might have been made by the sheriff, if he had used due diligence; and thereupon an issue was made up between them and the sheriff, who denied the allegation. At September term, 1847, this, issue was tried and resulted in a verdict by a jury in favor of the sheriff. In October, 1848, J. W. and R. Leavitt, using the name of the Governor, to whom the bond was given, brought this suit against the sheriff and his sureties, upon the official bond, in the District Court of the United States for the Middle District of Alabama. The declaration assigned fourteen breaches. First. That the Leavitts, at the Fall term of 1839 of the Circuit Court of Coosa County, recovered judgment against one Frion, for $3,472; that a fi.fa. issued thereon, and came to the hands of the said Smith; that although there were goods, &c., of the said Frion, out of which the said judgment might have been levied, and of which the said Smith had notice, yet he neglected and refused to levy, &c. Second. That Smith did seize certain goods, and might have ev^,. the money by sale, and neglected to sell. Ihird. That he seized goods which he might have sold, but !d not, and returned the levy on the goods. Fourth. That he seized, might have sold, but did not;—re-kUrniQ?n he levied. Afterwards, on the 12th Septem-ei, 840, amended his return by adding that the goods had een c aimed, &c. Averring amended return to be false, be-n6.1,10 q aim WaS ma<^e before the return day of the writ. rpt ' kame as last, except that it averred that the amended *ase’ because no claim on oath was made. jrivonk ame as fourth, except averring that no bond was given by claimants. Deraon^’ amended return was false, because no claimpd th1™6 ProPerty, and made oath, and no person Eiahtl QS.ame and gave bond according to the statute. did not Ure’ Claim’ dut^ of sheriff *<> prepare bond, but 125 116 SUPREME COURT. Chapman v. Smith et al. Ninth. Seizure, claim, no bond taken, goods delivered to claimants and wasted by them. Tenth. Seizure, claim, no bond taken, goods delivered to claimants and by them consumed and wasted, and no part of .. *the goods delivered to the Leavitts, nor any part of J the damages paid to them. Eleventh. Same, except that it is alleged that Smith suffered goods to be wasted, &c. Twelfth. Same as last. Thirteenth. Seizure, claim, bond, and, by negligence of Smith, bond lost. Fourteenth. Same as last, except that the bond taken was not returned. Spring Term, 1850. The defendants demurred to the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, and 14th breaches. To the 1st, 2d, and 3d breaches, the defendants pleaded that the said Leavitts, in the Circuit Court of Coosa County, according to the statute of Alabama, suggested the issuing of the fi. fa.; that it came to the hands of Smith to be executed ; that he might by due diligence have made the money and did not; that an issue was made up whether Smith by due diligence could have made the money, &c.; that the issue was tried and found for Smith, for whom judgment passed, &c. And the defendants aver, that the writ of execution mentioned in the breaches, and that mentioned in t le suggestion, were one and the same ; and that the abege neglects and defaults mentioned in both, were one and t e same, and not different. _ , The plaintiff filed a joinder in the demurrer to the 4th, otn, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, and 14th breaches. To the three pleas put in by the defendants to the first, second, and third breach, the plaintiff put in a rep ica ion that the defaults, in the said pleas mentioned, weie no same defaults mentioned in the breaches. The defendants demurred to this replication, and the plan -tiff joined in the demurrers. . At the Fall term of 1850, the court sustained the detenu-ants’ demurrer to the 8th and 13th breaches ofthe p ainti , and overruled it as to the 4th, 5th, 6th, 7th, , ’. ’ 12th, and 14th breaches, and that the defendants to plead to the last-named breaches. nf the The demurrer of the defendants to the rep ic gj plaintiff to the plea of the defendants to the s , , had breaches, was sustained. And on motion, ^declaration, leave to amend the 8th and 13th breaches o 126 DECEMBER TERM, 1853. 117 Chapman v. Smith et al. December Term, 1849. The demurrer of the defendants to some of the breaches, having been overruled, they now filed a plea to the 4th, 5th, 6th, and 7th breaches. They set forth the suggestion to the court, the issue, trial, and verdict. They aver *that upon that trial the truth of the amended return was brought up, and that the verdict 1 found the amended return to be a true return; and that this is the same as the amended return mentioned in the breaches. And the defendant also filed pleas to the 9th, 10th, 11th, 12th and 14th breaches, their demurrers to which had been overruled. The first plea, called the sixth in number from the beginning, set forth, that after the levy, the goods were claimed by one A. B. Dawson, and one Samuel Frion, as assignees of J. M. Frion ; that an affidavit was made by Dawson; that Lawson and Samuel Frion gave a bond; that the affidavit and bond were duly returned to court; that the suit of the Leavitts against the claimants was put upon the docket; that at the Fall term of 1840, the plaintiffs refused farther to prosecute their levy; whereupon the court ordered the goods to be restored to the claimants. Seventh plea—to same breaches, same in substance nearly as preceding. Eighth plea—nearly same. Ninth. That the property taken in execution was not the property of Jeremiah M. Frion, the defendant in the suit. Tenth—not guilty of the several breaches. The plaintiff demurred to the 4th, 6th, 7th, 8th, 9th, and 10th pleas. 1851. The plaintiff’s demurrer to the 4th, 7 ’ i ’ an^ 10th pleas was overruled; the demurrer to the n plea was sustained; the demurrer to the 6th plea, as a P ea t° the 9th, 10th, 11th, and 12th breaches was sustained; e emurrer to said 6th plea as a plea to the 14th breach was overruled. t Plaintiff had leave to reply to the pleas, the demurrer . W?S overruled; and the defendants had leave to a ie pleas, the demurrer to which was sustained. ni 1851. The defendants filed an amended 7th tion °The 11th, and 12th breaches in the declara- expp'n+; exJ)lea averre(l that before the return day of the an affirlpH-i- e ^00,^s were claimed by Dawson and Frion, and were rptiV m1a^e Dawson; that the execution and claim Leavitts n?6! • courL and a suit docketed between the that at tkp an^ Dawson and Frion as defendants ; a term of 1840, the Leavitts refused to make 127 118 SUPREME COURT. Chapman v. Smith et al. up an issue; that the court thereupon ordered the goods to be restored to the claimants; that they were accordingly restored. The plaintiffs demurred to this amended plea, which demurrer was overruled, and then the plaintiffs filed a replication. The replication averred that after the return day of the writ, to wit, on the second day of the term, Dawson made his *1191 *affi^av^ that the g°°ds were not the property of Jer-erniah M. Frion, but were the property of himself and Samuel Frion; that, on that day, Dawson and Samuel Frion, together with one Graham, executed their bond to the plaintiffs in the sum of $3,479, conditioned to pay all damages that the jury might assess against the obligors; that they also executed another bond to one William J. Campbell for a like sum with a like condition; that before that day Smith had ceased to be sheriff, and that Campbell was the sheriff; that the plaintiffs moved the court to dismiss the claim of Dawson and Frion, on the ground of the insufficiency of the claim-bonds, which motion was overruled; that at the Fall term a judgment of nonsuit was rendered against the plaintiffs for declining to make up an issue; that the judgment thus rendered against them referred to the claim-bonds above described and not in any claim-suit commenced by said affidavit described in the said amended 7th plea of defendant, nor in any other or different claim-suit; that the affidavit described" in said 7th amended plea was never returnee to said court, either before or after the return of said writ o fieri facias; that the plaintiff never knew or had any notice until the year 1847, that said last-mentioned affidavit had been made; that the said goods levied upon, as atoiesaic, were delivered to the said Dawson and Samuel, by Camp bell, in obedience to the said last-mentioned judgmen oi order of said court, without this, that they were delivered ilo them by the said Alexander in obedience to any otiei Ju * ment or order of said court; that the plaintiffs pi osecu their writ of error to the Supreme Court of said b a e verse said last-mentioned judgment, and that the sai .] nient was, by said Supreme Court, at January ’ reversed and remanded to said Circuit Court, ia Fall term of said Circuit Court for 1842, the said claim put in as aforesaid by said Dawson and Samuel, was, y f sideration and judgment of said court, dismisse , . the insufficiency of the said last-mentionec c ain pxecute said Dawson and Samuel declining and ie V811^45. j0 foythe other claim-bond or bonds as they were require 128 DECEMBER TERM, 1853. 119 Chapman v. Smith et al. said Circuit Court; and plaintiff avers that the said last-mentioned judgment remains in full force, not reversed, annulled, or set aside in any way. All which the said plaintiff is ready to verify; wherefore he prays judgment, and his debt and damages by him sustained, by reason of the facts set out in said 9th, 10th, 11th, and 12th breaches, to be adjudged to him. December Term, 1851. The defendants demurred to this replication of the plaintiff to the seventh amended plea. The court then pronounced its final judgment, as follows: This day came the parties, by their attorneys, and thereupon *came on to be heard the demurrer of the plain-tiff to the amended 7th plea of the defendants to the 9th, 10th, 11th, and 12th, breaches of thb plaintiffs; and, after argument had, it seems to the court that the said plea is sufficient in law, &c.; it is therefore considered by the court that the said demurrer be overruled. And thereupon the plaintiff filed his replication to the said amended 7th plea, and the defendants filed their demurrer to the said replication, and, after argument, it seems to the court that the said replication is insufficient, &c.; it is therefore considered by the court that the said demurrer be sustained, and that the said defendants go hence without day, &c., and recover of the said John W. and Rufus Leavitt, the persons for whose use this suit is brought, their costs in this behalf expended, for which execution may issue, &c. The plaintiffs sued out a writ of 'error, and brought the case up to this court. It came up upon the correctness of ie judgment of the court below in sustaining the defendant’s’ emurrer to the replication of the plaintiff to the plea upon e 1st, 2d, and 3d breaches, and also in sustaining the de-urrer of the defendants to plaintiff’s replication to the 7th amended plea. nl^ XS ?ubmitted on a printed brief by Mr. Prior, for the anf J1,1 8 ln error’ an 1° Ala., 92; s. c., g avamen of these breaches is not the loss or waste of 131 122 SUPREME COURT. Chapman v. Smith et al. the goods, but the neglect to take the bond. The plaintiffs could maintain an action against the sheriff for the loss of the goods by virtue only of the lien created by the execution. When the affidavit was made by Dawson, as alleged in these breaches, it was the duty of the sheriff to suspend proceedings on the levy. Clay, Dig., 211, § 52, and to prepare a bond for the claimant to sign; Id., 213, § 62. Until he prepared and tendered the bond, and the claimant refused to execute it, the sheriff could not sell the goods. The lien of the plaintiffs on the goods was put in abeyance at the moment the sheriff’s right to proceed on the levy was suspended. Both were suspended by the claim of Dawson, and could not be revived, except by the direct withdrawal of the claim by Dawson, or until, by refusing to execute the bond, he indicated his purpose to abandon the claim. Until the right of the plaintiffs, to have the goods sold, was revived by the withdrawal or the abandonment of the claim, the plaintiffs had no such interest in the goods as would entitle them to maintain an action against the sheriff for their loss or waste. The claim-bond, if one be made, is substituted for the lien on the goods. If the sheriff neglect to prepare the bond, *this does not J destroy the right of the claimant to have a stay of proceedings on the levy. But this neglect is a breach of duty to the plaintiffs, for which they may maintain an action. The loss or waste of the goods is no injury to the plaintiffs when they had no right to have them sold, but is an injury to the true owners, for which they may sue and recovei. Now, as the plaintiff’s lien on the goods has been destroye , and he has not got a claim-bond as a substitute for the hen, he has been damaged. The claim destroyed the jien, no iy act of the claimant, but by operation of law; Clay s Dig., ■» 8 52; therefore the claimant is not liable for the destruction of the lien, except upon his bond. If the lien be suspen e by the claim, and no bond be tendered to the claimant ny the sheriff, the suspension continues until the return o execution. The injury to the plaintiff is not the suspensum of the lien, but the neglect to have the bond as a su f° The demurrer to the 6th plea to 14th breach, ought to be ^The’lth plea is no answer to any of the breaches?; not to the first three, for the defehdant in the ^ution may had other goods than those levied on; no pturn • not return, for the plaintiff had a right to have a i to those for neglect to take। bond, nor o 10 and bond, for it was the duty of the sheriff to take the 132 DECEMBER TERM, 1853. 123 Chapman v. Smith et al. to return it to the court. The neglect to take it, or the loss of it after it was taken, was a clear breach of duty. Not guilty—not a good plea in debt. Mr. Badger, after enumerating the breaches assigned in the declaration, proceeded with his argument. To the 1st, 2d, and 3d breaches, the defendants pleaded that the said Leavitts, in the Circuit Court of Coosta County, according to the statute of Alabama, suggested the issuing of the fi.fa.; that it came to the hands of Smith to be executed; that he might, by due diligence, have made the money, and did not, &c.; that an issue was made up whether Smith, by due diligence, could have made the money, &c.; that the issue was tried and found for Smith, for whom judgment passed, &c. To this plea plaintiff replied that the defaults in the said plea mentioned were not the same defaults mentioned in the breaches, to which replication the defendants demurred, and the court sustained the demurrer. , It is insisted, for the defendants in error, that the replication was bad in law, and was therefore properly overruled by the court. *The plaintiff ought, if he admitted the identity of the defaults, to have replied nut tiel record ; if he de- *-nied that identity, to have new assigned. . Whenever defendant justifies, or in any manner discharges nmself from liability for a charge or claim of the plaintiffs, it is the duty of the latter to new assign, if he insists that the matters justified are not the same as those for which he de-c ares. . Nothing can be clearer than this, if the reason for a new assignment be considered. That reason is, that the de-en ant is supposed to mistake the particular instance set or i bj the plaintiff for some other of the same class, and lere oie plaintiff should correct that mistake by averring by that^ alignment, that he proceeds for another demand than is i 'lus laed, &c., by the defendant, and this new assignment exnr na.ure a new declaration, or, in strictness, a particular hJ>r>eSS-°n i what the declaration designed, and which has undpJ11181?1^18^00^ defendant. Therefore if the plaintiff, ant in 1 c?cumstances, do not new assign, and the defend-samo suPPor^s bis justification of anv matter of the same genera! nature, he is entitled to a verdict. assiffnmpn?Uni ru nature, office, and purposes of a new ing, Id 439 Chitty, Pl., 434 et seq. Manner of new assign- 133 124 SUPREME COURT. Chapman v. Smith et al. Defendant may plead to the newly assigned matter as to the declaration, Id., 441. See, also, Mr. Stephens’s account of new assignments. Steph, on Pl., Amer. Ed., page 220 to 227, and note 22, page 226. See, also, James n. Lingham, 35 Eng. Com. L., 225; 5 Bing. N. C., 553 ; Branclcner v. Molyneux, 9 Eng. Com. L., 615 ; 1 Man. & G., 710 ; Moses v. Levy, (in error,) 45 Eng. Com. L., 213 ; 4 Ad. & EL, N. s. In which last case Lord Denman says : “ Where the declaration points at one particular transaction, and the plea applies itself to one particular transaction of the same sort, different from that intended by the declaration, or where the plea narrows the declaration contrary to the intention of the declaration, a new assignment is necessary.” This is exactly our case. To allow the traverse, instead of the new assignment, would be directly contrary to authority, and would cause injustice to the defendant by depriving him of his right to plead anew to the true transaction intended by the plaintiff and mistaken by him. The replication that the defaults are not the same, is bad. No such replication has been sustained by judicial authority in such a case as ours. Where, indeed, the defendant pleads a former recovery against him for the same cause of action, *1251 there *the replication, that it is not for the same cause J of action, is good, and may be used instead of a new assignment; but the reason is that the plea admits a liability as to the cause of action to have once existed, and alleges that it has been satisfied by the recovery, so that, if not; so satisfied, it still exists. See Seddon v. Tutop, 6 T. R-, 607, Note 22, page 226 ; 4th Amer. Ed. Steph, on Pl. The difference between the two classes of cases is this: In one the defendant avers that there never was a right of action , in the other he admits a right of action and avers paymen , that is, extinguishment by the judgment. In the f°^niei .a new assignment is necessary; in the latter, not. And by is plain distinction the cases in the books are reconciled. The defendants demurred to the 8th and 13th bieacie , and their demurrer was sustained. , , It was rightly sustained. The 8th breach not showing sureties were offered to sheriff, and without that he was . obliged to prepare a bond. Clay’s Dig., PaSe ’ J , 7 Hiller v. Wood, 24 Eng. Com. L., 464; Mann v. Kick, 1 Hawks. (N. C.), 427. ctatinff The 13th breach, showing that the amended returni stag the taking of the claim-bond was made 20th Sep em ♦ » by Smith, late sheriff, and the condition of the bond sue 134 DECEMBER TERM, 1853. 125 Chapman v. Smith et al. as set out in the declaration, showing that his office expired 22d February, preceding, and the said return, as set out in the said breach, showing that the claim-bond was given not to Smith, but to his successor in office, and, therefore, the custody of the said bond not belonging to Smith, the averment that by his negligence it was lost, is idle, inconsistent, and absurd, &c. To the 4th, 5th, 6th, and 7th breaches, the defendants pleaded, that the Leavitts instituted proceedings in the Circuit Court of Coosa County, against Smith, according to the statute, &c., and an issue was made up and tried, upon which issue the truth of the amended return was tried, and the truth thereof found, and judgment rendered for Smith, &c. The plaintiff demurred to the said plea, and the court overruled the demurrer. It is insisted for defendants in error, that this demurrer was properly overruled, because the verdict and judgment stated in the plea, were conclusive of the truth of the amended return set out in the breaches, the falsehood of which is the gist of these breaches—conclusive as to Smith, the sheriff, and in this action whatever concludes the Leavitts as against Smith, concludes the plaintiff as against him and the other defendants, his sureties. Gardner v. Buckbee., 3 Cow. (N. Y.), 126, and cases there cited; Leavitts v. Smith, 14 Ala. N. 8., 279, 285; * Davidson v. Stringfellow, 6 Ala., 34 ; Smith v. Leavitts, 10 Ala., 92, 192; Cummings v. McGehee, 9 L Port. (Ala.), 351. And because, also, all these breaches show the amended return to have been made after the said Smith was out of office, and hence it does not affect either of the parties in this action. Evans v. State Bank, 13 Ala., 787. 11 defendants by their 6th plea pleaded to the 9th, 10th, , 12th, and 14th breaches, that after the seizure of the df’ a claim was interposed, affidavit made, bond given, an the same returned; that a motion was made to dismiss nvl C T x? insufficiency °f the bond; that motion was ~ ’ an(^ proceedings had that the court ordered i^’’ t0. delivered up to the claimants, and they 8fb rd 6 rVef,e<^ accordingly. And the defendants by their brpaoK? to,rtoer Pleaded, as to the 9th, 10th, 11th, and 12th entered^le return of the execution, the Leavitts miffhf suggestaon according to the statute, that the money and indcZn teU made’ &c-> issue thereon, verdict for Smith, alleged aXerring the identity of the execution and Stion X 8 ln ‘he?r/aCheS With those out “ * ' Uie defendants, by their 9th plea, also 135 126 SUPREME COURT. Chapman v. Smith et al. pleaded severally to all the breaches, that the goods and chattels levied upon, as stated in the several breaches, were not the property of the defendant in the execution, nor subject to be taken for the payment, &c.; and also by their 10th plea, that said Smith was not guilty of the several defaults, &c.; and to these pleas plaintiff demurred. The defendants, by their 7th plea, pleaded to the 9th, 10th, 11th, and 12th breaches, that the execution, with the levy and interposition of claim was returned, and the claim-suit between the claimants and the said Leavitts was duly entered, and afterwards such proceedings were had that the court ordered the property levied on to be delivered up to the claimants, which was done. To this 7th plea the plaintiff replied: That claim was interposed ; affidavit was made, and a bond made payable to the Leavitts, was made on the 23d March, 1840, being the second day of term, to which execution was returnable; that on the same day another bond jvas made payable to William J. Campbell; (both bonds are stated to have been executed by the claimants, but it is not stated by whom either was taken); that Smith ceased to be sheriff before the 23d March, and then parted with the possession of the goods to some one unknown, and when the affidavit and bond were made, Campbell, the new sheriff, had possession; that a motion to dismiss the claim was made for insufficiency of the bonds; was overruled, and judgment afterwards given foi *1971 returning goods to claimants, at Fall *term, 1840, but -> not in any claim-suit commenced by the affidavi named in the plea. The replication then avers that the a davit, mentioned in the plea, was never returned, and plaintiff had no notice of its execution until 1847; that the goo s levied on were delivered to claimants by Campbell, wi i a formal traverse that they were delivered by Smith in o ec i ence to any other judgment or order of the court. An i replication alleges that a writ of error was brough o Supreme Court of Alabama upon the judgment which, in 1842, was reversed, and afterwards, in the Circuit our Coosa, the claim was dismissed, &c., and concludes wi verification, &c. To this replication defendants emun As to the 9th, 10th, 11th, and 12th breaches, it is insis; , 1st. That the matter contained in the defendants bti P is a good bar, for the order of the court dnec ing i - $ der of the goods was one which the law oblige zcases to obey, and must, therefore, protect him in c’ e-k J*’ matter before cited from Alabama Reports,) and was also a good bar to the 14th breach. 136 DECEMBER TERM, 1853. 127 Chapman v. Smith et al. 2d. That the verdict and judgment in the suit of the Leavitts, by suggestion, against Smith, set out in the 8th plea, is a good bar, for the matters which are alleged in those breaches were proper to be offered, and would have tended to sustain the suit by suggestion, and therefore the very question here raised by these breaches has been in that suit decided; and it being found by the verdict and judgment that the goods were not subject to execution, the Leavitts have no interest in the inquiry, what became of them, &c. Cases before cited, particularly Gardner v. Buckbee, 3 Cow. (N. Y.), and Cummings v. McGehee, 9 Port. (Ala.). For these reasons, as well as defects in the breaches themselves, it is insisted that their demurrer to the 6th and 8th pleas was properly overruled. It is further insisted that the 7th plea is a sufficient answer to the 9th, 10th, 11th, and 12th breaches; the order in the claim-writ being binding on the sheriff, and the replication thereto being insufficient, impertinent, and fatally defective. For, First. The replication neither admits nor denies directly the suit alleged in the plea, but is altogether evasive. Secondly. If replication is to be understood as denying it, it is bad because it can only be put in issue by nul tiel rec-ord; if to admit it, then the averments of the other proceed-'rF’ i*1 .^explication, are idle and immaterial. Thirdly. I he replication tenders a formal traverse that Smith deliv-emd up the goods to claimants under any other order or judgment of the court than that set out in the replication, and therefore seems to admit a *delivery by him under ■-$.< iat order, and that order being a justification, the trav- t erse tenders an immaterial issue. Fourthly. The plaintiff oug it either to have replied nul tiel record of the order alleged 111 e plea, or admitting the record, have traversed the delivery under it, if he deemed the latter fact material. Fifthly. goods delivered up under the order of the court, as the rep-ca ion avers, it is immaterial in this suit by which hands the ivery was actually made, the plaintiffs charging the defend-.acc°unt the seizure of the goods, and the order op«Or>ar^1cr Smith, whether obeyed by himself or his suc-rpnliJ.’i - The reversal of the order set out in the makp4!]1011 i§ 11H™aterial, for the reversal cannot by relation 92. to eri? a wr°ngdoer. Smith v. Leavitts, 10 Ala., , Leavitt v. Smith, 14 Ala., 284. levied^mnn^1, ^ns’s^e(i’ that the 9th plea, that the goods execution n’ v’ ?Yere n°t the property of the defendant in the breachp«°r e taken, &c., is a sufficient bar to all Dreaches except the first. 137 128 SUPREME COURT. Chapman v. Smith et al. The seizure under the execution does not conclude the sheriff as to the property in the goods—it amounts only to affirming his belief of ownership by the defendant in execution, and casts the burden of proof on him. He may notwithstanding aver and show that the goods were not subject to the execution, and such averment and proof discharges him from liability to the plaintiffs in execution in respect of such goods. Leavitt v. Smith, 7 Ala., 184, 185; Mason v. Watts, Id., 703. This plea being admitted by the demurrer, it is a matter immaterial to the plaintiff whether the goods were kept, or lost, surrendered to a claimant with or without a bond, or what became of them. Whoever has or may have a right to call upon the sheriff by reason of his disposition of the goods, the plaintiff has none—his whole right and interest therein being founded upon their supposed liability to the execution. It is further insisted that the 10th plea—that Smith was not guilty of the defaults, &c., is a good answer to all the breaches. Every breach avers a criminal violation of his duty by the sheriff, and, if true and sufficiently laid, would sustain an action on the case against the sheriff. The breaches are exactly equivalent to counts in an action on the case. The action is founded on the bond in order to call on the official sureties to make good the defaults of the sheriff, and no reason can be supposed why the legislature' should design to require special pleading from the sureties and deny them the benefit of a general plea, by which the plaintiff is put to the proof of his whole allegation, while such requisition and denial do not apply to an action against the sheriff for the default. It *1901 wou^ be raore reasonable *to require such special plea J in the latter action, the sheriff being cognizant of a the facts, than in the former, the sureties having no sue knowledge. The only ground assumed on the other side is the technical one, that “not guilty” cannot be pleaded to an action of debt—but the position is not true. . In an action of debt on a recognizance for keeping t e peace, suggesting an assault as the breach, the defendant may plead not guilty, son assault demesne, just as in an 0 trespass for the assault. See form of plea, 7 Wentw., • So on debt in penal statute, and in debt against ’ suggesting devastavit. Coppin v. Carter, 1 T. K«, , ley v. Herpingham, Cro. Eliz., 766; Ch. Pl.» 3d mer. » 354 f Lanqley v. Hayes, Moo., 302. . If such plea is allowed in any action of debt, it sii be in this. In action of debt on penal statute, c., 138 DECEMBER TERM, 1853. 129 Chapman v. Smith et al. is a general issue, and puts the plaintiff on the proof of his whole case. If, then the technical idea, that the plea of not guilty should not be allowed to an action of debt, does not prevent allowing the defendant in such action to plead such plea, surely it should not here, where there is no general issue which will put the plaintiff to full proof of his case. This is not an action stricti juris, like trespass, and should, in the liberty of pleading, be likened to an action > on the case, according to Lord Mansfield’s notion of that action. Ch. Pl., 357. It should also be noted that the plaintiff in his first breach alleges a judgment and execution thereon, and in every succeeding breach refers to this one execution and the returns alleged to have been made thereon, and to the one term to which it was returnable. Hence it judicially appears that the whole gravamen of all the breaches is one and the same default, and not other and different defaults; from which it would seem to follow that what is an answer to one breach is an answer to every other. Usually when the breaches formally refer to “ one other execution,” or “ a certain other judgment,” the court is precluded from connecting one with tne other breach, but must consider each as referring to a separate transaction ; but here the plaintiff himself refers, in each succeeding breach, to the execution mentioned in the first, and without such reference being had, no valid breach is assigned, except to the first, and, therefore, by the form of pleading adopted by the plaintiff, he has not only enabled, but obliged the court to consider all the breaches as connected together, growing out of one official transaction, and substantially as alleging one and the same default. Upon the whole, it is insisted for the defendant, that, for the reasons above stated, as well as for other defects in the x7ea?lles a8siSned’ au(l in the replications of the plaintiff to he defendants’ pleas, the judgment for the defend-ant ought to be affirmed. L 130 Mr. Justice NELSON delivered the opinion of the court. 4. 1SJS a wr^ error to the District Court of the United states for the Middle District of Alabama. nnri ec8U1.t1was brought upon an official bond given by Alex-difer i'11]1’as sheriff °f Coosa county, and his sureties, con-+uQ1(jne. • ? would well and truly perform all and singular ThU i0^ hi? °fhce as required by the laws of the State, nnd n eclaration sets out a judgment, recovered by J. W. of thp Q fhp Fall term of 1839, in the Circuit Court econd Circuit of the State of Alabama, against Jere-139 130 SUPREME COURT. Chapman v. Smith et al. miah M. Frion, for the sum of $3,472: also an execution upon the same issued to the said Smith, as sheriff. Fourteen breaches of the condition of the bond are assigned, for the purpose of charging the defendant and his sureties with the payment of the judgment. In order to understand the purport and legal effect of these breaches, and the pleadings which follow them, it is proper to refer to two provisions in the statutes of Alabama that have a material bearing on the subject. One is, that when the sheriff shall levy an execution on property claimed by a person not a party to the execution, such person may make oath that he is the owner: and thereupon it shall be the duty of the sheriff to postpone the sale until the next term of the court; and such court shall require the parties concerned to make up an issue, under such rules as it may adopt, so as to try the right of property before a jury at the same term; and the sheriff shall make a return on the execution accordingly, provided the person claiming such property, or his attorney, shall give a bond to the sheriff with surety equal to the amount of the execution, conditioned to pay the plaintiff all damages which the jury on the trial of the right of property may assess against him, in case it should appear that such claim was made for the purpose of delay. Clay, Dig., 211, § 52. It is further provided, that it shall be the duty of the sheriff to return the property levied on to the person out of whose possession it was taken upon such person entering into a bond with surety to the plaintiff in the execution in double the amount of the debt and costs, conditioned for delivery of the property to the sheriff whenever the claim of property so made shall be determined by the court. Id. It was subsequently provided that one bond might be ta en with a condition embracing substantially the matters con tained in the two above mentioned. Id., 213, § 62. o-i -| *The other provision is, that whenever the sheriff shall fail to make the money on the execution on or before the first day of the term of the court befoie v nc; e execution is returnable, the plaintiff or his attorney sia gest to the court that the money could have been mac e y the sheriff, with due diligence, and it shall be ie uy the court forthwith to cause an issue to be made up y the fact; and if it shall be found by the jury that the। money could have been made with due diligence, judgmen , rendered against the sheriff, and his sureties, or any , of them, for the money specified in the e^1e®Ug1gK’ ° with ten per centum on the amount. Id., - ■> 8 • There is, also, a similar provision in the case ot the sng 140 DECEMBER TERM, 1853. 131 Chapman v. Smith et al. sestion of a false return on the execution by the sheriff. Id., 218, § 84. We have said there are fourteen breaches assigned of the condition of the bond in question in the declaration. The first is, that there were divers goods and chattels, lands and tenements of Frion, the defendant in the execution within its lifetime, out of which the sheriff could have levied the amount of the judgment: but that he had neglected to levy and collect the same. Second and third, that he had levied upon sufficient goods and chattels of the defendant, but had neglected to sell the same, and collect the amount. The fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth, that the return made upon the execution, namely, that the goods levied on had been claimed by A. B. Dawson and Samuel Frion, assignees of J. W. Frion, defendant in the execution, and claim-bond given to W. J. Campbell, now sheriff, and my successor in office—was false, setting out in various of these breaches the grounds of the falsity in the return, namely, either that no claim had been made to the property by Dawson and Frion, or if made, no affidavit, as required by the statute, had been furnished to the sheriff, or no bond had been required, or given; or that the proper affidavit had been made, but no bond given according to the requirement of the statute. rhe thirteenth and fourteenth breaches admit an affidavit and bond, according to the statute ; but charge that the claimbond was lost by the negligence of the sheriff, and was not returned to the court with the execution at the return of the writ. The defendants plead to the first, second, and third breaches, that at the April term of the court held in and for the county of Coosa, in 1840, the plaintiffs in the execution suggested to ie court, according to the statute in.such cases made and PJov^d, .a^er setting out the execution, and issuing of it to e sheriff, and return of it without having levied no u TT? thereon, that the same might have been *-o ected, if due diligence had been used by the sheriff; that ^e^euP°n an issue was formed upon this suggestion; and, fem nsuch proceedings were had that the jury avpr 4.1 e same favor of the defendants. The plea further in th tle a^e8e(l neglects, defaults and breaches of duty 4-lSt’ secon(i, and third breaches assigned, and in said St0” f” the ““«• ai,d not different. and dp*f1S u Pontiffs replied, that the matters, neglects, au s in the said three breaches assigned in the decla 141 132 SUPREME COURT. Chapman v. Smith et al. ration, were not the same identical matters, neglects, and defaults as in said plea mentioned, and for and in respect to which the said judgment in said plea mentioned was recovered in manner and form as set forth. To this replication there was a demurrer and joinder, and judgment for the defendants. The defendants, also, plead to all the breaches severally, except the first, that the goods and chattels levied on as stated in said breaches at the time of the said levy, and at the time said execution came to the hands of the said Smith, sheriff, as aforesaid, were not the property of the said Jeremiah M. Frion, the defendant in the execution, and were not liable to be taken for the payment or satisfaction of the said judgment. There was a demurrer to this plea, and joinder, and judgment for the defendants. These two pleas cover all the breaches assigned in the declaration, and if they furnished answers to them, the judgment for the defendants in the court below should be sustained. The first three breaches, as we have seen, were first that there were goods of the defendant in the execution, and of which the sheriff could have levied the money; but that not regarding his duty he neglected, and refused so to do. Second and third, that he did make a levy upon the goods, but neglected and refused to sell the same. The plea sets up that the plaintiffs made a suggestion, under the statute, to the court, at the return of the execution, that the sheriff could have collected the money thereon, if he had exercised due diligence in the execution of the writ; and upon this suggestion or allegation an issue was formed between the parties and tried by a jury, who found a verdict for the defendants, upon which a judgment was rendered. The replication to this plea is that the matters, neglects, and defaults in the said three breaches in the declaration were not the same matters, neglects, and defaults in the sai plea mentioned, and in respect to which the judgmen was recovered. *We think the replication is bad, on tne J ground that it raises an issue of law, rather tian on of fact. The matters in all three of the breaches were_nece® sarily involved in the question of due,and proper r igen on the part of the sheriff in the execution of the fi.ja. omission to levy upon the goods, or to sell after e e v , directly within the issue and inquiry in that procee rng the statute ; and we are bound to presume were e J 142 DECEMBER TERM, 1853. 133 Chapman v. Smith et al. examination before the court and jury, and were passed upon by them. Where the facts in issue appear upon the record, either expressly or by necessary intendment, it is not competent to contradict them, as this would be contradicting the record itself. The judgment is conclusive upon these facts, between the same parties or privies, whenever properly pleaded. If the matters involved in the issue do not appear upon the record, then it is competent to ascertain them by proof aliunde. 2 Phill. Ev., 15, 20, 21; C. & H. Notes, p. 13; Note 14; also p. 163-4 and cases. Here we cannot help seeing, that the matters sought to be put in issue by the replication are those necessarily involved in the former trial; and to uphold it would be to permit the same facts to be agitated over again. Certainly, neglect to levy the money on the execution out of the defendant’s goods within the sheriff’s bailiwick, or neglect to sell them, and make the money after the levy, are facts bearing directly on the former issue; and one criterion for trying whether the matters or cause of action be the same as in the former suit, is, that the same evidence will sustain both actions. 2 Phill. Ev., 16; C. & H. Notes, p. 19, note 17. The issue upon the suggestion, that the sheriff could have levied the money on the execution with the exercise of due diligence, is a very broad one. It is held, by the courts of Alabama, that the sheriff may discharge himself from responsibility by showing due diligence ; and to enable him to do this nothing more is necessary than to traverse the facts contained in the suggestion. But, if the defence consists of new rnatter or matters of avoidance, he must then plead it. 3 Ala., 28. It is difficult to conceive of a broader issue for the purpose °« charging this officer with neglect or default in the course 0 qj? duty under the execution. hen, as to the plea that the goods levied on were not the g°o s of the defendant in the execution, and not liable to the a is action of the judgment. This the demurrer admits. Of sheriff had no authority to make the levy, and o resPonsible himself to the owner, as a trespasser, as soon r e, seizure took place. In the face of this admission on the woods1 1*,t’,llnPossible to hold him liable for the value of the eaok 4-v Pie3, answeTS the material allegation in the a«e’ 6 assiSnments of breaches, and without which L seiznrp^f+K6nt w°ni^ be substantially defective, namely, the no claim i e- g0?ds on i'be execution. The allegations as to and no affidlvff tnV11 madie t0?h-e ProPerty by third persons, t taken, or bond given, or if given that it was 143 134 SUPREME COURT. Chapman v. Smith et al. lost, are matters depending upon the levy. If that is denied or avoided, the several breaches are fully answered. Now, the seizure of the goods of a third person, on the execution, does not change the title or make them the goods of the defendant on the execution. The only effect is, if after this the sheriff returns the execution nulla bona, the burden is thrown upon him in a suit for a false return to show that the goods were not the defendant’s, and therefore not liable to the execution. Magne v. Seymour, 5 Wend. (N. Y.), 309; 1 Barn. & C., 514. The same principle was held in Mason et al. v. Watts, 7 Ala., 703. That was a case arising out of a suggestion against the sheriff and his sureties, under the statute to which we have referred, and in a case where the goods had been seized, and a return upon the execution accordingly. The sugges tion was met that the goods were not the property of the de fendant in the execution. The court say, that the sheriff may excuse himself by showing that the defendant in the execution had no property in the goods levied upon. That the reason for this is, that the sheriff, by levying upon the goods of a third person, becomes a trespasser, and being so, the law does not impose on him the duty of holding the goods after he has ascertained then true ownership. Another observation in that case is applicable here. The court says it may be, if a loss results to the plaintiff by being cast in costs, or otherwise, from the neglec of the sheriff to retain the affidavit of claim, or bond execu e by the claimant, he may be liable in an action on the case, but not for the value of the property levied on. Althoug i the suit on the bond in this case, according to the practice in the courts of Alabama, may be regarded as a substitute oi this action, still no such ground or cause of action is se on in any of the assignments of breaches, and of course no °PP01 tunity given to answer it. We are satisfied, there ore, ‘ the plea is a full answer to all the breaches assigned to wincn it refers, and has been pleaded. „, There are many other pleas, replications, and issues o , raised upon them, arising out of the useless numbei o ie -assigned in the declaration, and which have Yery n^uc ‘ r. and complicated the pleadings in the record, u propose to examine or express any opinion uP°n fliithe upon the whole record we see a complete e enc would „„„ ‘causes of action set forth in the declaretion, it uoulfl be an idle and profitless waste of tune to ente Pon. their examination, and, besides, whatever nng 144 DECEMBER TERM, 1853. 135 Stafford et al. u. The Union Bank of Louisiana. elusions, they would not vary the result. Steph. PL, 153, 176. The judgment of the court below is affirmed. ORDER. This cause came on to be heard on- the transcript of the record, from the District Court of the United States for the Middle District of Alabama, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby affirmed, with costs. In the Matter of Josiah S. Stafford and Jeannette Kirkland, his Wife, Appellants, v. The Union Bank of Louisiana. Where an appeal was taken from a decree in chancery, which decree was made by the court below during the sitting of this court in term time, the appellant is allowed until the next term to file the record; and a motion to dismiss the appeal, made at the present term, before the case has been regularly entered upon the docket, cannot be entertained, nor can a motion , to award a procedendo. his court, however, having a knowledge of the case, will express its view-s upon an important point of practice. here the appeal is intended to operate as a supersedeas, the security given in the appeal bond must be equal to the amount of the decree, as it is in the case of a judgment at common law.1 !e dW°‘ ^ac\s’ niimeb'> first that the receiver appointed by the court below a given bond to a large amount, and second, that the persons to whom ie property had been hired had given security for its safe keeping and delivery, do not affect the above result. A Z SjCurity must, notwithstanding, be equal to the amount of the decree. A mode of relief suggested. Qi^HIScWas an aPPea-I from the District Court of the United states for the State of Texas. Lt will be seen, by a reference to 12 How., 327, that this thp6 WaSJPrnierty before this court, and that the decree of ne court below (dismissing the bill filed by the Union Bank) was reversed.2 J J 21 WanL<90 EDn derome V. Me Carter, ^hiel,'^^^-. %nited, Stat™ v-maker, 12 Id OQ7°V *rench V* Shoe' co, 17’ otto^r^v- 0»aha ment Co. 4 Citi. ri ’ ^er' Pave' Vat y °f 1 Bann. VOL. XVI.—10 A, 466, 468. Thus, where the condition of the bond is simply that the appellant shall pay costs and damages, it will not stay execution. Orchard v. Hughes, 1 Wall, 73. 2 s. c, 17 How, 275. 145 135 SUPREME COURT. Stafford et al. v. The Union Bank of Louisiana. In the execution of the mandate of this court, the District Court of Texas passed a decree on the 25th of February, 1854, from which Stafford and wife appealed. J/r. Hale and Mr. Goxe, on behalf of the Union Bank, moved to dismiss the appeal, for the following reasons:— *1 *This motion is made to dismiss the appeal in this cause, and to award a procedendo to the District Court, on the ground that the appeal bond given by the appellants is not sufficient to stay the execution of the decree. The cause was originally commenced by the Union Bank of Louisiana against Josiah S. Stafford and wife, in the District Court for the District of Texas, for the purpose of foreclosing a mortgage on certain negro slaves. A decree'having been rendered by the District Court against the complainant dismissing the bill, an appeal was taken to this court, and at the December term, 1851, the decree of the District Court was reversed, and the cause remanded, with directions to^that court to enter a decree in favor of the complainants. Lnion Bank of Louisiana v. Stafford and Wife, 12 How., 327, 343. No term of the District Court was held until July, 1853, when some objections being raised by the defendants to the proposed form of the decree, and to the report of the mastei on the receiver’s accounts, the court took the whole mattei under consideration until the next term. The objections to the master’s reports having been waived, a final decree was rendered on the 25th of February, 1854, by which it was directed that the sums accruing from the hire of the slaves in the custody of the receiver, pendente lite, amounting to $25,379.39, should be paid by the receiver to .the complainant, and credited on the total amount due by the defendants; and that in case the defendants failed to pay over^a® glance remaining due after such credit, amounting to $39,877.13, on the first day of July, 1854, they should be foreclosed of their equity of redemption, and the master should seize the mortgaged slaves at public auction, on the 3d of the sam month, after giving three months’ notice by advertiseme the time, place, and terms of sale, and should pay to the> com plainant out of the proceeds of the sale the foregoina $39,877.13, in satisfaction of the debt. f It appears, then, as well by the decree as by P the master, which was confirmed, that on the . firs d July, 1854, when the foreclosure was to take effect, interest, and costs, due to the complainant, would amoun $65,256.52. , , n-n-a-r ihp entry On the 7th of March, 1854, the tenth day after the en y 146 December term, 1853. 136 Stafford et al. v. The Union Bank of Louisiana. of the above decree, the defendants prayed an appeal, and the following order was made by the court: “ On this day came the defendants, by their counsel, and prayed an appeal to the next term of the Supreme Court of the United States, to be held in Washington City, on the first Monday in December next, from the decree of the court rendered in favor of complainants against defendants; and to them it is granted, upon condition that the defendants enter into a good *and sufficient bond, with good and 07 sufficient surety in the penal sum of ten thousand dol- L lars, conditioned that they prosecute their appeal with effect, and answer all damages and costs, if they fail to make their plea good. And thereupon the defendants, in open court, tendered a bond with L. C. Stanley, Patrick Perry, and William H. Clark, as sureties in the sum of ten thousand dollars, and the court having inspected the bond, and being satisfied it is in conformity to law and the order of the court herein, and that the sureties are good and sufficient, it is now ordered that the bond be approved and filed. It is ordered to be entered that the bond of appeal taken and filed in this cause operates as a supersedeas to the decree of the court.” On the same day, the appeal-bond referred to in the order was filed. The complainant objected to the bond being received to supersede or stay the decree, because the penalty was much less than the amount of the decree, and was wholly insufficient, but this objection was overruled. On the 11th of March, 1854, notice was given to the de-endants and their counsel that the present motion would be made, and this notice, with the acknowledgment of service, is herewith filed. This motion is similar to that presented to this court in the °ase Aett N- Brodie' 9 Wheat., 553. The act of March , U5v3, adopts in appeals the same rules that are applied to writs of error, {The San Pedro, 2 Wheat., 132,) and the 22d sec ion of the Judiciary Act provides that “ every justice or ] ge signing a citation or writ of error as aforesaid, shall take rrn sufficient security that the plaintiff in error shall if lilefU-ie ?1S effect, and answer all damages and costs, is saif|ai«ST+0Tmaue P^ea S00^1’ In the case above cited, it mean/ i been supposed at the argument that the act court ei?n m t°i Provi^e tor such damages and costs as the this is nUf adjudge for the delay. But our opinion is, that word‘riae,tol,e lnterpretation of the language. The of the 1S h^r.e use^ n°t as descriptive of the nature but as dpar. -u?on which the original judgment is founded, S descnPtlve of the indemnity which the defendant is 147 137 SUPREME COURT. Stafford et al. v. The Union Bank of Louisiana. entitled to, if the judgment is affirmed. Whatever losses he may sustain by the judgment’s not being satisfied and paid, after the affirmance, these are the damages which he has sustained, and for which the bond ought to give good and sufficient security. Upon any suit brought on such bond, it follows of course, that the obligors are at liberty to show that no damages have been sustained, or partial damages only, and for such amount only is the obligee entitled to judgment.” This language applies to the present case. It was, however, urged with success in the District Court, *that inasmuch as the receiver had given two bonds, J each in the penalty of twenty thousand dollars, for the faithful discharge of his duties, and as the mortgaged slaves were in the possession of hirers, who had also given bonds in the joint penalty of eighty thousand dollars, for the safe keeping and delivery of such slaves, the complainant had no right to require any further security from the defendants than sufficient to cover the special damages which might be imposed by this court for delay. This conclusion is directly opposed to the reasoning of the court in Catlett v. Brodie. It is evident that, notwithstanding the bonds given by the receiver and the hirers, the complainant is exposed by the appeal to the danger of losing the whole of the debt. The sureties on these bonds may become insolvent; the money in the hands of the receiver may be squandered; the slaves may die or run away. And, in the language of the court: Whatever losses the complainant may sustain, these are the damages which he has sustained, and for which the bond ought to give good and sufficient security. Indeed, if the construction put upon the act by this court is applicable in any case, it must be in all, and no special circumstances can constitute an exception. . , It may be objected that this motion cannot be entertained, at this time, because the appeal has been taken to the nex regular term. But neither the acts of Congress which regulate practice in this court, nor the rules adopted for its government, imply that a motion of this kind cannot be ma before the cause is required to be docketed. On the con rary, it is a well established principle that, at the. women o appeal, and by that act alone, the cause is virtually rem^eu to this court; and the jurisdiction thus vested.may, o ’ be exercised generally. Wylie v. Coxe, 14 How., • consideration would seem to induce the action o ______ on motions of this character—the urgency of the case injury sustained by the appellee the delay o j :nstance danger of renewed and vexatious appeals , an m n ° 148 DECEMBER TERM, 1853. 138 Stafford et al. v. The Union Bank of Louisiana. can stronger reasons be offered than in this, where the amount of the appeal bond is but ten thousand dollars, and the debt is sixty-five thousand; and where the decree from which the new appeal is prayed, is in exact conformity with the former mandate of this court. But if there would be any objection to the dismissal of the appeal at this time, there can be none to the award of a procedendo to the court below, to enforce the decree by the issuance of an order of sale. The District Court has directed the stay of all proceedings; and if such a result was not the lawful consequence of the appeal, this court must be competent to require the execution of what is, in fact, nothing but its own decree. *Mr. Justice McLEAN delivered the opinion of the r#1nQ court. L 16y This is an appeal from the District Court of Texas, and a motion is made to dismiss it, on the ground that security has been given in the sum of ten thousand dollars only, when the sum decreed to be paid was sixty-five thousand dollars. And a procedendo is prayed, commanding the District Court to execute the decree. Notice of this motion was acknowledged by the counsel for the appellant the 11th of March, 1854. As the appeal was taken since the commencement of the present term, the appellant is not bound to file the record until the next term. By the decree in the District Court, a mortgage on a large number of slaves, to secure the payment of a debt due to the Union Bank of Louisiana, was foreclosed. A receiver having een previously appointed, who hired out the slaves and received the hire, he was directed by the decree to pay to the ank the sum of twenty-five thousand three hundred and wenty-nine dollars and thirty-nine cents, moneys in his lane s, and that the residue of the money due, amounting to e sum of thirty-nine thousand eight hundred and seventy-d«Ven# t i FS an^ thirteen cents, should be paid on the first °- j y ?ext’ and if not so paid, that the slaves should oe seized and sold. wa»n starch, 1854, the tenth day after the decree ffrant6/! '"I’ defendants prayed an appeal, which was sum ’ and on the same day a bond was given in the penal As tl en ^ousand dollars, as required by the court. and as l^aPPea^ J1518 n°t been regularly entered on the docket, a motinn6/1^ r n°t t)ound to enter it until next term, 1 o dismiss it cannot be entertained. But as the 149 139 SUPREME COURT. Stafford et al. v. The Union Bank of Louisiana. record is before us, which states the facts on which the motion is founded, the court will suggest their views of the law, in regard to an important point of practice. The act of 1803 places appeals in chancery on the same footing as writs of error. And in the case of Catlett v. Brodie, 9 Wheat., 553, this court held, that security must be given on a writ of error, to operate as a supersedeas for the amount of the judgment. By the act of 12th December, 1794, when a stay of execution is not desired, security shall be given only to answer costs. A motion was made, in the District Court, to dismiss the allowance of the appeal, on the ground that security in the amount of the decree had not been given. This was opposed by the counsel of the appellant, and it was alleged, as the receiver had given two bonds, each in the penalty of twenty thousand dollars, for the faithful discharge of his duties, and *1401 as Mortgaged slaves were in possession of persons J who had hired them, who had given bonds in the joint penalty of eighty thousand dollars, for the safe keeping and delivery of the slaves, that no further security, under the statute, ought to be required to entitle the appellant to a supersedeas against the decree. The court overruled the motion. The decision of this court, in the case above cited, was, that the words of the act, “ sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs, if he fails to make his plea good,” do not refer to. “ the nature of the claim upon which the original judgment is founded, but that they are descriptive of the indemnity which the defendant is entitled to, if the judgment be affirmed. And the court further say, “ whatever losses he, the detem -ant in error, may sustain by the judgment not being and paid after the affirmance, these are the damages which e has sustained, and for which the bond ought to give good an sufficient security.” , If this construction of the statute be adhered to, the arnoun of the bond given on the appeal must be the amount o ie judgment or decree. There is no discretion to be exercise , y the judge taking the bond, where the appeal or ° .elioi7 to operate as a supersedeas. This rule was estabhshe m , and it has been adhered to ever since. . •n1a T^graph Co. v. Eyser, 19 Wall., 427; Kitchen v. Randolph, 3 Otto, 88. 155 145 SUPREME COURT. Adams et al. v. Law. 1. There is no case as above entitled, and the real parties interested in the case of which a record is filed, are not made parties to this appeal, namely, the said Lloyd N. Rogers, administrator, &c., Edmund Law Rogers and Eleanora A. Rogers, and the executors of William Blane, in whose favor the decree of the Circuit Court appears to have been made. 2. That it appearing from the certificate of the clerk of said Circuit Court, that an appeal was duly prayed by said appellants, from the decree entered in this cause, and that it was duly allowed, and an appeal bond, in the penal sum of $200, approved 9th December, 1853, is the only appeal bond filed in the case, and such bond does not appear to have been given to the party defendant, in the above entitled case. And upon the facts appearing in the certificate of the clerk of said Circuit Court, that no good and sufficient appeal bond has been filed, so as by law to operate as a supersedeas. And whereas it also appears as aforesaid, that the said James Adams, trustee, is and has been in contempt, in consequence of his neglect and omission to perform and obey the order of said Circuit Court made on the 18th December, 1852; and that said Circuit Court has omitted and neglected to enforce said order and decree against the said James Adams, trustee as aforesaid; it is now further moved by said solicitor, that a writ of procedendo do issue from this com , to be directed to the said Circuit Court, directing and commanding said court to proceed forthwith to enforce, by appropriate process, the said order and decree of said Cncui Court. Mr. Lawrence's motion was as follows: The appellants in this case, by their counsel, respecttuny submit to this court, . , f . That in consequence of a mistake and surprise, the tacts in regard to which fully appear in the affidavits ere^ filed, they failed to file a supersedeas bond within ten day after the final decree was entered therein in e ..... Court; that the fund *in controversy is now m 146] hands of the trustee appointed by the said co , securely invested to the satisfaction of all the paraes cause;"that the said appellants have offered m the said court to give bond in double the amount of the ® ' been be paid; that the parties to whom thesaid mo y f!0]umbia, decreed to be paid reside out of the said Dis n deas on and the Circuit Court has refused to grant the. sup• application formally made in that court or 1 r f thereupon thev move this Honorable Court for a writ 156 ’ DECEMBER TERM, 1853. 146‘ Adams et al. v. Law. persedeas to the Circuit Court of the District of Columbia, to stay execution of the decree heretofore rendered by the said court in this cause, and from which an appeal hath been prayed to this court, on such terms as to your Honors may seem meet. These motions were argued by Mr. May and Mr. Bradley, in support of the motion of Mr. Lawrence, for a supersedeas, and by Mr. Coxe and Mr. Carlyle, in support of Mr. Coxe’s motion, to dismiss the appeal. The facts are stated in the opinion of the court. Mr. May and Mr. Bradley contended. 1. That this court has power to interfere. In Hardeman v. Anderson, 4 How., 640, there was a neglect of the clerk. Here there was no neglect, but the hearing below was irregular, and a surprise upon Mr. May, who had no solicitor in court. When set down for hearing, the case ought to have been put on the order book. 2. The hearing was irregular. The case ought not to have come on until the next term. Maryland Ch. Pr., 112. 3. If the money is paid according to the decree, it will go beyond the jurisdiction of the court, and may be lost. In such a case, the court will interfere. 6 Har. & J. (Md.), 333; 3 Dan. Ch. Pr., 1611. We offer to submit to any terms which the court may direct. Mr. Coxe and Mr. Carlyle contended that the appeal should be dismissed. The case arose upon marriage settlements, and was referred to the auditor. It was then set down for heartsby consent. Maryland Chancery Practice had nothing to do with the case. Adams had $61,000, in his hands since une twelvemonth. He has only given bond as executor, and not as trustee. We obtained a rule upon him to show cause why he should not pay over the money, and that ques-* tion is not decided to this day. Mi. Justice McLEAN delivered the opinion of the court. mi-1 r? 1S a? aPPeal in chancery, from the decree of the Circuit Court for the District of Columbia. motion is made by the appellant’s counsel for a inTr^’^heground that the hearing of the case 147 Prp ,UI>t was brought on irregularly, and the de- defpndaeIe(i a^Sence ^he principal counsel for the not filpri1 ’ tbat by reason of this, an appeal-bond was. Mr \n ^en ^ays from the allowance of the appeal. uiinistratnr’ o makes this motion, states that he is the ad-° the estate of Thomas and Edmund Law, chil-157 147 SUPREME COURT. Adams et al. v. Law. dren of John Law, who in their lifetime were parties to the suit; and that he intended to appeal from the decree of the Circuit Court, if against him; that he had no notice of the cause being set for hearing; that he left the United States on public business, and was absent several months; that on his return he learned that a final decree had been entered against him, and that he had authorized no one to consent to the hearing of the cause out of its regular course. It appears that two other counsel who appeared for other defendants, consented to the hearing in order that the cause might be taken to the Supreme Court, for ultimate decision; and these counsel understood the cause was to be appealed to the Supreme Court by consent, and that security for the money decreed to be paid would not be required. But both of these gentlemen state that, in giving their assent to the hearing, they did not represent Mr. May, not being authorized to do so. The suit in the Circuit Court was entitled, “Joseph E. Law by his next friend, Mary Robinson, v. Thomas Law and others, and James Adams, executor of Thomas Law.” The controversy arose under the will of Thomas Law, deceased, and among other things the court decreed that James Adams, the trustee in the cause, who had sold certain property under the order of the court and had the proceeds in his hands, exceeding the sum of sixty-one thousand dollars, should pay over the money to the persons named in the decree, as entitled to the same. This decree was entered the 18th day of December, 1852 ; and an appeal to the Supreme Court of the United States was prayed on the same day. An appeal-bond, in the sum of two hundred dollars, was filed the 9th of De- cember, 1853. , The twenty-third section of the act of 1789, provides, “that a writ of error shall be a supersedeas, and stay execution in cases only where the writ of error is served by a copy thereo being lodged for the adverse party in the clerk s office v lere the record remains, within ten days, Sundays exclusive, a ei rendering the judgment or passing the decree complaine o , until the expiration of which term of ten days the execu ion shall not issue in any case where a writ of error may e supersedeas. By the second section of the act ot arc ’ ,1Q1 1803, appeals are *declared to be “subject to the) same 148] ruies, regulations, and restrictions as are prescn e law in case of writs of error.” , Under this provision an appeal in chancery mus P fected, by giving an appeal-bond within the ten a^s’7S as a supersedeas. In Wallen v. Williams, 7 Crane i, ’ 158 DECEMBER TERM, 1853. 148 Adams et al. v. Law. court refused to quash an execution issued by the court below to enforce its decree, pending a writ of error, as the writ was not a supersedeas to the decree. In the Dos Hermanos, 10 Wheat., 311, where the appeal was prayed within the five years limitation, the appeal-bond being accepted by the court after that period, was held good, as having relation to the time of the appeal. “ The mode of taking security and the time of perfecting it,” the court say, “are matters of discretion, to be regulated by the court.”1 But this cannot apply to a case, where the appeal operates as a supersedeas. It must be brought strictly within the provisions of the law. The appeal, in this case, was prayed on the same day the decree was entered; but the bond was not given until nearly a year afterwards. The appeal must be perfected within the ten days after the decree was entered, to operate as a supersedeas. To supersede a judgment at law, the writ of error must be filed and bond given within the ten days. And the same rule is applied by the act of 1803, to appeals in chancery. The case of Hardeman Perkins v. Anderson. 4 How., 642, is relied on as an authority under which a supersedeas maybe issued in this case. In that case it appeared from the record, that the writ of error was issued and bond given within ten days after the judgment, and that the clerk of the District Court promised to transmit the record to the Supreme Court. It was transmitted, but by some delay was not received until a few days after the adjournment of the court, at the ensuing term. Before the adjournment, a certificate of the judgment having been obtained by the plaintiff’s counsel, in the judgment, on motion the cause was, under the rule of the court, docketed and dismissed. At the next term, on motion sustained by an affidavit, showing that the defendant in the judgment had not been negligent in the cause, it was or-ered to be docketed, and a writ of supersedeas was issued, no on the second writ of error which had been issued, but 0 give effect to.the first writ. After the dismissal of the cause at the previous term, execution was issued on the judg-lVen? and it was necessary, after the cause was entered upon ® /Pcket, to supersede that execution. +1 °.e? no^ aPPear from the facts in the case now before , la it can be brought within any decision of this court. a ever may have been the understanding of the counsel to an aPPeare(| hi the defence, in the Circuit Court, as r*1zLQ ppeal of the case to the Supreme Court, by con- *- Cited. Teese v. Huntingdon, 23 How., 2. 159 149 SUPREME COURT. Adams et al. v. Law. sent and without security, it is not made to appear that the counsel of the complainants assented to such an arrangement. By the order of the Circuit Court, a copy of the decree was served on James Adams, the trustee ; and also a rule to show cause why an attachment should not issue against him for not paying over to the parties the sums of money as required by the decree. His answer to the rule was filed, and a motion being made for an attachment, it was taken under consideration, and has not yet been decided. This Court cannot presume that the Circuit Court, in the exercise of their discretion, will take any step in regard to the decree, which shall place the fund at hazard or beyond the exercise of the appellate powers of this Court. The motion for a supersedeas, by the counsel for the plaintiffs in error, is overruled. The Court also overrule, under the circumstances, the motion of the defendant’s counsel in error, for a procedendo. A motion is also made, by defendant’s counsel, to dismiss the appeal on the ground, “ that there is no case, as entitled on the record; and that the real parties interested in the case, of which a record is filed, are not made parties to the appeal.” After the decree was pronounced in the Circuit Court, the record states: “ From which decree an appeal was prayed to the Supreme Court of the United States, on the 18th December, 1852, and to them it was granted.” The word “ defendants ” is omitted in this prayer, but that must have been a clerical omission, as it appears the appeal was “grante o them,” that is to the defendants. , The title of the case, if incorrectly entered on the docket of this court, may and should be corrected by the recor filed. There is nothing in the record to show that the appeal by the defendants was not prayed by all of them. 1 motion to dismiss is therefore overruled. Order upon the motion to dismiss. On consideration of the motion to dismiss this case, and for a writ of procedendo, filed by Mr. Coxe, in t is^cas , the 16th ultimo, and of the arguments of counse P had, as well against as in support of said motion, here ordered by the court that said motion be, an is hereby overruled. Order upon the motion for a supersedeas. On consideration of the motion for Y^Tfi^ultimo, by *Mr. Lawrence in this case on the 16th 160 DECEMBER TERM, 1853. 150 Stuart et al. v. Maxwell. and of the arguments of counsel thereupon had as well against as in support of the motion ; it is now here ordered by the Court, that said motion be, and the same is hereby overruled. John Stuart, Joseph Stuart, James Stuart, and William H. Scott, Plaintiffs in error, v. Hugh Maxwell. The twentieth section of the Tariff Act of 1842 provides, that on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable. (5 Stat, at L., 566.) This section was not repealed by the general clause in the Tariff Act of 1846, by which all acts, and parts of acts, repugnant to the provisions of that act, (1846,) were repealed.1 Consequently, where goods were entered as being manufactures of linen and cotton, it was proper to impose upon them a duty of twenty-five per cent. ad valorem, such being the duty imposed upon cotton articles, in Schedule D, by the Tariff Act of 1846. (9 Stat, at L., 46.) 2 * * This case was brought up by writ of error, from the Circuit Court of the United States for the Southern District of New York. The plaintiffs in error, who were plaintiffs below, sued the collector to recover moneys for duties, paid under protest, alleged to have been overcharged at the port of New York, m July, 1849. Verdict and judgment for defendant. The plaintiffs made entry at the custom-house of goods as being “ manufactures of linen and cotton.” The appraisers reported them to be manufactures of cotton and flax. Upon such goods collector Maxwell charged duties at the °f 25 per cent, ad valorem, according to the 20th section ’ o the act of 30th August, 1842, which enacted, “........... ’ 1 ar^c^es manufactured from two or more mate- ua s, the duty shall be assessed at the highest rates at which an^otits component parts maybe chargeable.” 5 Stat, at ■'by kittle & Brown, p. 566, chap. 270. +r le, c<£tept°r applied this 20th section to schedule D, of 48° h $0-7^ ^$^6 ’ (9 Stat, at L., by Little & Brown, „nl' C aP’ . (by which a duty of twenty-five per cent, ad rem was imposed on “ cotton laces, cotton insertings, cot- aaesCof n rmled States v- 67 PacZ> V ^47 How, 93; Smythe ^slce’ 23 Wall., 381; Arthur v.La- VOL. XVI.—11 hey, 6 Otto, 117; Arthur v. Unicart, Id., 120. 2 Followed. Fisk v. Arthur, 13 Otto, 433, 434. 161 150 SUPREME COURT. Stuart et al. v. Maxwell. ton trimming laces, cotton laces and braids,.........; man- ufactures composed wholly of cotton, not otherwise provided for; ” being so instructed by the acting Secretary of the Treasury, by circular of May 8th, 1848. *The plaintiffs, in their protest, contended, “that -I under existing laws, said goods are liable to a duty of twenty per cent, as a non-enumerated article,”............. “under the 30th section of the tariff of 30th of July, 1846,” dated 25th July, 1849, and 8th January, 1850. The plaintiffs proved by witnesses, that the goods entered at the customs in schedule A, were reported by the appraisers as manufactures of cotton and flax; that he paid the duties thereon at the rate of twenty-five per cent, ad valorem; that they were manufactures composed of cotton and flax; “ that the proportion of flax in the goods varies considerably, being in some about a half, in others about a third or a fourth; but that the flax is the material of chief value in the goods; that the appraisers’ report of the goods as ‘ manufactures of flax and cotton,’ means that the fabrics were composed of linen and cotton combined. None of them were manufactures of cotton or flax alone.” The plaintiffs’ counsel prayed the court to instruct, “ that if the jury shall find from the evidence that the goods in question were manufactures of ‘ linen and cotton combined, and not ‘ manufactures composed wholly of cotton, then that duty was exacted at the rate of twenty-five per cent. ad valorem, when the goods were subject only to twenty per cent, ad valorem, as a non-enumerated article, under the 3d section of the tariff of 1846.” That instruction the court refused: . And charged the jury, that if they believe the goods in question are manufactures of flax and cotton co™bineu then, inasmuch as the 20th section of the tariff of 1$ ’ directs that “on all articles from two or more materials the duty shall be assessed at the highest rate at which any ot i s component parts may be chargeable, the goods in ques ion are subject to the same charge as articles enumerated un er schedule D, as if manufactures composed wholly ot cotton not otherwise provided for, and that they are there oie n articles subject to the duty of twenty per cent, on y un 3d section of the tariff of 1846.” . , To the refusal to charge as moved by plaintiffs, and to tn charge as given to the jury, the plaintiffs excepte . Upon this exception the case came up to this court. It was argued by Jfr. Jib 8. MeCulM for the plaintiffs 162 DECEMBER TERM, 1853. 151 Stuart et al. v. Maxwell. in error, and by Mr. Cushing, (Attorney-General,) for the defendant. Mr. McCullok filed a voluminous brief, from which the reporter can only make an extract, and selects that point upon which the decision of the court appeared chiefly to turn, namely the 4th point in the brief; and upon this point he is obliged *to omit the arguments and illustrations under the heads B and C. L The points made by Mr. McCullok, were the following: The Court erred in refusing to rule, as prayed by the plaintiffs, that the goods being “manufactures of cotton and linen combined,” and not “ manufactures composed wholly of cotton,” were subject to only twenty per cent, ad valorem, as “ non-enumerated articles,” under section 3d of the tariff of 1846; and also in charging the jury that “ the goods were liable to twenty-five per cent, duty under schedule D, as if they were manufactures composed wholly of cotton, because the 20th section of the tariff of 1842 directed that in all articles manufactured from two or more materials, the duty shall be assessed at the highest rate at which any of the component parts may be chargeable,” for the following reasons, to wit: 1st. The tariff of 1846, by its first section, substitutes the rates of duty thereby assessed upon the merchandise specifically enumerated in its schedules from A to H, in lieu of the duties theretofore imposed by all previous laws on the arti-c es therein enumerated, and on such articles as were then exempt from duty. i ~ t' 1846 specially enumerates, in its sched- U 3d articles that should be exempt from duty. • All articles not specially enumerated in the schedules rom A to I of the Tariff of 1846, pay a duty of twenty per cent, only, and no more. 4th. The provisions of the 20th section, tariff of 1842, nr m1 refluire that “ on all articles manufactured from two materials, the duty shall be assessed at the highest ahln ” o • 1C^ a.ny it® component parts may be charge-iect and and rePugnant to,—(a.) The ob- section jhe tariff of 1846; (b.) The provisions of The 3d ?• sc^„edutes D and E of the tariff of 1846; (c.) lae *d section of the tariff of 1846. merely an/h- ?°th section of the Tariff of 1842 is not when annlfprW1^ +L °f 1U^e<. construction, and it cannot, daily nampd act of bring any article not spe-7 nanied W1ttan any of the schedules from A to I, of 163 152 SUPREME COURT. Stuart et al. v. Maxwell. 1846, nor take any article out of the provision of section 3, which imposes twenty per cent, on all articles not enumerated in said act of 1846. (a.) The object and policy of the act of 1846 do not permit the 20th sect, of the tariff of 1842 to operate on the 3d sect, of 1846. The act of 1841, c. 24, (5 L. U. S., 463, 464,) is the first act in which this clause occurs; and the act of 1841 had for its object the carrying out of the policy of the Compromise Act of 1833, c. 55, (4 L. U. S., 629,) and by its first section provides, that “on articles then (11th Sept., 1841) exempt rq-i from duty,” or *“ then paying less than twenty per J cent, ad valorem” there should be levied and paid (after the 30th Sept., 1841) a duty of twenty per cent, ad valorem, except on the articles thereby exempted by name, &c. Then by its 2d section, 1841, c. 24, directs, “That on every enumerated article, similar in material, quality, texture, or use, to any enumerated article chargeable with duty, there shall be levied the same rate of duty which is levied on the enumerated article which it most resembles, &c.; and if it resembles equally two or more enumerated articles on which different rates of duty are now chargeable, there shall be levied the same rate of duty as is chargeable on the articles which it resembles, paying the highest duty; and on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable; ” this is followed by fwo provisos, namely: 1st. That if a duty higher than twenty per cent, shall be levied under the section, it shall not affect the disposition of the proceeds of the public lands. 2d. f hat no higher rate than twenty per cent, shall be charged on an) unmanufactured article. . , The act of 1841 does not profess to change the object ot the Compromise Act, but aims at the levying of a uniform rate o twenty per cent, ad valorem, which was the uniform rate w ic the biennial reductions under the Compromise Act inten e to effect. See 1833, c. 55, 4 L. U. S., 629. . . The 20th section of tariff 1842, is identical in wor s wi the act of 1841, § 2, except that the “now and the two provisos are dropped. , . f The terms, “ non-enumerated articles, used in ie „ 1841, then mean “articles” not specially named in e of 1832, July 14tli, and 1833, c. 55. „ j -n S 20 The same terms, “ non-enumerated articles, use _ i $ £ tariff of 1842, have necessarily relation to § 10 o ‘ 1842, which declares—“ That on all articles not herei 164 DECEMBER TERM, 1853. 153 Stuart et al. v. Maxwell. rated or provided for, there shall be levied, collected, and paid a duty of twenty per cent, ad valorem.” The act of 1842, c. 270, by its sections from 1 to 9, inclusive, had substituted the duties therein specified on the articles thereby enumerated in lieu of the rates theretofore existing; and by its sections 10 and 20, prescribed twenty per cent, for articles not specially named or enumerated in said act, with the direction, that if higher duties could be exacted by reason of the material, texture, quality, use or fabric of articles not enumerated in said act, such higher rates of duty should be taken. The words of the 20th section are in the present tense. They are “ the same rate of duty which is levied and charged,” and the *terms therein of “ may be chargeable,” can only relate to the charging by said act, because : 1st, L it repealed all other rates theretofore laid, §§ 1 and 26 ; and 2d, all revenue acts in fixing rates of duty speak of the rates established in said acts, or in former acts; and 3d, to make provisions prospective rules for finding rates, express words of future efficacy must be employed. See Mills n. St. Clair Co. et al., 8 How., 569; Amer. Fur Co. n. U. S., 2 Pet., 358. And in § 20 of tariff of 1842, no prospective words to control the rates that might thereafter be levied exist. There never were any rules established by acts of Congress, nor by judicial decisions, by which it was laid down as a principle, “ that if any article were composed of two or more materials it should, to favor commerce, be rated according to that component which was subject to the lowest rate of duty. The whole of the tariff acts of the United States proceed upon this plan—1st, enumerating the articles subjected to given rates of duty ; 2d, enumerating those exempted; and 3d, fixing an uniform rate or rates on articles not specially enumerated. fl cour^s have as uniformly held, that the only rules for nding the rates of duty were to look for the article : “ 1st. Among those named by species or class. 2d. Among those eX?1jPte<^! And 3d. If not there found, it was non-enume-10 % Such have been the decisions in Elliott v. Swartwout, h en’ I37; Hardy v- H°y^13 Pet-’292- The rules have eeu y the courts recognized to be these : 1st. The commer-°r cJass *s govern, and if the article belong equally qpori ° i'r° C^asses’ toe lowest tax should be taken (ex. flax-a dLTIdJTeed’ sphe 1842? They can Td ^ether with consistency. J stated tbf V'i Un^d St?tes.' 16 Pet- 362’ 863> this court subsequent 1" °’ ^at’ 18 not sufficient to establish that for bvlf • f aYk cover some, or even all of the cases provided or auxiliary0* +1 be merely affirmative, or cumulative, tween the n’rnv tbei? be a Positive repugnancy be- anl even Id UeW laW and those °f-the old’ old law is repealed by implication only, 167 156 SUPREME COURT. Stuart et al. v. Maxwell. pro tanto, to the extent of the repugnancy. And it may be added, that in the interpretation of all laws for the collection of revenue, whose provisions are often very complicated and numerous, to guard against frauds by importers, it would be a strong ground to assert that the main provisions of any such laws sedulously introduced to meet the case of a palpable fraud, should be deemed repealed, merely because in subsequent laws, other powers and authorities are given to custom-house officers, and other modes of proceeding are allowed to be had by them, before the goods have passed from their custody, in order to ascertain whether there has been any fraud attempted upon the government. The more natural, if not the necessary inference in all such cases is, that the legislature intend the new laws to be auxiliary to and in aid of the purposes of the old law, even when some of the cases provided for may be equally within the reach of each. There certainly, under such circumstances, ought to be a manifest total repugnancy in the provisions to lead to the conclusion that the latter laws abrogated, and were designed to abrogate, the former.” *1 *The law does not favor repeals by implication; J nor is it to be allowed, unless the repugnancy be quite plain; and although the acts be seemingly repugnant, yet they should, if possible, have such construction that the latter mav not be a repeal of the former by implication. Bac. Abr. Stat. D; Foster's Case, 11 Co., 63: Weston's Case, 1 Dyer, 347; Snell v. Bridqewater Cotton Gin Man. Co., 24 Pick. (Mass.), 296, 298; Dwarr. Stat., ed. 1848, p. 531, 533; Smith’s Com., ch. 19. . . . “ A later statute on a given subject, not repealing an earner one in terms, is not to be taken as a repeal by implication, unless it is plainly repugnant to the former, or unless it u y embraces the whole subject-matter.” Per’Shaw, C. J., 0 dard v. Barton, 20 Pick. (Mass.), 407, 410. “ Acts in pari materia are to be taken togethei as one a , and are to be so construed, that every provision in them may, if possible, stand. Courts, therefore, should be scrupulous how they give sanction to supposed repeals by imp 1C^_ i Per Wilde J., Haynes v. Jenks, 2 Pick. (Mass.), 172, t'o. Therefore, it seems clear, that the 20th section of the of 1842 is in force. . . x “ The correct rule of interpretation is, that if dive relate to the same thing, they ought all to be a en sideration in construing any one of them, and i lished rule of law, that 111 acts in pan'materia are to be taken together, as if they were one law. United State 168 DECEMBER TERM, 1853. 157 Stuart et al. v. Maxwell. 3 How., 564; Ailesbury v. Pattison, 1 Doug., 30 ; Rex v. Loxdale and others, 1 Burr., 447; Bac. Abr. Stat. I, pl. 21, 22, 23, 24. From these authorities, the 20th section of the act of 1842, and the act of 1846, July 30th, relating to duties on imports, “are to be taken together, as if they were one law.” By the law, a duty of twenty-five per cent, ad valorem is imposed on goods mentioned in schedule D, which comprises manufactures of cotton; and a duty of twenty per cent, ad valorem is imposed on goods mentioned in schedule E, which comprises manufactures of flax, and manufactures of hemp. But the goods entered by the plaintiff at the custom house, which are the subjects of this suit, were manufactures composed of cotton and flax, partly of the one material and partly of the other. None of them were composed wholly of flax, nor wholly of cotton, but Compounded of both. Therefore, by the said 20th section, the duties upon such articles, manufactured from the two materials of cotton and flax were chargeable with the duty “assessed at the highest rates at which any of its component parts may be chargeable.” The 3d section of the act of 1846, (Vol. 9, p. 46, chap. 74,) *which imposes “ On all goods, wares and merchan-dise, imported from foreign countries, and not specially *-provided for in this act, a duty of twenty per centum ad valorem, ’ must be understood as comprehending only such articles, whether simple or compound, manufactured or not manufactured, as are not of any of the materials charged with duties by the act of 1846. . If that 3d section be not so limited, and the said 20th sec-t10n of the act of 1842 be not applied to all articles, manufactured from two or more of the materials charged with duty ln ™e several schedules of the act of 1846, then the rates of uty above twenty per cent, may, in a great variety of articles, e evaded an4 reduced to twenty per cent, by manufacturers, entered under new names, composed of two or more materials, one or more of them chargeable with a duty of one hundred, or o orty, or of thirty, or of twenty-five per cent, ad valo-em, an mixed with a material or materials chargeable with the lower rates of duty. 1S n.ecessary and proper understanding of this 3d confine(l and limited as above mentioned, artielo^ the 2r°th Seetion of the act of 1842 be applied to all with Urfd Aom two or more articles chargeable is not ?e decision of the Circuit Court in this case made at th Wk ma^ exPect a swarm of entries to be s om houses, of manufactures under new names, 169 158 SUPREME COURT. Stuart et al. v. Maxwell. in evasion of the duties above the rate of twenty per cent, ad valorem intended by the act of 1846. This suit to recover back duties above twenty per cent, ad valorem upon goods manufactured of cotton and flax, entered at the custom house as “manufactures of linen and cotton,” and subject only to a duty of twenty per cent., as nondescripts in the several schedules A, B, C, D, E, F, and G, is the beginning of a stratagem to elude the revenue laws, which, if successful, may be continued and accompanied by others of the kind. Mr. Justice CURTIS delivered the opinion of the court. The plaintiffs in error brought their action in the Circuit Court of the United States for the Southern District of JNew York, against the defendant, who was formerly collector ot the customs for the port of New York to recover moneys leged to have been illegally exacted as duties. The plaintitts entered at the custom house certain goods as ma!iuf?'ct(?re® of linen and cotton,” and claimed to have them admitted^o payment of the duty of twenty per cent, levied on _un nu rated articles under the 3d section of the a Tariff The defendant insisted that the 20th section of the Tariff Act of 1842 was in force, and that by force of it these g , being manufactured *partly of cotton must be m 159-1 sessed twenty-five per cent., that being y posed by the act of 1846 upon manufacturesJ of cotton^not otherwise provided for. If these articles are foi thepurpose of fixing the amount of duty, deemed by lax riahtlv tures of cotton, it is not denied that the duty was g y assessed. And whether they are to be ^ckoned^^ treated, depends upon the question, whethe 2 of the act of 1842 was repealed shall be levied, That 20th section is as follows : That there snan collected and paid on each and every texture, which bears a similitude either in ma , q e^umerated or the use to which it may be aPP^e^’ f Juty which is article chargeable with duty, the sam , which it most levied and charged on the enumerateda^le ^ned. and if resembles in any of the particulars e ,, two or more any non-enumerated article ,equa!^ r , . of duty are enumerated articles on which different rate . ““/such chargeable, there shall be levied, coU“^fd’,™ £ is charge-non-enumerated article the same ra _ highest rate of able on the article it resembles paying t h more duty: and on all articles manufac u highest rates at materials, the duty shall be assessed atthe h^ „ which any of its component paits m y 170 DECEMBER TERM, 1853. 159 Stuart et al. v. Maxwell. This section is a reenactment of the 2d section of the Tariff Act of 1841. 5 Stat, at L., 464. The repealing clause in the act of 1846, is, “ that all acts and parts of acts repugnant to the provisions of this act be, and the same are hereby, repealed.” It is alleged by the plaintiffs that repugnance exists between the 20th section of the act of 1842 and the act of 1846. The argument is, that the act of 1846 divides all imports into three classes; first, those specified which are to be free of duty; second, those specified which are required to pay different but specific rates of duty; third, those not specially provided for in the act, which are required to pay a duty of twenty per cent, ad valorem; that a manufacture of cotton and flax not being included, nominatim, among the imports which are to be exempted from, or subject to, duty, is necessarily embraced within the class of non-enumerated articles, and so are liable to a duty of twenty per cent, only; and that this argument is strengthened by the fact that, in Schedule D, manufactures composed wholly of cotton are taxed twenty-five per cent.; and that if it had been intended to tax manufactures composed partly of cotton and partly of flax with a duty of twenty-five per cent., they would have been specifically mentioned in this schedule ; and that it is not admissible, under an act which, in terms, levies a tax of only twenty rit1nn per cent, upon all imports not specially provided for, *-to levy a tax of twenty-five per cent, upon an import not named or described in the act as liable to that rate of duty. Ihe force of this argument is admitted. It is drawn from sound principles of interpretation. But on a careful consid-era ion of this case, we are of opinion that it ought not to Pr^vafl in the construction of this law. The act of 1846 is a revenue law of the United States, and ■n h $ k u ^Onslrue(l with reference to acts in pari materia, of • 1C. *1 $?rms only one part. This observance of a settled 01 construction of statutes is absolutely neces-hi Present state of the legislation of Congress on the ^oject of revenue. Without it, the public revenue could C° ec^e^’ and inextricable embarrassments and diffi-thp constantly occur. We are obliged to look at suhipni-0 e system, and consider the nature of the relatinn^f tie enaetnient under consideration, in its unon ° system, in order to pronounce with safety act of CongX”anQy t0’ °T consistency with’ any particular See notes to United States v. Freeman, 3 How., 556, and to Daviess v. 171 160 SUPREME COURT. Stuart et al. v. Maxwell. Iii the first place, then, it must be observed, that the 20th section of the act of 1842 does not impose any particular rate of duty upon imports. It was designed to afford rules to guide those employed in the collection of the revenue, in certain cases likely to occur, not within the letter, but within the real intent and meaning of the laws imposing duties, and thus to prevent evasions of those laws. Manufacturing ingenuity and skill have become very great; and diversities may be expected to be made in fabrics adapted to the same rules, and designed to take the same places as those specifically described by some distinctive marks, for the mere purpose of escaping from the duty imposed thereon. And it would probably be impossible for Congress by legislation to keep pace with the results of these efforts of interested ingenuity. To obviate, in part at least, the necessity of attempting to do so, this section was enacted. . It does not seem to be any more repugnant to the provisions of the .act of 1846 than the great number and variety of provisions of the revenue laws, whose object was to cause the revenue to be regularly and uniformly collected without evasion or escape. If this act of 1846 had in terms enacted the 20th section of the act of 1842, its provisions would not thereby have been rendered repugnant or conflicting. This section would then only have afforded a rule by which it could be determined that certain articles did substantially belong to and were to be reckoned as coming under a particular schedule. This is apparent, not only from a consid-*1 1 eration of the subject-matter of the *20th section, when -I compared with the act of 1846, but from the fact t a this 20th section actually made part of an act whose subjec matter, and the outline of whose provisions, were the same as those of the act of 1846. The act of 1842 levied du ies on certain imports specifically named. It declared cei ain other articles, also specifically named, to be exempt ro duty, and it provided that a duty of twenty per cen . « valorem should be levied on all articles not therein Pr^v\ . for. Yet this 20th section made a consistent part or wa act. The 26th section of the act of 1842 provides, a laws existing on first day of June, 1842, shall exten be in force for the collection of the duties impose y act on goods, wares, and merchandise importe i United States, and for the recovery, collection, is■ r and remission of all fines, penalties, and. for ei ure , ___-fc——___ Fairbairn, Id., 635, where the cases upon the subject are fully collated. 172 Also Aldridge v. Williams, 3 How., 1, n. (1). DECEMBER TERM, 1853. 161 Stuart et al. v. Maxwell. the allowance of the drawbacks by this act authorized, as fully and effectually as if every regulation, restriction, penalty, forfeiture, provision, clause, matter, and thing in the said laws contained had been inserted in and reenacted by this act.” The act of 1846 contains no corresponding provision. So that unless we construe the act of 1846 substantially as an amendment of the act of 1842, merely altering its provisions so far as the latter enactment is inconsistent with the former, the entire instrumentalities for the collection of the revenue under the act of 1846 would be wanting, and the duties which it requires to be paid could not be collected. It is quite apparent, therefore, that a great number and variety of provisions designed to protect the revenue against mistakes, evasions, and frauds, and to guard against doubts and questions, and to secure uniformity of rates in its collection, owe their present operation upon the duties levied by the law of 1846, to the vitality given to them by the law of 1842, and must be considered now to be the law because the act of 1842 made them, in effect, a part of its enactments, and because the act of 1846 does not interfere with that enactment by which they were made so. And it must be further observed, that these provisions of the 20th section of the act of 1842 are of the same nature as those thus left in force under the 26th section of the act of 1842, having been designed to remove doubts, to promote uniformity, and to check evasions and frauds. There is nothing, therefore, in the general scope of the act of 1846 repugnant to the rules prescribed in this 20th section of the act of 1842. Is there in its particular phraseology? It is strongly urged that there is ; that the terms of the 3d section are wholly inconsistent with the attempt to bring any ai icle under either of the schedules, by operation of any law outside of the act of 1846. That this 3d section en- r*1co acts, in clear terms, that a duty of twenty per cent, ad L valorem.shall be levied on all goods “ not specially provided or in this act ; and that to levy a higher rate of duty, by •r/^e +i a Plov^on some other act, is directly in conflict thom •16 exPr®ss words of the law. It must be admitted rnnm/hf ^orce jn this argument. It has received due depkivJa 1°11’ an(i the result is, that in our opinion it is not aet nf Place may be justly said, that if the and hn« ai sPecially provided for manufactures of cotton, enacts" flint v\ same time left in force a rule of law which a manufactures of which cotton is a component 173 162 SUPREME COURT. Stuart et al. v. Maxwell. part shall be deemed to be manufactures of cotton, if not otherwise provided for, it has, in effect, provided for the latter. By providing for the principal thing, it has provided for all other things which the law declares to be the same. It is only upon this ground that sheer and manifest evasions can be reached. Suppose an article is designedly made to serve the uses and take the place of some article described, but some trifling and colorable change is made in the fabric or some of its incidents. It is new in the market. No man can say he has ever seen it before, or known it under any commercial name. But it is substantially like a known article which is provided for. The law of 1842 then declares that it is to be deemed the same, and to be charged accordingly; that the act of 1846 has provided for it under the name of what it resembles. Besides, if the words “provided for in this act” were to have the restricted interpretation contended for, a like interpretation must be given to the same words in other revenue laws, and the most prejudicial consequences would follow; such consequences as clearly show it was not the intention of Congress to have these words so interpreted. Thus the 26th section of the act of 1842, already cited, adopts existing laws for the collection of duties “ imposed by this act,” for the collection of penalties and remission of forfeitures, and the allowance of drawbacks “by this act authorized.” Yet, as has already been said, it is by force of this adoption that the duties and penalties under the act of 1846 are collected. It is manifest that the structure of the revenue system of the United States is not such as to admit of this exact and rigid interpretation ; that the real intention of the legislature cannot thus be reached. The true interpretation we consider to be this: the 26th section of the act of 184 having reenacted the then existing laws, and applied them o the collection of duties levied by that act, when Congress, by the act of 1846, merely changed the rates of duty, withou legislating concerning their collection, the laws in force on that subject are to be applied; *and this application is -* not restrained by the fact, that, when reenacted by act of 1842, they were declared to be so for the purpose o collecting the duties by that act imposed. The new c u ie merely take the place of the old, and are to be acte on y existing laws as the former duties were acted on; an am g these existing laws is that which affords a rule of enomi tion, so to speak ; which determines under what design in certain cases a manufacture shall come, and how i s ranked; when this has been determined, the act o the duty. v 174 DECEMBER TERM, 1853. 163 Stuart et al. v. Maxwell. It is urged, that in the act of 1846, special provision is made for certain manufactures composed, partly of cotton, and. that this shows no general rule was in operation imposing a particular rate of duty on articles made partly of cotton. But that this would not be a safe inference is evident from the fact that the act of 1842 imposes the same rate of duty on manufactures of wool and of manufactures of which wool is a component part, worsted, and worsted and silk, cotton, or of which cotton shall be a component part; yet this act of 1842 contained the section now under consideration. It may be observed, also, that schedule D, in the act of 1846, after manufactures composed wholly of cotton, goes on to specify cotton laces, cotton insertings, trimming laces, and braids, &c. It would not be safe for the court to draw any inference from the apparent tautology of those parts of a revenue law, describing the subjects of duty. In most cases, the terms used being addressed to merchants, are to be understood in their merchantile sense, the ascertainment of which is matter of fact, depending on evidence; and that which may seem merely tautologous might turn out to be truly descriptive of different subjects. On the whole, our opinion is, that there is no necessary repugnance between the act of 1846 and the 20th section of the act of 1842, and consequently the former did not repeal the latter, and the duty in question was rightly assessed. The judgment of the Circuit Court is therefore 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 outhern District of New York, and was argued by counsel, n consideration whereof, it is now here ordered and adjudged y is court that the judgment of the said Circuit Court in is cause be, and the same is hereby affirmed, with costs. Mr. Justice GRIER dissented. 175 164 SUPREME COURT. Cross et al. v. Harrison. *-| .-Al * Alex ander Cross, William L. Hobson, and 10 -I William Hooper, trading under the name AND STYLE OF CROSS, HOBSON, & COMPANY, PLAINTIFFS in error, v. Edward H. Harrison. In the war with Mexico, the port of San Francisco was conquered by the arms of the United States, in the year 1846, and shortly afterwards the United States had military possession of all of Upper California. Early in 1847 the President of the United States, as constitutional commander-in-chief of the army and navy, authorized the military and naval commanders of the United States forces in California to exercise the belligerent rights of a conqueror, and to form a civil and military government for the conquered territory, with power to impose duties on imports and tonnage for the support of such government, and of the army, which had the conquest in possession. _ This was done, and tonnage and import duties were levied under a war tariff, which had been established by the civil government for that purpose, until official notice was received by the civil and military Governor of California, that a treaty of peace had been made with Mexico, by which Upper California had been ceded to the United States. Upon receiving this intelligence the governor directed that import and tonnage duties should thereafter be levied in conformity with such as were to be paid in the other ports of the United States, by the acts of Congress ; and for such purpose he appointed the defendant in this suit, collector ot the port of San Francisco. . The plaintiffs now seek to recover from him certain tonnage duties and imposts upon foreign merchandise paid by them to the defendant as collector between the 3d of February, 1848, (the date of the treaty of peace,) and the 13th of November, 1849, (when the collector appointed by the President, according to law, entered upon the duties of his office,) upon the groun that they had been illegally exacted. . The formation of the civil government in California, when it was done, the lawful exercise of a belligerent right over a conquered terri ory. was the existing government when the territory was ceded to the States, as a conquest, and did not cease as a matter of course, or asi a sequence of the restoration of peace; and it was rightfully contmui peace was made with Mexico, until Congress legislated otherwise, u , constitutional power, to dispose of and make all needful rules a tions respecting the territory or other property belonging o The tonnage duties, and duties upon foreign goods i«1Ported “V-?, ^“wnor, cisco, were legally demanded and lawfully collected by treaty whilst the war continued, and afterwards, from the ratification of the^a y of peace until the revenue system of the United Sta es P tjiat tical operation in California, under the acts of Cong , P purpose. This case came up, by writ of error, from the Court of the United States, for the Southern District of York. _____________________ 1 Followed. Hamilton v. Dillin, 21 Wall., 87. Reviewed. Dred Scott v. Sandford, 19 How., 523. Cited. The Grapeshot, 9 Wall., 133; New Orleans 176 V. Steamship Co., 20 man v. Tennessee, 7 Otto, o-w, Johnson, 10 Otto, 183. DECEMBER TERM, 1853. 164 Cross et al. v. Harrison. Cross, Hobson, & Co. brought an action of assumpsit to recover back from Harrison, moneys paid to him while acting as collector of customs at the port of San Francisco, in California, for tonnage on vessels and duties on merchandise, not of the growth, produce, or manufacture of the United States, imported by the plaintiffs from foreign places into California, and there landed, between February 3, 1848, and November 12,1849. The plea was non assumpsit, and the verdict and judgment were for Harrison, in January, 1852. The bill of exceptions contained the substance of much testimony offered by the plaintiff, (which it is not necessary to recite,) and also the whole of the Senate *-Document, No. 18, of the first session of the thirty-first Congress. The opinion of the court contains a statement of the material parts of this evidence. The case was argued by Mr. Richard T. Merrick and Mr. James W. McCullok, upon, a brief filed by himself and Mr. John S. McCullok, for the plaintiffs in error, upon which side there was also filed a brief by Mr. Rockwell and Mr. Lawrence ; and by Mr. Cushing, (Attorney-General,) for the defendant in error. The briefs on both sjdes were so elaborate that only a portion of each can be inserted; and those parts are selected which relate to the legality of continuing, after the peace, the government which had been established during the war. The points for the plaintiffs in error, as stated by the Messrs. McCullok, were the following points: . st. Ihat on foreign goods or vessels brought into Califor-iSa tW.een the 3d of February, 1848, and the 3d of March, and between the 3d of March, 1849, and the 12th of » -er’ 1849’ duties did not accrue to the United States, 21 T exaction was therefore illegal. a .~hiat on foreign goods and vessels brought into Cali- ornia between the 3d of February, 1848, and the 12th of trpqt?1 ei? 1$^$’ the defendant had no authority by any ex.X°r aW °/ United States to collect duties, and their exaction was therefore illegal. NovemberW1849tht1 3d, ^ebruarV’ 1848’ and the 12th of law nf in ’ tt •?’i^he defendant was not authorized, by any or send tn ni^ed States, to require the plaintiffs to go with States fnm,a yithin a collection district of the United the nlainHfl^11 ^nd vesse^s’ and there pay duties, before Vol ™ S^Uld brin$ the same California; nor to VL—12 177 165 SUPREME COURT. Cross et al. v. Harrison. put plaintiffs to elect between so doing and the paying of duties to the defendant. 4th. That after the 23d of February, 1849, when the plaintiffs protested against the exactions made, or to be made, the defendant was not justified in paying over the moneys theretofore or thereafter exacted to the use of the United States, or any other person. 5th. That the plaintiffs are entitled to the customary interest of California, on all sums exacted by defendant by duress, and against protest, on goods and vessels brought into California between the 3d February, 1848, and the 12th of November, 1849. 6th. That on the whole evidence, no part of the duties claimed were paid voluntarily, but each and every of them were exacted by compulsion and duress. *Under the foregoing points, the plaintiffs in error -* will rely upon the following authorities: 1st. Between the 3d of February, 1848, and the 12th of November, 1849, duties did not accrue to the United States in California. (a.) The wisdom, goodness, and power necessary for the protection of the general welfare and peace of the people, are the only source from which is derived the authority to exercise the sovereignty of the nation. 1 JJurlamaqui, Nat. Law, c. 9, pp. 83, 89. And on these the power to reward and punish rests. Id., 93. The powers which the sovereign exercises, are those which relate to internal administration. 2 Burlamaqui, Pt. 3, c. 1, p. 152. And next, those which regulate foreign or external administrations. 2 Id., Pt. 4, c. 1, p. 220. Among this last class are the powers of making offensive or defensive war, of concluding treaties and alliances, of controlling the immigration of foreigners, and or regulating commerce. By the laws of war, the sovereign acquires the right to spoil, plunder, and destroy the goods ot his enemy, and possess his lands. 2 Burlamaqui, Pt. 4, c. 7, p. 290, &c. In order to indemnify for the expenses of war out of his enemies’ goods and lands, and while the conqueror continues in possession of the lands, he is sovereign over them, and of all within them ; and may either admit the van quished to the rights of subjects, or banish them as enemies from the country, for the sovereignty thus acquired is a so lute. 2 Burlamaqui, Pt. 4, c. 8, § 12, p. 809. And from these rights of war flows the sovereign power of ma 1 treaties, equalor unequal, (2 Burlamaqui, Pt. 4, c. 9, pp- » 317, 319,) and whether in war or in peace—such treaue being unequal whenever they limit the powers of the o g 178 DECEMBER TERM, 1 853. 166 Cross et al. v. Harrison. sovereign ; as by stipulating that the conqueror’s consent shall be had before the foreign sovereign can act in any given way. Id., § 13, p. 319. The power to regulate foreign commerce necessarily includes, as one of its incidents, the power to lay imposts on foreign goods, or even to prohibit them entry, (Vattel’s Law of Nations, Bk. 1, c. 8, p. 39,) whenever the welfare of the State demands it. The right to trade with a foreign nation is therefore conventional, and the treaty that cedes the right is the measure or limit thereof—dependent on the will of the foreign sovereign, and not a right of prescription. And a foreign nation may limit its foreign trade to itself, or to its own vessels, by treaty or otherwise. Vattel, Bk. 2, c. 2, p. 121. During the flame of war, a nation may sell or abandon part of its public property, (Vattel, Bk. 1, c. 21, p. 105,) though, if the sovereign be not absolute, this may require the concurrence *of his coordinates, the people. The empire or r#-in7 sovereignty, and the domain or property, are not in- *- - separable—for the nation may have its sovereignty but not its domain—which may be held in the possession of a foreign nation, either by war or treaty. Vattel, Bk. 1, c. 23, p. 118. (b.) The sovereign who acquires a country by conquest or treaty, has the exclusive right to legislate in regard to it, and may impart this right to another; and the country so acquired may be retained in a subject condition, or be erected into a colony. be laws of the conquered or ceded country remain, until c anged by the sovereign conqueror, who may change the political form of government; but the laws of trade remain. Uwam on Stat., 907; Hall v. Campbell, Cowp., 204; Calvin’s ^ase, 1 Co., 176. And where the power to legislate therein as been granted by charter or statute to another, there the ws ot the conqueror do not extend into such territories. pmaril8’^r?’ ’ $ an(l William 4, c. 93, relating to Governor and Council of India. S rwnnv C0unl;ry is acquired by the right of occu- erpio-n discovery, and peopled by the subjects of the sov-suel? la™ ° r?a]S °r.^eir sovereign as may be applicable to their 2 Meriv 143 Warr"011 StaL, 905; Attorney- General n. Stuart, but Dena]S’l?ene^CL^ sucb colonies, go with the colonists; extend to r 1 S’* ln^lcl'lng forfeitures and disabilities, never nies not zn esse, (Dawes v. Painter, Freeman, 179 167 SUPREME COURT. Cross et al. v. Harrison. 175; Dwarris, 527,) nor do laws of tithes, bankruptcy, mortmain, or police. The laws of the sovereign, passed after the settlement of a country, whether ceded, conquered, or discovered, do not affect such colony unless specifically named; or, unless they relate to the exercise of the foreign powers of the sovereign, in regard to navigation, trade, revenue, and shipping. Dwarr. on Statutes, 527, 906 ; 1st Report of Commr’s West Indies, Legal Inquiry, 2, 6; Pari, in Ireland, 12th Rep., 112. Thus we find that, after the discovery of the North American Colonies, till the Revolution, Great Britain regulated the foreign trade of these her colonies, by various acts of parliament, passed to limit it to the vessels of British subjects and to British ports, and to encourage it. She controlled the tobacco trade by statutes—(1670, 22 and 23 Car. 2, c. 26; 1685,1 James 2, c. 4 ; 1695, 7 William 3, c. 10; 1699,10 and 11 William 3, c. 21; 1704,3 and 4 Anne,c. 5; 1709, 8 Aime, c. 13; 1713, 12 Anne, c. 8). She restrained all imports and exports to and *from America to British ports and British ships—(12 Car. 2, c. 12, §§ 1, 2, 3, 4, 19; 7 and 8 Wm. 3, c. 22, § 13; 8 Anne, c. 13, § 23; The Recovery, 6 Rob., 346; Wilson v. Marriott, 8 T. R., 31; 1 Bos. & P., 432; 2 Evans's British Statutes, 51; 15 Car. 2, c. 7; 2 Evans s Stats., 58, 62; Grant v. Lloyd, 4 Taunt., 136). She regulated the import of prize goods into and from America, (1711, 10 Anne, c. 22; 1742, 15 George 2, c. 31; and 1744, 17 George 2, c. 34). She encouraged and controlled all the trade to her colonies, by statutes—(1695, 7 William 3, c. 22; 1707, 6 Anne, c. 37; 1710, 8 Anne, c. 27; 1733, 6 George 2, c. 13 ; 1740, 13 George 2, c. 31). She forbade exports from her colonies to certain foreign countries—(1731,4 George 2, c. 15; 1732, 5 George 2, c. 22; 1757, 30 George 2, c. 9). She regulated the import of coffee, tea, and other goods into these colonies; appointed commissioners of the revenue, and provided penalties for the violations of such laws—-(17o3, 4 George 3, c. 15; 1765, 5 George 3, c. 45; 1766, 6 3, c. 49 and 52; 1767, 7 George3, c. 41,46, 56; 1768, » George 3, c. 22; 1772, 12 George 3, c. 7 and 60; 1773,13 George 3, c. 44). And following up her legislation in TeS^(. to these colonies, Great Britian in 1772, (12 George 3, c. J allowed a drawback on tea, exported to her British oi American Colonies; and, until the Revolution, entire y co trolled the trade and duties laid in the colonies. Congress, Vol. 1, pp. 27, 31, 33 to 39, 47, 394 to 396; Gales & Seaton’s Debates in Congress, 216. . t , The oppression of these laws of Great Britain upo 180 DECEMBER TERM, 1853. 168 Cross et al. v. Harrison. colonies having resulted in the destruction at Boston, on the 31st December, 1773, of teas imported there by the East India Company, on which they had paid duties; in the meeting of the Congress of the colonies on the 5th of September, 1774, at Philadelphia; in Great Britain’s denouncing them out of her protection on the 20th of December, 1775; in the Declaration of Independence of 4th of July, 1776 ; in the acknowledgement of the independence of the United States by Great Britain, on 30th November, 1782 ; and in the Treaty of Peace, signed at Paris on the 2d of September, 1783,—the United States became independent and absolute sovereignties. (c.) From the 2d of September, 1783, until the adoption of the Constitution by the States, respectively, each had, and several of them exercised, the power of regulating its foreign commerce, and laying imposts and tonnage duties. Journals of Congress of the Confederation, Vol. 2, 298, 301; Gales & Seaton’s History of Debates in Congress, 111. Georgia laid Is. 8(2. sterling on tonnage; and South Carolina laid Is. 3d. sterling (Id., 300) ; Pennsylvania laid a tonnage on vessels of nations in treaty; *Maryland laid Is. 8d. per ton on vessels in treaty, and 2s. 8d. on others, *-except British, which paid 6s. 8d. and two per cent, on goods therein; Virginia laid a tonnage of 3s. 6d. on vessels in treaty, and 6s. 6d. on non-treaty vessels, and two per cent, ad valorem on goods therein ; and South Carolina laid 2s. 9d. sterling on British sugars, and Is. 8d. on those of other nations. Id., 275. By the Confederation of 17th November, 1777, the States still reserved to themselves the right to regulate their foreign commerce, and to lay duties. See article 6th, vol. 2, Journals of Congress of the Confederation, 298, 301, 330. here were, however, secured to the citizens of different ates certain rights by the Confederation in regard to irii-ports and exports of goods from State to State. Arts. 4, 6, volume Journals of Confederation, 330. 99 ? qS true the Congress of the Confederation, on the September, 1774, (see Journal of Congress, vol. 1, 14,) J™ the merchants and others in the colonies to recall or ers for goods from Great Britain, and on the 27th Sep- CTJ. 1774’ > resolved, that after 1st from Hp61’ there should be no importation of goods imno Britain or Ireland, nor purchase of goods if 1 ^3 ted9«\e,^e ; an(? that 01? 20th October, 1774, (Id., vol. exnnrinf nonimportation, non-consumption, and non-"ress tr22n+ua^emen^ was signe(I by the members of Con-G ’ y e Congress did not, in fact, execute these re 181 169 SUPREME COURT. Cross et al. v. Harrison. solves; and on 6th April, 1776, (Id., vol. 1, 307-8,) a resolve was passed allowing importations and exportations to the citizens of the colonies, and of all nations, except to and from those under the dominion of Great Britain, subject to the duties laid or to be laid by the colonies. Yet, before the Revolution, a commercial combination regulated the importations between America and Great Britain. If any man was suspected of an infraction of the non-itnpor-tation agreement, his conduct was strictly watched, and if his guilt was discovered he was published and held up to the world as an enemy to his country. Gales & Seaton’s History of Debates in Congress, vol. 1, 320, speech of Mr. White. The means to defray the expenses of government, under the Confederation, for common defence and general welfare, were obtained by requisitions on the several States, for such sums of money as should be in proportion to the value of the lands and improvements in possession, or in grant to the citizens of the State, (Journals of Congress of Confederation, October 14th, 1777, vol. 2, 288,) to be estimated in such way as Congress should appoint. See confederation, article 8, vol. 2, Journal of Congress, 330, November 15th, 1777. These *1701 quofca were fixed *by Congress, from time to time, -I according to the number of the white inhabitants in each State. Art. 9, Confederation; see vol. 2 of Journals of Confederation, 336, 337; also Id., 346, November 23d, 1777, and the Report of the Committee of the Board of Treasury, Id., 332. From these authorities it will appear that the States, individually, regulated their foreign commerce and duties, and were in this respect foreign sovereigns to each other, and they maintained this relation until the adoption of the Constitution of the United States. Thus we find that by the i article of the Constitution, the ratification thereof by the conventions of nine of the original thirteen States was o e sufficient for the establishment of the Constitution, a,n fl-on 26th July, 1788, eleven of the thirteen had adopted it, ana that North Carolina and Rhode Island st?ocl aloof, e is until 2d November, 1789, and the last till -9th 1 ay, See Mr. Hickey’s Book, published in 1847, p. 24. , Between the 26th July, 1788, and 29th May, , rP(ni-Island was therefore in the position of a foreign a e, g lating her own commerce, and laying her own ies’a did not send deputies to the convention at PJjJadelp form a Constitution. See Gales & Seatons 1S o(iuc_ bates in Congress from 1789 to 1791, vol. 1, p- 0 British tion. Rhode Island was thus in a position to force B 182 DECEMBER TERM, 1853. 170 Cross et al. v. Harrison. goods into the United States, by Long Island and Connecticut. Id., p. 124, Mr. Boudinot’s speech. She did, in fact, enter into the neighboring States linen and barley that had not paid duty to the United States. Id., p. 164. (d.) The position of North Carolina and of Rhode Island was that of foreign States, as to the United States, and they were so treated by the Congress of the United States, under the Constitution. Thus (Gales & Seaton’s History of Debates in Congress from 3d March, 1787, to 3d March, 1791, vol. 1, pp. 1011, 1012,) a bill passed the Senate to prevent goods from being brought from Rhode Island into the United States; and (History of Congress from March 4, 1789, to March 31, 1793, by Carey, Lea & Blanchard, p. 609, 2d sess., 1 Cong., Senate Journal, p. 134,) on 28th April, 1790, a committee was appointed to consider what provisions would be. proper for Congress to make respecting Rhode Island; and on 11th May, 1790, their report was considered, (same Journal, p. 138, 139,) and a resolution w’as passed, that all commercial intercourse between the United States and Rhode Island from 1st July next be prohibited ; and on 13th May, 1790, the committee reported a bill for that purpose; on 14th May, it was ordered to a third reading, and on the 18th May, it was passed by the Senate, 13 ayes to 7 noes. *In the House, it passed first and second readings; r*171 and on 1st June, 1790, the President communicated, *-by a message to both houses, that Rhode Island had acceded to the Constitution. See House Journal, p. 219, 232; also, Gales & Seaton’s History of Debates in Congress, vol. 2, p. 1009,11th May, 1790. When Rhode Island came into the ni$n, acts of Congress were passed to extend to this State, e laws of Congress relative to the judiciary, the census, &c. m°ok\^e8 & Seaton’s History of Debates in Congress, pp. 1020 1028,1026; Id., 1711; also, Id., 1006. ihe State of Vermont was admitted by 1 Stat, at L., 191, m l?9!’ anct laws extended over her by c. 12, pjh\1791’1 Stat, at L., 197, 198. tho j 7s\and an(^ North Carolina were, therefore, until Constitntion of the United States, foreign ontsid States, and to the law's of Congress, and were unlpOae ° a 1 Provisions in regard to commerce and duties, G?npS ieXr r!eiSS named in the statutes of Congress. The L. n 9 Collection Act of 31st July, 1789, c. 5, (1 Stat, at each nf 7 secti°n 1, establishes collection districts, in and bv eVon States that had adopted the Constitution ; and Rhode* T**] $1 recites that North Carolina s and had not adopted the Constitution, and, 183 171 SUPREME COURT. Cross et al. v. Harrison. “ lays duties on goods not the produce of those States, when imported from either of them into the United States.” The act of 16th September, 1789, c. 15, (1 Stat, at L., 69,) section 2, gives to vessels of North Carolina and Rhode Island the same privileges, when registered, as to vessels of the United States; section 3 lays on rum, loaf-sugar, and chocolate made in North Carolina and Rhode Island, the same duties as when imported from other foreign countries; neither North Carolina nor Rhode Island were embraced in the acts of 23d September, 1789, c. 18, to compensate the judges of the Supreme Court, (1 Stat, at L., 72,) and of 24th September, 1789, c. 20, establishing the judiciary of the United States (1 Stat, at L., 73). North Carolina was brought within the revenue laws by the act 8th February, 1790, § 1, c. 1 (1 Stat, at L., 99); and the Judiciary Act was extended to North Carolina, 4th June, 1790, c. 17 (1 Stat, at L., 126). And the second section of act of 16th September, 1789, was revived against Rhode Island by the first section of the act of 8th of February, 1790 (1 Stat, at L., 100). The Census Act of the 1st March, 1790, c. 2, did not embrace her; 1 Stat, at L., 102. And on the 4th June, 1790, c. 19, (1 Stat, at L., 127,) the revenue acts were extended to Rhode Island, and by reason thereof, the thirty-ninth section of the act 1789, c. 5, ceased *1701 operate, when she came into the Union; and on *23c[ June, 1790, c. 21, extended the Judiciary Act to Rhode Island ; and the law of 5th July, 1790, extended to her the Census Act. The power lodged in the Congress of the United States by Constitution, Art. 1, § 8, “to regulate commerce with foreign nations,” includes all power over navigation. Gibbons v. Ogden, 9 Wheat., 191; The North River Steamboat Company v. Livingston, 3 Cow. (N. Y.), 713 ; United States v. The Brigantine William, 2 Hall, Law J., 265; 3 Story, Com. Const., Ibl; 1 Kent, Com., 405, Lee. 19. The power to regulate it “among the several States ” was demanded because, during the confederacy, the States had pursued a local and selfish po icy, suicidal in its tendency; and temporarily sought to gain a vantages over one another in trade, by favors and resi nc tions. Federalist, No. 42, 1 Tuck. Bl. Com. App., 247 to 252; President Monroe’s Message, 4th May, 182-j, pp- , ’ 2 Story, Com. Const., § 1062, p. 511. And the power-toregulate it “ with the Indian tribes ” having been prior totne Revolution vested in the British sovereign, an the Revolution, naturally flowed, subject to^some J1 ' to the government under the confederacy, ‘ cjg v Georgia, 6 Pet., 515; Johnson v.McIntosh, 8 Wheat., 543,) 184 DECEMBER TERM, 1853. 172 Cross et al. v. Harrison. was finally vested, unreservedly in the United States, under the Constitution. 2 Story, Com. Const., § 1094, p. 540, 541. (e.) The power to admit new States under the Confederation was limited to Canada (Art. 11) ; no other British colony was to be admitted, except by consent of nine States. The Congress of the Confederation at length induced the States to cede the Western Territory, (3 Story, Com. Const., 1311,) and the ordinance of 13th July, 1787, as to this territory, is the model hitherto used for our territorial governments. 3 Story, Com., § 1312; Webster’s Speeches, January, 1830, pp. 360-4. Missouri came into the Union by force of this ordinance, with a limit of 36° 30' N. lat. as that, by which’ all territories ceded by France shall exclude slavery. Act of Congress, 6th March, 1820, 3d L. U. S., 548. See Grreen n. Biddle, 8 Wheat., 1, 87, 88, as to the compact between Virginia and Kentucky. Now, under the Constitution, (§ 3, art. 4, 3 Story, Com. Const., § 1308, p. 184,) the United States have power to admit new States, and their power can only be exercised by the Congress. The power of Congress to admit new States does not include as its incident, any power to acquire new territory by treaty, purchase, or otherwise, (the power to admit new States had reference only to the territory then belonging to the United States, 3 Story, Com. Const., § 1280,) was designed for the admission of the States, which, under the ordinance of 1787, were to be formed within its old boundaries. The purchase of Louisiana *cannot be justified as inci- [-*170 dent to the power of Congress as to common defence *-and general welfare. This purchase from France, by treaty ot 1803, by which the United States were to pay eleven milions of dollars and to admit the inhabitants into the Union as soon as possible, was justified by President Jefferson, on ie ground of the necessity to protect the commerce of the West and have the passage of the Gulf, (President’s Message, pp. 105, 106, &c., 17th October, 1803,) and the power o make this purchase depends solely on its being an incident e national sovereign power of the United States, to make war and conclude treaties, (4 Elliott’s Debates, 257 to 260 ; lnsurance Company v. Canter, 1 Pet., 511, 542, havpi b.?ry;^om- Const’ § 1281’) and the United States ?C1 en^ady the power to create corporations and ter-409 4.9o^°Qeonmen^s’ McCulloch v. Maryland, 4 Wheat., 422; 3 Story, Com. Const., 132. torv daoaWe^.’ ^len’ the United States to acquire new terri-tution to d ° dePend uPon any specific grant in the Consti-o so, but flows from its sovereignty over foreign 185 173 SUPREME COURT. Cross et al. v. Harrison. commerce, war, treaties and imposts. 3 Story’s Com. Const., § 1281; 4 Elliott’s Debates, 257-260; American Insurance Company v. Canter, 1 Pet., 511-542, 517. The power of the United States over conquered and ceded territory is sovereign, and exclusive of State control or power, (3 Story’s Com. Const., § 1251, p. 124; Hamilton’s Works, vol. 1, p. 115; 4 Wheat., 420; 9 Id., 36, 5, 7; 3 Story’s Com. Const., § 1322; except so far as the treaty, or the ordinance of 1787 may limit it. Rawle on Const., c. 27, p. 237 ; 1 Kent’s Com., § 12, p. 243; Id., § 17, pp. 359-360. By § 3, Art. 4, Constitution, “ The Congress is empowered to dispose of and make all need-•ful rules and regulations respecting the territory and other property belonging to the United States, and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.” Territory acquired by the United States, by conquest or by treaty, does not, by force of our Constitution, become entitled to self-government, nor can it be subject to the jurisdiction of any State. 3 Story’s Com. Const., 1318. It would be without any government at all, if it were not under the dominion and jurisdiction of the United States. American Insurance Company v. Canter, 1 Pet., 511, 542; Id., 516. During military occupation, it is governed by military law; but when ceded by treaty, it is under the civil government of the United States; and the terms of the treaty, or statutes of the United States, are the only law that can bind it. The rights and relations of persons inter se remain, but the allegiance is trans-*1741 ferrec^ although the *people do not share in the powers -* of general government, until they become a State, and are admitted as such. American Insurance Company v. Canter, 4 Pet., 511-543. With the transfer of the domain, the inhabitants cease to be inhabitants of the State or country that cedes the lands in question. People v. Godfrey, 17 Johns. (N. Y.), 225; Commonwealth v. Young, 1 Hall’s Jour, ot Jurisp., 47. The power of the United States lodged in t ie Congress is supreme over all cessions, even from the severa States—and no State can limit, defeat, or modify the action of the United States over such cessions, (Cohens v. Virginia, 6 Wheat., 264, 424-8; Loughborough n. Blake, 5 Wheat., 322-4,) both as to the property and as to the inhabitants, and the domain and sovereignty are distinct, and may e on or both exercised or not; hence Congress may lay a ire tax on lands in its ceded territories. 5 Wheat., 317 • . gress may omit to extend a direct tax to the terr.1,orieSfKp districts owned by her, whenever a direct tax is lai on States. 5 Wheat., 317; 3 Story, Com. Const., § 996, p. 4 . 186 DECEMBER TERM, 1853. 174 Cross et al. v. Harrison. The words of Art. 1, § 9, Constitution United States, do not require that such tax shall extend to the territories. 2 Story, Com. Const., § 1005, § 2, Art. 1, Const, regulates how a direct tax shall be apportioned among the States, but this does not require the territories to be taxed, although no State could be exempted. (f.). These authorities show clearly that the domain and the sovereignty of the United States always must be distinct; and may or may not be both in full exercise at once, as is ever the case with all nations. The sovereignty of the United States is operative in foreign countries—both in war and peace her domain is local. In war, we taxed the goods brought into Tampico, in Mexico, while in our military occupancy; and also laid imposts on goods brought thence into the collection districts of the United States. Fleming v. Page, 9 How., 615-619. See Benner v. Porter, Id., 235. In war, Great Britain, by force of arms, occupied Castine, a port within a collection district of the United States, and foreign goods were there imported during such hostile occupancy: hence, upon the abandonment of that port by the foe, the United States had no right to lay imposts on said goods, then and there found ; because her sovereignty was, as to that port, in her domain, suspended by the hostile occupancy. United States v. Bice, 5 Wheat., 246 ; United States v. Hayward, 2 Gall., 501; Grotius de Jure, B. & P„ 2, c. 6, § 5; Id., lib. 3, c. 6, § 4; Id., c. 9, §§ 9, 14; Puffendorf, lib. 7, § 5, n. 4; lib. 8, c. 11, § 8; Bynkershoek Quest. Jur. Pub., lib. 1, c. 6; 30 hhds. Sugar v. United States, 9 Cranch, 195; The Fama, 5 Rob. a 417 ; Reeve’s Law of Shipping, 103 ; Hall v. Camp- bell; Cowp., 204; see Journal H. Rep., *15th Cong., r#17{. 1st Sess., p. 165; Report, dated 23d March, 1815; also L 1/6 Journal 15th Cong., 2d Sess., p. 61; 16th Cong., 2d Sess.; Journal, p 140, 197; Act Cong., 19th May, 1824,19th Cong., m Sess. ; Report Com. of Senate, No. 23, January 23, 126. •le soveJe^gnty may be in full force; but the actual pos-nntl°+n 01 t domain may not be enjoyed in such way as to Inn; ,e power °f.collecting imports, &c., in force,—thus of acquired by cession, under treaty with France FebrnaT. and untif the act of Congress of 24th e-oork . i .took effect, no duties were taken on foreign g S sJ,nP.orted into Louisiana. Ch. 13, 2 L. U. S., 251. Febrnavv11 cedgd to the United States by treaty of 22d Sess c QQ °n 3d Marcb’ 1821’ tution, vol. 1, pp. 72, 76, 82, 83, 86 to 88, 95 to106 , ’ 304 , 320; vol. 2, pp. 189, 461, 441, 133 to 150,118 ’ 2 Story, Com. Const., § 977. , , p And, as if more fullv to evince the intention oi tne v 188 DECEMBER TERM, 1853. 176 Cross et al. v. Harrison. gress to confine its revenue laws to the States and Territories, at the times when the respective laws are passed, and not to seem, by prospective legislation, in regard to territories not yet acquired, to hold forth the character of a conqueror, the United States have passed two acts regulating the entering of merchandise into the United States from foreign adjacent territories. See act 1821, c. 14, 3 Stat at L., 616; and act 3d March, 1823, c. 58, 3 Stat, at L., 781. (The argument upon the other points is omitted for want of room.) The brief of Mr. Cushing, (Attorney-General,) occupied thirty printed pages. From it there will be extracted so much as relates to the first instruction asked for by the plaintiffs below. Ill-—First and second Instructions. The bill of exceptions begins on page 8, and ends on page 138, (as before stated,) and includes the instructions moved by the plaintiffs and refused by the court, and the charge to the jury as given, nn. 136-137. 1. As to both Instructions. The first instruction, moved by the plaintiffs and refused, comprises the period from the 3d of February 1848, the day on which the treaty of peace and cession to the United States of California was signed, to the 3d of March, 1849, the day on which the act of Congress was approved for making California a collection district and San Francisco a port of entry. The second instruction, moved by the plaintiffs and refused i C?UI^’ comprehends the period from the 3d of March, 1 * \i e.n ac.t °t Congress passed for making California a ejection district to the 13th of November, 1849, when the collector, Collier, appointed under that act, L'1** arrived at San Francisco and entered upon the duties of his otnce. These two instructions maybe considered together; they dpf6r ri slJbstance, that the collections of duties by the dpf!n^an!’ • anason’ were illegal exactions, for which the that Tv ls?esPonsible.to the Plaintiffs in this action; for Static llng ,e first period, “no duties accrued to the United nor nn? mefchaT1dise not the production of the United States, the limitt8Sf United States, which arrived within nobodv hn? n it- lnia; an^ dnring the second period, that fornia nnt;i n was authorized to collect duties in Cali-collector of th Collector Collier entered upon his duties as The inst w’CUstoms at the P?rt of San Francisco.” c ions must be considered as having been asked 189 177 SUPREME COURT. Cross et al. v. Harrison. of the court in reference to the evidence given, and must be pertinent to that evidence, and must be the deductions of law properly arising out of the facts which the evidence conduces to prove; if not so, the court ought to refuse to give the instructions. The court is not bound to entertain abstract propositions, nor should the judge bewilder the jury with instructions couched in language to lead them astray. The plaintiffs’ own evidence (for the defendant adduced none) proved— 1. That the foreign merchandise, and foreign vessels laden with the merchandise in question, were not only imported into California with the intent to be there unladen, but were actually unladen and landed at the port of San Francisco. 2. That the plaintiffs were warned that if the merchandise was unladen at San Francisco without the payment of duties, they would be liable to seizure and forfeiture; were left at liberty to carry the goods, wares, and merchandise to some other port in the United States, and there make entry and payment of the duties, or to pay the proper duties at San Francisco, and save the expense of going elsewhere and the forfeiture; that the plaintiffs elected to pay the duties, and did pay them voluntarily, without compulsion, without force, and for no other cause than the warning and election so given them. . 3. That no other or higher duties were paid by the plaintiffs and received by the defendant than were imposed by the laws of the United States. 4. That the defendant was lawfully appointed and acting under the government of California, instituted during the war between the United States and Mexico, and continue in being, operation, and effect, after the treaty of peace an VQi cession of *the conquered territory of California to the United States, and so continued, and solely existing in fact, and in operation, during the whole period of time com prised in the instructions asked by the plaintiffs. 5. That the defendant received the duties to the use o United States, and had “disbursed and paid out to and 101 the use of the United States” all the moneys received :trom the plaintiffs except the sums repaid to the plainti s drawbacks on goods reexported. , . , Upon such proof as to the mild a^e^a^ive,^yen’ , fftrv election thereupon made by the plaintiffs, an e v £ payments of duties according to their election, no , action can arise to the plaintiffs unless the e ?n, i:ftkie to affirmed to the plaintiffs that their goods would be lia 190 DECEMBER TERM, 1853. 178 Cross et al. v. Harrison. seizure and forfeiture if landed in California without permit, and without having paid the duties accruing to the United States. 2. As to the first Instruction separately. The first instruction asked by plaintiffs, therefore, asserts, “ that during the period from the 2d day of February, 1848, the date of the treaty of peace and limits w’ith the Republic of Mexico, and the 3d of March, 1849, the date of the act of Congress which erected the State of California into a collection district of the United States, no duties accrued to the United States on merchandise not the production of the United States, which arrived within the limits of California ceded by said treaty,” and applying that instruction to the facts that the goods, and vessels wherein they were laden, were imported into California with intent to be unladen, and were actually there landed, it asserts that the said goods, and the vessels from which they were so unladen, were not liable to seizure and forfeiture if the duties were unpaid. The error of those propositions of the plaintiffs is proved by inspection of the following statutes: A°t of July 30, 1846, 9 Stat, at L., 42, c. 74; Act of July 20, 1790,1 Stat, at L., 135, c. 30, for imposing duties of tonnage on ships and vessels; and of January 14, 1817; 3 Id., 345, c. .3, supplementary to an act to regulate the collection ot duties on imports and tonnage. Act of March 2, 1799: An act to regulate the collection of duties on imports and tonnage.” 1 Stat, at L., 639, c. 22, §§ 18, 92. 1 ?rst act above mentioned, of July 30, 1846, enacts, f in J10?1 and after the first day of December next, in lieu ot the duties heretofore imposed by law on the articles here-\na er mentioned, and on such as may be now exempt from u a’ there shall be levied and collected and paid on the f ? S’ warles’ and *merchandise herein enumerated fh r^ovided f°r’ imported from foreign countries, L '9 the following rates of duty-that is to say,” &c. tariff °f duties by which the plaintiffs paid the moneys to the defendant. tonnalp6/?011 f.and third acts before cited, imposing duties of Thp i Ria. shff’S and vessels, need not be recited. the enlippr Sectl0.n of the act of March 2d’ 1799—to regulate 639)—enacts “VhT°ItSi a}Jd toi}nage, before cited, (vol. 1, anv shin n,. ’ ^hat it shall not be lawful to make entry of place withiiJiu^TT^^^o^ail arrive from any foreign port or e United States, or of the cargo on board such 191 179 SUPREME COURT. Cross et al. v. Harrison. ship or vessel, elsewhere than at one of the ports of entry, . . . nor to unlade the said cargo or any part thereof elsewhere than at one of the ports of delivery ” established by law: “ Provided, always, that every port of entry shall be also a port of delivery.” Section 62 prohibits any permit for the landing of goods to be granted until the duties thereon are paid or secured to be paid. Section 63 prohibits any permit to be granted for unlading a vessel until the tonnage duty thereon is paid. “ Section 92. That except into the districts herein before described on the northern, northwestern, and western boundaries of the United States, adjoining to the dominions of Great Britain in Upper and Lower Canada, and the districts on the rivers Ohio and Mississippi, no goods, wares, or merchandise of foreign growth or manufacture, subject to the payment of duties, shall be brought into the United States from any foreign port or place in any other manner than by sea, nor in any ship or vessel of less than thirty tons burden, agreeably to the admeasurement hereby directed for ascertaining the tonnage of ships or vessels; nor shall be landed or unladen at any other port than is directed by this act, under the penalty of seizure and forfeiture of all such ships or vessels, and of the goods, wares, or merchandise imported therein, landed or unladen in any other manner. And no drawback of any duties on goods, wares, or merchandise, of foreign growth or manufacture shall be allowed on the exportation thereof from any district of the United States, otherwise than by sea and in vessels not less than thirty tons burden.” . , This act of 1799, in its various sections, and particularly in sections 18, 62, 63, and 92, taken together, protect t e revenue from being evaded or defrauded by importing an landing goods in the United States at ports or places w ere the United States have not established a port of entry or e *1 om livery, *and likewise from the landing of goods even J at a port of entry or of delivery without a peimi, which permit cannot be granted until the duties on impor and tonnage have been paid or secured to be paid.. The defendant therefore truly informed the plain i s their goods, if landed at San Francisco without permi payment of duties, would be liable to seizure an or e , and the vessel also from which such unlawfu. un aii g . effected. The first instruction asked is totall} eiron g supposing that no duties would accrue to the ni upon foreign goods nor upon foreign vessels arnvi g 192 DECEMBER TERM, 185 3. 180 Cross et al. v. Harrison. fornia, and there unlading their cargoes between February 2, 1848, and March 3, 1849. It is a most egregious blunder to assert, that after the United States had acquired California by treaty, and before they had provided by after law for a collection district, and a collector in that country, the citizens of the United States and foreigners might lawfully inundate the country with foreign goods, wares, and merchandise, without incurring any liabilities for duties on imports and tonnage; that the former laws and government ceased eo instante upon the treaty of peace and cession ; and that there was no law, no government, no order there until the Congress of the United States had legislated, and the executive department had acted in pursuance of such new legislation upon the new state of things growing out of the war and the ensuing peace. In so far as the revenue from duties on imports and tonnage was concerned, in the acquisition of Upper California, the act of 1799 had effectually provided against the importation of foreign dutiable goods into that country, and landing them there free of duty. And the existing government and its laws and officers provided the means of causing these revenue laws to be respected and obeyed until the Congress of the United States had provided the proper officers of the customs adapted to the new state of things. Before the treaty, and under the government instituted and existing in fact in Upper California, duties of import and tonnage were levied and collected, and a system for the collection of those duties was in full, actual, effective operation, sanctioned by the President of the United States, the civil and military governor of the territory, supported by the naval orce of the United States in the Pacific Ocean, and by the army of the United States then in California. The defend-an Harrison was the collector of customs appointed by the en existing government, and acted in obedience to the laws net instructions of that government. *1 Pon the cession of California to the United States, “the a?s’whether in writing or evidenced by the usage rsiQ1 .lnfiCUSA°msth6 ce^ed country,” continued in force *- poJ /K>£?ereA- by the new sovereign. Strother v. Lucas, 12 et., 436 ; Mitchell v. United States, 9 Id., 749. it Itthe law of nations. Vattel, edition 1853, 358. So n is by the common law. law ^ansfield lays it down as the doctrine of the common their old ?on(luered (and, of course, also ceded) States retain Rerxr v aW?S UnM ^e conqueror thinks fit to alter them. Vor yv? Burr., 2500. See also Calvin’s case, 7 Co., XVI—13 193 181 SUPREME COURT. Cross et al. v. Harrison. 176; Blankard v. Gdldy, 2 Salk., 411; s. c., 2 Mod., 222; Attorney- General v. Stewart, 2 Meriv., 154 ; Hall v. Campbell, Cowp., 209; Gardiner v. Fell, 1 Jac. & W., 27 ; Anon., 2 P. Wins., 76; Spragge v. Stone, cited, Doug., 38; Ex parte Prosser, 2 Bro. C. C., 325; Ex parte Anderson, 5 Ves., 240; Evelyn v. Forster, 8 Id., 96 : Sheddon v. Goodrich, Id., 482; Elphinstone v. Bedreechund, Knapp, 338; Mostyns. Fabrigas, Cowp., 165; 4 Com. Dig. Ley. (C.). The first instruction, so moved by the plaintiffs, was an improper deduction of law from the facts proved by the plaintiffs’ own evidence, oral and documentary, conducing, if given, to confuse and mislead the jury, and was therefore properly overruled. Mr. Justice WAYNE delivered the opinion of the court. This case comes up, by writ of error, from the Circuit Court of the United States for the Southern District of New York. It was an action brought by Cross, Hobson and Company against Harrison, for the return of duties alleged to be illegally exacted by Harrison whilst he was acting as collector of the customs at the port of San*Francisco, in California. Ihe claim covered various amounts of money which were paid at intervals between the 3d day of February, 1848, and the 13th of November, 1849. The first of these dates was that of the treaty of peace between the United States and Mexico, and the latter when Mr. Collier, a person who had been regularly appointed collector at that port, entered upon the perform'-ance of the duties of his office. During the whole of this period it was alleged by the plaintiffs that there existed no legal authority to receive or collect any duty whatever accru ing upon goods imported from foreign countries. . The period of time above mentioned was subdivided y e plaintiffs in the prayers which they made to the couit \e.j2w’ into two portions, to each of which they supposed tha i ei ent rules of law attached. The three periods may be s a e as follows: „ ,, , . . r #1QO-. *3d of February, 1848, the date of the treaty• oi peace between the United States and Mexico. at L., 922 to 943. 3d of March, 1849, when the act of Congress w38 ^ including San Francisco within one of the collec ion of the United States. And „ n. _nfpred 13th of November, 1849, when Collector Co upon the duties of his office. q i of In order to show what was the state of things 194 DECEMBER TERM, 1853. 182 Cross et al. v. Harrison. February, 1848, it is necessary to refer to some of the public documents which were offered in evidence by the plaintiffs, being Senate Document No. 18 of the first session of the thirty-first Congress. On the 19th of August, 1847, H. W. Halleck, signing himself “Lieutenant of Engineers and Secretary of State for the Territory of California,” issued a circular to certain persons who had been appointed collectors of the customs, in which he recited that the commander-in-cheif of the naval forces had been authorized by the President of the United States to establish port regulations, to prescribe the conditions under which American and foreign vessels might be admitted into the ports of California, and also to regulate the import duties. The circular then prescribed certain rules which were to be observed. On the 15th of September, 1847, Commodore Shubrick prescribed certain rates, or scales of duties, which were confirmed on the 14th of the ensuing October, by R. B. Mason, who signed himself Colonel of the first dragoons and Governor of California. On the 20th of October, 1847, Colonel Mason, still styling himself Governor of California, issued an order saying, that “recent instructions from the President of the United States made the officers of the army and navy the collectors of the customs in California.” The arrangement was made accordingly. This was the state of things up to the 3d of February, 1848, ie first epoch mentioned by the plaintiffs in their prayers to e court. The war tariff was collected by the officers of the army and navy. • February, 1848, a treaty of peace was signed between the United States and Mexico, the ratifications of which were exchanged on the 30th of May ensuing. ome alterations were made in the mode of collecting the this sec°nd period of time, namely, between we 3d of February, 1848, and the 3d of March, 1849, which it is necessary to notice. 1^48, Colonel Mason, still calling him-for *<-h°VernOr California, issued a number of regulations whirh government of the custom house, amongst which the following two may be mentioned: t 183 or nH-aw, master of a vessel shall be detected in landing, merphanJ-ln^ ^an^’ anywhere in California, any goods or fined far 1Se’ W1th°ut permit from a collector, he shall be lars and +e/er^ 8 j0*1 offence in the sum of five hundred dol-’ e goods or merchandise so landed, or attempted 195 183 SUPREME COURT. Cross et al. v. Harrison. to be landed, and the boat or boats through which such landing is effected or attempted, shall be seized, forfeited, and sold by the nearest collector. “ 8. If any person or persons other than the master of a vessel shall be detected in landing, or attempting to land, anywhere in California, any goods or merchandise, without permit from a collector, he or they shall be fined in the sum of one hundred dollars, and the goods or merchandise so landed, or attempted to be landed, and the boat or boats through which such landing is effected or attempted, shall be seized, forfeited, and sold by the nearest collector.” On the 7th of August, 1848, a proclamation was issued to the people of California, by R. B. Mason, the governor, announcing the ratification of the treaty of peace, by which Upper California was ceded to the United States. On the 9th of August, H. W. Halleck, lieutenant of engineers and Secretary of State, wrote to Captain Folsom, the collector of the customs at San Francisco, directing him to perform the duties until further orders, but announcing that he would be relieved as soon as some suitable citizen could be found to be appointed his successor. In the mean time he was told “the tariff of duties for the collection of military contributions will immediately cease, and the revenue laws and tariff of the United States will be substituted in its place.” . . In order to illustrate the view which Colonel Mason took of his position, it may be proper to insert the following extract from a letter written by him to the War Department on the 14th of August, 1848: . . “ In like manner, if all customs were withdrawn, and the ports thrown open free to the world, San hrancisco wou e made the depot of all the foreign goods in the North racihc, to the injury of our revenue and the interests of our own merchants. To prevent this great influx of foreign goo into the country duty free, I feel it my duty to attemp > collection of duties according to the United States tan 1846. This will render it necessary for me to appoint temporary collectors, &c., in the several ports of entry, °* military force is too much reduced to attend to those d • “ I am fully aware that, in taking these steps, ‘ , further authority than that the existing gove! must necessarily continue until some other is © to take its place, for I have been left without any definite instructions in reference to the existing state o the calamities and disorders which would surely follow we absolute withdrawal of even a show of authority, p 196 DECEMBER TERM, 1853. 184 Cross et al. v. Harrison. me, in my opinion, the imperative duty to pursue the course I have indicated, until the arrival of despatches from Washington (which I hope are already on their way) relative to the organization of a regular civil government. In the mean time, however, should the people refuse to obey the existing authorities, or the merchants refuse to pay any duties, my force is inadequate to compel obedience.” On the 3d of September, 1848, Governor Mason appointed Edward H. Harrison temporary collector of the port of San Francisco, with a salary of two thousand dollars per annum, provided that so much was collected over and above the expenses of the custom-house. In order further to illustrate the view which was taken by the Executive branch of the government, of the existing condition of things in California, it is proper to insert an extract from a despatch written by Mr. Buchanan, Secretary of State, to Mr. Voorhees, on the 7th of October, 1848. It is as fol? lows: “The President, in his annual message, at the commencement of the next session, will recommend all these great measures to Congress in the strongest terms, and will use every effort, consistent with his duty, to insure their accomT plishment. “In the mean time, the condition of the people of California is anomalous, and will require, on their part, the exercise of great prudence and discretion. By the conclusion of the .eaty Peace, the military government which was established over them under the laws of war, as recognized by the practice of all civilized nations, has ceased to derive its authority from this source of power. But is there, for this reason, no government in California? Are life, liberty, and property under the. protection of no existing authorities? be a singular phenomenon in the face of the °\ ’ aU(* esPeciaiiy among American citizens, distinguished , t? e above all other people for their law-abiding char-tinn1** *ortunat.ely, they are not reduced to this sad condi-ino + ne Annuation of the war left an existing govern-contii a ^Ov.eiaiment de facto, in full operation, and this will Cnn«2Ue’ 'i1 presumed .consent of the people, until Thpg eSS ,S^a^ provide for them a territorial government. coXS-r !?W °f necessity justifies this conclusion. The that nn o ... e PeoPie is. irresistibly inferred from the fact *an lzed community could possibly desire to abrogate sented Sovernment, when the alternative pre- r#1 Qf-Irchv\^Uld1blt°Place themselves in a state of an- C 185 yond the protection of all laws, and reduce them to 197 185 SUPREME COURT. Cross et al. v. Harrison. the unhappy necessity of submitting to the dominion of the strongest. “ This government de facto will, of course, exercise no power inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the land. For this reason no import duties can be levied in California on articles the growth, produce, or manufacture of the United States, as no such duties can be imposed in any other part of our Union on the productions of California. Nor can new duties be charged in California upon such foreign productions as have already paid duties in any of our ports of entry, for the obvious reason that California is within the territory of the United States. I shall not enlarge upon this subject, however, as the Secretary of the Treasury will perform that duty.” At.the same time, despatches were issued by the War and Treasury Departments to their respective officers, of similar import to the above. Mr. Walker, the Secretary of the Treasury, after providing for the reciprocal admission of goods which were the growth, &c., of California and the United States, free of duty, into the ports of each, thus provided for the case under consideration, so as to protect the revenue: “ Third. Although the Constitution of the United States extends to California, and Congress have recognized it by law as a part of the Union, and legislated for it as such, yet it is not brought by law within the limits of any collection district, nor has Congress authorized the appointment of any officers to collect the revenue accruing on the import ot foreign dutiable goods into that territory. Under these circumstances, although this department may be unable to co -lect the duties accruing on importations from foreign countries into California, yet, if foreign dutiable goods should be T* 10" duced there, and shipped thence to any port or place ot e United States, they will be subject to duty, as also to a e penalties prescribed by law when such importation is attemp e without the payment of duties. R- J- Walker, „ Secretary of the Treasury. When these papers reached California, some doubt was entertained whether or not*the revenue laws wou < enforced, and application was made to Commodore ’ then commanding the naval forces in the Pacific, o whether he would use the forces under his comman the collector in seizing and confiscating goods, &c., « the commodore replied that he would so emp oy under his command. _ . j rjnm- On the 23d of February, 1849, Cross, Hobson, 198 DECEMBER TERM, 1853. 185 Cross et al. v. Harrison. pany *protested against the payment of $105.62, duties Qa winch accrued upon an importation by the French bark L Staonele, and also protested against the payment of duties upon all other importations, past, present, or to come. In order still further to explain the views of those who administered the government in California, it may be proper to introduce another extract from instructions which were issued on the 2d of February, 1849, by H. W. Halleck, Secre- ^a^e’ M1’ Harrison, the collector, namely: This view of the subject presents a ready reply to the questions proposed in your letter. No vessel can demand as a right to enter any foreign dutiable goods here, and you will not be liable to prosecution for refusing such entry; and by a voluntary payment of her duties here, in preference to going ° a regularly established port of entry, such vessel binds her-selt to abide by the revenue laws of the United States, in the absence of all instructions to the contrary.” On the 3d of March, 1849, (another of the periods of time aetV^"1?}6 PSfS -the 00"rt’) Congress passed an collection disMoi: <,ng ““ P°rt °f S“ Francisc0 a W°”± l13!11 °f N?ve“ber> 1849> Collector Collier, who had d,,!“r^ulat*y apP°>“ted’entered upon the execution of his inX “ Fra"cJsco- This was the third period referred to m tne prayers to the court. action^? Cress, Hobson, and Company, brought an in the Circuit Court ’of the Ed^rdH*il°r tie Southern District of New York, against under tlw ‘ Uainson, to recover sundry sums of money paid, San Francisco^ pi.ote^’ for duties uPon goods imported into 1848^and thp’l9?iin? m6 pen1°d between the 3d of February, p’ and the 12th of November, 1849. found°a veHicW^^^ the instruetions of the court T1 kui t1 the defondant. Persons aS to gained the deposition of sundry also the whX of fe?tS “ the.case, and The counsel f $enate Document above mentioned. for the plaintiflx°fh 6 Paintl^s then rested; and the counsel instruct the iim ereupon prayed the court to charge and 1. Thai- ri matter of law, as follows: 1848, the date “nf^k P?ri°d from the 3d daT of February, republic of Mexico J^Tk^o^ ?eace and with the the act of Conarp^’ idrtbe 3d °t March, 1849, the date of a collection diE nlT? the State of California into the United Stated±tuUmJed State*’ no duties accrue to n merchandise not the production of the 199 186 SUPREME COURT. Cross et al, v. Harrison. *1871 United States, nor of *vessels not of the United States -I which arrived within the limits of California, ceded by said treaty to the United States, and that the exaction by the defendant of such alleged duties on such goods imported into California by the plaintiffs within said period was not authorized by any law of the United States, and was therefore illegal. 2. That during the period from the 3d of March, 1849, when the act of Congress erected the State of California into a collection district, and the 13th of November, 1849, when Collector Collier entered upon his duties as collector of customs at the port of San Francisco, in said district, the exaction of alleged duties to the United States, by the defendant, was not authorized by.any law of the United States, and was therefore illegal, unless the jury shall find that the defendant was legally appointed and qualified to act as collector of the customs at San Francisco. 3. That if the jury shall find that on the 23d February, 1849, the plaintiffs made their written protest against all exactions that then were or thereafter should be made by said defendant, as unauthorized by any act of Congress and illegal, and that moneys then and thenceforward were demanded as alleged duties to the United States by said defendant, and were paid under coercion of military power and duress, and not in pursuance of any law of the United States, that then such exactions were unauthorized and illegal, and the jury must find for the plaintiffs. 4. That if the jury shall find from the evidence that alleged duties were exacted by the defendant from the plaintiffs between the 3d February, 1848, and the 12th November, 1849, by coercion and duress, and against their remonstrance anc protest, that then the plaintiffs are entitled to the customaiy interest of California upon such exactions. Whereupon the court, pro forma, then and there chargee and instructed the jury in conformity with the,following prayers, in conformity with which the defendants counse insisted and prayed the court to instruct the jury as ma er 1. That between the 3d February, 1848, and the 3 a » 1849, duties did accrue to the United States, on ioieign m chandise, not the production of the United Sta es, an _ foreign vessels not of the United States, which were imp into and arrived within the limits of California, as c the United States by the treaty of peace and limits wit Republic of Mexico, signed at Guadaloupe Hidalgo. 2. That after the act of 3d March, 1849, erecting the btate 200 DECEMBER TERM, 1853. 187 Cross et al. v. Harrison. of California into a collection district of the United States, took effect, duties accrued to the United States, both on foreign Merchandise, not the production of the United r-^joo States, and on foreign vessels not of the United States, *-imported and brought within the limits of such collection district. 3. That if, from the evidence in the cause, the jury shall find that between the 3d February, 1848, and 12th November, 1849, the plaintiffs were allowed by the defendant to enter their said foreign goods and vessels at another port of the United States within a collection district, and thereafter to land the same at San Francisco without further exaction of duties, and that the plaintiffs neglected so to do, and elected to enter and land the same at San Francisco, and pay duties thereon, and that the duties were paid by defendant to the use of the United States, that then the said payment of duties was voluntary and not coercive, and the jury must find for the defendant. 4. That if the jury shall find that the plaintiffs paid duties to the defendant on foreign merchandise, and on foreign vessels, not of the United States, between the 3d February, 1848, and 12th November, 1849, and that such payments were illegal but voluntary, and made through mistake of law, then the plaintiffs are not entitled to interest upon such exactions, and that upon the whole evidence the payments aforesaid were voluntary and not coercive. And the court further, pro forma, refused to instruct and ' iyar?e the jury in conformity with the points insisted upon h ri e Plaintiffs’ counsel, and in conformity with which he ad prayed the court to charge and instruct the jury as aforesaid. d J Upon this exception, the case came up to this court. his statement presents the case of the plaintiffs as strongly as i can be made from the record, and that contains every ac and document having any connection with the subject. e cause has been argued here with much research. Every bmlUln-eiU^ has been brought to bear upon it by counsel on from Tu e$’ . ich can enter into its consideration. It seems, dnoic i e jpstitution °f the suit, until now, to have been con-ffivp + wish upon the part of the United States to 7 Plaintiffs every opportunity to establish their its narf +1Ciav7’'^ that could be done ; and with a desire upon the riffht ° ?htam from this court a decision as to what are post dntiA° • United States in respect to tonnage and im-fornia wo/’ !? such a conjuncture as that was, when Cali-ce ed by treaty to the United States, before Con- 201 188 SUPREME COURT. Cross et al. v. Harrison. gress had authorized such duties to be collected there by a special act. We have received much assistance from the argument, and make the acknowledgment the more readily because it has enabled us to come to conclusions which we believe will be satisfactory, though adverse from the claim of the plaintiffs. *1891 *The purpose of the suit is to recover from the de- J fendant certain tonnage duties and imposts which were paid to him by the plaintiffs upon ships which had arrived in San Francisco, and upon foreign merchandise landed there from them, between the 3d February, 1848, and the 13th November, 1849. Harrison had been appointed collector for the port of San Francisco by Colonel Mason, military governor of California. He. told the plaintiffs, officially, that he would not permit them to land their goods without the payment of duties; stating if they attempted to do so, without having made an entry of them, that they would be seized and forfeited. He placed an inspector of the customs on board of the vessels of the plaintiffs, to prevent any merchandise from being landed from them without permits and entries, and when they complained that the duties which they were required to pay were illegal exactions, which they protested against, the collector refused to receive the duties under protest, and told the plaintiffs that they might enter their ships at some other port in the United States, and then discharge their goods at San Francisco. That he considered San Francisco a port in the United States at which foreign goods could not be landed without the payment of duties. It is as well to remark here, though the same fact appears in our statement of the case already given, that the duties for which the plaintiffs sue were paid by them between the 3d February, 1848, and the 12th November, 1849. They were paid, however, until some time in the fall of 1848, at the rate of the war tariff; which had been established early in the year before by the direction of the President of the United States. The authority for that purpose given to the commander-in-chief of our naval force on that station, was, to establish poit regulations, to prescribe the conditions upon which American and foreign vessels were to be admitted into the ports o California, and to regulate import duties.. That war tan , however, was abandoned as soon as the military governor a received from Washington information of the exchange an ratification of the treaty with Mexico, and duties were a er wards levied in conformity with such as Congress hac un posed upon foreign merchandise imported into the other poi 202 DECEMBER TERM, 1853. 189 Cross et al. v. Harrison. of the United States, Upper California having been ceded by the treaty to the United States. This last was done with the assent of the Executive of the United States, or without any interference to prevent it. Indeed, from the letter of the then Secretary of State, and from that of the Secretary of the Treasury, we cannot doubt that the action of the military governor of California was recognized as allowable and lawful by Mr. Polk and his cabinet. We think it was a rightful and correct Recognition under all the circumstances, and aa when we say rightful, we mean that it was constitu- *-tional, although Congress had not passed an act to extend the collection of tonnage and import duties to the ports of California. California, or the port of San Francisco, had been conquered by the arms of the United States as early as 1846. Shortly afterward the United States had military possession of all of Upper California. Early in 1847 the President, as constitutional commander-in-chief of the army and navy, authorized the military and naval commander of our forces in California to exercise the belligerent rights of a conqueror, and to form a civil government for the conquered country, and to impose duties on imports and tonnage as military contributions for the support of the government, and of the army which had the conquest in possession. We will add, by way of note to this opinion, references to all of the correspondence of the government upon this subject; now only referring to in Je^er Secretary at War to General Kearney, of the 10th of May, 1847, which was accompanied with a tariff of uties on imports and tonnage, which had been prepared by the Secretary of the Treasury, with forms of entry and permits for landing goods, all of which was reported by the Secretary to the President on the 30th of March, 1847. Senate tJoc. No. 1, 1st session, 30th Congress, 1847, pp. 567, 583. o one can doubt that these orders of the President, and the c ion of our army and navy commander in California, in thp 0FnPty with them, was according to the law of arms and ratifi+* °* C(?n(luesf, °r that they were operative until the be tl^ 10n an^ exchange of a treaty of peace. Such would neanJ6kTSe nPon ,general principles in respect to war and thp i-m t w.®en Pa^i°ns* In this instance it is recognized by binding J 1^Se]r -Nothing is stipulated in that treaty to be ture of’th^f11 + Par^es 1° or from the date of the signa-bv tho reaty> out that commissioners should be appointed such af V’chief the forces of the United States, with make a • i aPP°inted by the Mexican government, to 1 isional suspension of hostilities, that, in the places 203 190 SUPREME COURT. Cross et al. v. Harrison. occupied by our arms, constitutional order might be reestablished as regards the political, administrative, and judicial branches in those places, so far as that might be permitted by the circumstances of military occupation. All else was contingent until the ratifications of the treaty were exchanged, which was done on the 30th of May, 1848, at Queretaro; and there is in the 3d article of the treaty a full recognition by Mexico of the belligerent rights exercised by the United States during the war in its ports which had been conquered. In that article, besides other things provided for, it was stipu-*1011 iMed that *the United States, upon the ratifications -* of the treaty by the two republics, should despatch orders to all persons in charge of the custom houses at all ports occupied by the forces of the United States, to deliver possession of the same to persons authorized by Mexico to receive them, together with all bonds and evidences of debts for duties on importations and exportations not yet fallen due, and that an exact amount should be made out, showing • the entire amount of all duties on imports and exports collected at such custom houses or elsewhere in Mexico by the authority of the United States after the ratification of the treaty by Mexico, with the cost of collection, all of which was to be paid to the Mexican government, at the city of Mexico, within three months after the exchange of ratifications, subject to a deduction of what had been the cost of collection. The plaintiffs therefore can have no right to the return of any moneys paid by them as duties on foreign merchandise in San Francisco up to that date. Until that time California had not been ceded, in fact, to the United States, but it was a conquered territory, within which the United States were exercising belligerent rights, and whatever sums were received for duties upon foreign merchandises, they were paid under them. But after the ratification of the treaty, California became a part of the United States, or a ceded, conquered territory. Our inquiry here is to be, whether or not the cession gaxe any right to the plaintiffs to have the duties restored to t lem, which they may have paid between the ratifications ant ex change of the treaty and the notification of that fact iy on government to the military governor of California. wa not received by him until two months after the rati ca io , and not then with any instructions or even remote intima from the President that the civil and military governm » which had been instituted during the war, was discontinu i . Up to that time, whether such an intimation had or i 204 DECEMBER TERM, 1853. 191 Cross et al. v. Harrison. been given, duties had been collected under the war tariff, strictly in conformity with the instructions which had been received from Washington. It will certainly not be denied that those instructions were binding upon those who administered the civil government in California, until they had notice from their own government that a peace had been finally concluded. Or that those who were locally within its jurisdiction, or who bad property there, were not bound to comply with those regulations of the government, which its functionaries were ordered to execute. Or that any one could claim a right to introduce into the territory of that government foreign merchandise, without the payment of duties which had been originally imposed under belligerent *rights, because the territory had been r^-ino ceded by the original possessor and enemy to the con- L queror. Or that the mere fact of a territory having been ceded by one sovereignty to another, opens it to a free commercial intercourse with all the world, as a matter of course, until the new possessor has legislated some terms upon which that may be done. There is no such commercial liberty known among nations, and the attempt to introduce it in this instance is resisted by all of those considerations which have niade foreign commerce between nations conventional. “ The treaty that gives the right of commerce, is the measure and rule of that right.” Vattel, c. 8, § 93. The plaintiffs in this case could claim no privilege for the introduction of their goods into San Francisco between the ratifications of the treaty with Mexico and the official annunciation of it to the civil government in California, other than such as that government permitted under the instructions of the government of the United States. We must consider them as having paid the duties upon en importations voluntarily, notwithstanding that they protested against the right of the collector to exact them. en protest was made from a misconception of the princi-P es applicable to the circumstances under which those duties thp16 C ainie^’. from their misapprehension of what were conpriercial consequences resulting from the treaty of Stat6 W1 rpi exico and the cession of California to the United treaty gave them no right to carry foreign goods of entrv°n,TkllCu duties had not been paid in one of our ports bepn acua . y e best test of the correctness of what has just dutvfrpp lathis: that if such goods had been landed there in thp TTn-p could not have been shipped to any other port Hav^ d ^without being liabte to pay duty. ■ g considered and denied the claim of the plaintiffs 205 192 SUPREME COURT. Cross et al. v. Harrison. to a restoration of the duties paid by them from the date of the treaty up to the time when official notice of its ratification and exchange were received in California, we pass on to the examination of their claim from that time until the revenue system in respect to tonnage and import duties had been put into practical operation in California, under the act of Congress passed for that purpose. The ratification of the treaty of peace was proclaimed in California, by Colonel Mason, on the 7th of August, 1848. Up to this time it must be remembered that Captain Folsom, of the quartermaster’s department of the army, had been the collector of duties under the war tariff. On the 9th of August, he was informed by Lieutenant Halleck, of the engineer corps, who was the Secretary of State of the civil government of California, that he would *1 qqi be relieved as soon as *a suitable citizen could be found J for his successor. He was also told that “ the tariff of duties for the collection of military contributions was immediately to cease, and that the revenue laws and tariff of the United States will be substituted in its place.” The view taken by Governor Mason, of his position, has been given in our statement. The result was to continue the existing government, as he had not received from Washington definite instructions in reference to the existing state of things in California. His position was unlike any thing that had preceded it in the history of our country. The view taken of it by himself has been given in the statement in the beginning of this opinion. It was not without its difficulties, both as regards the principle upon which he should act, and the actual state of affairs in California. He knew that the Mexican inhabitants of it had been remitted by the treaty of peace to those municipal laws and usages which prevailed among them before the territory had been ceded to the United States, but thatasta e of things and population had grown up during the war, an after the treaty of peace, which made some other.authori y necessary to maintain the rights of the ceded inhabitants an of immigrants, from misrule and violence. He may not a^e comprehended fully the principle applicable to what he mig i rightly do in such a case, but he felt rightly, and ac e accordingly. He determined, in the absence of a 11 ins r‘ tion, to maintain the existing government. The erii y had been ceded as a conquest, and was to be preserve . governed as such until the sovereignty to which it ha P had legislated for it. That sovereignty was the Uniceu States, under the Constitution, by which power a given to Congress to dispose of and make all nee 206 DECEMBER TERM, 1853. 193 Cross et al. v. Harrison. and regulations respecting the territory or other property belonging to the United States, with the power also to admit new States into this Union, with only such limitations as are expressed in the section in which this power is given. The government, of which Colonel Mason was the executive, had its origin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. 11 was the government when the territory was ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is, that it was meant to be continued until it had been legislatively changed. No presumption *of a contrary intention can be made, Whatever may have been the causes of delay, it must *-be presumed that the delay was consistent with the true policy of the government. And the more so as it was continued until the people of the territory met in convention to form a State government, which was subsequently recognized by Congress under its power to admit new States into the Union. In confirmation of what has been said in respect to the power of Congress over this territory, and the continuance of the civil government established as a war right, until Congress. acted upon the subject, we refer to two of the decisions ot this court, in one of which it is said in respect to the treaty by which Florida was ceded to the United States: “ This treaty is the law of the land, and admits the inhabitants of Morula to the enjoyment of the privileges, rights, and immu-in les, of the citizens of the United States. It is unnecessary o inquire .whether this is not their condition, independently oi stipulations. They do not however participate in political dJTvL tncd sbare rn the government until Florida L , ec.ome a State. In the mean time Florida continues to United States, guarded by virtue of that all i 9°nstitution which empowers Congress to make othpr rP e.s and re^u^ations respecting the territory or uowernf Per to the United States. Perhaps the which hnTVe?1ing ? terri?ory belonging to the United States, self-p-nvorn^0 a y becoming a State, acquired the means of is not with! enn’ .reLsldt necessarily from the facts that it within thZ nn t le ^\ri?dlction of any particular State, and is vithm the power and jurisdiction of the United States. The 207 194 SUPREME COURT. Cross et al. v. Harrison. right to govern may be the natural consequences of the right to acquire territory.” American Ins. Co. v. Canter, 1 Pet., 542, 543. The court, afterwards, in the case of the United States v. Gratiot, 14 Pet., 526, repeats what is said in the case of Canter in respect to that clause of the Constitution giving to Congress the power to make all needful rules’ and regulations respecting the territory or other property of the United States. Colonel Mason was fortunate in having his determination to continue the existing government sustained by the President of the United States and the Secretaries of his cabinet. And nothing but an almost willing misunderstanding of the circular of the Secretary of the Treasury, Mr. Walker, could have caused a doubt as to the liability of the importers of foreign goods into California to pay duties upon them. That part of the Secretary’s circular relating to duties is in our statement of the case. It will show that the Secretary says no more than this: that as Congress had not brought Cal-qr-i ifornia by law within the limits *of any collection dis- J trict, or authorized the appointment of officers to collect the revenue accruing upon the importation of foreign dutiable goods into that territory, that his department may be unable to collect them. Revenue accruing upon the importation into California of foreign dutiable goods, means that the goods were liable to pay the duty. There is nothing uncertain in the Secretary’s circular. It does not warrant in any way the declaration that it was his opinion that the goods were not dutiable, or that they might not be legally collecte, though that could not be done by the instrumentality of o cers of a collection district. Our conclusion, from what has been said, is, that the civil government of California, organized as it was from a right of conquest, did not cease oi e-come defunct in consequence of the signature of the trea y or from its ratification. We think it was continued over a ceded conquest, without any violation of the Constitution or laws of the United States, and that until Congress legislated for it, the duties upon foreign goods imported into San ran cisco were legally demanded and lawfully received by . • Harrison, the collector of the port, who received his apP^P ment, according to instructions from Washington, rom ernor Mason. ., But it Weis assumed in the argument, and not w*™0™ and ingenuity, and with some appearance of au on y, duties did not accrue to the United States upon *01 ei® gag brought into California between the 3d of o ru y» 208 DECEMBER TERM, 1853. 195 Cross et al. v. Harrison. and the 3d of March, 1849, and from the last date until the 12th of November, 1849, and that the exaction of them was illegal. The two first dates mentioned, comprehend the time between the date of the treaty and the date of the act of Congress which included California within one of the collection districts of the United States, and the other date com prehends the time from the date’ of the act of Congress until Mr. Collier, the collector, entered upon the duties of his office. It was also said by counsel, that as there was no treaty or law enjoining or permitting the collection of the duties, that the exaction of them by the defendant was illegal. It was said, that the duties were illegally exacted, because the laws of a ceded country, including those of trade, remained unchanged until the new sovereignty of it changed them, and that this Congress had not done. That the practice of the United States had been, not to collect duties upon importations upon goods brought into a ceded territory, until Congress passed an act for it to be done. Louisiana and Florida were the instances cided, and the ratification by North Carolina and Rhode Island of the Constitution of the United States, were also mentioned as having been the subjects of special legislation to bring them within the operation of the revenue laws which had been passed by Congress. . *And it was said, that as Congress has the constitu- p*-. qo tional power to regulate commerce, and had not done *-so specifically in respect to tonnage and import duties in California, that none of the existing acts of Congress, for such purposes, could be applied there until Congress had passed an act giving to them operation, and had legislated California lnto a collection district, with denominated ports of entry. This last being the most important of the objections which weie made, we will examine it first, and afterwards notice lose which precede it. The objection assumes, that, under ie aws then in force, duties could not be collected in Cali-oinia after the war with Mexico had been concluded by a rea y of peace ; and that the President had no legal author- ° 0Iyer the collection of duties there upon foreign goods, thp^l°Wer ®n^orce any revenue regulations, or to prevent our pU ° i S°°ds prior to the passage of the act, by which T)ronprVemUe iVS were extended to California, and before It h\« °i.CejS been appointed to execute those laws, time been shown, that for seven months of the that tho +■U r®ce^ve(^ were paid under the war tariff, and five until signe(^ in 1848, did not become opera- that it conlZ ra;™cations and exchanges of it. And further, Vol xvt bave any effect upon the existing govern- ‘ —14 209 196 SUPREME COURT. Cross et al. v. Harrison. ment of California, until official information of those ratifica-tions had been received there. The belligerent right of the United States to make a civil government in California when it was done, and to authorize it to collect tonnage and impost duties whilst the war continued, is admitted. It was urged, that our revenue laws covered only so much of the territory of the United States as had been divided into collection districts, and that out of them no authority had been given to prevent the landing of foreign goods or to charge duties upon them, though such landing had been made within the territorial limits of the United States. To this it may be successfully replied, that collection districts and ports of entry are no more than designated localities within and at which Congress had extended a liberty of commerce in the United States, and that so much of its territory as was not within any collection district, must be considered as having been withheld from that liberty. It is very well understood to be a part of the laws of nations, that each nation may designate, upon its own terms, the ports and places within its territory for foreign commerce, and that any attempt to introduce foreign goods elsewhere, within its jurisdiction, is a violation of its sovereignty. If is not necessary that such should be declared in terms, or by any decree or enactment, the expressed allowances being the limit of the liberty given to foreigners to trade with such nation. J *Upon this principle, the plaintiffs had no right of trade with California with foreign goods, excepting from the permission given by the United States under the civil government and war tariff which had been established there. An when the country was ceded as a conquest, by a treaty o peace, no larger liberty to trade resulted. By the ratifications of the treaty, California became a part of the Um e States. And as there is nothing differently stipulated in e treaty with respect to commerce, it became instantly bourn and privileged by the laws which Congress had passec o raise a revenue from duties on imports and tonnage. wa bound by the eighteenth section of the act of 2d o i arc; 1799. The fair interpretation of the second member ot tne first sentence of that section is, that ships coming ram 01 g ports into the United States were not to be permi e , any part of their cargoes in any other than in a por o ery, confined then to the ports mentioned in e ac , ward applicable to all other places which mig e & of entry and delivery, and excluding all right o un yec. part of the United States which had not been made * codec tion district with ports of entry or delivery. The 1 210 DECEMBER TERM, 1853. 197 Cross et al. v. Harrison. second section of that act had four objects in view. First, to exclude foreign goods subject to the payment of duties from being brought into the United States, except in the localities stated, otherwise than by sea. Next, that they were not to be brought by sea in vessels of less than thirty tons burden. And third, to subject to forfeiture any foreign goods which might be landed at any other port or place in the United States than such as were designated by law. Fourth, to exclude the allowances of drawback of any duties on foreign goods exported from any district in the United States otherwise than by sea, and in vessels less than thirty tons burden. The sixty-third section also of that act, directing when tonnage duties were to be paid, became as operative in California after its cession to the United States, as it was in any collection district. The acts of the 20th July, 1790, (1 Stat, at L., 130, c. 30,) and that of 2d March, 1799, (1 Stat, at L., 627, c. 22,) were also of force in California without other special legislation declaring them to be so. It cannot very well be contended that the words u entered in the United States,” give an exemption from them on account of the word entered, because a ship has been brought into a port in the United States where an entry cannot be made, as it may be done in a collection district. The goods must be entered before a permit tor delivery can be given. Shall one then be permitted to land goods in any part of the United States not in a collec-ion district, because he has voluntarily gone there with his vessel where an entry of his *goods cannot be made ; r^1 or to say, I know that my goods cannot be entered >-w ere l am, and therefore claim the right to land them for sale and consumption free of duty ? Ti J* bas be?n su.,ficiently shown that the plaintiffs had no wh \k - di ?ieir f?rei§'n goods in California at the times wiH? <-v>eir shiPs arrived with them, except by a compliance antL • leouia^i°ns which the civil government were 11nr1o0r!ied to. enf°rce—first, under a war tariff, and afterward wl - existln£ Tariff Act of the United States. By the ari ’_S00cis, as they are enumerated, are made duti- tion n°? S° because they are brought into a collec- Stafp th a!'a^n 8 third error. He contradicts himself in describ- * ^le Indians t° Dubuque. In the commence- Indian® leP01^'’ he describes it as a purchase “from the bv thrpp^ an extent seven leagues front on the Mississippi, and fnrt-,7 ?^=Ues 111 depth, containing upwards of one hundred sale of thn acres‘” He afterwards speaks of it as a Peosta’s wife ” c?,ntents _of the land (or mine) found by Vol xvr ' i e afoerwards speaks of the right acquired . Avi.—io 225 211 SUPREME COURT. Chouteau v. Molony. by Dubuque as a “ personal permission to work the lead mines as long as he should remain.” Mr. Grallatin's fourth error. Remark No. 2 of the report involves the proposition, that concession and patent are two things entirely distinct. And, at the same time, he uses such language as shows he considered that patent and final grant were synonymous, and that a grant was not final unless it was evidenced by a patent. (The argument upon this head, and also that under the head of the eighth error, are omitted for want of room, as they were both very elaborate.) *9191 *Mr. Grallatin’s fifth error. In his remark No. 3, he J considers a survey an essential prerequisite to a complete grant. But we have seen that many decisions of this court have established that a description which fixes the boundaries, dispenses with the necessity of a survey. He seems to have had a confused idea that this grant to Dubuque was vicious, because it was not made in accordance with the regulations of O’Reilly, Gayoso, or Morales. But a very slight examination of those regulations would have shown him the impossibility of surveying the land in the manner there required; as in the wilderness country where Dubuque made his settlement, there was no neighbor, no syndic, no officer of any description. He would then have seen that to make an actual survey, a prerequisite would amount to denying the power to the Baron de Carondelet to grant the land. Mr. Grallatiri’s sixth error. In remark No. 3, he advances the proposition that, after the grant of an inchoate title, the execution of the order of survey was the only prerequisite to the issuance of a patent. He advances this as a universa proposition. But in the great majority of cases this is untrue. Observe, for example, the order of the governor-general in the inchoate grant to Owen Sullivant. This error of the secretary is material; for it shows he was extremely ignoian o the laws he usurped the power to' pass judgment on. Mr. Grallatin’s seventh error. He adopted as a fundamen a principle of Spanish law, to guide his decision, the eironeous hypothesis that all grants, whether in the wild Indian coun ry or not, must completely correspond with the f01™8 usl}^ •. observed when the land granted was situated in t e se parts of the province, and that the governor-geneia a power to grant by any other form. P Mr. Grodlatiris eighth error. In remark No. 4, he consi . peaceable possession as synonymous with persona p of occupancy, revocable at will. 226 DECEMBER TERM, 1853. 212 Chouteau v. Molony. We have seen that the four translations of the grant heretofore made, differed, in some respects materially, one from another. The translation averred in the record, differs from the preceding four. Those four all agree in rendering the word “possession” into the English word “possession,” and three of them render “ paisible ” into “ peaceable,” while the remaining one renders it into “peaceful.” The main difference between those four translations and the translation averred in the record is, that the latter represents the words “paysibles possessiont ” by English words, which indicate ownership enjoyed free from adverse claim. This new version was made for the following reasons: The *French phrase, “paisible possession,1” is an idiomatic pojg expression, and it would, as used in this petition, raise •-directly in the mind of a Frenchman the idea of ownership and quiet enjoyment free from adverse claim, without any reasoning whatever on the subject. It was attempted, in shaping this new translation, not only to raise in the mind of the reader the same ideas which were raised in the mind of the Baron de Carondelet, when he read the original, but to raise them in the same direct manner. , The most usual signification of the French word apossession ” is enjoyment of a thing in the character of its owner. In the same way “ possesseur” most usually signifies a person enjoying a thing as its owner. In the French language “Ze possesseur ” is the person who has la possession; just as in English “possessor” is the person who has the possession. On the part of the defendant in error, the points were thus stated by Mr. Wilson, which were sustained also by Mr. Smith. . Ihe land in controversy is in what was called the Louis-lana territory acquired by the treaty of 1803. Ihe United States extinguished the Indian title to it bv the rea y of 1832, made by General Scott and Governor Reynolds. . See Indian Treaties, 7 Stat, at L„ 374. e, saJeJ:)y United States, to the defendant, was under the act of Congress, 9 Stat, at L., 37. frnrJ+u admits that defendant holds the land by patent the United States. Ihis is the defendant’s title. he has mj1 titl s petition and exhibits that could T>^r01n Perrn^ from the Indians. They did not and was but » Se land, and they did not profess to do so. It yta Permit to mine. y- Irom the permit or license from Carondelet. This 227 213 SUPREME COURT. Chouteau v. Molony. permit or license is improperly translated in plaintiff’s petition. The words “paysibles possessions ” and “ possibles pos-sessures” in the original, which should be translated “peaceable possession,” are rendered in the plaintiff’s petition “full proprietorship.” The petition of Dubuque is again improperly translated in the plaintiff’s petition, namely, what should be rendered “ from the coast above the little river Maquoquetais to the coast of the Mesquibenanques,” has been rendered “from the margin of the waters of the Maquotais,” &c. The permit from Carondelet was a mere license to work the mines, and was not intended by him as any thing more. See the permit and also the construction put upon it by Albert *0141 *Gallatin, in his report on this claim in Senate Docu- -* ment No. 20, vol. 2, 28th Cong., 2d Sess. The United States government took possession of this land immediately after the Rock Island Treaty. See the letter of General Macomb in the same document, p. 28. That the permit from Carondelet was a mere license to work the mines, is evident from the fact that the petition of Dubuque is in the precise words required by the ordinances of Spain in reference to petitions for working the mines. See Rockwell on Mines, p. 173, §§ 2, 4. “No mines shall be worked without permission from the crown.” If it had been intended as a grant, the proces verbal and order of survey would have been issued. 3dly. Carondelet had no legal authority to make such a grant, or to divest the crown of the title in this summary manner, because— ‘ (a.) It was in violation of the regulations of 0 Reilly-See the 1st, 2d, 3d, and 12th articles, in 2 White’s Compilation, 228, et seq. . f (b.) There was no compliance with the regulations o Morales. See those regulations, 2 White’s Compilation, , 477 235. ' 4thly. If Carondelet even had the power to make a grant of this land, and if the paper is more than a license, iwa. only an inchoate and imperfect title, and not such a i e < will avail any thing in a court of law. This is mam es r the numerous decisions of this court on the subject o pan claims. In these decisions four great principles or an i are well settled, namely: . , , First. That there must be a compliance with the nances and regulations of Spain, to sever the an public domain. 2 How., 372. , nq Antoine Soulard was, at the time, and both b 228 DECEMBER TERM, 1853. 214 Chouteau v. Molony. after, Surveyor-General of Upper Louisiana. See Amer. St. Papers, vol. 5, p. 700. Why was no order of survey issued to him ? Second. In order to constitute a valid claim, there must be clear words of grant. United States v. Perchman., 7 Pet., 81; New Orleans v. The United States, 10 Pet., 727 ; United States v. Arredondo, 6 Pet., 691; United States v. King, 3 How., 773. There are no words of grant in this case, and no compliance with the usual and necessary forms. Third. There must be a definite description of the land granted. United States v. Boisdore, 11 How., 92; Choteau v. Eckhard, 2 How., 372. The description in this case is indefinite and uncertain. Conclusion. If it should be decided that the papers exhibited by the plaintiff exhibit a full and perfect title, without any act *of Congress confirming this grant, or author- r izing another tribunal to confirm it, it would be a ° reversal of all principles established by the previous decisions of this court on this subject. Mr. Cushing, (Attorney-General,) after referring to the action of the executive and legislative departments of the government upon this subject, laid down the two following propositions, namely: I. That the political power of the government, to which this court conforms its judgment in such matters, has decided against the validity of the pretended title in Dubuque. II. That the decision of the political power of the govern-; ment was a rightful one, as well on the true tenor of the alleged grant, as upon the collateral facts set forth in the printed record. (The discussion under the first head and also the arguments under many subdivisions of the second head, must be omitted for want of room.) f +U' The ac^on °f the executive and legislative departmen ts o e government, in refusing to recognize this claim, and in isposmg of the land as public domain, was right; because and 0CUInents produced by the plaintiff do not show a perfect Julien°Dub 6 ^e’ nor a property and ownership in Caro /M6 cession by the Indians, the petition to the Baron de be tai?e annU'le trouve par le femme Peosta, que sans qu’aucuns du 8r8 t1 1s.auvaSe.s’ ni puissent pretendre sans le consentment spi’9 wa/1 1 ,“uc ’ si en cas ne trouve rien dedans, il trannnU]16 e c^ei c^e ou b°n iui semblera, et de travailler tez aupn6men 5 sans qu aux qu’un ne puisse le nuire, ni por-ne prejudice dans ses travaux; ainsi nous, chef et 237 223 SUPREME COURT. Chouteau v. Molony. brave, par la voie de tons nos villages, nous sommes convenu avec Julien Dubuque, lui vendant et livrant de ce jour d’hui comme il est mentionne6 ci-dessus, en presence de Francois qui nous attende, qui sont les temoins de cette piece, a la Prairie du Chien, en plein conseil le 22 7br.. 1788. BLONDEAU, sa ALA x AUSTIN, marque AUTAQUE, sa Bazil x Terex, temoin, marque marque Blondeau x de Quirneau, tobague. Joseph Fontigny, temoin. The exhibit referred to in the petition, and filed therewith, and marked B, is in the words and figures following, to wit: Exhibit B.—A Translation of A. Copy of the council held by the Foxes, that is to say, of the branch of five villages, with the approbation of the rest of their people, explained by Mr. Quinantotaye, deputed by them in their presence, and in the presence of us, the undersigned, that is to say, the Foxes, permit Mr. Julien Dubuque, called by them the Little Cloud, to work at the mine as long as he shall please, and to withdraw from it, without specifying any term to him; moreover, that they sell and abandon to him all the coast and the contents of the mine discovered by the wife of Peosta, so that no white man or Indian shal make any pretension to it without the consent of Mr. Dubuque; and in case he shall find nothing within, he sha be free to search wherever he may think proper to do so, ant to work peaceably without any one hurting him, or doing him any prejudice in his labors. *Thus we, chief an -I braves, by the voice of all our villages, have agree< with Julien Dubuque, selling and delivering to him 1 day, as above mentioned, in presence of the Frenchmen w attend us, who are witnesses to this writing. At the Prairie due Chien, in full council, the 22d o P tember, 1788. BLONDEAU, ALA AUSTIN, his x mark, AUTAQUE. 238 DECEMBER TERM, 1853. 224 Chouteau v. Molony. t Bazil Teren, his x mark, \ marque Blondeau de x Quirneau, > Witnesses, tobague. Joseph Fontigny. J The exhibit referred to in the petition, and filed therewith, and marked H H., is in the words and figures following, to wit: Exhibit H H.—Petition of Dubuc to Carondelet, n’ aS n°t heen given by Governor Carondelet, de LprnC°U y^fchave obtained it from his successor, Gayoso rallv n °Sf x? no^ d° in su°h cases to indulge conjectu- y» o the motives of Dubuque for such conduct, but 251 236 SUPREME COURT. Chouteau v. Molony. sometimes historical facts clear up difficulties which cannot be explained in any other way. Governor Carondelet’s commission had been recalled, and his successor, Gayoso, appointed, before the former had given his order upon Dubuque’s petition. He was then only holding over until the arrival of his successor from Natchez. Gayoso lost no time; perhaps urged to it by very recent larger grants which his predecessor had made, and which were complained of, in announcing that in respect to the quantity to be granted, he would enforce the regulations of O’Reilly, not only in Opelousas, Attacapa, and Nachitoches, but throughout the province. From that moment, Dubuque’s claim was, at all events, if he had any rightful claim for land from his Indian contract, reduced to a league square, unless it could be shown that it had been already confirmed by Governor Carondelet; and this course was preferred in the assertion of title to it before the tribunals of the United States. In our construction of the muniments of title of this case, we have considered them, as he does, as one instrument, and so they were treated in the argument—that each might aid to explain the other, and that the truth might be obtained *237"l fr°m *fhe whole of them in regard to this transaction. -* Our conclusion is, Dubuque’s contract with the Fox Indians was a sale to him of the Peosta mine, with its allowed mining appendages, with the privilege to search for other mines in the event that ore was not found in that mine; and that the order of Governor Carondelet, upon his petition, was not meant to secure to him the ownership of the lands described in his petition. - . The real importance of this case, the interests involved, and the notoriety which has been given to the Dubuque claim tor more than forty years, in Congress and out of it, do not permit us to stop this opinion with the conclusion just announced. Hitherto the case has been considered in connection with t e documents upon which the plaintiff relies, and as if GovernoJ Carondelet had official authority to make a grant of the Ian upon the petition of Dubuque. We will now present ano er view of it. Dubuque prays for a concession of what was en Indian land, which had been in the occupancy of the ln< ian during the whole time of the dominion of Spain in ’ and W’hich was not yielded by them until it was bough . i them by treaties with the United States. It is a rac 1T\ case, that the Indian title to the country had not been e guished by Spain, and that Spain had not the ngh o pancy. The Indians had the right to continue it as & they pleased, or to sell out parts of it—the sale emg 252 DECEMBER TERM, 1853. 237 Chouteau v. Molony. conformably to the laws of Spain, and being afterwards confirmed by the king or his representative, the Governor of Louisiana. Without such conformity and confirmation no one could, lawfully, take possession of lands under an Indian sale. We know it was frequently done, but always with the expectation that the sale would be confirmed, and that until it was, the purchaser would have the benefit of the forbearance of the government. We are now speaking of Indian lands, such as these were, and not of those portions of land which were assigned to the Christian Indians for villages and residences, where the Indian occupancy had been abandoned by them, or where it had been yielded to the king by treaty. Such sales did not need ratification by the governor, if they were passed before the proper Spanish officer, and put upon record. The Indians within the Spanish dominions, whether chris-tainized or not, were considered in a state of tutelage. In the Recopilacion de las Leges de las Indias, a part of the official oath of the Spanish governors was, that they would look to the welfare, augmentation, and preservation of the Indians. Book 5, c. 2. Again: Indians, although of age, continue to enjoy the rights of minors, to avoid contracts or other sales of their property—particularly real—made without authority of the *judiciary or the intervention of their legal protectors. Solerzanos Politica Indiana, 1, L 209, §§ 24, 42. Indians are considered as persons under legal disability, and their protectors stand in the light of guardians. 46, 51. The fiscal in the audiencia were their protectors, but in some cases they had special protectors. When Indians dispose of their landed property or other thing of value, the sale is void unless made by the intervention of the authorities, or of the protector-general, or person designated for the pur- * pose. C. 29, 42. Many other citations of a like kind might e given from the king’s ordinances for the protection of the >i lans. They were protected very much by similar laws tVrik ou^s^ana was a French province, excepting in this: ? 1 e Power confirm an Indian sale of land, as to the v ?,e °r a Pai‘t °f if, or to reject it altogether, was exercised X 6 ^renc^ governors of the province. hrn Or, Y®le filese laws of protection disregarded. They were • int$ °Peration very soon after General O’Reilly took IndiaSS1°? °* Province, io 1769. He acted not only upon Franr?8?^ °* made after the cession of the province by himctoif U uPon sueh as had been made before. Considering quish tl?S S®Pres®nfing fbe king, when called upon to relin-reieetpd + u 1 e , crown io favor of such purchasers, he em altogether when not made in compliance with 253 238 SUPREME COURT. Chouteau v. Molony. the laws for the protection of the Indians, and diminished the quantities of such sales when the purchasers could show from any cause whatever that they had an equitable claim upon the Indians for remuneration. The first sale of the kind to which his attention was called was one from Rimeno, the chief of the Attacapas village, as early as 1760, to Fuselien de la Clare, afterwards claimed by Morgan & Clark. O’Reilly * did not think that the sale had been completed so as to pass the title to it under the French law, though it had been executed before the governor. De la Clare then petitioned for a grant of one league to front upon the Teche, by a league in depth, making the sale to him from the Indians, of two leagues in front, from north to south, limited on the west by the River Vermilion, and on the east by the River Teche, the foundation of the equity of his claim for a grant. Governor O’Reilly received the application and granted a league in front by a league in depth. In the same manner all other larger purchases from the Indians were afterwards reduced to one league square. It became the common understanding that no larger confirmation of an Indian sale of land would be made, and no one of them was ever confirmed for more, by either of the Spanish governors of Louisiana, including Salcedo, the last of them. This of Dubuque is the only case in which it is claimed to have been done. In Florida, larger *2391 Inc^an sales *of land were confirmed, upon the ground -* that the governors of that province acted in such a matter upon a different authority from the king. But both in Florida and Louisiana it was so well understood that an Indian sale of land, before it could take effect at all, needed the ratification of the governor, that it was frequently inserted in the act of sale. See claims of purchasers of Indian lands by Stephen Lynch, Joseph and John Lyon. Such had been the law of Louisiana, or rather the administration of it by the governors, for more than eighteen years, when Dubuque alleges that he bought the land from the Fox Indians. Suci it had been for twenty-six years when he presented his Pe^0^ to the Baron Carondelet. It is true that the governors ha the same powers to grant the public lands of the crown, o which a title and instant possession could be given to e grantee; but it is also true, in their action upon the sa es o Indian lands still in their occupancy, that they were oun< by the same laws, usages, and customs, and by those a' especially which had been made for the protection o Indians, and by the oath which they took to look to ie fare, augmentation, and preservation of the Indians. Such are our views of the law relating to the powers 254 DECEMBER TERM, 1853. 239 Chouteau v. Molony. governor in respect to sales of land by the Indians. If we thought then, as we do not, that the order of Governor Carondelet upon the petition of Dubuque was a grant of the ownership of the land, we should be obliged to decide that it was an unaccountable and capricious exercise of official power, contrary to the uniform usage of his predecessors in respect to the sales of Indian lands, and that it could give no property to the grantee. It is not meant, by what has just been said, that the Spanish governors could not relinquish the interest or title of the Crown in Indian lands and for more than a mile square; but when that was done, the grants were made subject to the rights of Indian occupancy. They did not take effect until that occupancy had ceased, and whilst it continued it was not in the power of the Spanish governor to authorize any one to interfere with it. It has been intimated that the action of the governors of Louisiana upon the sales of Indian lands, especially in the reduction of them to a league square, was the consequence of O’Reilly’s regulation, limiting grants of land in particular districts to a league square. This may have been so as regards quantity, but the principle upon which they acted upon Indian sales of land is to be found in those laws of Spain which made them officially the protectors of the Indians. But it will be said at this point of the case, as it was said m the argument, if the governor’s order was not a grant for lands, that *it gives to Dubuque nothing, as he had already the occupancy under the Indian purchase. ■-The error in the statement is, the assertion that he had the right to occupancy, and in the supposition that the opposers of the grant contend that the governor meant to give him that right. Not so. The last, we have just said, the governor could not give, and that the Indian sale could not give it to a purchaser until the sale had been ratified. But the privilege to work the mines in lands still in the occupancy of the Indians, he could give, because the mines were a part of the loyal patrimony of the crown, and the king had directed that ey might be searched for and worked in all of his dominions 2Y his subjects, both Spaniards and Indians. When, then, ubuque represented to him that he had bought mines and an s from the Fox Indians, and asked for the enjoyment and peaceable possession of them, and the governor wrote “ granted he meant no more than this: as you say that a.ve bought the mines, with the permission of the Indians m work them, you shall also have mine. tion Vlew taken of this case relieves us from the considera-seveial points which were made in the argument of it; 255 240 SUPREME COURT. Chouteau v. Molony. particularly from that of the effect of the words “ peaceable possession,” found in the petition of Dubuque to Governor Carondelet, to which it was contended his final order had a direct reference. We admit, with pleasure, that it was shown by a learned and discriminating appreciation of those words in grants for land, that they were more frequently than otherwise a grant of ownership; but they cannot do so in a case where the order or grant is given with direct reference to a fact in the petition for it which does not exist, or where a grant is given upon an Indian sale of land contrary to what we think the laws of Spain permitted to be done. The order given upon the petition of Dubuque, had it been intended to be a grant of ownership, would not have been binding upon the conscience of the king of Spain, and only such as are so are conclusive against the United States under the treaty transferring Louisiana. Nor is it necessary for us to notice the reference which was made in the argument to the treaty made by General Harrison with the Fox Indians, further than to state that it is no more than a declaration that the Indians, in selling to the United States their land, did not mean to sell parts of it which they had sold before to others. It may have had a reference to this claim of Dubuque, but not having been so expressed, it cannot be inferred. We cannot leave this case without a reflection occurring from our investigation of it, and which is not favorable to the statement made by Dubuque that he had bought the land from the Fox Indians. *2411 *Dubuque’s mines, as they were called, are on the -* west bank of the Mississippi, a little more or less than seventy miles below Prairie du Chien, where he made his contract with the Indians. They are so near to the city of Dubuque that they may be said to be contiguous. In the year 1780 the wife of Peosta, a warrior of the Kettle chiefs village, discovered a lead mine on these lands, and othei mines were found soon afterwards. The principal mines are situated upon a tract of one league square, immediately a the Fox village of the Kettle chief, extending westwarc. This was the seat of the mining operations of Dubuque. Kettle chief’s village was on the bank of the Mississippi River, below the little river Makoketa, and was at the im when Dubuque settled there, a village of many lo ge • Schoolcraft. . .. -j. If it was not the largest of the Fox or Outagami was not inferior to any other village than that of the o and Sacs on the bank of the Mississippi River, near 256 DECEMBER TERM, 1853. 241 Chouteau v. Molony. Island. It had been for a long time an Indian village when Dubuque settled there. It continued as such all the time that Dubuque resided there until his death; that is, from 1788 to 1810; and its chief survived Dubuque for ten years. Can it be presumed that, under the contract with Dubuque, the Indians meant to sell him that village, and all the lands for miles above and below it, with all of the mines upon the land directly adjoining it ? And yet such must be the result if that were so; for, carry Dubuque’s description of his purchase into a survey, and it takes in the Kettle chief’s village. We cannot believe that the Indians did make such a sale, or that they were so ignorant of their topography as not to know that a line extended from the monuments on the Makoketa and the Tete des Morts for three leagues west, with a base equal to the Mississippi boundary, would not have included their village. We make no other commentary than this— that time, if it does not obliterate the offences and weaknesses of men, disposes us to recollect them in connection with their merits; and if we speak of them at all, to do so forbearingly. We will now close the case with an additional remark. This claim was presented to Congress in the year 1812. It had been before the commissioners for adjusting land claims in the Territory of Louisiana, as early as 1806. It has been repeatedly before both houses of Congress, but with such differing opinions concerning it, that no confirmation of it could be obtained, although the commissioners had returned it as a valid claim. It was before the Senate again in 1845. It was then reported upon, and again in 1846. Doc. March 30, 1846. That is an able paper; but besides conclusions drawn from the decisions *of this court which we do [-*949 not think applicable, and others which were made *-without reference to the laws of Spain, which prevailed in ouisiana, we think it remarkable that the report, though containing frequent allusions to Dubuque’s contract with the 11 ians, and extracts from it, does not set it out entire as ipf'r j papers upon which the claim was rested. The Tc U^UqUe governor, his reference of it to ’ r 1 *1 rePty’ and the governor’s order, are the papers nlaopd^k r report was made. The same documents were contra i-6 T commissioners in 1806, without the Indian P. 580° It j6 Lands, American State Papers, vol. 3, taken nf •+ +?eS n°^ surPrise us that a correct view was not in the 1 + °r the committee of public land claims that nnw+V should have viewed it differently in 1846 from Vot yJ* en-t ^Is court. The petitioner in this suit has v xvi.—17 x 257 242 SUPREME COURT. Denise et al. v. Ruggles. the merit of having put his case upon every thing in any way connected with the claim of Dubuque fairly, fully, and openly. Still if success does not follow his expectation, he cannot complain of it, for the purchase from Dubuque was an adventure to buy the half of the land, with a full knowledge of all of the papers and the circumstances under which Dubuque claimed. The judgment of the District Court is affirmed. ORDER. This cause came on to be heard on the transcript of the record, from the District Court of the United States for the District of Iowa, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby affirmed, with costs. Augustine Anne Louise Denise, Hyacinth Adda Mayne a up de Paucemont, Countess de Tournon, Seraphine Carpentier, widow of Olivier Louis Martin, Charles Alexander Martin, Jane Mara-rie Seraphina Martin, and Jaques Francois, Justinian Francois, and Antione Joseph Servais, Plaintiffs in error, v. Benjamin Ruggles. Where a grant issued in 1722, by the French authorities of Louisiana, cannot be located by metes and bounds, it cannot serve as a title in an action o ejectment; and it was proper for the Circuit Court to instruct the jury this effect. This case was brought up by writ of error, from tie Circuit Court of the United States for the District o Missouri. 4 *The case depended on the construction of an o -• French grant, which is stated in the opinion o 1 court. It would not be possible to explain the nature o dispute to the reader, without the introduction of maps» as the decision in this case cannot possibly serve to 1 J1® . any that may hereafter occur, it is not. deemed expe le increase the size of this volume by their introduction, arguments of counsel to show that the grant cou or not be located. 258 DECEMBER TERM, 1853. 243 Denise et al. v. Ruggles. It was argued by Mr. Garland and Mr. Johnson for the plaintiffs in error, and by Mr. Bibb and Mr. Cushing, (Attorney-General,) for the defendant in error. Mr. Justice CATRON delivered the opinion of the court. This suit was brought in 1844, in the Circuit Court for the Missouri District, to recover sections nine and ten, and the half of sections numbers fifteen and sixteen, adjoining to nine and ten, in township thirty-eight north, range two east of the principal meridian; making 1920 acres, of which it is alleged the defendant Ruggles was in possession. The cause was tried before a jury in 1851, and a verdict rendered for the defendant. The object of the suit is to establish a claim of Renault’s heirs to a tract of land containing upwards of fifty thousand acres. The claim depends on a grant, a translation of which, from the French, was given in evidence in the Circuit Court, and is as follows: “ In the year one thousand seven hundred and twenty-three, and on the fourteenth of June, granted to Mr. Renault, in freehold, for the purpose of forming his establishment on the mines. “ One league and a half of ground fronting on the Little Maramecq on the River Maramecq, at the place of the first arm, (branch, or fork,) which leads to the collection of cabins called the Cabanage de la Renaudiere, by six leagues (eighteen miles) in depth; the river forming the middle of the point of compass, and the streamlet being perpendicular, as far as where Mr. Renault has his furnace; and thence straight to the place called the Great Mine.” . original, in French, being in the record also, it is here insisted for the plaintiffs, that the foregoing transla-^i?8 erroneous and does not truly describe the boundaries of the land granted; that it should be one and a half leagues routing on the Little Maramecq in the River Maramecq, at e place of the first branch which leads to the collection of cabins, called the Cabanage de la Renaudiere, by six leagues in epth, “ the *river forming the middle of the Rhumb r*O/M me, ana the lead stream, as far as where Mr. Renault *-.?s r<1S *urnace, and thence a direct line to the spot named the Great Mine.” • n TJ16 f°rk Little Maramecq called for, and the old furnace wasc w®ie proved to exist on the trial, by Mr. Cozzens, who en to survey the grant, by order of court, at the instance 259 244 SUPREME COURT. Denise et al. v. Ruggles. of the plaintiffs. He says, the Grand Mine is marked on the map ; that is, on a copy of the map of public surveys of the United States, obtained from the land office at St. Louis. He furnished no plot, because, as he reported and deposed, he could not make a survey of the land claimed ; the description in the grant being too vague and unmeaning for him to lay down the land corresponding to the objects called for on the ground. He further deposed, that he understood the French, and was governed by both the English and French copies. On the question whether the tract of land claimed could be ascertained, and the true boundaries identified by survey, the jury was instructed as follows : “ The court is of opinion that the grant to Renault, unaided by a survey under the French or Spanish government, did not separate the land from the public domain: That it cannot now, from its uncertainty, be located; it is not therefore a grant for any specific lands, and does not entitle the plaintiffs to the locus in quo.” Thus the Circuit Court held, that notwithstanding the Little Maramecq River, the lead stream, the smelting furnace, and the Grand Mine, existed as indicated on the public surveys, and as claimed to exist by the plaintiffs, still the . grant was void for uncertainty, and the impossibility of locating the same. As the first instruction took the case from the jury, and put an end to the suit on legal grounds, we will proceed to examine this instruction. The land is to front on the river. When the point of beginning is established on the river, then it is to be meandered up or down, until a straight line will reach a league and a half from the first to the second corner. It is insisted that the mouth of the streamlet is to be the place of beginning, and that the first line is to run up the river; and that the north-western side line is to meander the streamlet to the old furnace, called for in the grant. . Why the beginning point should be at the mouth of the lead stream, it is difficult to comprehend. The grant was intended to cover Renault’s mining establishment; but it surveyed, as contended for, the second line would run through the centre of his smelting furnace, and also throng the centre of the mine where the ore was obtained. By sue construction the main *object of the grant, when i ' -J was made, would have been defeated. We SUPP0^ the following would be a more plausible construction. a the streamlet, from its mouth to the furnace, to be the pe pendicular of the front line on the river; then draw a s iaig 260 DECEMBER TERM, 1853. 245 Denise et al. Ruggles. line from its mouth to the furnace to give the course of the side lines; they being drawn parallel on each side of the foregoing middle line and a league , and a half apart. By such survey the smelting furnace would have been included. But where these side lines were to begin or end, (treating each as a unit,) no one could tell; nor was it possible to reach the Grand Mine, or include it, by this mode of survey, and therefore this construction could not be relied on. The jury was bound to find the lines of the grant from its calls, and the objects proved to exist on the ground corresponding to the calls. Nor could this be done by conjecture; lines and corners must be established by the finding, so as to close the survey. If, after admitting all the verbal evidence to be true, as to objects on the ground, to the extent insisted on for the plaintiffs, and disregarding the defendant’s evidence, it was still plainly impossible to locate the grant by its words of description ; then, the instruction given by the Circuit Court, was proper. The argument assumes that the second corner is four and a half miles above the mouth of the lead stream on the Maramecq, and the beginning corner at the mouth of the streamlet; that this is the front; that the north-western side line meanders the lead stream to the furnace; and then runs straight through the Great Mine, extending to a point beyond eighteen miles in depth from the mouth of the streamlet; that, from this last point, a line must be drawn four and a half miles long, and corresponding in its course to the front line on the river; and, from the termination of this line, one inust be drawn to close on the upper corner on the river. I his is the theory of a survey predicated of the translation relied on in this court. No mode of survey is here claimed, as being indicated by the translation furnished to the Circuit Court, and on which the instruction is fo.unded. , As the court below was influenced, in its construction of he grant, by the objects claimed by the plaintiffs, and admitted to exist on the ground, so this court must look to the same source of information for aid, in coming to a practical r1L k^enau^ s furnace is not found on the map presented ° us, but the Great Mine is. We must assume, however, Or ^ Purposes of this action, that the furnace lies so high Mineral Fork as that a straight line run from it to snrJ iine’ wo.uld include *the land sued for. A so a(/\’ ™ac*e on this assumption, would require a line *-RiveU 6 H e Mineral Fork, as to strike the Little Maramecq r not tar above the upper corner on the river, and give 261 246 SUPREME COURT. Thorp v. Raymond. the grant the form of a triangle. Place the furnace on any part of the Mineral Fork where probable conjecture can locate it, and still the second line, as here claimed, (running through the furnace, and the Great Mine,) would have an acute angle in it, so that no depth could be obtained by this mode of survey. Nor could a corresponding line to the front on the river be obtained; nor a line be laid down corresponding to the north-western side line; as this hypothetical line would vary so much in its courses as not to afford space for the two other lines. We can say, with entire confidence, that no such theory of survey can be carried out, taking the objects called for and found as the governing rule; and it is equally certain, in our opinion, that no specific boundaries were contemplated as having been given to Renault’s grant when it was made, but that the lines were to be afterwards established by survey, as in cases of Spanish concessions covering improvements where the exterior boundaries were left to the discretion of the surveyor. We are therefore of opinion, that the Circuit Court properly held that the grant did not separate any specific tract of land from the public domain, and that the jury could not locate it. The court having held that the plaintiffs had no title to support their action, it was useless to give any further instructions : nor does it matter whether those given in addition to the first one were right or wrong. We therefore order that the judgment be affirmed. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Missouri, 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. *0471 *Cornelius D. Thorp, Plaintiff in error, v. *"‘-1 Ardel B. Raymond. The statute of limitations of New York allows ten years ^Ir^tha” action must be brought by the heirs of a person under disability, disability is removed. , . innindimr But the right of entry would be barred if an adverse possessi , 262 DECEMBER TERM, 1853. 247 Thorp v. Raymond. those ten years, had then continued twenty years; and the right of title would be barred, if the adverse possession had continued twenty-five years, including those ten years. Cumulative disabilities are not allowed in the one case or in the other. Therefore, where a right of entry accrued to a person who was in a state of insanity, the limitation did not begin to run until the death of that person; but began to run then, although the heir was under coverture? This case was brought up by writ of error, from the Circuit Court of the United States for the Southern District of New York. The circumstances of the case are fully stated in the opinion of the court. It was argued by Mr. Lawrence, for the plaintiff in error, and by Mr. Shell, for the defendant. The points made for the plaintiff in error were the foliow-ing: First. The plaintiff having shown a valid legal title in his ancestor, Nicholas Brouwer, and having proved that the said Nicholas Brouwer died seized and possessed of the premises in question, the inheritance therein passed, on his death, to his granddaughter and sole heir at law, Hannah Brouwer, the plaintiff’s grandmother. Second. There is no evidence that Pine held adversely to the heir at law of Nicholas Brouwer, and therefore it must be presumed that he held in subordination to the Brouwer title. 2 R. S., 392, § 8. Third. The adverse possession commenced with Oliver DeLancey, in 1801, at which time the owner, Hannah Turner, was under the disability of coverture as well as of insanity. Ihese disabilities continued till her death, in 1822, and were continued in her heir at law, Jemima, by reason of her coverture, until 1832. The statute provides in substance, (N. Y. R. L. of 1801, vol. 1, p. 562,) that action may be brought within twenty- 25 twenty years (as the case may be) after descent cast; an that the time during which the disability of coverture or insanity shall continue, shall form no part of the period of limitation. r In this case, the disability existed when the adverse posses-(Hannah Turner having the title, and being „• er isability from 1749 to 1822, while the adverse posses-to in 1801,) and it continued uninterruptedly is , m the persons of her and her daughter, Jemima P. Mercer v. Selden, 1 How., 37, and cases cited in the notes. 263 247 SUPREME COURT. Thorp v. Raymond. *9481 Th°rPe, until the Meath of the husband of the latter, -• in 1832. The statute of limitations, therefore, did not commence to run against the original and lawful title until the last named year, and consequently the right of action continued unimpaired until 1852. The judgment should therefore be set aside, and a new trial ordered. Def endant'’ s points. I. The adverse possession by the defendant, and those under whom he claimed from the 1st of May, 1801, to the time of the commencement of this suit, in 1850, was perfect, and barred and extinguished the title and right of the plaintiff. 24 Wend. (N. Y.), 603, 604, 614; 16 Pet., 455, 2 R. L. N. Y., c. 185, p. 183; 2 R. S. N. Y., p. 222, § 11. II. Hannah Turner, being under the disability of mental incapacity from the time the adverse possession commenced, to wit, 1st of May, 1801, until her death, in 1822, her heirs at law had ten years after her death within which to bring their action. 2 R. L. N. Y., c. 185, p. 183, §§ 2, 3. III. Hannah Turner having died in 1822, Jemima Thorpe, her heir at law, and the mother of the plaintiff, should have brought her action within ten years after her death; as the ten years, with the time which elapsed after the adverse possession commenced exceeded twenty years, which would bar ejectment, and exceeding twenty-five years, which would bar a writ of right. Smith v. Durtis, 9 Johns. (N. Y.), 174, Demarest and wife v. Wynkoop, 3 Johns. (N. Y.) Ch., 12«., 135; Jackson ex dem. v. Johnson, 5 Cow. (N. Y.), 74. As to the rule in England, under Statute 21 James, c. 16, Doe ex dem. v. Jesson, 6 East, 80. Also in Pennsylvania, under Statute 26th March, 1785, Wendle v. Robertson, 6 Watts (Pa.), 486. IV. The plaintiff, and those under whom he claims, not having brought their action within the time allowed by law, are barred by the ‘statute from recovering said premises, or any interest therein. 2 R. L. N. Y., c. 185, p. 183. Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the Circuit Court of the Uni e States for the Southern District of New York. . The plaintiff brought an action of ejectment in the coni below against the defendant to recover the one-twen le part of a mill seat and the erections thereon, together w some eighteen acres of land, situate on the rivei t ron the town and county of Westchester in said State, an , 264 DECEMBER TERM, 185 3. 248 Thorp v. Raymond. the trial, gave evidence tending to prove that the premises were owned in fee in 1726 by one Nicholas Brouwer, and that he continued seised of the same as owner down to his death, in 1749; that his heir at law was a grandchild Hannah, then the wife of *Edmund Turner; that said r*249 Turner died in 1805, leaving his wife surviving, but *-who had been for some years previously, and then was insane, and so continued till her death, in 1822; that at her death she left, as heirs at law surviving her, several children and grandchildren ; that one of her surviving children was Jemima Thorp, the mother of the present plaintiff, who was married to Peter Thorp when nineteen years of age: the said Peter died in 1832, and said Jemima, who survived him, died in 1842, leaving the plaintiff and other children surviving. The plaintiff, also, proved the defendant in possession of the premises and rested. The defendant then proved that, before the year 1801, the premises in question were in the actual possession of one Oliver De Laney claiming as owner, who in the same year by indenture of lease demised the same to one James Bathgate, for the term of fourteen years; that the said Bathgate entered into possession, and continued to hold and occupy the premises under this lease till 1804, when one David ^y^ig entered, claiming to be the owner in fee; that said Bathgate attorneyed to, and held and occupied under him, as tenant, down to 1840, when the defendant succeeded as tenant of the premises under the said Lydig; that David Lydig died in 1840, leaving Philip, his only child and heir at law, surviving; and that from the date of the lease to Bathgate, 1st May, 1801, down to the commencement of this suit, the piemises had been continually held and possessed by De ancy and the Lydigs, father and son, by their several tenants, claiming to be the owners in fee, and exclusive of any 0 ier right or title: and occupied and enjoyed the same in ail respects as such owners. oth parties having rested, the court charged the jury that annah Turner took the title to the premises on the death of er grandfather, Nicholas Brouwer, in 1749, as his heir at 1-^.’ ut’ that as she was then a feme covert, the statute of not begin to run against her till 1805, on the und ^..jinund Turner, her husband; and as she was also 6 lability of insanity, in 1801, when the adverse atrain^10/1 commenced, the statute did not begin to run in a nnr>+-er estate until her death, this latter disability hav-aftpr lnue Morrison, 6 Goodrich,^ Ottati ®reenleafj. > * vuo, zo4. Cited. The Saratoga, 9 Fed. Rep., 325. See note to Curtis v. Martin, 3 How., 106. 2 Reported below, 1 Blatchf., 504. 267 251 SUPREME COURT. Maillard et al. v. Lawrence. The points made by the counsel for the plaintiffs in error, were the following: 1st. The first, second, third, and fourth instructions asked for by the defendant, and granted by the court, are erroneous, each of them— (a.) Because the terms, “ clothing ready-made and wearing apparel of every description, made up or manufactured by the tailor, sempstress, or manufacturer,” used in schedule C, of tariff of 1846, do not include by their own force all articles which can be used as personal dress either for the adornment, protection, or comfort of the person ; and (b.) Because, where in said tariff of 1846 the use to which an article may be usually put is intended to govern the rate of duty to be exacted, the statute expressly so declares. (c.) Because, by all the proofs, said terms, “ wearing apparel,” as used in trade and commerce in July, 1846, did not embrace such shawls and scarfs. *2521 *(d.) Because, the terms “wearing apparel,” as -* used in said act of 1846, are either synonymous with “ready-made clothing,” or too indefinite to assess any other article, than ready-made clothing with duty. (e.) Because the tariff should be construed according to the commercial sense and meaning of the terms employed. The charge is in this respect opposed to the settled law of this court. 2d. The fifth and sixth instructions asked by the defendant, and granted by the court, were erroneous: (a.) Because the fifth assumes that in commerce the addition of fringes by hand to some of said shawls and scarfs, after they come from the loom, necessarily brings them within the terms, “articles worn by women or children made up, or made wholly, or in part, by hand,” which are employed in said schedule C. (b.) Because the sixth assumes that the making of knots in the fringes, or the twisting of said fringes by hand in some of said shawls, after the shawls came from the loom, necessarily brings the shawls within the clause, “ articles worn by women and children, made up or made wholly, or in part, by hand. The court erred in refusing the plaintiffs’ prayers, e cause— . i 3d. The shawls and scarfs in question being in trade an commerce known as “ manufacture of silk ” or “wors e and not being known in commerce as “clothing ready-ma e, nor as “ articles worn by women and children, the a fringes by hand, or the knotting and twisting these ring by hand, does not take them out of the classes of man 268 DECEMBER TERM, 1853. 252'’ Maillard et al. v. Lawrence. tines of silk, or of which silk shall be a component material, not otherwise provided,” and of “manufactures of worsted, or of which worsted shall be a component material, not otherwise provided for,” specified by schedule D. 4th. The proof shows that in trade and commerce the term “ made,” or “ made up,” used in schedule C, does not embrace goods to which fringes, borders, knots, or tassels, are added after the fabric is made in the loom; nor force goods ' with such additions to be rated or known as “articles worn by women, made up, or made wholly, or part by hand.” 5th. The use to which goods may be put, in fact, does not exclude them from the commercial class to which they belong. 6th. The goods cannot be classed under schedule C, because the proof shows that in the language of trade and commerce they are not either, (a.) “ Articles worn by men, women, or children, made up, or made wholly or in part by hand.” (b.) Nor “clothing ready-made, and wearing apparel made up, or manufactured wholly or in part by the tailor, sempstress, or manufacturer.” (c.) Nor “manufactures of cotton, linen, silk, wool, or worsted, embroidered, or tamboured, in the loom or otherwise by machinery, or with the needle or other process.” *7th. The opinions of the officers of the customs r*Qro detailed in the proof, and the arguments attempted to *-be drawn by them from the exemption from duty, under schedule 1, “ of wearing apparel in actual use, and other personal effects of persons arriving in the United States,” do not establish any fact, nor furnish any guide in construing the tariff of 1846, so as to charge the shawls and scarfs in question with thirty per cent, duty, under schedule C. 8th. To charge the goods in question with thirty per cent. by schedule C, instead of twenty-five per cent, by sc edule D, it is essential that they should have been distinctly well known in commerce by the term “clothing ready-made, and wearing apparel,” and as the term “clothing real y-made, and wearing apparel,” by the testimony does not embrace such shawls and scarfs, the greater rate of thirty per cent, is not to be imposed. The! •t?rms emP1oyed in schedule C of the tariff of ow, by which the exaction of thirty per cent, is claimed, e similar in substance with the terms of the act of 1842, in J metical construction and action of the government, lownd Slawls and scarfs’ under that act’ should be followed under the tariff of 1846. The exaction of thirty per cent, under schedule C, 269 253 SUPREME COURT. Maillard et al. v. Lawrence. is not justified by any treasury instructions which are contrary to the commercial understanding, and to the rules of construction of the statute in regard to duties. 11th. The first, second, third, and fourth prayers of the plaintiffs were, and each of them was in accordance with the settled law of this court, and the refusal of the court to instruct the jury upon any of the said propositions as prayed for, was erroneous. The following is a part of the argument of the Attorney-General. The question raised by the plaintiff in his action is simply this, are “ shawls ” wearing apparel ? The act of 1846 has not charged duties upon “shawls” by that name. But if it be found that “shawls” are wearing apparel, then the collector has charged the true legal rate of duty, without any excess; and the plaintiff’s suit is without foundation in law. For the signification of the word “ shawls,” as used in the plaintiff’s invoices and entries at the custom-house, and of the words, “ wearing apparel,” as used in the statute of 1846, we must resort to the established use of that and of correspondent phrases in our own and in cognate languages, and to critical examination of their legal intent and import. *9^41 *In McCulloch’s Dictionary of Commerce we have J this definition: “ Shawls, (German—Schalen; French Chales; Italian—Schavali; Spanish—Chevalos); articles of fine wool, silk, or wool and silk, manufactured after the fashion of a large handkerchief, used in female dress. The finest shawls are imported from India, &c. . . • Shawls are made of various forms, sizes, and borders, which are wrought separately with the view of adapting them to the different markets.” In the Dictionary of French and English by Professors Flemming and Tibbits, we have this definition and explanation: “Shawl,” (English) “Grand mouchoir de cou, (French)—signifying a great handkerchief for the neck. In the Dictionary of Commerce, published in Pa^is’ 1839, under the direction of Guillaman, we have this de ni tion: “ Chale,—grande piece d’^toffe, dont les femmes se couvrent les epaules, et qui est ordinairement fabnque an le gout des Chales de 1’Orient.” (Shawl—a large piece cloth with which the women cover their shoulders, usua y manufactured in the fashion of the shawls from the eas J In Landais’ French Dictionary, (which has *•<> » eleven editions,) we have this definition: “ Schal, & 270 DECEMBER TERM, 1853. 254 Maillard et al. v. Lawrence. piece d’^toffe de soie, ou de laine, dont les habitants de 1’Egypte s’entourent la t6te. Le schall est adopts depuis longtemps par les dames Francaises, qui le portent sur les epaules—ou 6crit aussi ch&le.” (Shawl—a long piece of cloth of silk or wool with which the inhabitants of Egypt surround the head. The shawl has been long since adopted by the women of France, who wear it on their shoulders—it is also written “ chale.”) In the Dictionary of the French Academy, this definition is given: “Chale—longue pi£ce d’^toffe dont les orientaux s’enveloppent la tete, et qui entre aussi de diverses manieres dans leur v^tement.” (Shawl—a long piece of cloth with which the orientals environ the head, and which, in divers ways, makes a part of their apparel.) Consulting English lexicons, we find these definitions: “Shawl, a part of modern female dress.”—Worcester. “Shawl, a cloth of wool, cotton, silk, or hair, used by females as a loose covering for the neck and shoulders.”— Webster. Craig’s Dictionary of the English Language (which is considered the best present standard work) gives us this definition : “Shawl, a kind of large kerchief, originally from India, which forms a part of modern female dress, being worn as a loose covering for the shoulders and back.” These various lexicographers all agree that shawls are wearing apparel. Ihe plaintiffs, to evade the definitions in commercial dictionaries and other lexicons, and the descriptive r^rr words in the statute, (schedule C,) and the mass of L testimony given in this cause, and the invoices and entries at the custom-house by themselves, offer the oaths of men, “ that in trade and commerce, articles of this description are not considered wearing apparel ” ; that shawls of this description ,are 4tn.0^ known among merchants as wearing apparel ”; at, “in a commercial sense, none of these shawls are made UP’ no£ are they known among merchants as wearing apparel; appai 1’’C S^aw^s 4 commercially speaking,’ are not wearing eclarations of this nature by witnesses avail nothing. aw s are known in commerce as wearing apparel, these i nesses to the contrary notwithstanding. These witnesses y, in one breath, shawls are not? “ in a commercial sense, anng apparel ”; are not, “ commercially speaking, made in th°r now? among merchants as wearing apparel”; and e next breath tell us they are worn by women, and 271 255 SUPREME COURT. Maillard et al. v. Lawrence. come from the manufacturer “in a complete state to be worn,” with their fringes tied by hand, with separately woven borders united to them, ready for use; yet they say, “ commercially speaking,” and “ in a commercial sense,” they are neither “ made up,” nor “ wearing apparel' ” Such contrariant absurdities the plaintiffs propose to dispose of by the oaths of the two tailors, Raymond and Beaumont, who swear that they have “purchased shawls of this description to make up into gentlemen’s garments; into waistcoats and dressing-gowns ”; and who think “ that shawls are not wearing apparel till they are made up in this way.” According to their mode of thinking, the cashmere, and other fine shawls imported from India, were not known among merchants as wearing apparel, and were not wearing apparel unless they were made up into gentlemen’s garments, waistcoats, and dressing-gowns, or such like; that is, “ commercially speaking,” and “in a commercial sense I ” Such evidence, in favor of the plaintiffs, made “commercially,” and “in a commercial sense,” cannot outweigh commercial dictionaries and other lexicons; cannot do away long established usages, and make us disbelieve what our eyes see day after day ; that is, shawls in actual use, as parts of the wearing apparel of females. The statute, in schedule C, uses plain language to describe two great general classes of merchandise: the first, “clothing ready-made,” the second, “ wearing apparel of every description, of whatever material composed, made up or manufactured wholly or in part by the tailor, sempstress, or manufacturer.” The witnesses for the plaintiffs confound *9561 ^he tw° classes, omit *parts of the descriptions of the J second class, endeavor to confuse the plain meaning ot the statute by introducing a sophistical sense, called by them “ a commercial sense ”; and even in that they put away the established significations of words, contradict standar writers on commerce, and repudiate common sense and common usage. Wearing apparel is a general description or genus comprehending many species, and shawls are undoubtedly a species of wearing apparel. Common use, the definitions and exp a nations of learned writers of commercial dictionaries, an o other lexicons, the daily experience of our own eJesl£ concur to convince our understandings, beyond a dou •> shawls are a species of apparel worn by females. 1 are not “made up or manufactured wholly or in par 7 tailor, sempstress, or manufacturer,” how or by whom aie 272 DECEMBER TERM, 1853. 256 Maillard et al. v. Lawrence. made ? Certain it is they are not a raw material, but are the products of art and labor. Congress, in legislating the system of duties on imports in the act of 1846, (schedule C,) has given a description for revenue purposes, which clearly comprises these shawls; the words of description employed in the statute must have their known signification as established by standard writers, use, and general acceptation. The sophistications attempted by the witnesses for plaintiffs about a “ commercial understanding,” and “ in a commercial sense,” are foreign to the case, and are overruled by this court in De Forest v. Lawrence, 13 How., 282. Mr. Justice DANIEL delivered the opinion of the court. The plaintiffs in error instituted in the court aforesaid against the defendant an action of trespass on the case for the recovery of an alleged excess of duties charged by the defendant as collector of the port of New York, and paid to him under protest by the plaintiffs upon certain goods imported by them from Havre in France, and described by them in the invoices and entries thereof as “worsted shawls, worsted and cotton shawls, silk and worsted shawls, barege shawls, merino shawls, silk shawls, worsted scarfs, silk scarfs, and mousseline de laine shawls.” There appear to have been nineteen different importations by the plaintiffs, comprised within the description just given, but a particular or separate enumeration of them is n°t nece$sary, it being admitted that the protest of the plaintiffs embraced the whole of them, and that the correctness or incorrectness of the proceeding in reference to each of them depends upon the construction of the same statute. Upon the articles thus described, the collector charged the duty of irt.Y per centum ad valorem as being wearing apparel within ,?e Pining *of schedule C, in the act of Congress of „ the 80th of July, 1846. Vid. 9th Stat, at L„ c. 74, p. C 267 Ihe plaintiffs insist that according to schedule D, in the same statute, they were bound to pay at the rate of twenty-Per centum ad valorem only, and for a recovery of the i erence between this last rate and that at which they have ( e payment, their action lias been brought. inci-J30'\lssu® j°ined on the plea of non-assumpsit and under of1OPS ^r0111 the court as to the import of the provisions defend8 n^e 30th, 1846, a verdict was found for the Thi« noT • an(a a Figment entered in accordance therewith, sion ^e,ls,comPJe^en^ed within narrow limits, and its deci-portiona +kPe x entirely upon the interpretation of those Vol xvi e-^Sga^u^e ^$46, designated as schedules C and 257 SUPREME COURT. Maillard et al. v. Lawrence. D, as to the description and enumeration of the articles subjected to duties and the rate of impost prescribed by these schedules. In schedule C, which imposes a duty of thirty per centum ad valorem, are comprised the following articles, in the literal terms of the law, “ clothing ready-made, and wearing apparel of every description of whatever material composed, made up, or manufactured, wholly or in part by the tailor, sempstress, or manufacturer.” By schedule D, of the same act, it is declared that an impost of twenty-five per centum only shall be levied on “manufactures of silk, or of which silk shall be a component material, not otherwise provided for; manufactures of worsted, or of which worsted is a component material, not otherwise provided for.” Several witnesses were examined by the plaintiffs, with the view of showing that in a mercantile sense the term shawls, under which descriptive name the goods of the plaintiffs were entered, did not include “ wearing apparel,” and a fortiori not wearing apparel either made up or manufactured wholly or in part by the tailor, sempstress, or manufacturer, and that therefore under the provision of schedule D they were subject to an impost of twenty-five per centum only as manufactures of silk or worsted, “ not otherwise provided for.” Countervailing evidence was adduced on the part of the defendant to show that, in a mercantile sense, and by generally received and notorious acceptation, and by the plain and even imperative language of the statute, shawls were established to be wearing apparel; and consequently came within the rates imposed by schedule C, and could not be brought within the description in schedule D, as articles “ not otherwise provided for.” . The character of the evidence, or more properly the points it was designed to bear upon, most plainly appear from the seveial prayers submitted at the trial, and by the rulings of the cour upon those prayers. *9^81 *The counsel for the plaintiffs moved the court o -* charge and instruct the jury, 1st. That if the JU1> shall find from the evidence that the shawls in question were known at the date of the passage of the said act of 30th Ju y, 1846, in trade and commerce as “manufactures of 'Y'ors,e, ’ or of which worsted was a component material, that then % are embraced in schedule D, and are only liable to a u y twenty-five per centum ad valorem, and no more. . Second. That if the jury shall find from the evidence the shawls in question were not, at the date of the sa 274 DECEMBER TERM, 1853. 258 Maillard et al. v. Lawrence. mentioned act, in a commercial sense, and according to the meaning of the term among merchants, either — 1st. Articles worn by men, women, or children “ made up,” or made wholly or in part by hand. 2d. Nor clothing readymade, or wearing apparel “ made up,” or manufactured wholly or in part by the tailor, sempstress, or manufacturer. 3d. Nor manufactures of cotton, linen, silk, wool, or worsted, embroidered or tamboured in the loom, or otherwise by machinery, or with the needle, or other process; then in either of said cases the articles in question are liable only to a duty of twenty-five per centum ad valorem. Third. That if the jury shall find from the evidence that the articles in question were charged, under the act of 1842, with duty as “ manufactures of combed wool or worsted,” “manufactures of worsted, and manufactures of worsted and silk combined,” under section 1, subdivision 1 of said act, and as “manufactures of cotton, or of which cotton shall be a component part under section 2, subdivision 2 of said act, then the articles in question are, under the act of 1846, liable to a duty of twenty-five per cent, ad valorem, and no more. Fourth. That if the jury shall find from the evidence that, at the date of the passage of the said act of the 30th of July, 1846, the shawls in question were commercially known as “manufactures of worsted,” or of which worsted was a component material, and that they were not known in trade and commerce as clothing ready-made, or as “ wearing apparel ” made up, or manufactured wholly or in part by the tailor, sempstress, or manufacturer, nor as articles worn by men, women, and children, made up, or made wholly or in part by hand, then they are chargeable with a duty of twenty-five per cent, ad valorem, and no more. . Whereupon his honor, the presiding judge, refused so to instruct the jury in accordance with all or any of the said several prayers, whereby the plaintiffs, by their counsel, had prayed the court to instruct the jury. * And thereupon the counsel for the plaintiffs then and there excepted to the refusal of the said judge to instruct conformity with the said several prayers o e said, plaintiffs, and also to the charge and instructing e jury by the said judge, in conformity with all, any, and har^y °* the several prayers wherein the defendant’s counsel so prayed the court to instruct the jury as matter of law. and n C0^?se1J $°r the defendant insisted, as matter of law, foliows^6^ COUr^ t° charge and instruct the jury as irst. That shawls and scarfs suitable and adapted in the 275 259 SUPREME COURT. Maillard et al. v. Lawrence. state they are imported, to be worn by women on the person, as an article of dress, and usually so worn by women in the United States, are “wearing apparel,” “made up,” or manufactured wholly or in part, by the tailor, seamstress, or manufacturer, within the true meaning of schedule C, of the Tariff Act of the 30th of July, 1846, and are properly chargeable with the duty of thirty per centum ad valorem, prescribed by said schedule C. Second. That shawls and scarfs of the description above named are not the less wearing apparel, made up or manufactured wholly or in part by the tailor, seamstress, or manufacturer within the true meaning of the said schedule, though sometimes purchased by clothiers and tailors to be made up into vests, dressing-gowns, and other garments, as testified to by the witnesses for the plaintiffs in this case. Third. That shawls and scarfs of the description above named are wearing apparel, made up or manufactured wholly or in part by the tailor, seamstress, or manufacturer, within the true meaning of the said schedule C, notwithstanding, at the date of the passage of the said act of July, 1846, they may not have been called or known by commercial men in trade and commerce by the name of wearing apparel. Fourth. That whatever may have been, at the date of the said act, the definition given by commercial men to the term “ wearing apparel,” shawls and scarfs of the description above named are nevertheless wearing apparel, made up in whole or in part by the tailor, seamstress, or manufacturer, within the true meaning of the said schedule C. . Fifth. That shawls or scarfs suitable and adapted in their state as imported, to be worn by women and children, ot whatever material composed, having fringes added by hand to the body of the shawls after the same has come from the loom, with sticks or needles, or other such implements, a -though according to commercial usage and understanding that said articles are not thereby charged in their commercial sense or acceptation, are articles worn by women an children made up or made wholly or in part by hand wit in the true meaning of the said schedule C, and are there ore chargeable with the duty of thirty per centum ad valorem, prescribed by said schedule C. . . *Sixth. That shawls and scarfs of the descrip i -* above named, in the fringes of which, after t ie > y of the shawls has come from the loom, knots are ™a e J, hand as a part of such fringes, or the fringes ot w 10 twisted or otherwise completed by hand, althoug a®c ar0 to commercial usage and understanding the said ai ic 276 DECEMBER TERM, 1853. 260 Maillard et al. v. Lawrence. not, hereby changed in their commercial sense or acceptation, are, nevertheless, articles worn by women and children, made up or made wholly or in part by hand, within the true meaning of the said schedule C, and are therefore chargeable with the duty of thirty per centum ad valorem, prescribed by the said schedule C. And thereupon his honor, the presiding judge, charged the jury in accordance with the several prayers in conformity with which the defendant’s counsel had insisted as matter of law. And thereupon the counsel for the plaintiffs excepted to said ruling of the court upon each of the said prayers. In construing the provision of schedule C, we think that its meaning cannot be easily misconceived, if the rule of interpretation be drawn from the ordinary and received acceptation of its language, or from any regard to the sensible and consistent application of its words. It is obvious, that by the phrase “ clothing ready-made, and wearing apparel of every description,” the legislature did not mean to limit the enumeration to such habiliments as were either by necessity or by a regard to comfort or utility required to be changed from their original shape or fashion, and reshaped and reconstructed in order to adapt them to the human body, or to the purposes of life. Such a construction would render the member of the sentence immediately following and connected with the the former by the copulative conjunction, and designing to introduce a new class of subjects, altogether absurd, and wholly inoperative. It must be understood as being the intention of the legislature to add to “ clothing ready-made,” in the acceptation above given, every article which in its design and completion and received uses, is an article of wearing apparel, and to comprise such article within schedule .J?* aC^ no matter of what material composed, ei/leF *n whole or in part, or by whom composed or made up, whether by the tailor, sempstress, or manufacturer. The question to be determined has no relation either to material, or process, or agent, but exclusively to the origin and pur-P°®e8.°l.tne subject of the duty imposed as being in its design 111 its finished condition “wearing apparel.” Simply, in er words, whether shawls are wearing apparel. in^y <--e several prayers pressed upon the Circuit Court for dirpoi6^1?.118 l° .iury, the object to which they are all Ipchi; e 4. a~. een the diversion of the jury from this the only to Rnkri ln(llai’y Before them. The effort has been Ponular 1 U 6 "*°r ^le literal and lexicographical and E meaning of the phrase “ wearing apparel,” some sup-277 261 SUPREME COURT. Maillard et al. v. Lawrence. posed mercantile or commercial signification of these words, and to render subservient to that signification what was clearly accordant with the etymology of the language of the statute, with the essential purposes and action of the government, and with the wide-spread, if not the universal understanding, of all who may not happen to fall within the range of a limited and interested class. In instances in which words or phrases are novel or obscure, as in terms of art, where they are peculiar or exclusive in their signification, it may be proper to explain or elucidate them by reference to the art or science to which they are appropriate; but if language which is familiar to all classes and grades and occupations—language, the meaning of which is impressed upon all by the daily habits and necessities of all, may be wrested from its established and popular import in reference to the common concerns of life, there can be little stability or safety in the regulations of society. Perhaps within the compass of the English language, and certainly within the popular comprehension of the inhabitants of this country, there can scarcely be found terms the import of which is better understood than is that of the words “ shawl ” and “ wearing apparel,” or of “ shawl ” as a familiar, every day and indispensable part of wearing apparel. And it would seem to be a most extravagant supposition which could hold that, in the enactment of a law affecting the interests of the nation at large, the legislature should select for that purpose language by which the nation or the mass of the people must necessarily be misled. The popular or received import of w’ords furnishes the general rule for the interpretation of public laws as well as ot private and social transactions; and wherever the legislature adopts such language in order to define and promulge then action or their will, the just conclusion from such a cj)U1^e must be, that they not only themselves comprehended the meaning of the language they have selected, but have chosen it with reference to the known apprehension of those to w10m the legislative language is addressed, and for whom 1 1S designed to constitute a rule of conduct, namely, the com munity at large. If therefore the strange concession weie admissible that, in the opinion of a portion of the meican men, shawls were not considered wearing apparel, it w^u still remain to be proved that this opinion was sustame y the judgment of the community generally, or that t ic eg lature designed a departure from the natural and pop acceptation of language. „ , . Another position pressed upon the Circuit Cour m of the plaintiffs in error, as is shown by the evi en 278 DECEMBER TERM, 1853. 261 Maillard et al. v. Lawrence. by one *of the prayers to the court, was this: “ that shawls, in the form in which they are fashioned and *-finished by the manufacturer, could not properly be termed wearing apparel, because they are by tailors and clothiers frequently purchased to be worked up into vests and other garments. This position might, with equal propriety, be urged with reference to any article of wearing apparel whatsoever which should be diverted from its primal and regular use and design. The consistency and force of this argument, if such it deserves to be called, may be aptly illustrated by the account of the varied uses of a familiar article of wearing apparel found in a poetical description of the privations and expedients of a needy author, in which we read that, “A stocking decked his brow instead of bay, A cap by night, a stocking all the day.” According to the logic of the position last referred to, a stocking transferred into a night-cap is shown never to have been a stocking, and therefore never wearing apparel, notwithstanding its primitive denomination, the design for which it was knit or woven; or the offices to which it may have been usually applied. To the rulings of the Circuit Court upon the prayers presented on behalf of the plaintiffs and defendants respectively, we deem it unnecessary to apply a separate comment. It is sufficient here to remark, that upon a deliberate examination of those rulings, in reference to the facts and features of the case, we accord to the former our entire sanction, as being coincident with the principles laid down in this opinion, and with a just interpretation of those clauses of the statute under color of which this action was instituted. We therefore adjudge that the decision of the Circuit Court be, and the same is hereby affirmed. ORDER. This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the outhern District of New York, and was argued by counsel, /r ,COI\s^era^on whereof, it is now here ordered ' and a Ju ged by this court, that the judgment of the said Circuit ln cause be, and the same is hereby affirmed, with costs. " 279 263 SUPREME COURT. Bartlett v. Kane. *EDWLN BARTLETT, PLAINTIFF IN ERROR, V. GEORGE 2631 P. Kane. By the Tariff Act of 1842, the custon-house appraisers are directed to ascertain, estimate and appraise, by all reasonable ways and means in their power, the true and actual market value of goods, &c., and have power to require the production, on oath, of all letters, accounts, or invoices relating to the same. If the importer shall be dissatisfied with the appraisement, he may appeal to two merchant appraisers. Where there was an importation of Peruvian bark, and the appraisers directed a chemical examination to be made of the quantity of quinine which it contained, although the rule may have been inaccurate, yet it did not destroy the validity of the appraisement. The importer having appealed, and the appraisers having then called for copies of letters, &c., the importer withdrew his appeal without complying with the requisition. The appraisement then stands good.* 1 The appraisers having reported the value of the goods to be more than ten per cent, above that declared in the invoice, the collector assessed an additional duty of twenty per cent, under the eighth section of the act of 1846 (9 Stat, at L., 43). This additional duty was not entitled to be refunded, as drawback, upon reexportation.2 This case came up by writ of error, from the Circuit Court of the United States for the District of Maryland. It was an action brought by Bartlett against Kane, who was the collector of the port of Baltimore; for the refunding of certain duties alleged to be illegally exacted upon the importation of Peruvian bark. The circumstances of the case are fully stated in the opinion of the court. It was argued by Mr. Brune and Mr. Brown, for the plaintiff in error, and by Mr. Cushing, (Attorney-General,) for the defendant. The points and authorities relied upon by the counsel for the plaintiff in error, were the following: 1st. That the true dutiable value of the goods imported bj the plaintiff in error, which were the production of Bolivia, and exported from that country by Messrs. Pinto & Co., o whom they belonged, was their market value in Bolivia, a the time of their procurement by Messrs. Pinto & Co. 2d. That if said goods are to be considered as exported rom Peru, their true dutiable value was their market value in 1 S. P. Schmaire v. Maxwell, 3 Blatchf., 408; lasigi v. The Collector, 1 Wall., 375; Belcher v. Linn, 24 How., 508. 280 2 Reviewed. Stairs v. Peaslee,™ How., 524. S. P. Spence v. United States, Dev. C. C., 76. DECEMBER TERM, 1853. 263 Bartlett v. Kane. Bolivia at the date of their exportation from Peru ; and the court below, which seems to consider them as exported from Peru, then erred in declaring that the law in such case fixes the duties upon the market value at the place of exportation. 3d. That as Bolivia was not an open market in which bark could be purchased during the continuance of the contracts between Pinto & Co. and the Bolivian government, the cost *price to Messrs. Pinto & Co. of the said goods, under their contracts of monopoly with the Bolivian govern- 1 inent, must be esteemed the market value of said goods in Bolivia, for the purpose of fixing the dutiable value of said goods, whether considered as exports from Bolivia or Peru. 4th. That the invoice value of said goods which was declared on the entry, and upon which duty was then paid by the agents of the plaintiff in error, is clearly shown, by the evidence, not only to have been greater than the cost price to Messrs. Pinto & Co. under their said contracts, but was also fully equal to the value of such goods in the markets of Peru up to the period of their shipment from that country. Sth. That whatever may be the rule of law establishing the true dutiable value of said goods, their dutiable value as mentioned in the invoice, duly verified and declared on the entry, must be deemed their true dutiable value until superseded by a valid appraisement, fixing a different value. 6th. That the appraisement by which the dutiable value of the said goods was raised, and the importer was subjected to the additional duty prescribed by the eighth section of the act of 1846, was illegal and void, and the duties thus claimed and paid under said appraisement, were illegally exacted. 7th. That the court below erred in refusing the plaintiff’s second prayer, and in the opinion which was given to the jury, y which it decided as a matter of law, and without submit-ing any facts to be found by the jury that said appraisement was valid.. th non-compliance of the plaintiff in error with ti e I®5u^emenfs the appraisers, contained in their letter of e th of October, 1849, did not make valid the illegal ap-piaisement of his goods, previously made, and then still appealed from. 1 nlS coin’f below erred in refusing to grant the whiM?’*8 ton’d and fourth prayers; and also in the opinion withr, t ^Ve’. -Y which it instructed the jury absolutely, and . nlaint^p ^bnntting any facts to be found by them, that the annraica J118 con(fucf’ bad fixed the correctness of the said appraisement. 10th. That the court erred in rejecting the plaintiff’s fifth 281 264 SUPREME COURT. Bartlett v. Kane. prayer, and in instructing the jury that the plaintiff was not entitled to recover any part of the sum exacted by the defendant in error, as additional duty under the eighth section of the act of 1846, upon the goods entered by the plaintiff for warehousing and subsequently exported. To maintain the first seven points, having reference to the true dutiable value of the goods, and the invalidity of the *96^1 *appraisement by which this value was raised, the -* plaintiff in error relies on the following acts of Congress: 1818, c. 79, 3 Stat, at L., 433, and particularly to §§ 3, 4, 5, 9, 11, 12, 15, 16 and 17; 1823, c. 21, 3 Stat, at L., 729, §§ 4, 5, 7, 8, 13, 14, 15, 16, 18, 19, 21; 1828, c. 55, 4 Stat, at L., 270, §§ 8, 9; 1830, c. 147, 4 Stat, at L., 409, §§ 1, 2, 3, 4; 1832, c. 227, 4 Stat, at L., 583, §§ 7, 8, 15; 1833, c. 55, 4 Stat, at L., 629, § 3 ; 1842, c. 270,5 Stat, at L., 548, §§ 16, 17, 21, 22, 23, 24; 1846, c. 74, 9 Stat, at L., 42, §§ 1, 8, 11, schedule F. And, by way of illustration, to the act of 1851, c. 38,9 Stat, at L., 629. And the Treasury Circular of the 27th of March, 1851, construing the same. And the following authorities: Tappan v. The United States, 2 Mason, 396; Tappan v. The United States, 11 Wheat., 420 to 427; Tracy v. Swartwout, 10 Pet., 94, 95; Elliot v. Swartwout, Id., 153-157; Marriott v. Brune, 9 How., 634, 635; Greely v. Thompson, 10 Id., 225-241; Maxwell v. Griswold, lb., 247 to 254; Reggio v. Greely, Mss. Mass. Circuit, June, 1851; Grinnell v. Lawrence, 1 Blatchf., 348-350. To maintain his 8th and 9th points, the plaintiff in error refers to 1823, c. 21, 3 Stat, at L., 729, §§ 16,17; 1830, c. 147, 4 Stat, at L., 409, § 3; 1832, c. 227, 4 Stat, at L., 583, §§ 7, 8; 1842, c. 270, 5 Stat, at L., 548, §§ 16, 17; 1848, c. 70, 9 Stat, at L., 237. . And to Tappan v. The United States, 2 Mason, 403; Grannell v. Lawrence, 1 Blatchf., 350; Tucker v. Kane, Mss. Md. Circuit; Reggio v. Greely, Mss. Mass. Circuit, June, 1851, Watson on Arbitrations, 59 Law Lib., 36; Russ. Arb., 63 lb., 151; Tracy v. Swartwout, 10 Pet., 95-96; Marriott n. Brune, 9 How., 634; Greely v. Thompson, 10 Id., 229-238. To maintain his 10th point he refers to the acts 9, c. 22, 1 Stat, at L., 627, particularly §§ 56, 75, 76, 77, 78,80, , 84; 1816, c. 107, 3 Stat, at L., 310, § 4; 1818, c. 129,3 btat. at L., 467; 1823, c. 21, 3 Stat, at L., 729, §§ 28-37; 1830, c. 147, 4 Stat, at L., 409. § 5; 1842, c. 270, 5 Stat, at L., bio, §§ 12, 13, 15 ; 1846, c. 7, 9 Stat, at L., 3, § 3; 1846, c. 84,9 Stat, at L., 53, §§ 1, 2; Treasury Circular of 12th June, 184/, Tremlett v. Adams, 13 How., 303. 282 DECEMBER TERM, 1853. 265 Bartlett v. Kane. The Attorney-General contended : The said appraisement was final and conclusive upon the withdrawal of the appeal. After enumerating the statutory provisions upon the subject, he said, From the enactments of the statute, it is clear that the *appraisement by the custom-house appraisers becomes final and conclusive upon either of these events; by L the failure of the owner, importer, or consignee, to ask an appeal to merchant appraisers, or by withdrawing that appeal after taken, or by refusing to produce the letters or accounts relating to the goods imported. The statute cannot be evaded by taking an appeal and then withdrawing it, with notice of an intent to bring the question of the true market value before the judicial tribunals; nor by taking an appeal, refusing to produce the letters and accounts required, and withdrawing the appeal under protest against the appraisement appealed from, with notice that the appellant means to contest the appraisement and present his documents, called for by the appraisers, before a tribunal other than the merchant appraisers. The statute has provided the appellate tribunal to settle finally the question of the true market value of the goods when the importer, owner, or consignee is dissatisfied with the appraisement, by the custom-house appraisers. That final appellate tribunal is to consist of merchants, “ two discreet and experienced merchants, citizens of the United States, familiar with the character and value of the goods in question.” The ingenuity of the plaintiff cannot draw this question ad dliud examen. . . e plaintiff says, “ In looking more carefully to the requisition of your appraisers of bark per St. Joseph, I find that I shall have to have copied and translated a mass of correspondence from January last, when it was shipped, to August, (tor reference to it is made in all my letters from Pinto & °., and Alsop & Co.); and in order the more fully to ex-p am Pinto & Co.’s mode of invoicing their bark, I shall have o present a series of documents, commencing in 1847, with ' ®lr contract with the Bolivian government, proving its ac ual cost to be about $60 per quintal: all these are necessary to make out my own case, and I am unwilling to pre-wh< t eSS ^he documents. I do not see, however, of alro. r>USe can present to the appraisers, who have rpfnt \ m,^e UP their valuation of the bark, and made a tion 11 n 0 the collector. I shall therefore defer the presenta- 0 my documents for another tribunal, and not lose 283 266 SUPREME COURT. Bartlett v. Kane. more time in delivering the bark to the purchaser. I wish you to inform the collector that by my instructions your appeal is withdrawn, and that you are prepared to pay, under protest, whatever duties may be exacted on the bark. ... At leisure we can then test the question of this exaction.” In plaintiff’s second letter to his agents, he says: “ One reason I have for taking the course directed in my letter of this date is, that my counsel informs me that I can more easily get the bark case into court before the appeal appraise-*9«71 ment be resorted *to than afterwards. Some of our J judges have held that an appeal appraisement is final and conclusive.” The plaintiff professed not to see what use could be made of the letters and correspondence called for after the appraisement by the custom-house appraisers had been reported to the collector. It would have been useful evidence before the merchant appraisers if the plaintiff had not withdrawn his appeal rather than to produce those letters, accounts, and correspondence. They might have enlightened the merchant appraisers. They might have enlightened the custom-house appraisers to amend or correct their report to the collector, for the duties were not then fixed and imposted. Did the plaintiff conjecture that the merchant appraisers, to whom he had appealed, were to decide without hearing any evidence? That the government was debarred from introducing evidence to sustain the appraisement appealed from ? The pretences in the plaintiff’s letter of inability to see the use to be made of the letters and correspondence called for; that he would “ defer the presentation of the documents for another tribunal ” than the merchant appraisers, and that he could “more easily get the bark case into court before the appeal appraisement be resorted to than afterwards,” cannot enable the plaintiff to evade the force and effect of the seventeenth section of the act of 1842. The “ actual market value or wholesale price,” at the time when the article was purchased, in the principal markets 01 the country from which the same shall have been importe into the United States, is a question of fact, not of law. The sixteenth and seventeenth sections of the act quo e plainly make the ascertainment of that fact an execuive function; an administrative, not a judicial process. particular executive and administrative jurisdiction an process are carefully specified in the law in a manner exclude all other jurisdictions, and to make the ascer a 284 DECEMBER TERM, 1853. 267 Bartlett v. Kane. ment of the fact, by that particular jurisdiction, “ final and conclusive.” The statute, if the owner, importer, or consignee be dissatisfied with the appraisement of the goods, has given a remedy by an appeal, “forthwith,” to merchant appraisers: Express™ unius est exclusio alterius. The express mention of the one remedy is the exclusion of another. Co. Litt., 210; Broom’s Leg. Max., 515, 516; The King v. Cunningham, 5 East, 478, 480; The King v. The Justices of Surrey, 2 T. R., 510; Cates v. Knight, and Same v. Mellish, 3 Id., 444. The fact to be thus ascertained is of vital importance to the revenue. The means given are necessary to protect the revenue from diminution by evasions and frauds requiring promptitude. *The Congress have intended that the fact shall be speedily ascertained and adjusted, finally L and conclusively fixed “forthwith,” as quickly as may be after the master of the vessel shall have made entry of the cargo, as it were velis levatis ; for it is a fact preceding the computation and payment of the duties; in its nature, purpose, and effect, an executive and administrative business. The views and ends intended in this respect cannot be answered by the dilatory proceedings of the courts. II. No drawback is recoverable of the penal duty of twenty per cent, in addition to the regular duty inflicted by law, and paid on one hundred and twenty-five seroons of bark afterwards reexported from the port of Baltimore to foreign parts. The duty of fifteen per cent, ad valorem has been refunded upon the seroons of bark so reexported to foreign parts. .. Th is question as to the penal duty is so plain, as to afford little room for argument. The twenty per cent, is a rated penalty, inflicted for an attempt to defraud the revenue by an invoice and entry of the goods at the custom-house at an under-value. After the fact committed, the fraud detected, and the pena ty paid, the party cannot demolish the fact, wipe out e laud, and claim that the penalty shall be remitted be-ekUS^l- e bas found it for his interest to reexport the mer-staf1 <-1Se+u° fopeign country. By such a construction of the tn n«,e’j e aw would be stripped of its sanction, and terror to offenders. (Ar.]1 yxP^^Uuction given by the Secretary of the Treasury, the enii ?er,) in his circ«lar of the 12th of June, 1847, to ™ “llectors pp. 86, 87, is, that this is a “penal duty.” . . . pena duty is not a subject of drawback, and cannot be 285 2G8 SUPREME COURT. Bartlett v. Kane. returned on debenture ” ; . . . “ such penalty is never returned on exportation of such goods.” On October 25, 1849, plaintiff applied to the Secretary of the Treasury (Mr. Meredith) for instructions to the collector to return “ the excess of duty above that which would have accrued on the original and true invoice of the bark,” pp. 13 to 15. To this the Secretary wrote to the collector the letter of February 14, 1850, p. 15, and to the plaintiff the letter of same date, p. 16, in which he instructed the collector, and answered the plaintiff, “ that the ‘ additional duty ’ imposed in all cases of under-valuation, to a certain extent, was intended, and must be considered as entirely distinct in character and object from the regular tariff rates of duty exclusively in view when the law regulating the drawback of duties was enacted ; and that consequently no return of such ‘ additional duty ’ could be legally made as debenture. It is thought proper to add, that the practice heretofore pursued, under the instructions of the department, has been uniformly governed by these views.” *2691 *Tlie views above quoted are not binding on this court. As contemporaneous constructions of the department charged by law with superintending the collection of the revenue from customs, however, they will draw forth the serious deliberations of this court, and will be suffered to stand unless some good cause can be found to the contrary. Mr. Justice CAMPBELL delivered the opinion of the court. This suit was commenced by the plaintiff as consignee of six hundred and fourteen seroons of Peruvian bark imported into the port of Baltimore, and entered at the custom-house, for an excess of duties charged by the defendant as collector, and paid under protest. Two hundred seroons of the first quality were entered for consumption, and the remainder for warehousing. On the 4th of October, 1849, the appraisers ot the custom-house reported the value of the invoice to be ten per cent., and more, above the value declared by the agents of the plaintiff who made the entry, and in consequence tie collector, besides the legal duty of fifteen per cent, ad valorem, assessed an additional duty of twenty per cent, under e eighth section of the act of 1846, 9 Stat, at L., 43, c. 74, or undervaluation. On the 6th of October, 1849, the duly protested against the appraisement, and requested a the case might be submitted to merchant appraisers, as pi vided by law. After notice of the appeal, the same day, permanent appraisers required the plaintiff “to pro uce 286 DECEMBER TERM, 1853. 269 Bartlett v. Kane. their correspondence, letters, and accounts, relative to the shipment, and to make a deposition that the documents furnished were all that he had concerning the shipment.” In reply to this, some five days after, the plaintiff instructed his agents that it would be tedious and difficult to comply with the requisition, in consequence of the volume of the correspondence, says he cannot understand what use the appraisers could make of them, as they had made their report; that he should defer their presentation for another tribunal, and that he withdraws his appeal, and will pay the duties under protest. He still insists upon the overvaluation, but offers to settle at that rate, provided the additional duty is not charged. He says that this exaction is illegal, and they can test it at their leisure. That he had been advised that an appeal appraisement might interfere with his rights in a court of justice. These letters of the plaintiff were submitted to the permanent appraisers, who replied they could make no alteration of their estimate, and the appeal of the plaintiff was withdrawn. The plaintiff paid the entire duties exacted upon the appraised value of the entire import, including those entered lor consumption as *well as warehousing, and an ad-ditional duty of twenty per cent, for undervaluation. *-These sums were paid under protest. A portion of the bark was exported, and upon this the plaintiff became entitled to drawback, which was paid to the extent of the regular duty, but the additional duty was not refunded. I he complaint of the plaintiff is, that the appraisers, instead of estimating the value of the Peruvian bark, according to the cost price in the markets of its production, under the directions of the Secretary of the Treasury, caused a chemical analysis of samples to be made to ascertain the quantity of sulphate of quinine it contained, and, having ascertained its relative intrinsic value with other imports of the same article, regulated its appraised value by a comparison with the cost " such imports. The facts and the complaint were submitted °hu Secretary °f the Treasury, who replied as follows: , , .■ from the report of the United States appraisers, a e 20th October last, that the dutiable value of the article on %ues .on having been estimated and sustained by them in pyp °\m*ty with law, it was found that the appraised value ent?6 e by ten per cent, or more, the value declared in the p an(i that an appeal from this appraisement, entered by thpRp11^01 e1’ Was su.hse(luently withdrawn by him. Under annr£>1'?11CUmiS'ances necessarily follows that the original PP erne nt, made by the United States appraisers, is to be 287 270 SUPREME COURT. Bartlett v. Kane. taken as final and conclusive in determining the dutiable value, and that such value, exceeding by ten per cent, or more the value declared in the invoice and entry, the ‘additional duty ’ of twenty per cent., as provided in the eighth section of the Tariff Act of 1846, is chargeable under the law, in addition to the regular tariff rate of fifteen per cent, ad valorem, levied on the enhanced value of the article in question. A supplemental question in reference to this importation having been submitted to the department, under date of 7th instant, namely, whether the importer is not entitled to the return of that portion of the ‘ additional duty ’ paid on that part of the importation withdrawn from the warehouse by the importer, and exported from the United States, I have to advise you that, upon a careful examination of the subject, it is the opinion of the department that the ‘additional duty’ imposed in all cases of undervaluation, to a certain extent, was intended, and must be considered as entirely distinct in character and object from the regular tariff rates of duty exclusively in view when the.laws regulating the drawback of duties were enacted; and that, consequently, no return of such ‘ additional duty ’ could be legally made as debenture. It is thought proper to add, that the practice heretofore pursued under the instructions of the department has been uniformly governed by the views.” .. *Much evidence was given at the trial to prove that -* the value declared by the agents of the consignee at the time of the entry was strictly accurate, and that the rule of valuation adopted at the custom-house was deceptive, and injurious to the importer. The conclusions of the Secretary of the Treasury, as before set forth, were sustained in the Circuit Court, and form the subject for examination in this court. By the sixteenth section of the Tariff Act of 1842, (5 Stat, at L., 563, c. 270,) it is prescribed to the appraisers, by all reasonable ways and means in his or their power, to ascei-tain, estimate, and appraise the true and actual market value, and wholesale price, any invoice or affidavit thereto to w contrary notwithstanding, of the said goods, wares, and mei chandise, at the time purchased, and in the principal mar e s of the country wherever the same shall have been impor et into the United States, with the proviso, that whenever e same shall have been imported into the United States rom < country in which the same have not been manufacture an produced, the foreign value shall be appraised ana estima according to the current market value, or wholesale PrlP® similar articles at the principal markets of the country o p 288 DECEMBER TERM, 1853. 271 Bartlett v. Kane. duction or manufacture at the period of the exportation of said merchandise to the United States. The seventeenth section of the act authorizes the appraisers to call before them, and examine upon oath the owner, importer, consignee, or other person, “touching any matter or thing which they may deem material in ascertaining the true market value, or wholesale price of any merchandise imported, and to require the production on oath to the collector, or to any permanent appraiser of any letters, accounts, or invoices in his possession relating to the same, for which purpose they are hereby respectively authorized to administer oaths and affirmations; and if any person so called shall neglect or refuse to attend, or shall decline to answer, or shall, if required, refuse to answer in writing any interrogatories, or produce such papers, he shall forfeit and pay to the United States the sum of one hundred dollars; and if such person be the owner, importer, or consignee, the appraisement which the said appraisers . . . may make of the goods, wares, and merchandise, shall be final and conclusive, any act of Congress to the contrary notwithstanding....... o “Provided that if the importer, owner, agent, or consignee of any such goods shall be dissatisfied with the appraisement, and shall have complied with the foregoing requisitions, he may forthwith give notice to the collector, in writing, of such dissatisfaction, on the receipt of which the collector shall select two discreet and experienced merchants, citizens of the United *States, familiar with the character and value [-*970 of the goods in question, to examine and appraise the *-same agreeably to the foregoing provision; and if they shall disagree the collector shall decide between them, and the appraisement thus determined shall be final, and deemed and taxen to be the true value of the said goods, and the duties shall be levied thereon accordingly, any act of Congress to the contrary notwithstanding.” Ihe plaintiff contends that the rule of appraisement by w nch the dutiable value of the said goods was raised, and 1 ie importer was subjected to the additional duty prescribed yi+b eT• section °.f the act of 1846, was illegal and void, -n ^uVes fhus claimed and paid under said appraisement egaP7 exacfcd.. It may be admitted that the rule, if would in many cases lead to erroneous results, thia 2U • re^e^ upon as a safe guide in any case, but ment n^sion ^oes. no^ establish the nullity of the appraise-rea«nnoKi le aPPra^rs are appointed “with powers, by all Draise tk e,wals anc^ means, to ascertain, estimate, and ap- Vot a°tual market value and wholesale price ” vol. xvi—19 289 r 272 SUPREME COURT. Bartlett v. Kane. of the importation. The exercise of these powers involve knowledge, judgment, and discretion. And in the event that the result should prove unsatisfactory, a mode of correction is provided by the act. It is a general principle, that when power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter. The only question which can arise between an individual claiming a right under the acts done, and the public, or any person denying their validity, are power in the officer and fraud in the party; all other questions are settled by the decision made, or the act done by the tribunal or officer, whether executive, legislative, judicial, or special, unless an appeal is provided for, or other revision by some appellate or supervisory tribunal is prescribed by law.”1 United States v. Arredondo, 6 Pet., 691. The interference of the courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief; and we are satisfied that such a power was never intended to be given to them. Decatur v. Paulding, 14 Pet., 499. The interposition of the courts, in the appraisement of importations, would involve the collection of the revenue in inextricable confusion and embarrassment. Every importer might feel justified in disputing the accuracy of the judgment of the appraisers, and claim to make proof before a jury, months and even years after the article has been withdrawn from the control of the government, and when the knowledge *transacti°n has faded from the memories of its ' -* officers. The consignee, after he has been notified ot the appraisement, is authorized to appeal, and pending the appeal we can see no reason why he may not negotiate with the officers of the customs to correct any error in their judgment. We do not perceive a reason for holding that then control of the subject is withdrawn by the fact of the appea • The appeal is one of the reasonable ways and means allowe to the importer for ascertaining the true and dutiable va ue, paramount in its operation to any other when actually em ployed, but until employed not superseding those con e the officers. We think, therefore, that the permanent; appraisers under the sanction of the collector, (which is presumed,) when informed that their decision was con ,e ’ had the right to call for the production of the conespon , 1 Followed. Belcher v. Linn, 24 How., 522. Cited. Kimball v. The 290 Collector, 10 Wall., 453; United States v. Earnshaw, 12 Fed. Rep., lot. DECEMBER TERM, 1853. 273 Bartlett v. Kane. and that the plaintiff could not have prosecuted the appeal without a compliance with the requisition. In this case the plaintiff neither complied with the requisition nor prosecuted the appeal, but withdrew it, and settled the duties on the basis of the appraisement of the permanent appraisers. After this, we think he could not dispute the exactness of the appraisement. In Rankin v. Hoyt, 4 How., 327, being the case of a disputed appraisement, the jury found the invoice to be correct, and it was urged that the collector could not be justified in following the higher valuation of the appraisers. The court say “that an appraisal made in a proper case must be followed, or the action of the appraisers would be nugatory, and their appointment and expenses become unnecessary. The propriety of following it cannot, in such a case, be impaired by the subsequent verdict of the jury, differing from it in amount, as the verdict did not exist to guide the collector when the duty was levied, but the appraisal did, and must justify him, or not only the whole system of appraisement would become worthless, but a door be opened to a new and numerous class of actions against collectors, entirely destitute of equity. We say destitute of it, because, in case the importer is dissatisfied with the valuation made by the appraisers, he is allowed by the net of Congress, before paying the duty, an appeal and further hearing before another tribunal.” In the case before us the plaintiff withheld the information which might have satisfied the officers of the government, after a legal requisition upon him. He abandoned the claim for a hearing before “ persons familiar with the character and value of the goods in question,” “discreet and experienced merchants, and preferred a tedious and vexatious litigation. “ R6 ™inx’ as yas said by the court in the case above cited, e cannot with much grace, complain afterwards that any overestimate existed.” . .• W? shall now inquire whether, upon the reexporta- S °3 Jhe Peruvjan bark entered for warehousing, the «- 274 qAA'l-1 entitled to a return of the twenty per cent, of i lonal duty charged upon the portion so exported. Ipvvln^^/kr3^*011 °7 ^.be revenue laws upon the subject of iim'Lv t ditional duties, in consequence of the fact of an acfpd aaaAU-atlOn by the importer, shows that they were ex-imnorfpra ^couragements to fraud, and to prevent efforts by the acts th’0 jaPe the legal rates of duty. In several of cers of a441t10nal duty has been distributed among offi-and forfpHn2US OrnAS uPon the same conditions as penalties es. As between the United States and the 291 274 SUPREME COURT. Bartlett v. Kane. importer, and in reference to the subject of drawback and debenture, it must still be regarded in the light of a penal duty. The provision for the return of the duty upon a reexportation, formed a part of the system of regulations for importation and revenue from the earliest period of the government, and has always been understood to establish relations between the regular and honest importer and the government. It does not include, in its purview, any return of the forfeitures or amercements resulting from illegal or fraudulent dealings on the part of the importer or his agents. Those do not fall within the regular administration of the revenue system, nor does the government comprehend them within its regular estimates of supply. They are the compensation for a violated law, and are designed to operate as checks and restraints upon fraud and injustice. A construction, which would give to the fraudulent importer all the chances of gain from success, and exonerate him from the contingencies of loss, would be a great discouragement to rectitude and fair dealing. We are satisfied that the existing laws relating to exportations, with the benefit of drawback, do not apply to relieve the person who has incurred, by an undervaluation of his import, this additional duty from the payment of any portion of it. Our conclusion is, there is no error in the record, and the judgment of the Circuit Court is 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 Maryland, and was argued by counsel. On con-sideration whereof, it is now here ordered and adjudged y this court, that the judgment of the said Circuit Couit in this cause be, and the same is hereby affirmed, with costs. 292 DECEMBER TERM, 1853. 275 Carroll v. Lessee of Carroll et al. *Jane M. Carroll, Plaintiff in error, v. Les- r«o7r see of George W. Carroll, De Rosz Carroll, *- ' Robert D. Carroll, Charles W. Carroll, John M. Martin and America his Wife, and John Ford and Mary his Wife. By the common law of Maryland, lands of which the testator was not seized at the time of making his will, could not be devised thereby. In 1850, the legislature passed the following act: Sec. 1. Be it enacted, &c., That every last will and testament executed in due form of law, after the first day of June next, shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will. Sec. 2. That the provisions of this act shall not apply to any will executed, before the passage of this act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear that the real and personal estate which he or she may own at his or her death, should thereby pass. Sec. 3. That this law shall take effect on the first day of June next. In 1837, Michael B. Carroll duly executed his will, making his wife Jane, his residuary legatee and devisee. After the execution of his will, he acquired the lands in controversy, and died in August, 1851. The lands which he purchased in 1842 did not pass to the devisee, but descended to the heirs.1 The cases upon the subject examined. A distinction is to be made between cases which decide the precise point in question and those in which an opinion is expressed upon it, incidentally.2 Evidence that the name of the tract of land, conveyed by a deed, was the same with the name given in an early patent; that it had long been held by the persons under whom the party claimed ; and that there was no proof ■ of any adverse claim, was sufficient to warrant the jury in finding that the land mentioned in the deed was the same with that mentioned in the patent. Ine lessee of the plaintiffs having claimed, in the declaration, a term of fifteen years in three undivided fourth parts of the land, and the judgment being that the lessee do recover his term aforesaid yet to come and unex-Plfed, this judgment was correct. This case came up, by writ of error, from the Circuit Court oi the United States for the District of Maryland. it was an action of ejectment brought by the defendants For some purposes a will is considered to speak from the date of its aXe?Ktl^n’ and f°r others from the a!* °Lthe testator and not from its uate. ihe general rule is that a will ^Peaks from the death of the testator, ina;rer^ere ls nothing in its language ’’heating a contrary intention. When XS?Lrefers t0 an actual existing tial tn n,n^s’ the language is referen-- Wolentt «i^ue t’le Merriam v. VVolcott, 61 How. (N. Y.) Pr.,367. That a devise of lands will not pass lands acquired subsequently to the execution of the will, without a republication, see Jackson v. Holloway, 7 Johns. (N. Y.), 394; Jackson v. Potter, 9 Id., 312; Parker v. Cole, 2 J. J. Marsh (Ky.), 503. As to when after acquired property will pass, see Lent v. Lent, 24 Hun (N. Y.), 436. 2 Cited. Dred Scott v. Sandford, 19 How., 590. 293 275 SUPREME COURT. Carroll v. Lessee of Carroll et al. in error, as heirs of Michael B. Carroll, to recover three undivided fourth parts of all of three several tracts or parcels of plantable land, called, for the first of said three tracts, “Black Walnut Thicket” and “Content,” contiguous to each other, lying and being in Prince George’s county, in the State of Maryland, containing seven hundred acres, more or less; and called, for the second of said three tracts, “Addition to Brookfield,” situate, lying, and being in Prince George’s county aforesaid, containing one hundred and fifty acres, more or less; and called, for the third of said three tracts, “Lot No. 1,” being part of a tract of land called Brookfield, containing four hundred and fifty acres, more or less. *2761 *Carroll made a will in 1837, in which, after some -* legacies, he devised all the rest of his property, real, personal, and mixed, to his wife, Jane M. Carroll. In 1850, the legislature of Maryland passed a law, which is recited in the syllabus at the head of this report, and also in the opinion of the court. In August, 1851, Carroll died, upon which the present action of ejectment was brought by three of the four branches of his heirs, to recover three undivided fourth parts of the lands mentioned in the beginning of this report. The claim to the two latter tracts did not appear to have been prosecuted, but the controversy turned exclusively upon the title of the plaintiffs below to “Black Walnut Thicket” and “ Content.” Upon the trial in the Circuit Court the plaintiffs offered, in evidence, to support their title: 1. The patent for “ Black Walnut Thicket,” dated at the city of St. Mary’s on the 27th September, 1680, and the patent for “ Content,” dated on the 10th of August, 1753. 2. A deed from W. B. Brooke and others, to Michael B. Carroll, dated on the 29th of January, 1842, which purported to convey all those tracts, parts of tracts, or parcels of land lying and being in Prince George’s county, called “Blac' Walnut Thicket” and “Content,” contiguous to each other, and contained within the following metes and bounds, courses and distances, namely,.........(these were not identical wi i those of either patent). . 3. The plaintiff then proved possession, by Carroll, of e parcel of land described in the deed to him, from the da e o that deed until his decease; and also proved Posses?}2^ the same by those under whom Carroll claimed from • The defendant, by her counsel, then prayed the cour instruct the jury that there was no sufficient evidence in 294 DECEMBER TERM, 1853. 276 Carroll v. Lessee of Carroll et al. cause from which the jury could properly find that the land embraced in said deed, from said Walter B. Brooke and others, to said Michael B. Carroll, offered in evidence by the plaintiffs, is the same land, or parcel of the same lands, embraced in the said patents or in either of said patents. But the court refused said prayer, being of opinion that there was evidence in the cause proper to be left to the jury to determine whether the said land, mentioned in the deed, was the same, or part of the same, granted by the said patents. To which opinion of the court, and to the refusal of said court to grant the aforesaid prayer of the said defendant, the said defendant, by her counsel, prayed leave to except, and that the court would sign and seal this first bill of exceptions, according to the form of the statute in such case *made [-*977 and provided; and which is accordingly done this *-fourth day of December, 1852. R. B. Taney, [seal.] John Glenn, [seal.] Defendant’s second exception. The defendant then offered in evidence the last will and testament of Michael B. Carroll, dated on the 10th of September, 1837, by which, as has been before mentioned, he made his wife, Jane, his residuary devisee. Thereupon, upon the prayer of the plaintiff, the court gave the following instruction to the jury. If the jury find that the plaintiff, and those under whom he claims, have possessed and held the land called Black Walnut Thicket and Content, described in the deed from Walter B. Brooke and others, to Michael B. Carroll, dated 29, 1842, and that the said Michael B. Carroll died seized thereof August 30, 1851, and the lessors of the plaintiffs are his heirs at law, and that the said land is the same, ?LPar^ the same land mentioned in the patents for Black Walnut Thicket and Content, offered in evidence by the plaintiffs, then the plaintiffs are entitled to recover the land mentioned in the said deed, and that the same did not pass to the defendant by the said will of Michael B. Carroll. Io the giving of which said instruction the defendant, by ler counsel, prayed leave to except, and that the court wrould sign and seal this second bill of exceptions, according to the ^le s^u^e in such case made and provided; and wmcn is accordingly done this fourth day of December, 1852. R. B. Taney, [seal.] John Glenn, [seal.] °/7' the jury found the following verdict. r w . Who being impanelled and sworn to say the 295 277 SUPREME COURT. Carroll v. Lessee of Carroll et al. truth in the premises, upon their oath do say, the defendant is guilty of the trespass and ejectment in the declaration mentioned upon the tracts of the land therein stated, called Black Walnut Thicket and Content, in manner and form as the said lessee, John Doe, complains against her, and which is contained within the metes and bounds, courses and distances, set out and described in the paper hereto annexed, and made for that purpose a part of this verdict, being a deed from Wal ter B. Brooke, of Prince George’s county, and State of Maryland, Alexander Middleton and Elizabeth A. Middleton, his wife, of Charles county, and said State, to Michael B. Carroll, dated the 29th January, eighteen hundred and forty-two; and they assess the damages of said John Doe, lessee, by occasion of the trespass and ejectment aforesaid at one dol-*070-] larJ and as f° the other trespasses and *ejectment J upon the other tracts or parcels of land in said declaration, also mentioned, they find that the said defendant is not guilty. (Then followed the deed.) Upon which verdict the court entered the following Judgment. Therefore it is considered by the court here, that the said lessee, as aforesaid, do recover against the said Jane M. Carroll his term aforesaid yet to come and unexpired, of and in the said tracts of land called “Black Walnut Thicket ” and “ Content,” with the appprtenances in the district aforesaid, wherein the said Jane M. Carroll is, by the jurors above, found to be guilty of the trespass and ejectment aforesaid; and the sum of oiie dollar his damages by the said jurors in manner aforesaid assessed; and also the sum of by the court now here adjudged unto the said lessee for his costs and charges by him about his suit in this behalf expended, and that he have thereof his execution, &c. The case was argued by Mr. Schley and Mr. Alexander, for the plaintiff in error, and by Mr. Nelson and Mr. Johnson, or the defendants in error. Before stating the points made by the counsel for the plaintiff in error, it is proper to mention that at Decern ei term, 1853, of the Court of Appeals of Maryland, a case came before that court, where a bill was filed by the execu ois Mrs. Carroll, (who died in 1853,) against the adminis ra de bonis non of Mr. Carroll and his heirs at law. 1_ tion was whether an injunction ought to be grante o p vent the sale of the negroes of Michael B. Carroll, w ic s had been ordered by the Orphans’ Court of Prince S 296 DECEMBER TERM, 1853. 278 Carroll v. Lessee of Carroll et al. county. In the opinion given by the Court of Appeals, in that case, it was held that the will of Mr. Carroll fell within the provisions of the act of the legislature of Maryland, and , consequently that the land was devised to his wife. The points on behalf of the plaintiff in error, in this court, upon the construction of the statute, were, 1. That (apart from the controlling effect of the decision of the Court of Appeals of Maryland upon the said act, and in relation to this very will) the said act, upon its true construction, does include the said after-acquired land. 2. That whatever might be the decision of this court, if the question were undecided, yet the decision of the highest tribunal in Maryland, upon a statute of that State, will be respected by this court as a true and binding construction thereof. On the 1st point, the following authorities were cited: Broom, Leg. Max., 246; Fowler v. Chatterton, 19 Eng. Com. L., 75; Culley v. Doe d. Taylerson, 39 Id., 307; Freeman v. Moyes, 28 Id., 103 ; Angell n. Angell, 58 Id., 328; Brooks v. *Bockett, Id., 855; 64 Id., 121; Cushing v. Aylwin, 12 Mete. (Mass.), 169; Pray v. Waterston, Id., 262; *-Tuck $ Magruder v. Carroll, MS. Court of Appeals of Maryland, at December term, 1853. On the 2d point: Grreen v. Neal, 6 Pet., 291; and succeeding cases to the same point. The counsel for the plaintiff in error also referred to the following error. The plaintiff below only claimed three undivided parts of the land described in the declaration. By inadvertence the court s instruction asserted, upon the hypothesis of the prayer, the plaintiff’s right of recovery of the entirety, and the verdict and judgment were conformable to the instruction. The points on behalf of the defendant in error, were : ^le Prayer °f plaintiffs in error itself conceded hat there was evidence from which the jury might find, as • find, that the lands were the same as were included ‘U m Pa^enfs’ and that it should therefore have been re-jec ed, because where there is any evidence the jury is to emde on its sufficiency and not the court. econd. That the evidence before the jury not only tended to establish the facts, but was conclusive. bra , et the will of Michael B. Carroll did not etn-its rT + Tecovered, because they were acquired after Hnfa a ea was the settled law of Maryland at that ’ an was, at the time of his death, also the law as far as 297 279 SUPREME COURT. Carroll v. Lessee of Carroll et al. wills executed at such a time, when the testator died when this testator died—such a will not being included within the act of Maryland of 1849, c. 229, passed the 22d of February, * 1850. Before that statute, after-acquired real estate did not pass. Kemp’s Executors v. McPherson, 7 Harr. & J. (Md.), 320. Statutes are not to be construed to have a retrospective operation. Prince v. United States, 2 Gall., 204; United States n. Schooner Peggy, 1 Cranch, 103 • Butler n. Boarman, 1 Harr. & M. (Md.), 371. Mr. Justice CURTIS delivered the opinion of the court. This action of ejectment was brought in the Circuit Court of the United States for the District of Maryland, to recover three undivided fourth parts of three tracts of land lying in Prince George’s county, in that State. Both parties claimed under Michael B. Carroll; the plaintiffs as heirs at law, the defendant as devisee. It appeared at the trial, in the court below, which was had at the November term, 1852, that on the 10th day of September, 1837, Michael B. Carroll duly executed his last will, the material parts of which are as follows: *980"l *To my dear wife, Jane, I give and bequeathe all -I my slaves, and do request that none of them may be sold or disposed of for the payment of my debts, but that provision shall be made for discharging the same out of the other personal property and effects which I shall leave at the time of my death. All the rest and residue of my property, both real, personal, and mixed, I give, devise, and bequeathe to my said wife, Jane, who I do hereby constitute and appoint sole executrix of this my last will and testament, enjoining it upon her nevertheless to consult and advise with the said John B. Brooke, as occasion may require, respecting the settlement ot estate, and make him a reasonable compensation for the same out of the funds hereinbefore bequeathed to her; and I do hereby revoke and annul all former wills by me heretofore made, declaring this, and none other, to be my last will an testament. . ... It further appeared, that after the execution of this wi , Michael B. Carroll acquired other lands, and the plaintiffs, as heirs at law, claimed to recover three undivided fourth par s thereof as undevised land. The defendant insisted that t ese, together with all the other lands of the testator, passe her under the residuary clause of the will. She admi that, by the common law of Maryland, lands of whic 298 DECEMBER TERM, 1853. 280 Carroll v. Lessee of Carroll et al. testator was not seized at the time of making his will, could not be devised thereby, but insisted that an act passed by the legislature of Maryland, on the 22d day of February, 1850, so operated as to cause this will to devise the lands to her. That act is as follows: Section 1. Be it enacted by the General Assembly of Maryland, That every last will and testament, executed in due form of law, after the first day of June next, shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will. Section 2. And be it enacted, that the provisions of this act shall not apply to any will executed before the passage of this act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear that the real and personal estate which he or she may own at his or her death, should thereby pass. Section 3. And be it enacted, That this law shall take effect on the first day of June next. It is argued by the counsel for the devisee that the first section of this act was intended to prescribe a new rule of construction of wills, and to fix the time when the courts should begin to apply that rule; that new rule being, that Wills of the *realty should be deemed to speak at the p^Qi time of the death of the testator; and the time when *-the courts should begin so to construe them, being the second day of June, 1850; and that the law should be so read as to mean that, after the first day of June, 1850, wills should be deemed to speak as if executed on the day of the testator’s death, unless a contrary intention should appear. To this construction there are insuperable objections. It would change the legal operation not only of existing wills, but of those which had already taken effect by the death of testators. It would make the same will, if offered in evidence on the 2d day of June, operative to pass after-acquired lands to a devisee, though if offered in evidence on the next preceding day it would be inoperative for that purpose. The object o the whole law concerning wills, is to enable the owners of property reasonably to control its disposition at their decease. °jC^?ls.e ^ie^r real intentions and wishes to be so expressed, an heir expression to be so preserved and manifested that ey can be ascertained and carried into effect, are the chief In.rposes 0 . legislation on this subject. So to interpret an vv;n?0I\Cernin^ wills as to cause those instruments to operate ou regard to the intent of the testator, having one effect 299 281 SUPREME COURT. Carroll v. Lessee of Carroll et al. to-day and another to-morrow, would not only be arbitrary and a violation of the principles of natural justice, but in conflict with what must be presumed to have been the leading purpose of the legislature in passing the law, the better to give effect to the intent of the testator. To induce the court to believe the legislature intended to ,make this law retroactive upon a will then in existence, and cause it to pass after-acquired lands without any evidence that the testator desired or believed that it would do so, and to fix a particular day, before which the will should not so operate, and on and .after which it should so operate, such intention of the legislature must be expressed with irresistible clearness. Battle v. Speight, 9 Ired. (N. C.), 288. It is very far from being so expressed in the first section of this act. On the contrary, its natural and obvious meaning is, that wills executed after the first day of June, 1850, are the only subjects of its provisions. The words “after the first day of June next” refer to and qualify the words “ executed in due form of law,” which they follow, just as in the same section the words “on the day of the death of the testator” refer to and qualify the word “executed.” In the former case they indicate the time when the will shall be deemed to have been executed; in the latter, the period of time when it was actually executed. In our opinion, the first section of this law is free from *9891 *arabiguity\ and applies only to wills executed after -• the first day of June, 1850; and, as this will was executed before that day, it is not within this section. Nor is it within the second section of the act; because that applies only to cases in which the testator having executed his will before the passage of the act, might die before the first day of June then next, and this testator survived till after that day. It has been supposed however, that although the first section of this act is free from ambiguity standing by itself, and ought to be so construed as to apply only to wills executed after the first day of June, 1850, yet that the second section shows that wills executed before that day were intended to be included in the first section. The argument is that the second section excepts out of the operation ot e first section certain wills executed before the first day ot 1850, and thus proves that the first section embraces wi s executed before that day. This argument requires a caie u examination. To appreciate it, we must see clearly w a ar the nature and objects, as well as the form of the two ena merits. The first prescribes a new rule of construe ion 300 DECEMBER TERM, 1853. 282 Carroll v. Lessee of Carroll et al. wills. They are to be deemed to speak as of the time of the death of the testator; but power is reserved to him to set aside this rule by manifesting in his will an intention not to have it applied. The real substance and effect of the second section is to enable certain testators to pass their after-acquired lands by expressing an intention to pass them. By force of the first section, the law prescribes a rule of construction, which a testator may set aside. By force of the second section, a testator may manifest an intention to have his will speak as of the time of his decease, and so adopt that rule of construction. It thus appears that the office of the second section is not to take certain cases out of the operation of the first section, but to prescribe another and substantially different rule of law for those cases. It is true, negative language is used, which leaves the law open to the suggestion that the provision of the act would have applied to such wills if the negative words had not been used. But it must be remembered that this is only an inference, the strength of which must depend upon the subject-matter of the provisions and the language employed in making them. If every part of the law can have its natural meaning and appropriate effect by construing this second section as an additional enactment, and if to construe it as an exception would affix to the first section a meaning which would be inconsistent with the great and leading purpose of the legislature, and at the same time be arbitrary and unjust; and if when viewed as an *exception, the cases can. on no r#poo just principle, be distinguished from those left unex- *-cepted, then manifestly it should not be construed as an exception, but as a substantive enactment, prescribing for the particular cases a new rule of law not provided for in the first section. We have already pointed out the consequence of holding the first section applicable to all wills. In addition to this it is worth while to inquire if the second section was esigned to except certain cases out of the first section, what lose cases were, and how they are so distinguished from the cases left unexcepted as to be proper subjects of exception. e proposition is, that the first section includes all wills W r execufofi’ and the second excepts only wills exe-cu e before the passage of the act, by persons dying after ac^’ an^ before the first day of June, f 7k ^an any reason t>e imagined why a will executed be-if +e PassaH® °f the act should be within the first section ont n? i°r day bef°re the passage of the act, and 1 i he died the day after its passage ? If there is any 301 283 SUPREME COURT. Carroll v. Lessee of Carroll et al. distinction between the two cases, it would seem the first case had the stronger claim to exemption from the effect of the new rule. Nor do we perceive any difficulty in so construing the two sections as to allow to each its appropriate effect, while neither of them violates any principle of natural right; the effect of the first section being to prescribe a new rule of interpretation for wills executed after the first of June, and the effect of the second being, to enable testators who had executed their wills before the passage of the act, and who might die before the first day of June, to pass after-acquired lands if they manifested an intention so to do. Cases of testators who should execute wills after the passage of the act and before the first day of June, or who should die after that day, having previous to that day executed their wills, are left unprovided for, either because it was thought that they would have sufficient time to conform their wills to this change of the law, or because their cases escaped the attention ot the legislature, as happened in Barnitz's Lessee v. Carey, 7 Cranch, 468 ; and Blougher v. Brewer's Lessee, 14 Pet., 178. We have been referred to two decisions in the Supreme Court of Massachusetts, in which a retroactive effect was allowed to a statute of that State upon existing wills. They are Cushing v. Aylwin, 12 Mete. (Mass.), 169; Pray v. Waterston, Id., 262. But an examination of those cases will show that the interpretation put by that court on that statute was attended with none of the difficulties which beset the construction of the statute of Maryland contended for by the counsel for the devisee. The law of Massachusetts did not enact a new ru^e constructi°n* *It simply enabled testators J to devise after-acquired lands by plainly and manifestly declaring an intention to do so. The law could only operate in furtherance of the intention of the testator, and could nevei defeat that intent by applying to wills an arbitrary rule ot construction. . , This distinction was pointed out by this court in Smith e al. v Edrington, 8 Cranch, 66, in reference to a similar sta -ute in Virginia ; respecting which Mr. Justice Washington said, “ the law creates no new or different rule of constriic-tion, but merely gave a power to the testator to devise lan s which he might possess or be entitled to at the time o w death, if it should be his pleasure to do so.” Moreover language of the act of Massachusetts was broad, and »enel.‘ enough to include in its terms all wills which shou & effect after the law went into operation. There was fore nothing in the words, or the subject-matter or e a 5 302 DECEMBER TERM, 1853. 284 Carroll v. Lessee of Carroll et al. lead the court to a more restricted construction. Still that court thought the retroactive effect of even such a law required some notice, and they vindicate the departure from an important principle in that case with some effort; and the reluctance with which it should be departed from, is well expressed by the Supreme Court of North Carolina, in Battle v. Speight, 9 Ired. (N. C.), 288, in construing a similar statute of that State. We have also been referred to a manuscript opinion of the Court of Appeals of the State of Maryland upon the effect of this will. It appears that in November last the executors of Mrs. Carroll, the devisee, who is deceased, filed their bill in the Circuit Court of Prince George’s County, praying that the administrators, de bonis non of Michael B. Carroll might be enjoined from making sale of his negro slaves. The heirs at law and the administrators de bonis non of Michael B. Carroll were made parties. The Circuit Court refused the injunction, the complainants appealed, the Court of Appeals affirmed the decree of the Circuit Court, and dismissed the bill. The grounds upon which the court rested its decree will best appear from the following extracts from the opinion: “The bill is filed by the executors of Mrs. Carroll against the administrators de bonis non of Mr. Carroll and his heirs at law. The gravamen of it is, that he specifically bequeathed his negroes to his wife, and desired they should not be sold, and that his debts should be paid out of his other estate; that she manumitted them, and that there is other personal and real estate enough to pay the debts due by his estate. Injunction is asked to prevent the sale of the negroes under an order of the Orphans’ Court of Prince George s County, which, it is alleged, is about to be done. It is also claimed in the bill, that at the time of *the will r^npr of Mrs. Carroll she must be considered'as holding the *-negroes as legatee, and not as executrix, the time specified by law for winding up the estate of her husband having1 elapsed. Sr°nnd cannot avail. There is no allegation in Ku n a final account had been settled by her, and the th <-S+i°WS ^.at a larSe amount of debts remained unpaid, and a the creditors of the estate of her husband had commenced proceedings to secure their payment, which proceedings are 1Dg‘ I*1 th’8 c^aira °f the bill we suppose but little , enJLe WaS’ Or *s. rePosed by those who framed it; at all of s’ ere nothing in it. There is nothing in the facts final ! Cerm?i bx the rights of the parties and decide to i-u PJ°Perty hr contestation belongs. 4-v n herefore this court and other courts organized under an iaw, has never held itself bound by any part of tainrnon?11^1^!.an^ case’ which was not needful to the ascer- Vgt v° he right or title in question between the parties. vol. xvl-20 305 287 SUPREME COURT. Carroll V. Lessee of Carroll et al. In Cohens v. The State of Virginia, 6 Wheat., 399, this court was much pressed with some portion of its opinion in the case of Marbury v. Madison. And Mr. Chief Justice Marshall said, “ It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they maybe respected, but ought not to control the judgment in a subsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent; other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” The cases of Ex parte Christy, 3 How., 292, and Jenness et al. v. Peck, 7 Id., 612, are an illustration of the rule that any opinion given here or elsewhere cannot be relied on as a binding authority, unless the case called for its expression. Its weight of reason must depend on what it contains. With these views we cannot regard the opinion of the Court of Appeals as an authority on which we have a right to rest our judgment. We have already stated the reasons which have brought us to a different construction of the statute ; reasons which do not seem to us to be shaken by the opinion of the Court of Appeals. Our conclusion is that the will of Michael B. Carroll was not within the statute, and the lands in question were consequently undevised. One other exception was taken at the trial, respecting which it is only necessary to say that we think the identity of name of the two tracts of land in the same county, taken in connection with the long possession of those under whom the plaintiffs claimed, and the absence of all evidence of any adverse claim or outstanding title, was sufficient to warrant the juij in finding that the land was embraced in the patents from e State. t . p We are also of opinion that the judgment is correct in orm, being for the term which the declaration alleges was crea ec *2881 by *^e plaintiffs as owners of three undivided loin J parts of the land. , . The judgment of the Circuit Court is affirmed, wit cos ORDER. This cause came on to be heard on the transcript ">f t record from the Circuit Court of the United Sae 306 DECEMBER TERM, 1853. 288 Smith et al. v. Swormstedt et al. 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. William A. Smith and others, v. Leroy Swormstedt AND OTHERS. In 1844, the Methodist Episcopal Church of the United States, at a General Conference, passed sundry resolutions providing for a distinct, ecclesiastical organization in the slaveholding States, in case the annual conferences of those States should deem the measure expedient. In 1845, these conferences did deem it expedient and organized a separate ecclesiastical community, under the appellation of the Methodist Episcopal Church South. At this time there existed property, known as the Book Concern, belonging to the General Church, which was the result of the labors and accumulation of all the ministers. Commissioners appointed by the Methodist Episcopal Church South, may file a bill in chancery, in behalf of themselves and those whom they represent, against the trustees of the Book Concern, for a division of the property. Die rule is well established that where the parties interested are numerous, and the suit is for an object common to them all, some of the body may maintain a bill on behalf of themselves and of the others; and a bill may also be maintained against a portion of a numerous body of defendants, representing a common interest.1 The Methodist Church was divided. It was not a case of the secession of a part from the main body. Neither division lost its interest in the common property. The General Conference, of 1844, had the legitimate power thus to divide the church. In 1808, the General Conference was made a representative body, with six restrictive articles upon its powers. But none of these articles de- Ti?ri^e<^ power of dividing the church.2 e sixth restrictive article provided that the General Conference should not appropriate the profits of the Book Concern to any other purpose than for ie benefit of the travelling ministers, their widows, &c.; and one of the resolutions of 1844 recommended to all annual conferences to authorize a c angem the sixth restrictive article. This was not imposed as a condition o separation, but merely a plan to enable the General Conference itself to carry out its purposes. e separation of the church into two parts being legally accomplished, a cours°n °* ^oin^ Pr°perty by a court of equity follows, as a matter of gxT™ was an aPPeal from the Circuit Court of the United a es tor the District of Ohio, which dismissed the bill.3 ir1 Sacon v- Robertson, ver 17’h489’ r£ITED- A'J™ Oar-594‘ S- P- Roatty v. Kurtz> 2 Pet, 566; West v. Randall, 2 Mason, 181; Wood v. Dummer, 3 Id, 308 ; Piatt v. Oliver, 2 McLean, 268. 2 S. P. Bascom v. Lane, 4 Am. L. J, 193; s. c, 9 West, L. J, 162. 3 Reported below', 5 McLean, 369. 307 288 SUPREME COURT. Smith et al. v. Swormstedt et al. The bill was originally filed in the names of Henry B. Bascom, *a citizen of Lexington, in the State of Ken- -* tucky; Alexander L. P. Green, a citizen of Nashville, in the State of Tennessee; Charles B. Parsons, a citizen of Louisville, in the State of Kentucky; John Kelly, a citizen of Wilson county, in the State of Tennessee; James W. Allen, a citizen of Limestone county, in the State of Alabama; and John Tevis, a citizen of Shelby county, in the State of Kentucky— Against Leroy Swormstedt and John H. Power, agents of the “Book Concern” at Cincinnati, and James B. Finley, all of whom are citizens of the State of Ohio; and George Peck and Nathan Bangs, who are citizens of the State of New York; who are made defendants to this bill. Bascom, Green, and Parsons were commissioners appointed by the Methodist Episcopal Church South, to demand and sue for the proportion belonging to it of certain property, and especially of a fund called the “ Book Concern.” Bascom having died whilst the suit was pending, William A. Smith, a citizen of Virginia, was substituted in his place. The other plaintiffs were supernumerary and superannuated preachers, belonging to the travelling connection of the said church south; and all the plaintiffs were citizens of other States than Ohio, and sued not only for themselves but also in behalf of all the preachers in the travelling connection of the church south, amounting to about fifteen hundred. The defendants were Swormstedt and Power, agents of the Book Concern at Cincinnati, and Findley, all travelling preachers of the Methodist Episcopal Church, and citizens of Ohio; and the Methodist Book Concern a body politic, incorporated by an act of the General Assembly of Ohio, and having its principal office at Cincinnati, in that State. The nature of the dispute and the circumstances of the case are set forth in the opinion of the court. It was argued by Mr. Stanberry, for the appellants, and by Mr. Badger and Mr. Ewing, for the appellees. The following extract from the brief of Mr. Stanberry explains the points which he made. . We claim, in the first place, that the division of the cnujc was a valid act, and thereby the original church was divide into two churches equally legitimate, and that the members and beneficiaries in each have equal rights to their dis ri u tive share of all the property and funds. . . Secondly i That if there was no valid division of the ong 308 DECEMBER TERM, 1853. 289 Smith et al. v. Swormstedt et al. nal church, but only a separation of the southern portion from the original church, yet, under the circumstances in which it was *made, the beneficiaries of this charity r^onn have not lost that character by adhering to the church *-south, because the separation was authorized by the highest official and legislative authority of the church, and the beneficiaries living in the south had no choice or alternative but adherence to that church or the total loss of all church membership and privileges. We will discuss these propositions in the order in which they are stated, and as they are elaborated under the following points: The plaintiff's points. 1. Prior to 1844 the Methodist Episcopal Church in the United States was one church in doctrine and organization. It was one in doctrine as a Methodist Church, and one in organization as the Methodist Church in the United States, with jurisdiction coextensive with the territorial limits of the United States. 2. At the present time there is no such church de facto as to unity of organization, as the Methodist Episcopal Church of 1844. There is no longer one Methodist Episcopal Church with territorial jurisdiction coextensive with the United States, but there are two churches instead, divided in territorial jurisdiction by a fixed line, each existing by an independent organization, exclusive of the other. 3. This dissolution of the unity of organization not only exists de facto but de jure ; not by unauthorized secession of a part from the original body, but by a valid division of the original body into two parts equally legitimate, which division was authorized by competent authority, in the plan of 1844, and has since been consummated in accordance with its provisions. 4. The Book Concern is a charitable fund connected with the Methodist Episcopal Church, the capital being devoted to the publication and dissemination of religious books and papers, and the profits to the support of the travelling, supernumerary, superannuated, and deficient preachers of the church, and the wives, widows, children, and orphans of travelling preachers. . . * This fund was founded by the travelling preachers, and c leily accumulated by their labor. It never belonged to ie church in absolute right, but was simply intrusted to its t ’ Before ^ie division of the church the founders and the t C1VueS fund were scattered over its entire terri- y» as then constituted, and equally labored in its accumu 309 290 SUPREME COURT. Smith et al. v. Swormstedt et al. lation, and were equally entitled to its dividends, without reference to particular territorial location. 7. The lawful division of the church, territorially, into two distinct churches, did not destroy this charity or affect the right of the beneficiaries, but it necessarily required a change of management, which before the division, was by means of *9Q11 a General Conference, having jurisdiction over all ' -» classes of the beneficiaries, wherever located, through the agency of annual conferences within the jurisdiction and subject to the control of the General Conference. 8. After such division, in the due administration of this charity, and as near as may be to its original foundation, each of the churches becomes the proper manager of so much of the fund as is to be distributed to the beneficiaries within its exclusive jurisdiction, through the agency of its own annual conferences. 9. That the division to be made of the capital and profits of this fund to each church should be made on the basis of the number of travelling preachers in 1844, each church to have the same proportion of the entire fund as the number of travelling preachers within its bounds bore to the whole number then within the entire territory of the church prior to the division. 10. That the refusal of the annual conferences to agree to the amicable division of the fund, as proposed in the plan of 1844, and the continued refusal of the authorities of the northern church to recognize the church south, or the beneficiaries within its jurisdiction, as entitled to the management or any distributive share of the fund, make a case for the interposition of a court of equity. 11. If the division of the church was not a constitutional act, the beneficiaries within the jurisdiction of the church south, and who are now united to that church, have not forfeited their right to this charity. 12. The bill presents the proper parties and the proper case for the interference of this court, in order to the due administration of this charity, to meet the exigency arising out of the division of the church, whether the division was constitutional or not. (Mr. Stanberry’s argument, both in the opening and in the reply, was very elaborate upon all these points, and therefore cannot be reported for want of room. His view of the contingent nature of the resolutions of 1844, was as follows:) I will here close the argument upon this question of e power of division, having shown its existence in ev®1T, 312 DECEMBER TERM, 1853. 293 Smith et al. v. Swormstedt et al. but these changes have not affected its organization or destroyed its identity. 2. With respect to the property called 'the “ Book Concern,” (after examining the constitution of this fund, the counsel came to the following conclusions:) I take it then as clear, by proof and by concession, that a Methodist Episcopal Church, having a regular and well known organization, existed prior to 1844, and that the property now in controversy was held by trustees, in trust for the church so organized, and for certain specified beneficiaries in it, and that it was only through connection with the church, in and through its organization, in a mode pointed out by its organic law, *that any individual was or • could be entitled to any portion of the fund. *- I hold it equally clear, and of like necessity it must be conceded, that if the Methodist Episcopal Church of 1844 still exists, and retains its identity, the trustees still hold the property in trust for it only, and that it is by connection with it as an organized body, and by and through it alone, that any individual is now entitled as a beneficiary, unless indeed the church has by compact, or some equivalent act, qualified the condition of the trust, and changed its direction ; and that no individual members of the church, or any section of it, large or small, could by mere secession entitle himself or themselves to any portion of the trust fund, separate from and independent of the organized, still subsisting church. 3. Then, to entitle these complainants to recover, they must establish as facts: 1st. .That the Methodist Episcopal Church, as it existed in and prior to 1844, was destroyed by the acts of the General Conference of 1844—or by the act of the Louisville Convention of 1845, in the exercise of power conferred on it by the General Conference—and thenceforth ceased to exist as an organized body—that out of a portion of its severed elements a new church was formed, composed in part of individuals T °1 Un(\er former organization, were beneficiaries of the on ,. and that thus the expressed object of the charity, as 80 its means of administration, having failed, there being °'vno Methodist Episcopal Church to administer the charity, Chi travelling preachers, &c., of the Methodist Episcopal thpUh .•? lece*ve and enjoy it, a court of equity will apply noeJi]31 ’ n°f acc°rding to its terms, which is no longer orio-inat’ v C^' Pres”> as nearly as possible according to its bptwao 2i ’^2^’ an(f’ to this end, divide the fund pro ratd 2d n fr.a£mente of the defunct church. m ur that if the Methodist Episcopal Church of 1844 still 313 294 SUPREME COURT. Smith et al. v. Swormstedt et al. exists, some act by the General Conference of that year has changed, in part, the direction of the fund and the medium of its administration. (After discussing these propositions, the counsel came to the following conclusions:) We find, then, on examining the bill and the book of Doctrine and Discipline, which is filed with and made part of it. 1st. That the General Conference is not, since 1808, an original body-possessed of inherent powers, but representative merely, having no other powers than those conferred on it by the constitution which created it. 2d. That the general grant of powers to this conference *29S1 Extends only to the making rules and regulations for -I the Methodist Episcopal Church, not to the division, dissolution, or destruction of the church. 3d. That the restrictive articles forbid, by clear implication, the division or destruction of the organized Methodist Episcopal Church. 4th. That under the sixth restrictive article the General Conference cannot “appropriate the produce x>f the Book Concern, nor of the Charter Fund, to any purpose other than for the benefit of the travelling, supernumerary, superannuated, and worn-out preachers ” of the Methodist Episcopal Church, within its organization, “ their wives, widows, and children ”; nor can that conference by any act so involve the fund or place it in such situation that a court of equity can apply it to objects, or in a manner forbidden by the declaration of trust and the constitution of the Methodist Episcopal Church. 4. We will now proceed to show that the General Conference never assumed the power of destroying the organization of the Methodist Episcopal Church, or of severing or dissolving it, but as often as they have spoken distinctly upon the subject, have disclaimed the power, and that they did not, in the case at bar, exercise or attempt to exercise it. (The argument upon this point was very extensive, involving an examination of the Canada case, and of the records o the conferences, concluding as follows :) It is, then, so far as the thirteen southern and south-wes -ern conferences are concerned, a case of voluntary withdrawn from the Methodist Episcopal Church as organized, and e formation of a new and separate organization; and 1 nave already shown, that if the withdrawal be small or grea , one or many, the voluntary abandonment of the organize church is also the voluntary surrender of all the tempor privileges and immunities belonging to that organiza i 314 DECEMBER TERM, 1853. 295 Smith et al. v. Swormstedt et al. And it is very clear that this trust-fund, which was intrusted in its administration to the annual conferences of this organization, cannot be transferred by a court of equity to a conference which has ceased to belong to that organization, any more than to one which never had belonged to it. The southern conferences, now the Methodist Episcopal Church South, cannot, therefore, sustain their bill on the ground of former connection with the Methodist Episcopal Church, and of their present separate existence; and I have already shown that they cannot sustain it on the ground of contract. It is equally clear that they cannot sustain it on the ground that the General Conference of 1844 had caused the southern conferences to believe that the Book Concern would be divided, and induced them to act according to that belief. This point, however good *in law, fails as a matter of r«296 fact. There was no disguise, no concealment, no mis- *-representation on the part of the General Conference, but the most open candor and directness; and the conferences south were fully advised—indeed, they advised themselves—that, in case of separation, a share of the Book Concern depended on the votes of the annual conferences, and they agreed that it did and should depend upon such vote. The church south, therefore, in its new organization, has no standing in court. The only remaining question which goes to the legal merits of the case is: 5. Do the individuals who join in this bill show any right to a distributive share of this fund ? They show that they “are preachers—Kelley and Allen are supernumerary, and Tevis superannuated preachers—of the Methodist Episcopal Church South, and that as such they have a personal interest in the real estate, personal property, debts, and funds now holden by the Methodist Episcopal Church through said defendants, as agents and trustees ap-Pointed by the General Conference of the Methodist Episcopal Church.” So much for themselves. , As to those whom they choose to represent, they say, “That ere are about fifteen hundred preachers belonging to the lavelling connection of the Methodist Episcopal Church outh, each of whom has a direct personal interest in the same nght as your complainants to the said property,” &c. ey say they are members of the church south, preachers travelling connection of that church, and on not ^10U|i and tbut alone, they set up this claim. They do thPvaJer they, or any one of them, or any one for whom and a PPe.ar’ ev.er belonged to the Methodist Episcopal Church, cquired rights in its connection ; but they simply claim 315 296 SUPREME COURT. Smith et al. v. Swormstedt et al. that, by virtue of their connection with the Methodist Episcopal Church South, they are entitled to a distributive share of the property of the Methodist Episcopal Church. The case is certainly no better by making these persons complainants. If the church south be not entitled, as an organized body, on some ground shown in the bill, these persons are not entitled because they are members of its organization. The case made by complainants’ counsel for widows and orphans of travelling preachers of the Methodist Episcopal Church, who became entitled by the services of their husbands and fathers, but who, since their death, have by the mere force of circumstances been withdrawn from the Methodist Episcopal Church, and attached to the church south, if available, at all, goes too far, entitles them to more than it has even contended that they have a claim to. If their rela-*0071 ti°n to toe Methodist *Episcopal Church be not so J sundered as to exonerate that church from their support, it is bound to support them out of whatsoever fund may be in its power, in common with the rest of its widows and orphans. They are not entitled to a support out of the charter-fund and the produce of the Book Concern, but out of the funds of the various annual conferences of the Methodist Episcopal Church into which the produce of the Book Concern enters, and of which it forms a part merely, and, indeed, but a small part. If entitled to any thing from the Methodist Episcopal Church since they ceased to. belong to it, it is to their support, in whole or in part, according to their necessities, not to a distributive share of the produce of the Book Concerm The separation of those who have passively suffered by the secession of so large a portion of the Methodist Episcopal Church from its ancient organization, is greatly to be coin-miserated and regretted, and the Methodist Episcopal Church is ready and anxious, in any possible mode, to reach and relieve them, for she still recognizes them as members. Bu she cannot, consistently with her discipline, deliver any par of her funds to another church, alien in organization, thong the same in faith, to be administered among them. can their necessities or their rights, if rights indeed they ha\e, bring in and entitle ninety-five who voluntarily seceded, air who were active in secession, to come in and share in funds of the Methodist Episcopal Church, with the five ''1 were withdrawn from it by the mere force, of circums an But those who were passive in the separation, those wo> not withdraw, but who were withdrawn from the e i Episcopal Church, are not before the court. The on y 316 DECEMBER TERM, 1853. 297 Smith et al. v. Swormstedt et al. viduals here who claim as parties for themselves, and those standing in a like situation, claim merely by virtue of their connection with the church south, and do not profess to have ever been members of the Methodist Episcopal Church. This, it appears to me, is the truth and reason of this branch of the case ; and if so, no equitable right arises in their behalf. And this fund is not now wasted or scattered to the winds. It is still applied strictly according to the terms and intent of the trust, in the very way in which the written declaration of the trust, known and understood by all, directs it. Unhappily, some who enjoyed the benefit of the fund are withdrawn from the sphere of its application; others, perhaps, equally worthy and equally necessitous, are brought within it. This case does not come within the principle of any of the cases cited by counsel on the other side, if the Methodist Episcopal Church has not been destroyed. If it has, I admit the application of the cases. For while that church exists it is a trustee, in its various organism, to administer the charity, and the beneficiaries described by the declaration of trust are to be found within its bosom. The *trustee, the charity, the beneficiaries, have not failed, but merely *-certain individuals have ceased to be beneficiaries. 6. Certain it is, that this separation took place either by secession or by contract, the General Conference offering terms of separation, and the southern conferences acceding to them. If the latter be the case, the condition precedent to the distribution of the charter-fund and Book Concern was also agreed upon; namely, the consent of the annual conferences. If the southern conferences seceded without a contract, the legal consequences of simple secession follow. Those I have considered. a a contract, that contract is the law of the secession. And all that a court of equity can do is to compel the parties, to carry out the contract in good faith. b\ame of the separation is cast by complainants on e Methodist Episcopal Church. It is contended, that the secession of the southern conferences was not only justified, u compelled, by the continued agitation of the slavery ques-pmV p1 r north.ern annual conferences, and also in the Gen-___ jeiienc^ ^self. And more especially, say they, it was Cnnf6 e<^ by illegal and oppressive acts of the General 1844, in the cases of Harding and Bishop An-1 Tk eSe .ma^ers complaint I will now consider. And, Episcopal'Chrech.011 °f the slavery but, regarding the sixth restrictive article as a limitation up 328 DECEMBER TERM, 1853. 309 Smith et al. v. Swormstedt et al. the power of the General Conference, as it respected a division of the property in the Book Concern, provision is made to obtain a removal of it. The removal of this limitation is not a condition to the right of the church south to its share of the property, but is a step taken in order to enable the General Conference to complete the partition of the property. We will simply add, that as a division of the common property followed, as matter of law, a division of the church organization, nothing short of an agreement or stipulation of the church south to give up their share of it, could preclude the assertion of their right; and, it is quite clear, no such agreement or stipulation is to be found in the plan of separation. The contrary intent is manifest from a perusal of it. Without pursuing the case further, our conclusion is, that the complainants and those they represent, are entitled to their share of the property in this Book Concern. And the proper decree will be entered to carry this decision into effect. The complainants represent, not only all the beneficiaries in the division of the church south, but also the General Conference and the annual conferences of the same. The share therefore of this Book Concern belonging to the beneficiaries in that church, and which its authorities are entitled to the safe-keeping and charge of, for their benefit, may be properly paid over to the complainants as the authorized agents fur this purpose. We shall accordingly direct a decree to be entered revers-mg the decree of the court below, and remanding the proceedings to that court, directing a decree to be entered for the complainants against the defendants; and a reference of the case to a master to take an account of the property belonging to the Book Concern, and report to the court its cash value, and to. ascertain the portion belonging to the com-th ?ants’ wBich portion shall bear to the whole amount of he fund the proportion that the travelling preachers in the ' lvi®lon ^le church south bore to the travelling preachers T ri caurc^ north, at the time of the division of said church. r n °n e c°mmg in of the report, and confirmation of the decree sBall be entered in favor of the complainants ior that amount. *order. [*310 2ause oame on to be heard on the transcript of the District rfUki^e Court of the United States for the o Ohio, and was argued by counsel. On consider- 329 310 SUPREME COURT. Smith et al. v. Swormstedt et al. ation whereof it is ordered, adjudged, and decreed by this court, that the decree of said Circuit Court in this cause be, and the same is hereby, reversed and annulled. And this court doth further find, adjudge, and decree: 1. That, under the resolutions of the General Conference of the Methodist Episcopal Church, holden at the city of New York, according to the usage and discipline of said church, passed on the eighth day of June^ in the year of our Lord one thousand eight hundred and forty-four, (in the pleadings mentioned,) it was, among other things, and in virtue of the power of the said General Conference, well agreed and determined by the Methodist Episcopal Church in the United States of America, as then existing, that, in case the annual conferences in the slaveholding States should find it necessary to unite in a distinct ecclesiastical connection, the ministers, local and travelling, of every grade and office, in the Methodist Episcopal Church, might attach themselves to such new ecclesiastical connection, without blame. 2. That the said annual conferences in the slaveholding States did find and determine that it was right, expedient, and necessary to erect the annual conferences last aforesaid into a distinct ecclesiastical connection, based upon the discipline of the Methodist Episcopal Church aforesaid, comprehending the doctrines and entire moral and ecclesiastical rules and regulations of the said discipline, (except only in so . far as verbal alterations might be necessary to, or for a distinct •organization,) which new ecclesiastical connection was to be known by the name and style of the Methodist Episcopal Church South; and that the Methodist Episcopal Church South was duly organized under said resolutions of the said General Conference, and the said decision of said annual conferences last aforesaid, in a convention thereof held at Louisville, in the State of Kentucky, in the month of May, in the year of our Lord one thousand eight hundred and forty-five. 3. That, by force of the said resolutions of June the eighth, eighteen hundred and forty-four, and of the authority and power of the said General Conference of the Methodist Episcopal Church as then existing, by which the same were adopted, and by virtue of the said finding and determination of the said annual conferences in the slaveholding Sta es therein mentioned, and by virtue of the organization ot sue conferences into a *distinct ecclesiastical connec ion J as last aforesaid: the religious association known as Methodist Episcopal Church in the United States of . as then existing, was divided into two associations, oi is i 330 DECEMBER TERM, 1853. 311 Smith et al. v. Swormstedt et al. Methodist Episcopal Churches, as in the bill of complaint is alleged. 4. That the property denominated the Methodist Book Concern at Cincinnati, in the pleadings mentioned, was, at the time of said division, and immediately before, a fund subject to the following use—that is to say, that the profits arising therefrom, after retaining a sufficient capital to carry on the business thereof, were to be regularly applied towards the support of the deficient travelling, supernumerary, superannuated, and worn out preachers of the Methodist Episcopal Church, their wives, widows, and children, according to the rules and discipline of said church; and that the said fund and property are held under the act of incorporation in the said answer mentioned, by the said defendants, Leroy Sworm-stedt and John H. Power, as agents of said Book Concern, and in trust for the purposes thereof. 5. That, in virtue of the said division of said Methodist Episcopal Church in the United States, the deficient, travelling, supernumerary, superannuated, and worn out preachers, their wives, widows, and children comprehended in, or in connection with, the Methodist Episcopal Church South, were, are, and continue to be beneficiaries of the said Book Concern to the same extent, and as fully as if the said division had not taken place, and in the same manner and degree as persons of the same description who are comprehended in, or in connection with, the other association, denominated since the division of the Methodist Episcopal .Church; and that as well the principal as the profits of said Book Concern, since said division, should of right be administered and managed by the respective general and annual conferences of the said two associations and churches, under the separate organizations thereof, and according to the shares or proportions of the same as hereinafter mentioned, and in conformity with he rules and discipline of said respective associations, so as to carry out the purposes and trusts aforesaid. . that so much of the capital and property of said Book oncern at Cincinnati, 'wherever situate, and so much of the pio uce and profits thereof as may not have been heretofore accounted for to said church south, in the New York case *rei ^er mentioned, or otherwise, shall be paid to said ina ^ptb, according to the rate and proportions ‘ foliow-narf 18 saY’ in aspect to the capital, such share or of thas corresp°nds with the proportion which the number wKir.w ravelling preachers in the annual conferences Chnrph°Qmlr ^ieinse-^ves into the Methodist Episcopal I- outh, bore to the number of all the travelling preach- 331 312 SUPREME COURT. Smith et al. v. Swormstedt et al. ers of the Methodist Episcopal Church before the division thereof, which numbers shall be fixed and ascertained as they are shown by the minutes of the several annual conferences next preceding the said division and new organization in the month of May, A. d., eighteen hundred and forty-five. And in respect to the produce or profits, such share or part as the number of annual conferences which formed themselves into the Methodist Episcopal Church South bore, at the time of said division, in May, a. d., 1845, to the whole number of annual conferences then being in the Methodist Episcopal Church, excluding the Liberia Conference: so that the division or apportionment of said produce and profits shall be had by conferences, and not by numbers of the travelling preachers. 7. That said payment of capital and profits, according to the ratios of apportionment so declared, shall be made and paid to the said Smith, Parsons, and Green, as commissioners aforesaid, or their successors, on behalf of said church south and the beneficiaries therein, or to such other person or persons as may be thereto authorized by the General Conference of said church south, the same to be subsequently managed and administered so as to carry out the trusts and uses aforesaid, according to the discipline of said church south, and the regulations of the General Conference thereof. 8. And in order more fully to carry out the matters hereinbefore settled and adjudged, it is further ordered and decreed, that this cause be remanded to the said Circuit Court for further proceedings—that is to say, That the same be referred to a master to take and state an account as follows: (1.) Of the amount and value of the said Book Concern at Cincinnati, on the first day of May, 1845, and of what specific property and effects (according to a general description or classification thereof) the same then consisted, whether composed of real or personal estate, and of whatever nature oi description the same may have been ; and a similar account as of the date or time when the said master shall take this account. (2.) Of the produce and profits of said Book Concern, from the time of .the General Conference of May, 1844, as reporte thereto, (if so reported,) up to the time of the said division in May, 1845, and from the last-mentioned date down to e time of making up his report: specifying how much of sai profits and produce have been transferred to said Book on cern, at New York, and accounted for to said c11?10 -* south in the *settlement of the case there; an o 332 DECEMBER TERM, 1853. 313 Smith et al. v. Swormstedt et al. much remains to be accounted for to said church south on the basis settled by this decree. And in taking said accounts, and in the execution of said reference, the said defendants shall produce, on oath, all deeds, accounts, books of account, instruments, reports, letters, and copies of letters, memoranda, documents, and writings, whatever pertinent to said reference, in their possession or control, and the said defendants may be examined, on oath, on the said reference; and each party may produce evidence before the master, and have process to compel the attendance of witnesses. And the said master is further directed, in respect to any annual profits of said concern, not heretofore accounted for to said church south, to allow’ to said church south interest at the rate of 6 per cent, upon such unpaid balances from the date at which the same ought to have been paid. And in respect to all the costs in this case, including the costs of the reference, and all other costs from the commencement of the case until its conclusion, and in respect to the fees of counsel and solicitors therein, of both parties, so far as the same may be reasonable, and in respect of just and necessary expenses, as well of plaintiffs as of defendants in conducting the suit, the same ought to be paid out of said Book Concern, and a common charge thereon, before apportionment and division, and the master is accordingly directed to ' allow and pay the same to the respective parties entitled thereto, and then to apportion the residue according to the principles fixed in this decree. And the master is further directed to return his report to the said Circuit Court with all convenient despatch, which court shall then proceed to enforce the payment of whatever sum or sums may be found due to said church south, on the confirmation of the master’s report, in such instalments as may be by said court adjudged reasonable, each party having due opportunity of excepting to the master's report; and all questions arising upon said report, and not settled by this decree, may be moved before said Circuit Court, to which of lfff e^ei ParV shall be at liberty to apply on the footing 388 314 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. *014-1 * Alexander J. Marshall, Plaintiff in error, J v. The Baltimore and Ohio Railroad Com- pany, A citizen of Virginia may sue the Baltimore and Ohio Railroad Company in the Circuit Court of the United States for Maryland, and an averment that the defendants are a body corporate, created by the Legislature of Maryland, is sufficient to give the court jurisdiction.1 The constitutional privilege which a citizen of one State has to sue the citizens of another State in the federal courts cannot be taken away by the erection of the latter into a corporation by the laws of the State in which they live. The corporation itself may; therefore, be sued as such.2 The preceding cases upon this subject, examined. Where a contract was made to obtain a certain law from the Legislature of Virginia, and stated to be made on the basis of a prior communication, this communication is competent evidence in a suit upon the contract. A contract is void, as against public policy, and can have no standing in court by which one party stipulates to employ a number of secret agents in order to obtain the passage of a particular law by the legislature of a State, and the other party promises to pay a large sum of money in case the law should pass.3 1 See note to Louisville fyc. R. R. Co. v. Letson, 2 How., 497. 2 Followed. Dodge v. Woolsey, 18 How., 364; Lafayette Ins. Co. v. French, Id., 405; Philadelphia fyc. R. R. Co. v. Quigley, 21 Id., 214; Ohio 8pc. R. R. Co. v. Wheeler, 1 Black, 296. Reviewed. Railroad Co. v. Harris, 12 Wall., 82. Cited. Covington Bridge Co. v. Shepherd, 20 How., 231; s. c., 21 Id., 112; Insurance Co. v. Ritchie, 5 Wall., 512; Paul v. Virginia, 8 Id., 178; Pennsylvania v. Quicksilver Co., 10 Id., 556; The Sewing Machine Co.'s Case', 18 Id., 575; Steamship Co. v. Tugman, 16 Otto, 121. 3 Followed. Meguire v. Corwine, 11 Otto, 111; Oscam/an v. Arms Co., 13 Id., 274; s. c., 2 Morr. Tr., 711. Cited. Tool Co. v. Norris, 2 Wall., 55; Triste. Child, 21 Id., 450. Services rendered in procuring the passage of an act of legislation by means of secret attempts to secure votes, or sinister or personal influences upon members, are not a legal consideration for a contract. Frost v. Belmont, 6 Allen (Mass.), 152. S. P. Gil v. Davis, 12 La. Ann., 219; Clippinger v. Hepbaugh, 5 Watts & S. (Pa.), 315; Powers v. Skinner, 34 Vt., 274. The courts refuse to enforce such an agreement because it furnishes a temptation to the person employed, to resort to corrupt means; and so 334 tends to subject the Legislature to improper influences. Mills v. Mills, 40 N. Y., 543. But a contract to prosecute a claim against the government pending in one of the executive departments, was sustained, as respects the objection that it was contrary to public policy, in Stanton v. Embry, 3 Otto, 548. Compare Denison v. Crawford County, 48 Iowa, 211. Contracts to pay a party for collecting evidence, preparing papers, or delivering arguments before a congressional committee, in support of a pending bill, are not void. Weed v. Black, 2 MacArth., 268. Compare Burbridge v. Fackler, Id., 407. Where the services contracted for and rendered are partly those of an attorney and partly those of a lobbyist, and are blended as part of a single employment, the entire contract is vitiated, and no recovery can be had for the work done as an attorney. McBratney v. Chandler, L'l Kan., 692. In Tool Co. v. Norris, supra, an agreement for compensation for procuring a government contract, was held void as against public policy, without reference to the question whether the means contemplated or used were proper or not. S. P. penny v. French, 18 Ohio SJ., See also McKee v. Cheney, 52 Ho • (N. Y.) Pr., 144; Oscanyan v. win DECEMBER TERM, 1853. 314 Marshall v. Baltimore and Ohio Railroad Company. It was also void if, when it was made, the parties agreed to conceal from the members of the legislature the fact that the one party was the agent of the other, and was to receive a compensation for his services in case of the passage of the law. And if there was no agreement to that effect, there can be no recovery upon the contract, if in fact the agent did conceal from the members of the legislature that he was an agent who was to receive compensation for his services in case of the passage of the law. Moreover, in this particular case, the law which was passed was not such a one as was stipulated for, and upon this ground there could be no recovery. There having been a special contract between the parties by which the entire compensation was regulated and made contingent, there could be no recovery on a count for quantum meruit.* "Chis case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maryland. Marshall, a citizen of Virginia, sued the Railroad Company, to recover the sum of fifty thousand dollars, which he alleged that they owed him under a special contract, for his services in obtaining a law from the Legislature of Virginia, granting to the company a right of way through Virginia to the Ohio River. The declaration set out the special contract, and also contained a count for a quantum meruit. The circumstances of the case are related in the opinion of the court. Inasmuch as one of the instructions of the Circuit Court was that if “the services of the plaintiff were to be of the character and description set forth in his letter to the president of the company, dated November 17th, 1846, and the paper therein inclosed” no “action could be maintained on the contract,” it is proper, for future reference, that both of those papers should be inserted. They were as follows: Letter from A. J. Marshall to L. McLane, 17 th November, 1846. Warrenton, November 17. * Dear Sir : In an interview with you a few days since, I promised to submit in writing a plan, by which I nought your much desired “ right of way ” through *- Chester Repeating Arms Co., 15 Blatchf., 79; s. c 103 U. S., 261; Kelly v. Dev-i 10 Biss., 127n.; 745 ^Mr.°ad Taxo Cases’13 Fed-ReP-> , 761 s. c., 8 Sawyer, 266 285* £*Nm- c°-’ U Id , Plipp., 612 ; Blackburn v. 8. M. R. R. Co., 2 Id., 531; Thomas v. Brownsville $-c. R. R., 1 McCrary, 396; Western Union Tel. Co. v. Union Pacific R’y Co., Id., 428 ; Barrowcliffe v. La Caisse Generale des Assurance, fyc., 1 City Ct. Rep. (N. Y.), 152; Harris v. Simonson, 28 Hun (N. Y.), 319; Dinsmore v. Philadelphia R. R. Co., 11 Phil. (Pa.), 483. 335 315 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. this State might be procured from our legislature. I herewith inclose my views on that subject, and shall respectfully await your reply. In offering myself as the agent of your company to manage so delicate and important a trust, I am aware I lack that commanding reputation which of itself would point me out as best qualified for such a post. Of my qualification and fitness it is not for me to speak; and, in consequence of the absolute secrecy demanded, I cannot seek testimonials of my capacity, lest I should excite inquiry. If your judgment approves my scheme, it is probable you might get satisfactory information respecting me by a cautious conversation with John M. Gordon, A. B. Gordon, Dr. John H. Thomas, or Joseph C. Wilson, all of your city. Without impropriety, I may say for myself I have had considerable experience as a lobby member before the legislature of Virginia. For several winters past I have been before that body with difficult a,nd important measures, affecting the improvement of this region of the country; and I think I understand the character and component material of that honorable body. I shall have to spend six or eight weeks in Richmond, next winter, to procure important amendments to the charter of the Rappahannock Company. This will furnish reason for my presence in Richmond. There is an effort in progress to divide our county, to which we of Warrington are violently hostile. This furnishes another reason for myself, and also for one or two other agents, to remain in the city of Richmond during the winter. Col. Wahlen and myself are interested in large bodies of land in western Virginia, near which the track of your railroad will pass. This is an ostensible reason for our active interference. I live in a range of country whose representation ought to be entirely disinterested on this question of the “ right of way.” Notwithstanding which, I believe a plurality of our representatives have heretofore been in opposition, know the influences that effected this, and am happy to say they will not exist next winter. . . Edmund Broaddus, for many years a representative from Culpepper, a shrewd, intelligent man, influenced this lesu • Broaddus wTas a sort of prot^g^ of the Richmond and Janies River whigs; was distinguished and promoted by them, an habitually acted with them. His place is now -“ e....< Slaughter, a personal friend of mine. I should have i fear to carry this section of the State. . . , u The proposed plan best speaks for itself; if you * 1D 336 DECEMBER TERM, 1853. 316 Marshall v. Baltimore and Ohio Railroad Company. *feasible, there is no time to be lost. I hope to hear from you at your earliest leisure. With entire respect, •-I am your humble servant, &c. A. J. Marshall. I tax you with the postage as I do not wish to be known as in correspondence. Document accompanying the foregoing letter. In explanation of the plan I wish to submit, it is necessary to indulge some latitude of remark on the causes which have heretofore thwarted the just pretensions of your company. Richmond City, the Petersburg, Richmond, and Potomac Railroad, the James River Canal, and the Wheeling interests, acting in concert, have heretofore successfully combated “the right of way.” These interests fall far short of a majority in the two branches of the Virginia legislature. There is no sufficient ground, in the numeric force of this antagonist interest, to discourage the hope of an eventual success. On an examination of their arguments, based either upon justice or expediency, I find nothing to challenge a conviction of right, or an assurance of high State policy. On the contrary, standing heretofore as a disinterested spectator of the struggle, I have condemned the emptiness and arrogance of their pretensions, and felt indignant at the success of their narrow, selfish, and bigoted policy. I have observed no superiority of talent, no greater zeal, or power of advocacy in the opposition, than in favor of the “ right of way.” The success of a cause before our legislature, having neither justice, greater expediency, stronger advocacy, or greater numeric strength, is matter of just amazement to the defeated party. The elements of this success should be a subject of curious and deeply anxious investigation; for when the cause is known, a remedy or counteracting influence way be readily applied. I have no idea that any dishonora-e measures or appliances (further than log-rolling may be *?ave Been used to defeat the “ right of way.” As to og-rolhng, I am sorry to say it has grown into a system in our legislature. Members openly avow and act on it, and lever conceal their bargain, except where publicity would ,1 opard success. No delegation are more skilful or less scru-in thi8 game than our western right-of-way men; so, secret regard, there is a stand off. It seems to me the great e-rrm r>° r s 8uccess is the propinquity, the presence on the midsf ’ Ti y°Ur °PPonents* The legislature sits in their Vol x n^rc^e a pressing, present out-of- • 44 $37 316 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. door influence upon the members. If the capitol were located at Weston or Clarksburg, who would question success ? The Richmond interest is ever present and ever press-*0-17-1 ing; her associates of the railroad *and canal are at J hand, and equally active. You have no counteracting influence, and hence the success and triumph of your opponents. If I am right in these views, your claims, resting alone on justice, sectional necessity, or even high State policy, will be urged in vain, and must become as mere sounding clamor in the hall, unless you meet your opponents with the weapons they use so successfully against yourselves. Experience shows that something beyond what you have heretofore done is necessary to success; and in this necessity the plan I have to submit has its origin. The mass of the members in our legislature are a thoughtless, careless, light-hearted body of men, who come there for the “per diem,” and to spend the “per diem.” For a brief space they feel the importance and responsibility of their position. They soon, however, engage in idle pleasures, and, on all questions disconnected with their immediate constituents, they become as wax, to be moulded by the most pressings influences. You need the vote of this careless mass, and if you adopt efficient means you can obtain it. 1 never saw a class of men more eminently kind and social in their intercourse. Through these qualities they may be approached and influenced to do anything not positively wrong, or which will not affect prejudicially their immediate constituency. On this question of the “ right of way,” a decided majority of the members can vote either way without fear of their constituents. On this question, therefore, I consider the most active influences will ever be the most successful. Before you can succeed, in my judgment, you must reenforce the “right-of-way ” members of the house with an active, interested, well-organized influence about the house. You must inspire your agents with an earnest, nay, an anxious wis for success. The rich reward of their labors must depend on success. Give them nothing if they fail—endow them rich y if they succeed. This is, in brief space, the outline 01 mj plans. Reason and justice are with you; an enlarged expe diency favors your claim. You have able advocates, an ’e best of the argument; yet, with all these advantages, you iav? been defeated. I think I have pointed out the cause. 0 opponents better understand the nature of the tribuna e 0 which this vast interest is brought. They act <>n inclivl of the body out of doors and in their chambers. Your a saries are on the spot, and hover around the careless ar 338 DECEMBER TERM, 1853. 317 Marshall v. Baltimore and Ohio Railroad Company. of the question in vigilant and efficient activity. The contest, as now waged, is most unequal. My plan would aim to place the “ right-of-way ” members on an equality with their adversaries, by sending down *a corps of agents, r*gio stimulated to an active partisanship by the strong lure *-of a high profit. In considering the details of the plan, I would suggest that all practicable secrecy is desirable. It strikes me the company should have or know but one agent in the matter, and let that agent select the subagents from such quarters and classes, and in such numbers, as his discreet observation may dictate. I contemplate the use of no improper means or appliances in the attainment of your purpose. My scheme is to surround the legislature with respectable and influential agents, whose persuasive arguments may influence the members to do you a naked act of justice. This is all. I require secrecy from motives of policy alone, because an open agency would furnish ground of suspicion and unmerited invective, and might weaken the impression we seek to make. In regard to the cost of all this it must necessarily be great. The subagency must be extensive, and of first influence and character. All your agents must be inspired by an active zeal and a determined purpose of success. This can only be accomplished for you by offers of high contingent compensation. I will illustrate this point by a single example. Were I to become your agent on my plan, I should like to have the services of Major Charles Hunton, of this county. Hunton, for many years, was a member of our State senate. His last year of service was as president of that body. He is an unpretending man, of good understanding and excellent address. e is a great favorite with his own party, (democratic,) and universally esteemed as a gentleman of highest character. e is in modeyate circumstances, with a large family. I ave no doubt, if I would bear his expenses, and secure him a contingent of one thousand dollars, he would spend the e,r.ln Richmond, and do good service ; but if I could two thousand, it would become an object of great ici ude. It would pay all hi$ debts and smooth the path lat/k* 'ancmg old age. Two thousand dollars would stimu-dnppnS utmost energies. If I am enabled to offer such in-this n]ien S’ s^ou^ have great confidence of success. Under nothing unless a law be passed which your to von ? accept. Of what value would such a law be easure this value, and let your own interests, in 339 318 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. view of the high stake you play for, fix the price. There is no use in sending a boy on a man’s errand ; a low offer, and that contingent, is bad judgment; high service can’t he had at a low bid. I have surveyed the difficulties of this undertaking, and think they may be surmounted. The cash outlay for my own expenses, and those of the subagents, would be heavy. I know the *effective service of such agents as I would •J employ cannot be had except on a heavy contingent. Taking all things into view, I should not like to undertake the business on such terms, unless provided with a contingent fund of a least fifty thousand dollars, secured to my order on the passage of a law, and its acceptance by your company. If the foregoing views are deemed worthy of consideration, I hold myself in readiness to meet any call in that behalf that may be made upon me. Respectfully, &c. A. J. Marshall. After the evidence had been closed, the counsel for the plaintiff asked the court to instruct the jury as follows: 1. That there is nothing in the terms or provisions, of the agreement embraced in the resolution of the committee of correspondence, dated 12th December, 1846 (which is set forth in the opinion of the court) offered in evidence, which renders the same void, on grounds of public policy.. 2. That the plaintiff is not precluded from recovering under the agreement aforesaid, dated 12th December, 1846, as modified by the agreement stated in the letter of 11th of February, 1847, by reason merely of the second proviso contained in the first section of the act of 6th of March, 1847, wmeh has been offered in evidence, provided the jury shall find tha the route, entering the ravine of the Ohio River at the mou of Fish Creek, and running so as to pass from a point in tie ravine of Buffalo Creek, at or near the mouth of Pile s ror<, to a depOt to be established by the defendant on the nort lern side of Wheeling Creek, in the city of Wheeling, upon mi nute estimates made in the manner and on the basis prescri e in said act, and made after full examination and instrumen a surveys of the feasible or practicable routes, appeared o the cheapest upon which to construct, maintain, an w0 said railroad ; and provided they shall also find that 16 C1 J of Wheeling did not agree to pay the difference f)P,c0S.’j,t^. specified in said act, but on the contrary renounced ie 1 & to do so as early as the 10th of July, 1847; and, I)r0?lncp-_ they shall also find that said act was accepted by e 340 DECEMBER TERM, 1853. 319 Marshall v. Baltimore and Ohio Kailroad Company. holders of the defendant, as a part of its charter, on the 25th of August, 1847. 3. Upon the evidence aforesaid, the plaintiff prays the court to instruct the jury— That if they find the contract contained in the resolution of the committee of correspondence of 12th of December, 1846, and in the resolution of the committee of correspondence of the 18th of January, 1847, and in the letter of Louis McLane of the 11th of February, 1847, aforesaid, to have been made with *tbe plaintiff by the defendant; and also that the act of Virginia of the 6th of March, 1847, was passed at the session of the Legislature of Virginia for 1846-1847,in the contract mentioned; and also that the Baltimore and Ohio Railroad, by the cheapest route to the city of Wheeling, entering the ravine of the Ohio at or north of Grave Creek, was ascertained, by such estimates as the law prescribed, to be more costly to construct, maintain, and work, then said road would be by the route passing into the ravine of the Ohio at or near the mouth of Fish Creek, and then to the city of Wheeling, and that the difference of said probable cost was then in like manner ascertained ; that the defendants accepted the said law within six months from the passage thereof; and also, that when the difference of probable cost between said two routes was ascertained, according [to] said act, the city of Wheeling did not agree to pay to the defendant such difference of cost by the time specified in said act, and that the plaintiff did attend at Richmond during the session aforesaid, and did then and there superintend and further the applications and other proceedings to obtain the right of way through the State of Virginia, on behalf of the defendant, then the plaintiff is entitled to recover, on the special contract contained in the instrument aforesaid, the value of the contingent compensation therein stipulated. . And the defendants, by their counsel, prayed the court to instruct the jury that the plaintiff was not entitled to recover, ecause the contract, which stipulated for the payment of a contingent fee of fifty thousand dollars, in the event of the o taming from, the Legislature of Virginia such a law as is e9C1q^d ^iere^n; was against public policy, and void. • -that if the jury shall believe that it was agreed between e parties to the said contract that the same should be kept l^fre ’ terms of it or otherwise, from the Legis- n Ule °t Virginia or the public, such contract, if otherwise a • e"a1’ was invalid as against public policy, and the plaintiff is not entitled to recover. the jury find that the special contract offered in evi-341 320 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. dence by the plaintiff was proposed to be entered into by plaintiff from the reasons and motives, and to be executed by him in the way suggested in his communication of the 17th of November, and its inclosure, offered in evidence by the defendant, (if the jury shall find that such communication was so made by plaintiff,) and if they shall find that the contract aforesaid was entered into accordingly, and that said contract, or plaintiff’s agency under it, was not made known to the Legislature of Virginia, but in fact concealed, that then said contract was illegal and void, upon grounds of public policy. *3211 *4* That the contract between the plaintiff and de- -* fendants of 12th of December, 1846, looked to the obtaining of a law authorizing the defendants to extend their road through the State of Virginia, to a point on the Ohio River as low down the river as Fishing Creek, which law should be afterwards accepted by the defendants with a determination to act under it, or to the incorporation of an independent company, which the defendants should determine to accept and adopt, or of whose charter they should become the proprietors, authorizing the construction of a railroad from any point on the Ohio River between the mouth of Little Kenawha and Wheeling, and that no such law having been obtained, the plaintiff is not entitled to recover. 5. That the modified contract of the 11th of February looked to the obtaining of the passage of Hunter’s substitute, with the adoption of Fish Creek instead of Fishing Creek, as the point of striking the Ohio. That the law which was passed on the 6th of March, 1847, was a law which did not, in its terms or effect, fulfil the stipulations of the modified agreement of February 11th, 1847. 6. That the acceptance of the law of March 6th, 1847, by the defendants, even supposing it to be substantially the same as Hunter’s substitute, did not entitle the plaintiff to recover unless the jury should believe that such law was obtained through his agency, under the agreement with the defendants. 7. That even if the jury should believe that the law of March 6th, 1847, was obtained through the plaintiff’s agency, the plaintiff is not entitled to recover if they shall believe that it was accepted by the defendants in consequence of the waiver, by the city of Wheeling, of the privileges accorded to it therein, and the stipulations contained in the agreemen between the city of Wheeling and the defendants of Marc 6th, 1847. _ 8. That the modified agreement of February Uth,1°L ’ which made Hunter’s substitute, modified as stated in t 342 DECEMBER TERM, 1853. 321 Marshall v. Baltimore and Ohio Railroad Company. foregoing prayer, the standard of the law which was to be obtained to entitle the plaintiff to the stipulated compensation, made it necessary that such law should give to the defendants the absolute right to approach the city of Wheeling by way of Fish Creek; should release them from the necessity of continuing their road to Wheeling, unless the citjr should, within one year, or the citizens of Ohio county should, in the same time, subscribe one million dollars to the stock of the defendants; should enable the defendants to open and bling into use, as they progressed, the sections of their road as they were successive^ finished ; and should authorize the defendants to charge, in proportion to distance, upon passengers and goods taken from Baltimore to Wheeling, should the road be continued to the *latter place ; while the law that was pg22 actually passed made it the right of the defendants to *-take the Fish Creek route depend upon its being the cheapest, and even then placed the defendants’ right to go to Fish Creek at the option of the city of Wheeling; made it imperative that Wheeling should be the terminus of the road, without any subscription on the part of herself or others; prevented the opening of any portion of her road west of Monongahela until the whole road could be opened to Wheeling, and oblige the defendant to charge no more for passengers or tonnage to Wheeling than they charged to a point five miles from the river ; and that before the defendant accepted the law thus differing from that referred to in the modified agreement of February 11th, 1847, the city of Wheeling waived its control of the route, leaving it to depend upon its comparative cost, agreed to subscribe five hundred thousand dollars to the stock of the defendants, and provided a depot for the defendants at the terminus of the road; and 1 a(^°P^^on an(l acceptance of the law of March the 6th, 1847, thus differing from Hunter’s substitute, and induced by the waiver and stipulation of Wheeling, already men-loned, and action under it, was not such an acceptance, adoption, and action, as entitled the plaintiff to recover. u. That if the jury shall believe that the plaintiff received rom the defendants the six hundred dollars given in evi-®nce in full discharge of his claims for compensation under ie agieement in question, then the plaintiff is not entitled to recover. hv court refused to give the instructions as prayed, follows61’ or defendant, but instructed the jury as thia* t'me the special contract was made, upon which U1 1S brought, it was understood between the parties 343 322 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. that the services of the plaintiff were to be of the character and description set forth in his letter to the president of the railroad company, dated November 17, 1846, and the paper therein inclosed, and that, in consideration of the contingent compensation mentioned in the contract, he was to use the means and influences proposed in his letter and the accompanying paper, for the purpose of obtaining the passage of the law mentioned in the agreement, the contract is against the policy of the law, and no action can be maintained. 2. If there was no agreement between the parties that the services of the plaintiff should be of the character and description mentioned in his letter and communication referred to in the preceding instruction, yet the contract is against the policy of the law, and void, if at the time it was made the parties agreed to conceal from the members of the Legislature of Virginia the fact that the plaintiff was employed by the *090-1 defendant, *as its agent, to advocate the passage of . -* the law it desired to obtain, and was to receive a com- pensation, in money, for his services in case the law was passed by the legislature at the session referred to in the agreement. 3. And if there was no actual agreement to practise such concealment, yet he is not entitled to recover if he did conceal from the members of the legislature, when advocating the passage of the law, that he was acting as agent for the defendant, and was to receive a compensation, in money, in case the law passed. 4. But if the law was made upon a valid and legal consideration, the contingency has not happened upon which the sum of fifty thousand dollars was to be paid to the plaintiff —the law passed by the legislature of Virginia being different, in material respects, from the one proposed to be obtained by the defendant by the agreement of February 11th, 1847 ; and the passage of which, by the terms of that contract, was made a condition precedent to the payment of the money. 5. The subsequent acceptance of the law as passed, under the agreement with the city of Wheeling, stated in the evidence, was not a waiver of the condition, and does not entitle the plaintiff to recover in an action on the special contract. 6. There is no evidence that the plaintiff rendered anj services, or was employed to render any, under any contrac » express or implied, except the special contract stated 111 ns declaration; and as no money is due to him under a 344 DECEMBER TERM, 1853. 323 Marshall v. Baltimore and Ohio Railroad Company, contract, he cannot recover upon the count upon a quantum meruit. And thereupon the plaintiff excepts, as well to the refusal of his prayers as to the granting of the instructions aforesaid given; and tenders this his second bill of exceptions, and prays that the same may be signed and sealed by the court, which is accordingly done day of November, 1852. R. B. Taney, [seal.] The first bill of exceptions was to the admissibility of the evidence above mentioned. Upon these two exceptions the case came up to this court. It was argued by Jfr. Davis and Mr. Schley, for the plaintiff in error, and by Mr. Latrobe and Mr. Johnson, for the defendants in error. All the points, on either side, relating to the particular route to be attained, are omitted, because it would be impossible to explain them without maps and minute geographical details. With respect to the three first instructions, the counsel for the plaintiff in error contended : 1. That the first instruction is erroneous—because *a. There is no proof of any understanding between [-#094 the parties at the time of the contract, that the ser- *-vices were to be of the nature mentioned in the paper No. 1. b. No service is proposed in paper No. 1, which is against the policy of the law, if the paper be fairly construed. Ihe paper describes the characters of the members, the conduct of the opponents of the company in influencing them, and the necessity of a counteracting influence out of doors; but it expressly disclaims all improper means and appliances, and the proposal is confined to “surrounding the legislature with respectable and influential agents, whose persuasive arguments may influence the members to do you a naked act of justice.” , Even if the paper be open to a doubt, the law resolves at doubt against the conclusion of illegality, as well in object as in means. Lewis n. Davison, 4 Mees. & W., 654. ' second instruction is erroneous—because a‘ There is no proof of any agreement at the time of the con iact for the concealment of the agency of the plaintiff iroin the members of the legislature. ’ + Jlero *s no difference between the obligation of an gen o procure a law and an agent for any other purpose 345 324 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. legal in itself; and the law does not avoid a contract of agency because it is to be kept secret. 3. That the third instruction is erroneous—because a. There is no proof of any actual concealment. b. In the absence of proof of disclosure, the law does not presume concealment. c. The proof is that, in point of fact, the agency was so conducted as to be apparent to the members of the legislature without being in words disclosed. d. It is proved that it was expressly disclosed both by the plaintiff and the company. e. But in the absence of any agreement or understanding as to concealment, which is the hypothesis of the instruction, it is clearly erroneous to avoid the contract at the instance of the company for the failure of the plaintiff to disclose his agency. That is to avoid the contract at the instance of the defendants by matter subsequent entirely foreign to it. f. The law does not require disclosure of an agency as a condition precedent to the right of the agent to recover from the principal. And, upon these points, the counsel referred to the following authorities: Davis v. Bank of Eng., 2 Bing., 393; Richardson v. Millish, 2 Bing., 229; Harrington v. Kloprogge, 4 Doug., 5; Stiles v. Causten, 2G. & J., 49; Kalkmanv. Causten, 2 G. & J., 357; Fishmonger Co. v. Robertson, 5 Mann. & 131; Hoivdon v. * Simpson, 10 Ad. & E., 793, 800, 1 and on appeal, 9 Cl. & F., 61; Wood v. McCann, 6 Dana (Ky.), 366; Hunt v. Test, 8 Ala., 713; Edwards v. Gr. J. R. R. Co., 7 Sim., 337, and on appeal, 1 Myl. & C., 65; Vauxhall Br. Co. v. Spencer, 2 Madd., 356; Jac., 64. Upon the principal point in the case, namely, that the contract was against public policy, and therefore void, the counsel for the defendant in error cited the following authorities. Hunt v. Test, 8 Ala., 713; Hatzfeld v. Gulden, 7 Watts (Pa.), 152; Clippinqer v. Hepbaugh, 5 Watts & S. (P,b)’ 315; Wood n. McCann, 6 Dana (Ky.), 366; Faller v. Dame, 18 Pick. (Mass.), 472. Mr. Justice GRIER delivered the opinion of the court. A question, necessarily preliminary to our consideration o the merits of this case, has been brought to the notice o court, though not argued or urged by the counsel. The plaintiff in error, who was also plain tiff below, ave in his declaration that he is a citizen of Virginia, an “ The Baltimore and Ohio Railroad Company, the deien > 346 DECEMBER TERM, 1853. 325 Marshall v. Baltimore and Ohio Railroad Company. is a body corporate by an act of the General Assembly of Maryland.” It has been objected, that this averment is insufficient to show jurisdiction in the courts of the United States over the “suit” or “controversy.” The decision of this court in the case of the Louisville Railroad v. Letson, 2 How., 497, it is said, does not sanction it, or if some of the doctrines advanced should seem so to do, they are extrajudicial, and therefore not authoritative. The published report of that case (whatever the fact may have been) exhibits no dissent to the opinion of the court by any member of it. It has, for the space of ten years, been received by the bar as a final settlement of the questions which have so frequently arisen under this clause of the Constitution; and the practice and forms of pleading in the courts of the United States have been conformed to it. Confiding in its stability, numerous controversies involving property and interests to a large amount, have been heard and decided by the circuit courts, and by this court; and many are still pending here, where the jurisdiction has been assumed on the faith of the sufficiency of such an averment. If we should now declare these judgments to have been entered without jurisdiction or authority, we should inflict a great and irreparable evil on the community. There are no cases, where an adherence to the maxim of “ stare decisis” is so absolutely necessary to the peace of society, as those which affect retroactively the jurisdiction of courts. For this reason alone, even if the court were now of opinion that the principles affirmed in the case just mentioned, and that of The Bank v. Deveaux, 5 Cranch, 61, were not founded r#qnz» on right reason, we should not be justified in overrul- *-mg them. . The practice founded on these decisions, to say the least, injures or wrongs no man; while their reversal could not fail to work wrong and injury to many. Besides the numerous cases, with similar averments, over w ich the court have exercised jurisdiction without objection, we may mention that of Rundle v. The Delaware and Raritan How., 80., as one precisely in point with the pres-• . ,e report of that case shows that the question of ,]Uii iction, though not noticed in the opinion of the court, ^as not overlooked, three of the judges having severally ex-thpSSf their opinion upon it. Its value as a precedent is on dt °r6/i n°t m?rety negative. But as we do not rely only be ent ius^fy°nr conclusion in this case, it may not mio-n ?y°Per’ once again, to notice the argument used to im-& e correctness of our former decisions, and also to 347 326 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. make a brief statement of the reasons which, in our opinion, fully vindicate their propriety. By the Constitution, the jurisdiction of the courts of the United States is declared to extend, inter alia., to “ controversies between citizens of different States.” The Judiciary Act confers on the circuit courts jurisdiction “in suits between a citizen of ths State where the suit is brought and a citizen of another State.” The reasons for conferring this jurisdiction on the courts of the United States, are thus correctly stated by a contemporary writer (Federalist, No. 80). “It may be esteemed as the basis of the Union, ‘that the citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several States.’ And if it be a just principle, that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities, the national judiciary ought to preside in all cases, in which one State or its citizens are opposed to another State or its citizens.” Now, if this be a right, or privilege guaranteed by the Constitution to citizens of one State in their controversies with citizens of another, it is plain that it cannot be taken away from the plaintiff by any legislation of the State in which the defendant resides. If A, B, and C, with other dormant or secret partners, be empowered to act by their representatives, to sue or to be sued in a collective or corporate name, their enjoyment of these privileges, granted by State authority, cannot nullify this important right conferred on those *8^71 wh° con^racf with them. It was *well remarked by -• Mr. Justice Catron, in his opinion delivered in the case of Rundle, already referred to, that “if the United States courts could be ousted of jurisdiction, and citizens of other States be forced into the State courts, without the power of election, they would often be deprived, in great cases, of all benefit contemplated by the Constitution ; and in many cases be compelled to submit their rights to judges and juries who are inhabitants of the cities where the suit must be tried, and to contend with powerful corporations, where the chances of impartial justice would be greatly against them ; and where no prudent man would engage with such an antagonist, if he could help it. State laws, y combining large masses of men under a corporate name, can not repeal the Constitution. All corporations, must have trustees and representatives who are usually citizens o State where the corporation is created: and these citizen 348 DECEMBER TERM, 1853. 327 Marshall v. Baltimore and Ohio Railroad Company. can be sued, and the corporate property charged by the suit. Nor can the courts allow the constitutional security to be evaded by unnecessary refinements, without inflicting a deep injury on the institutions of the country.” Let us now examine the reasons which are considered so conclusive and imperative, that they should compel the court to give a construction to this clause of the Constitution, practically destructive of the privilege so clearly intended to be conferred by it. “A corporation, it is said, is an artificial person, a mere legal entity, invisible and intangible.” This is no doubt metaphysically true in a certain sense. The inference, also, that such an artificial entity “cannot be a citizen” is a logical conclusion from the premises which cannot be denied. But a citizen who has made a contract, and has a “ controversy ” with a corporation, may also say, with equal truth, that he did not deal with a mere metaphysical abstraction, but with natural persons; that his writ has not been served on an imaginary entity, but on men and citizens; and that his contract was made with them as the legal representatives of numerous unknown associates, or secret and dormant partners. The necessities and conveniences of trade and business require that such numerous associates and stockholders should act by representation, and have the faculty of contracting, suing, and being sued in a factitious or collective name. But these important faculties, conferred on them by State legislation, for their own convenience, cannot be wielded to deprive others of acknowledged rights. It is not reasonable that those who deal with such persons should be deprived of a valuable privilege by a syllogism, or rather sophism, which deals subtly with *words and names, without regard r#ooo t0 the things or persons they are used to represent. Loo 1Sor is it reasonable that representatives of numerous unknown and ever-changing associates should be permitted to allege the different citizenship of one or more of these stockholders, in order to defeat the plaintiff’s privilege. It is true <. 4 .es® stockholders are corporators, and represented by 18 juridical person,” and come under the shadow of its e.* But for all the purposes of acting, contracting, and ,]n icial remedy, they can speak, act, and plead, only through *eu 1epiesentatives or curators. For the purposes of a suit PanCOn roveisy’ the persons represented by a corporate name orXnPPemk°nlyJ?y att°rney, appointed by its constitutional & s. Ine individual or personal appearance of each and 349 328 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. every corporator would not be a compliance with the exigency of the writ of summons or distringas. Though, nominally, they are not really parties to the suit or controversy. In courts of equity, where there are very numerous associates having all the same interest, they may plead and be impleaded through persons representing their joint interests; and, as in the case between the northern and southern branches of the Methodist Church, lately decided by this court, the fact that individuals adhering to each division were known to reside within both States of which the parties to the suit were citizens, was not considered as a valid objection to the jurisdiction. In courts of law, an act of incorporation and a corporate name are necessary to enable the representatives of a numerous association to sue and be sued. “ And this corporation can have no legal existence out of the bounds of the sov-eignty by which it is created. It exists only in contemplation of law and by force of the law; and where that law ceases to operate, the corporation can have no existence. It must dwell in the place of its creation.” Bank of Augusta v. Earle, 13 Pet., 512. The persons who act under these faculties, and use this corporate name, may be justly presumed to be resident in the State which is the necessary habitat pl the corporation, and where alone they can be made subject to suit; and should be estopped in equity from averring a different domicil as against those who are compelled to seek them there, and can find them there and nowhere else. If it were otherwise it would be in the power of every corporation, by electing a single director residing in a different State, to deprive citizens of other States with whom they have controversies, of this constitutional privilege, and compel them to resort to State tribunals in cases in which, of all others, such privilege may be considered most valuable. But it is contended that, notwithstanding the court in deciding the question of jurisdiction, will look behind the coi-*q?q-i Porate *or collective name given to the party, to fin -1 the persons who act as the representatives, curators, or trustees, of the association, stockholders, or cestui que trusts, and in such capacity are the real parties to the con ro versy; yet that the declaration contains no sufficient aver ment of their citizenship. Whether the averment of . > fact be sufficient in law, is merely a question of pleading-the declaration sets forth facts from which the citizens ip the parties may be presumed or legally inferred, it is su cient. The presumption arising from the habitat p a poration in the place of its creation being conclusive as 350 DECEMBER TERM, 1853. 329 Marshall v. Baltimore and Ohio Railroad Company. the residence or citizenship of those who use the corporate name and exercise the faculties conferred by it, the allegation that the “ defendants are a body corporate by the act of the General Assembly of Maryland,” is a sufficient averment that the real defendants are citizens of that State. This form of averment has been used for many years. Any established form of words used for the expression of a particular fact, is a sufficient averment of it in law. In the case of Gassies v. Ballon, 6 Pet., 761, the petition alleged that “the defendant had caused himself to be naturalized an American citizen, and that he was at the time of filing the petition residing in the parish of West Baton Rouge.” This was held to be a sufficient averment that he was a citizen of the State of Louisiana. And the court say, a “ citizen of the United States residing in any State of the Union, is a citizen of that State.” They also express their regret that previous decisions of this court had gone so far in narrowing and limiting the rights conferred by this article of the Constitution. And we may add, that instead of viewing it as a clause conferring a privilege on the citizens of the different States, it has been construed too often, as if it were a penal statute, and as if a construction which did not adhere to its very letter without regard to its obvious meaning and intention, would be a tyrannical invasion of some power supposed to be secured to the States or not surrendered by them. The right of choosing an impartial tribunal is a privilege of no small practical importance, and more especially in cases where a distant plaintiff has to contend with the power and influence of great numbers and the combined wealth wielded by corporations in almost every State. It is of importance also to corporations themselves that they should en]°y the same privileges, in other States, where local preju-dmesor jealousy might injuriously affect them. With these remarks on the subject of jurisdiction we will now proceed to notice the various exceptions to the rulings of the court on the trial. he declaration, besides a count for work and labor done $nc services rendered in procuring certain legislation in irgiuia, demands the sum of fifty thousand dollars *-on a special contract made with the defendants, through a iJ1 board of directors, dated 12th of December, 1846, as follows: hprpR11 m°ti°n; it was resolved, that the President be, and is nlovpd ^uthorized, in addition to the agent heretofore em-makn y committee for the same purpose, to employ and arrangements, with other responsible persons, to attend 351 330 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. at Richmond during the present session of the legislature, in order to superintend and further any application or other proceeding to obtain the right of way through the State of Virginia, on behalf of this company, and to take all proper measures for that purpose ; that he also be authorized to agree with such agent or agents, in case a law shall be obtained from the said legislature, during its present session, authorizing the company to extend their road through that State to a point on the Ohio River as low down the river as Fishing Creek; and the stockholders of this company shall afterwards accept such law as may be obtained, and determine to act under it; or, in case a law should be passed authorizing the construction of a railroad from any point on the Ohio River above the mouth of the Little Kenawha and below the city of Wheeling, with authority to intersect with the present Baltimore and Ohio Railroad; and the stockholders of the Baltimore and Ohio Railroad Company shall determine to accept and adopt said law, or shall become the proprietors thereof, and prosecute their road according to its provisions, then, in either of the said cases, the president shall be and is authorized to pay to the agent or agents whom he may employ in pursuance of this resolution, the sum of fifty thousand dollars, in the six per cent, bonds of this company, at their par value, and to be made payable at any time within the period of five years. Resolved, That it shall be expressly stipulated in the agreement with the said agent or agents employed pursuant to this resolution, and as a condition thereof, that if no such law as aforesaid shall pass, or if any law that may be passed shall not be accepted, or adopted, or used by the stockholders, the said agents shall not be entitled to receive any compensation whatever for the service they may render in the premises, or for any expense they may incur in obtaining such law or otherwise.” And also the following resolution of January 18th, 1847: “ On motion it was unanimously resolved, that the right of Mr. Marshall to the compensation under the existing contract shall attach upon the passage of a law at the present session of the legislature, giving the right of way to Parkersburg 01 to Fishing Creek, either to the Baltimore and Ohio Railroa Company, or to an independent company: Provided is n company *accept the one, and adopt an act under ie -> other, as contemplated by the contract.” And also a letter from the president of the company, o February 11th, 1847, containing a further modification o 1 terms as exhibited in the following extract: “ In this crisis, if after the utmost exertion nothing e 352 DECEMBER TERM, 1853. 331 Marshall v. Baltimore and Ohio Railroad Company. can be done, if it were practicable to pass Mr. Hunter’s substitute with Fish Creek instead of Fishing Creek, we would not undertake to prevent the passage of such a law. We would then refer the whole question to the stockholders, and I am authorized to say that, every thing else failing, if such a law as is indicated pass, and the stockholders adopt it and act under it in the manner contemplated by the contract, your compensation shall apply to that as to any other aspect of the case.” The defendants gave notice of the following grounds of defence, as those upon which they intended to rely • “ 1. That the agreement sought to be enforced by the plaintiff, admitting his ability to make it out by legal proof to the extent of his pretensions, was an agreement contrary to the policy of the law, and which cannot be sustained. “ 2. That, admitting the said agreement to be a valid one, which the courts would enforce, yet the plaintiff is not entitled to recover, because he failed to accomplish the object for which it was entered into. “ 3. That the law of Virginia, which was accepted by the defendants after it had been modified by the waiver of the city of Wheeling, as mentioned in the plaintiff’s notice, was not obtained through the efforts of the plaintiff, but against his strenuous opposition, and furnishes him no ground for his present claim. “ That there was a final settlement between the plaintiff and defendants, after the passage of the Virginia law aforesaid, which concludes him on this behalf.” On the trial the plaintiff, after giving in evidence the contract as above stated, produced various letters and documents tending to show the measures pursued, and their result—a particular recapitulation of these facts is not necessary, and would encumber the case. A very brief outline will suffice to an understanding of the points to be considered. It appears that the defendants were desirous to obtain, from the Legislature of Virginia, the grant of a right of way so as to strike the Ohio River as low down as possible in view of a connection from thence .towards Cincinnati. It was the interest of the people of Wheeling to prevent, if pos-si le, the terminus of the road on the Ohio from being any-w ere else but at their city. In the winter of 1846-7 the an-agonist parties came into *collision again before the legislature of Virginia, at Richmond. In this contest L e p aintiff acted as general agent of the defendants, under e contract in question. The bills granting the desired frail-Vol.xvi.-23 s 8 353 332 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. chise to the defendants were defeated in every form proposed by them, and a substitute, altered and amended to suit the interests of Wheeling, was finally passed in face of the strenuous opposition of the defendants. The plaintiff afterwards admitted his defeat, and want of success in fulfilling the conditions of his contract. He at the same time demanded and received the sum of six hundred dollars for expenses of agents, &c. But as Wheeling and defendants both desired the extension of the road to the Ohio, they finally agreed to a compromise, modifying the operation of the act under which the road has since been completed. The defendants then offered in evidence, in support of their defence, on the ground of illegality of the contract, a letter from the plaintiff to the president of the board, dated 17th November, 1846, with an accompanying document, in which plaintiff proposes himself as agent, and states his terms; and the course he advises to be pursued, and the means to be used to ensure success; and also a letter from the president in answer thereto, stating his inability to act on his individual responsibility, and inviting an interview; together, also, with a letter from the same, dated 12th of December, in which he says: “I am now prepared to close an arrangement with you on the basis of your communication of the 17th of November.” The plaintiff’s objection to the admission of these documents in evidence, and the reception of them, form the subject of the first bill of exceptions. In order to judge of the competency and relevancy of these documents to the issue in the case, it will be necessary to give a brief statement of some portion of their contents. The letter of November 17th commences by referring to a former interview and a promise to submit a plan, in writing, by which it was supposed the much desired right of way through Virginia might be procured from the legislature. It proposes that the writer should be appointed, as agent of the company, to manage “ the delicate and important trust. „ It states that, as the business required “absolute secrecy, he could not safely get testimonials as to his qualifications; but that he had “ considerable experience as a lobby menibei before the legislature of Virginia, and could allege “ an ostensible reason ” for his presence in Richmond, and his active interference, without disclosing his real character and objec . The accompanying document explains the cause of pre_ vious failures, and shows what remedy or counteracting m fluence *should be employed. It announces a -* “ log-rolling ” was the principal measure used to 354 DECEMBER TERM, 1853. 333 Marshall v. Baltimore and Ohio Railroad Company. feat them before. That it has grown into a system; that however “ skilful and unscrupulous ” the friends of defendants may have been in this respect, still their opponents had got the advantage, being present on the ground, and “ using out-door influence.” That it was necessary to meet their opponents with their own weapons. That the mass of the members of the legislature were “ careless and good natured,” and “ engaged in idle pleasures,” capable of being “moulded like wax” by the “most pressing influences.” That, to get the vote of this careless mass, “efficient means ” must be adopted. That through their “ kind and social dispositions” they may be approached and influenced to do any thing not positively wrong, “ where they can act without fear of their constituents.” That to the accomplishment of success it was necessary to have “ an active, interested, and well organized influence about the house.” That these agents “must be inspired with an earnest, nay, anxious wish for success,” “and have their whole reward depending on it.” “Give them nothing if they fail, endow them richly if they succeed.” “Stimulate them to active partisanship by the strong lure of high profit.” That, in order to the “requisite secrecy,” the company should know but one agent, and he select the others ; that the cost of all this will “ necessarily be great,” as the result can be obtained “only by offers of high contingent compensation”; that “high services cannot be had at a low bid,” and that he would not be willing to undertake the business unless “provided with a fund of at least $50,000.” As the contract was made “ on the basis of this communication,” there can be no doubt as to its legal competence as evidence to show the nature and object of the agreement. As parts of one and the same transaction, they may be considered as incorporated in the contract declared on. The testimony ls therefore competent. Is it relevant? As the first three propositions, contained in the charge of e court, have reference to the question of the relevancy 0 this matter to the issues, they may well be considered together. J J They are as follows: ,. K the time the special contract was made, upon na i 8 su^ *s brought, it was understood between the • ph ieS<- tbe services of the plaintiff were to be of the dpnfaCre+ian<^ description set forth in his letter to the presi-and tn t le railroa(? company, dated November 17th, 1846, the o e PaPer therein inclosed, and that, in consideration of on mgent compensation mentioned in the contract, he 355 333 SUPREME COURT. Marshh.ll v. Baltimore and Ohio Railroad Company. was to use the means and influences proposed in his letter and *004-1 the accompanying paper, *for the purpose of obtaining J the passage of the law mentioned in the agreement, the contract'is against the policy of the law, and no action can be maintained. “ 2. If there was no agreement between the parties that the services of the plaintiff should be of the character and description mentioned in his letter and communication referred to in the preceding instruction, yet the contract is against the policy of the law, and void, if at the time it was made the parties agreed to conceal from the members of the Legislature of Virginia the fact that the plaintiff was employed by the defendant, as its agent, to advocate the passage of the law it desired to obtain, and was to receive a compensation, in money, for his services, in case the law was passed by the legislature at the session referred to in the agreement. “ 3. And if there was no actual agreement to practise such concealment, yet he is not entitled to recover if he did conceal from the members of the legislature, when advocating the passage of the law, that he was acting as agent for the defendant, and was to receive a compensation, in money, in case the law passed.” It is an undoubted principle of the common law, that it will not lend its aid to enforce a contract to do an act that is illegal; or which is inconsistent with sound morals or public policy; or which tends to corrupt or contaminate, by improper influences, the integrity of our social or political institutions. Hence all contracts to evade the revenue laws are void. Persons entering into the marriage relation should be free from extraneous or deceptive influences; hence the law avoids all contracts to pay money for procuring a marriage. It is the interest of the State that all places of public trust should, be filled by men of capacity and integrity, and that the appointing power should be shielded from influences which may pie-vent the best selection; hence the law annuls every contiac for procuring the appointment or election of any person to. an office. The pardoning power, committed to the executive, should be exercised as free from any improper bias or influence as the trial of the convict before the court; conseqnen y, the law will not enforce a contract to pay money for soliciting petitions or using influence to obtain a pardon. Legisja 01s should act from high considerations of public duty. 1 u * policy and sound morality do therefore imperatively r.e(lul that courts should put the stamp of their disapprobation every act, and pronounce void every contract the ultima probable tendency of which would be to sully the pun y 356 DECEMBER TERM, 1853. 334 Marshall v. Baltimore and Ohio Railroad Company. mislead, the judgments of those to whom the high trust of legislation is confided. All persons whose interests may in any way be affected by *any public or private act of the legislature, have an un- pggc doubted right to urge their claims and arguments, *-either in person or by counsel professing to act for them, before legislative committees, as well as in courts of justice. But where persons act as counsel or agents, or in any representative capacity, it is due to those before whom they plead or solicit, that they should honestly appear in their true characters, so that their arguments and representations, openly and candidly made, may receive their just weight and. consideration. A hired advocate or agent, assuming to act in a different character, is practising deceit on the legislature. Advice or information flowing from the unbiased judgment of disinterested persons, will naturally be received with more confidence and less scrupulously examined than where the recommendations are known to be the result of pecuniary interest, or the arguments prompted and pressed by hope of a large contingent reward, and the agent “ stimulated to active partisanship by the strong lure of high profit.” Any attempts to deceive persons intrusted with high functions of legislation, by secret combinations, or to create or bring into operation undue influences of any kind, have all the injurious effects of a direct fraud on the public. Legislators should act with a single eye to the true interest of the whole people, and courts of justice can give no countenance to the use of means which may subject them to be misled by the pertinacious importunity and indirect influences ot interested and unscrupulous agents or solicitors. Influences secretly urged under false and covert pretences must necessarily operate deleteriously on legislative action, W tu' e 1 be employed to obtain the passage of private or public acts. Bribes, in the shape of high contingent compensation, must necessarily lead to the use of improper means and the exercise of undue influence. Their necessary consequence is the demoralization of the agent who covenants for em; he is soon brought to believe that any means which W1 1 produce so beneficial a result to himself are “ proper means ; and that a share of these profits may have the same e ec of quickening the perceptions and warming the zeal of in uential or “careless” members in favor of his bill. The siih' ° p SVch means and such agents will have the effect to wp governments to the combined capital of mpn • J coyPorations, and produce universal corruption, cornicing with the representative and ending with the elector. 357 335 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. Speculators in legislation, public and private, a compact corps of venal solicitors, vending their secret influences, will infest the capital of the Union and of every State, till corruption shall become the normal condition of the body politic, and it will be said of us as of Rome—“ omne Romce venale.” *That the consequences we deprecate are not merely J visionary, the act of Congress of 1853, c. 81, “to prevent frauds upon the treasury of the United States” may be cited as legitimate evidence. This act annuls all champertous contracts with agents of private claims. 2d. It forbids all officers of the United States to be engaged as agents or attorneys for prosecuting claims or from receiving any gratuity or interest in them in consideration of having aided or assisted in the prosecution of them, under penalty of fine and imprisonment in the penitentiary. 3d. It forbids members of Congress, under a like penalty, from acting as agents for any claim in consideration of pay or compensation, or from accepting any gratuity for the same. 4th. It subjects any persons who shall attempt to bribe a member of Congress to punishment in the penitentiary, and the party accepting the bribe to the forfeiture of his office. If severity of legislation be any evidence of the practice of the offences prohibited, it must be the duty of courts to take a firm stand, and discountenance, as against the policy of the law, any and every contract which may tend to introduce the offences prohibited. Nor are these principles now advanced for the first time. Whenever similar cases have been brought to the notice of courts they have received the same decision. Without examining them particularly, we would refer to the cases of Fuller v. Dane, 18 Pick. (Mass.), 470; Hatzjie v. Gulden, 7 Watts (Pa.), 152; Clippinger x. Hepbaugh,J> Watts & S. (Pa.), 315; Wood v. McCann, 6 Dana (Ky.), 3bo; and Hunt v. Test, 8 Ala., 719. The Commonwealth v. Callaghan, 2 Va. Cas., 460. The sum of these cases is—1st. That all contracts for a con tingent compensation for obtaining legislation, or to use per sonal or any secret or sinister influence on legislators, is vol by the policy of the law. , . 2d. Secrecy, as to the character under which the agen solicitor acts, tends to deception, and is immoral aiid rau lent; and where the agent contracts to use secret innuen ? or voluntarily, without contract with his principal, uses s means, he cannot have the assistance of a court to rec compensation. remans is 3d. That what, in the technical vocabulary of poll i 358 DECEMBER TERM, 1853. 336 Marshall v. Baltimore and Ohio Railroad Company. termed “log-rolling,” is a misdemeanor at common law, punishable by indictment. It follows, as a consequence, that the documents given in evidence under the first bill of exceptions were relevant to the issue ; and that the court below very properly gave the instructions under consideration. *We now come to the last three exceptions to the [-*007 instructions of the court, which were as follows: *- * “4. But if the contract was made upon a valid and legal consideration, the contingency has not happened upon which the sum of fifty thousand dollars was to be paid to the plaintiff— the law passed by the legislature of Virginia being different, in material respects, from the one proposed to be obtained by the defendant by the agreement of February 11th, 1847; and the passage of which, by the terms of that contract, was made a condition precedent to the payment of the money.” “5. The subsequent acceptance of the law as passed, under the agreement with the city of Wheeling, stated in the evidence, was not a waiver of the condition, and does not entitle the plaintiff to recover in an action on the special contract.” “ 6. There is no evidence that the plaintiff rendered any services, or was employed to render any, under any contract, express or implied, except the special contract stated in his declaration; and as no money is due to him, under that contract, he cannot recover upon the count of quantum meruit.” We do not think it necessary, in order to justify these instructions of the court below, or to vindicate our affirmance of them, to enter into a long and perplexed history of the various schemes of legislative action, and their results, as exhibited by the testimony in the case. It would require a map of the country, and tedious and prolix explanations, ©unice it to say, that after a careful examination of the admitted facts of the case, we are fully satisfied of the correctness of the instructions. 1. Because the plaintiff, by his own showing, had not per-ormed the conditions which entitled him to demand this stipulated compensation. , £hejact assembly which was passed, and afterwards nsec by defendant for want of better, was obtained by the y°ref?fcS Of3 defendants’ and in spite of the opposition of P aintln; and the fact that the company were compelled to cep the act under modifications, by compromise with their 359 337 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company, opponents, would not entitle, plaintiff to his stipulated reward. 3. By the stipulations, of his contract he is estopped from claiming under a quantum meruit, as his whole compensation depended on the success in obtaining certain specified legislation, which he acknowledged he had failed to achieve. The judgment of the Circuit Court is therefore affirmed, with costs. Mr. Justice Catron, Mr. Justice Daniel, and Mr. Justice Campbel], dissented. Mr. Justice CATRON said that he. concurred with his *ooq-i *brother, Mr. Justice Campbell, in the opinion which J he was about to pronounce, and had authorized him so to state. But inasmuch as reference had been made in the opinion of the court, which had just been delivered, to an opinion which he himself had given in the case of Rundle n. The Delaware and Raritan Canal Company, 14 How., 80, he felt it to be a duty to himself to remark, that he had at all times denied that a corporation is a citizen within the sense of the Constitution, and so he had declared in the opinion just referred to. He had there stated the necessity of the existence of jurisdiction in the federal courts as against corporations, but held that citizenship of the president and directors must be averred to be of a different State from the other party to the suit; without which averment, this court could not proceed, according to the settled practice of fifty years standing. Leston's case (which is the foundation of the new doctrine) contained the necessary averment within the settled practice, and consequently it was not necessary to give a separate opinion in that case. He remarked, further, that according to the assumption that a corporation was a citizen of the State where it was incorporated, a company having a charter for a railroad in two States (and there were many such) might sue citizens of the State and place where the president and directors resided, averring that the company was a citizen of the other State, and vice versd. In such case the corporation could sue m every federal court in the Union. Mr. Justice DANIEL. From the opinion just delivered I must declare my dissen In the settlement of the discreditable controversy between the parties to this cause, I take no part. If I did, I shou probably say that it is a case without merits, either in e plaintiff or in the defendants, and that in such a case ey 360 DECEMBER TERM, 1853. 338 Marshall v. Baltimore and Ohio Railroad Company. should be dismissed by courts of justice to settle their dispute by some standard which is cognate to the transaction in which they have been engaged. My participation in this case has reference to a far different and more important ingredient involved in the opinion just announced, namely, the power of this court to adjudicate this cause consistently, with a just obedience to that authority from which, and from which alone, their being and their every power are derived. Having in former instances, and particularly in the case of the Rundle v. Delaware and Raritan Canal Company, endeavored to expose the utter want of jurisdiction in the courts of the United States over causes in which corporations shall be parties *either as plaintiffs or defendants, I hold it to r*ggq be unnecessary in this place to repeat or to enlarge upon L the positions maintained in the case above mentioned, as they are presented in 14 How., 95. Indeed, from any real necessity for enforcing the general fundamental proposition contended for by me in the case of Rundle and the Delaware and Raritan Canal Company, namely, that under the second section of the third article of the Constitution, citizens only, that is to say men, material, social, moral, sentient beings, must be parties, m order to give jurisdiction to the federal courts, I am wholly relieved by the virtual, obvious, and inevitable concessions, comprised in the attempt now essayed, to carry the provision of the Constitution beyond either its philological, technical, political, or vulgar acceptation. For in no one step in the progress of this attempt, is it denied that a corporation is not and cannot be a citizen, nor that a citizen does not mean a corporation, nor that the assertion of a power by an individual outside of the corporation, and interfering with and controlling its organization and functions (whatever might be the degree of interest owned by that individual in the corpora-lon), would be incompatible with the existence of the cor-poiate body itself. Nothing of this kind is attempted. But an effort is made to escape from the effect of these concessions, by assumptions which leave them in all their force and s ow that such concessions and assumptions cannot exist in harmony with each other. qJ1?8 has been insisted that a corporation, created by <. th + QCan ^ave n.° being or faculties beyond the limits that ®^afe 5 and if its president and officers reside within nrQ,r a^e s?c.h a conjuncture will meet and satisfy the P T]1Canien^ d°wn by the Constitution. th a integrity, in this argument, is exposed by tne tollowing questions: 361 339 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. 1. Does the restriction of the corporate body within particular geographical limits, or the residence of its officers within those limits, render it less a corporation, or alter its nature and legal character in any degree? 2. Does the restriction of the corporate faculties within given bounds, necessarily or by any reasonable assumption, imply that the interest of its stockholders, either in its property or its acts, is confined to the same limits ? If it does, then a change of residence by officers, agents, or stockholders, or a transfer of a portion of the interests of the latter, would destroy the qualification of citizenship depending upon locality. If it would not have this effect, then this anomalous citizen may possess the rights of both plaintiff and defendant, nay, by a sort of plural being or ubiquity, may be a citizen of every State in the Union, *may -I even be a State and a citizen of the same State at the same time. Again it has been said, that the Constitution has reference merely to the interests of those who may have access to the federal courts; and that provided those interests can be traced, or presumed to have existence in persons residing in different States, it cannot be required that those by whom such interests are legally held and controlled, or represented, should be alleged or proved to be citizens, or should appear in that character as parties upon the record. In reply to this proposition it may be asked, upon what principle any one can be admitted into a court of justice apart from the interest he may possess in the matter in controversy; and whether it is not that interest alone and the position he holds in relation thereto, which can give him access to any court? But, again, the language of the Constitution refers expressly and conclusively to the civil or political character of the party litigant, and constitutes that character the test of his capacity to sue or be sued in the courts of the United States. In strict accordance with this doctrine has been the interpretation of the Constitution from the early, and what may in some sense be called the cotemporaneous interpretation of that instrument, an interpretation handed down in an unbroken series of decisions, until crossed and disturbed by e anomalous ruling in the case of Letson n. The Louisville at road Company. • i Qlnf Beginning with the case of Bingham v. Cabot, in the < Dallas, 382, and running through the cases of Turner v. Bank of North America, 4 Dall., 8; Turner s Admr. v. rille, Id., 7; Mossman v. Higginson, Id., 12; Abercrom te Dupuis, 1 Cranch, 343; Wood v. Wagnon, 2 Id., 1; Capron v- 362 DECEMBER TERM, 1853. 340 Marshall v. Baltimore and Ohio Railroad Company. Van Noorden, 2 Id., 126; Strawbridge v. Curtis, 3 Id., 267; The Bank of the United States n. Deveaux, 5 Id., 61; Hodgson v. Bowerbank, 5 Id., 303; The Corporation of New Orleans v. Winter, 1 Wheat., 91; Sullivan v. The Fulton Steamboat Company, 6 Wheat., 450—the doctrine is ruled and reiterated, that in order to maintain an action in the courts of the United States, under the clause in question, not only must the parties be citizens of different States, but that this character must be averred explicitly, and must appear upon the record, and cannot be inferred from residence or locality, however expressly stated, and that the failure to make the required averment will be fatal to the jurisdiction of a federal court, either original or appellate; and is not cured by the want of a plea or of a formal exception in any other form. But the decisions have not stopped at this point; they have ruled that to come within the meaning of the Constitution, the cause of action *must have existed ab origine be- [-*041 tween citizens of different States, and that the article *-in question cannot be evaded by a transfer of rights which, by their primitive and intrinsic character, were not cognizable in the courts of the United States as between citizens of different States. See Turner v. The Bank of North America, already cited, and the cases of Mon-talet v. Murray, 4 Cranch, 46; and Gribson n. Chew, 16 Pet., 315. It is remarkable to perceive how perfectly the case of Turner v. The Bank of North America covers that now under consideration, and how strongly and emphatically it rebukes the effort to claim by indirect and violent construction, powers for the federal courts which not only have never been delegated to them, nor implied by ,the silence of the Constitution, but still more powers assumed in defiance of its express inhibition. In the case last mentioned, the plaintiffs were well described as citizens of Pennsylvania, suing turner and others, who were properly described as citizens of North Carolina, upon a promissory note made by -1®. endants, and payable to Biddle and Company, and R'mi assi§'nment, became the property of the plaintiffs. iddle & Co. were not otherwise described than as “using ia e and partnership” at Philadelphia or North Carolina, pon an exception upon argument, taken for the first time in is court, Ellsworth, Chief Justice, pronounced its deci-im?686 wor(^s: “A Circuit Court is one of limited on?8 10f’ and ba.s c°gnizance not of causes generally, but nron °pa *eW£ sPeciady circumstanced, amounting to a small wnnir? 101L °* a cases which an unlimited jurisdiction embrace. And the fair presumption is, (not as with 363 341 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather) that a cause is without its jurisdiction till the contrary appears. This renders it necessary, inasmuch as the proceedings of no court can be valid farther than its jurisdiction appears or can be presumed, to set forth upon the record of a circuit court, the facts or circumstances which give it jurisdiction, either expressly or in such manner as to render them certain bv legal intendment. Amongst those circumstances it is necessary, where the defendant appears to be a citizen of one State, to show that the plaintiff is a citizen of some other State, or an alien ; or if, as in the present case, the suit be upon a promissory note by an assignee, to show that the original promisee is so, for by a special provision of the statute it is his description as well as that of the assignee, which effectuates the jurisdiction; but here the description given of the promisee only is, that he used trade at Philadelphia or North Carolina; which, taking either place for that where he used *3491 fra(^e’ contains no averment that *he was a citizen of -* a State other than that of North Carolina, or an alien, nor any thing which by legal intendment can amount to such an averment.” Let it be remembered, that the statute alluded to by Chief Justice Ellsworth is nothing more nor less than an assertion in terms of the second section of the third article of the Constitution ; and it may then be asked, what becomes of this awkward attempt to force upon both the Constitution and statute a construction which the just meaning of both absolutely repels? Every one must be sensible that the seat of a man’s business, of his daily pursuits and occupations, must probably, if not necessarily, be the place of his residence , yet here we find it expressly ruled, that such a commorancy by no just legal intendment any more than by express language, constitutes him a citizen of that community or State in which he may happen to be then residing or transacting his business; moreover, it is familiar to every lawyer or other person conversant with history, that during the periods of greatest jealousy and strictness of the English polity, aliens were permitted, for the convenience and advancement of commerce, to reside within the realm and o rent and occupy real property; but it never was pretemie that such permission or residence clothed them with e character or with a single right pertaining to a Bn is subject. Nor has the doctrine ruled by the cases just cited been ap plied to proceedings at law alone, in which a peculiar s no 364 DECEMBER TERM, 1853. 342 Marshall v. Baltimore and Ohio Railroad Company. ness or an adherence to what may seem to partake of form is adhered to. The overruling authority of the Constitution has been regarded by this court as equally extending itself to equitable as to legal rights and proceedings in the courts of the United States. Thus in the case of Course v. Stead in 4 Dal., 22. That was a suit in equity in the Circuit Court of the United States for the District of Georgia, in which it was deemed necessary to make a new party by a supplemental bill. This last bill recited the original bill, and all the orders which had been made in the cause, but omitted to allege the citizenship of the newly made defendant. In this case, when brought here by appeal from the court below, this court say, in reference to the omission to aver the citizenship of the new party, “ it is unnecessary to form or to deliver any opinion upon the merits of this cause ; let the decree of the Circuit Court be reversed.” The’ case of Jackson v. Ashton, in 8 Pet., 148, is still more in point. This also was a suit in equity. The caption of the bill was in these words: “ Thomas Jackson and others, citizens of the State of Virginia, v. The Rev. William E. Ashton, a citizen of Pennsylvania J* What said this court by its organ, Marshall, Chief Justice, upon this state of the case ? “ The title or *caption of the bill pgqg is no part of the bill, and does not remove the objec-tion of the defects in the pleadings. The bill and proceedings should state the citizenship of the parties to give the court jurisdiction.” In these last decisions must be perceived the most emphatic refutation of this newly assumed version of the Constitution, which affirms that, although by the language of that instrument citizenship and neither residence nor property, but citizenship, the civil and political relation or status independently of either, is explicitly demanded, yet this requisition is fully satisfied by the presumption of a beneficiary interest in property apart either from possession or right of possession or from any legal estate or title makes the interest thus inferred equivalent with citizenship of the person to whom interest is thus strangely imputed. Perhaps the most singular circumstance attending the interpolation of this new doctrine is the effort made to sustain it upon the rule stare decisis. After the numerous and direct authorities before cited, showing the inapplicability to this case of this rule, it would have been thought d priori that the very last aid to. be invoked in its support would be the maxim stare decisis. For this new class of citizen corpora-ions, incongruous as it must appear to every legal definition or conception, is not less incongruous nor less novel to the re ation claimed for it, or rather for its total want of relation .365 313 SUPREME COURT. Marshall v. Baltimore and Ohio Railroad Company. to the settled adjudications of this court. It is strictly a new creation, an alien and an intruder, and is at war with almost all that has gone before it; and can trace its being no farther back than the case of Letson v. The Louisville Railroad Company. The principle stare decisis, adopted by the courts in order to give stability to private rights, and to prevent the mischiefs incident to mutations for light and insufficient causes, is doubtless a wholesome rule of decision when derived from legitimate and competent authority, and when limited to the necessity which shall have demanded its application ; but, like every other rule, must be fruitful of ill when it shall be wrested to the suppression of reason or duty, or to the arbitrary maintenance of injustice, of palpable error, or of absurdity. Such an application of this rule must be necessarily to rivet upon justice, upon social improvement and happiness, the fetters of ignorance, of wrong, and usurpation. It is a rule which, whenever applied, should be derived from a sound discretion, a discretion having its origin in the regular and legitimate powers of those who assert it. It can never be appealed to in derogation or for the destruction of the supreme authority, of that authority which created and which holds in subordination the agents whose functions it has defined, and bounded by clear and plainly-marked limits. *044-1 * Wherever the Constitution commands, discretion -I terminates. Considerations of policy or convenience, if ever appealed to, I had almost said if ever imagined in derogation of its mandate, b'ecome an offence. Beyond the Constitution or the powers it invests, every act must be a violation of duty, an usurpation. There cannot be a more striking example than is instanced by the case before us, of the mischiefs that must follow from disregarding the language, the plain words, or what may be termed the body, the corpus, of the Constitution, to ramble in pursuit of some ignis fatuus of construction or implication, called its spirit or its intention,—a spirit not unfrequently about as veracious, and as closely connected with the Constitution, as are the spirits of the dead with the revolving tables and chairs which, by a fashionable metempsychosis of the day, they are said to animate. The second section of the third article of the Constitution prescribes citizenship as an indispensable requisite for obtaining admission to the courts of the United States—-prescribes it in language too plain for misapprehension. This court, in the case of Deveaux and the Bank of the United Sta es, yielded obedience, professedly at any rate, to the consti u 366 DECEMBER TERM, 1853. 344 Marshall v. Baltimore and Ohio Railroad Company. tional mandate: for they asserted the indispensable requisite of citizenship; but in an unhappy attempt to reconcile that obedience with an unwarranted claim to power, they utterly demolished the legal rights, nay, the very existence of one of the parties to the controversy, thereby taking from that party all standing or capacity to appear in any court. This was ignis fatuus, No. 1. This was succeeded by the case of Letson v. The Cincinnati and Louisville Railroad Company, in which, by a species of judicial resurrection, this party (the corporation) was deterr£, raised up again, but was not restored to the full possession of life and vigor, or to the use of all his members and faculties, nor even allowed the privilege of his original name; but semianimate, and in virtue of some rite of judicial baptism, though “ curtailed of his natural dimensions,” he is rendered equal to a release from the thraldom of constitutional restriction, and made competent at any rate to the power of commanding the action of the federal courts. I his is ignis fatuus, No. 2. Next in order is the case of Marshall v. The Baltimore and Ohio Railroad Company. This is indeed the chef d’oeuvre amongst the experiments to command the action of the spirit in defiance of the body of the Constitution. It is compelled, from the negation of that instrument, by some necromantic influence, potent as that by which, as we read, the resisting Pythia was constrained to yield her vaticinations of an occult futurity. For in this case is manifested the most *entire disregard of any and every qualifica-tion, political, civil, or local. This company is not *-described as a citizen or resident of any State; nor as having tor its members the citizens of any State; nor as a quasi citizen ; nor as having any of the rights of a citizen ; nor as residing or being located in any State, or in any other place. JMo intimation of its “whereabout” is alluded to. It is said ° have been incorporated by the State of Maryland; but w lether the State of Maryland had authority to fix its locality or ever directed that locality, and whether that be in the orincognita, is no where disclosed. It is said a because this company was incorporated by the Legisla-ure oi Maryland, we may conjecture, and are bound to con-J c ure, that it is situated in Maryland, and must possess all n„VUa1 j^^ons appertaining to a citizen of Maryland to sue eno 6 SUe(* ln ^ie courts of the United States; and this infer-ino-c are C^e(^ uPon deduce, in opposition to the plead-thfi-’+i -e Proo*s’ an Doe v. Prigg, 8 Barn. & C., 231. 382 DECEMBER TERM, 1853. 359 Homer v. Brown. 5. The devise in the codicil created a vested remainder in the heirs of the testator; and the plaintiff in error, claiming under the deeds of all the legal heirs, takes the estate. 4 Kent’s Com., 202; Fearne, Rem., Introduction; Moore v. Lyons, 25 Wend. (N. Y.), 119; Doe v. Prigg, 8 Barn. & C., 231. 6. The construction of this will involves also the construction of a local statute, namely, the act of 1791, c. 60; and both have been the subject of adjudication by the highest local tribunal, in a suit between the same parties. This court will, therefore, give effect to that construction and adjudication, to the end that rights and remedies respecting lands may be regulated and governed by one law, and that, the law of the place where the land is situated. Brown v. Homer, 3 Cush. (Mass.), 390; Jackson v. Chew, 12 Wheat., 153, 168; Henderson v. Griffin, 5 Pet., 151; Daly v. James, 8 Wheat., 535 ; Lane v. Vick, 3 How., 464 ; Society v. Wheeler, 2 Gall., 137. *The points made by the counsel for the defendant in error, were the following: L First. That as to the first prayer, the writ of right was a proper remedy in this case, because in Massachusetts the writ of right was ever, prior to 1840, a proper remedy in the State courts for a demandant claiming lands therein in fee simple, and having had actual seisin under title coming by purchase. Laws of Massachusetts, Stat. 1786, c. 13, and 1807, c. 75; Jackson on Real Actions, 276, 279, 280; Stearns on Real Actions, 357, 359. And this remedy became, by the Judiciary Act of Congress of 1789, continued by act of 1792, c. 36, § 2, the proper remedy in like cases in the Circuit Court of the United States, sitting in and for the District of Massachusetts, in the absence of any rule to the contrary prescribed by said Circuit or the Supreme Court of the United States. And because c. 101, § 51, of the Rev. Stat, of Massachusetts, abolishing writs of right, and taking effect in 1840, with certain exceptions, has no force ex proprio vigore in the courts or the United States, as it relates merely to process. Springer v. Foster, 1 Story, 602; Judiciary Act of 1789, § 32; Way-v. Southard, 10 Wheat., 1—54; Fiedler et al. n. Carpenter, 2 Woodb. & M., 211. 7 Second. That, as to the second prayer, the judgment of nonsuit between these parties in the State court was no bar demandant in the court below. Knox v. waldoborough, 5 Me., 185; 1 Pick. (Mass.), 371; Snowhill n. 383 360 SUPREME COURT. Homer v. Brown. Hillyer, 4 Hals. (N. J.), 38 ; 2 Mass., 113; Bank of Illinois v. Hicks, 4 J. J. Marsh. (Ky.), 128 ; 16 Mass., 317. Third. That as to the third prayer, by the following language in the will, “ I give and bequeathe to my son, Samuel L. Brown, the rent or improvement of ray store and wharf privilege, situate on the northerly side of the town dock in Boston, he to receive the rent annually or quarterly, (if the same should be leased or let,) during his natural life, and the premises to descend to his heirs, this being the estate I purchased of Mr. Stoddard,” a life estate, in the premises named, was given to Samuel L. Brown, and the remainder to his heirs, and that this remainder became by the laws of Massachusetts a distinct estate, protected by statute abolishing the rule in Shelly's case, and was contingent till the heirs of the said Samuel were ascertained by his death, occurring January 31, 1831, when it vested absolutely and became a title in fee simple in George L. Brown, the defendant in error, and Josiah Brown, the only children and heirs at law of said Samuel. Laws of Massachusetts, Stat. 1791, c. 60, § 3 ; Revenue Stat-ufes same, c. 59, § 9; Richardson v. * Wheatland, 7 -I Mete. (Mass.), 169 ; Holm et ux. v. Low, 4 Id., 201; Wheatland v. Dodge, 10 Id., 502; White v. Woodbury, 9 Pick. (Mass.), 136. Also, that the foregoing gift was not disturbed by the codicil to the will, as to which the burden is on the plaintiff in error to show that it was disturbed. “ To revoke a clear devise the intention to revoke must be as clear as the devise.” Doe dem. Hearle et ux. v. Hicks, upon error, 8 Bing., 475. “ A revocation must be by express words or necessary implication.” Per Shaw, Ch. J., arguendo. Lamb v. Lamb, 11 Pick. (Mass.), 375, 376. Also, the defendant contends that the revocation in the codicil was carefully guarded and limited, “ so that no more than the income, interest, or rent of any portion of my rea or personal estate, and not the principal of said personal oi fee of said real estate may come to the said Samuel. And to prevent misapprehension, the testator repeated e devise to the heirs of Samuel, in the will already cited as o “ the principal of said personal and fee of said real es a e, by the words, “ which at his decease it is my will that the sai real and personal estate shall then go to the legal heirs^ o viously of Samuel, because “ his interest and happiness ' * the sole object of the codicil. . . . fa. Also, that the real and personal estate of which „the v tor had by his will given “ more than the income, ®c., 384 DECEMBER TERM, 1853. 361 Homer v. Brown. the large mass of property, both real and personal, given to the executor in trust to be divided into four equal parts, half of one of which fourth parts was given to Samuel for life, remainder to his heirs, “and the other half of this fourth part to be paid to the said Samuel in money, when collected, to stock his farm, or for other purposes.” And that the revocation in the codicil made, because “Samuel had sold his two farms,” was intended merely to revoke the gift to Samuel of this “ other half of said fourth part,” in terms carrying all the interest therein, to enable him “ to stock his farm, or for other purposes.” That besides these interests in such fourth part, and his life interest in the Stoddard lot, (the land in controversy,) the will contains no gift whatever to Samuel, except some trifles in books and clothing. Fourth. That as to the fourth prayer—if the time of limitation prescribed by the Revised Statutes of Massachusetts, chapter 119, be the governing rule in this case, allowing twenty years from the death of Samuel L. Brown, with ten years after disability removed—the defendant could have brought his action *at any time before February 6th, 1852; but if the act of Massachusetts of 1786, chap- L ter 13, (the only limitation act in force prior to Revised Statutes touching real actions,) be the governing rule in this case, then entry made and action brought before January 31st, 1861, would be sufficient, as to time of entry and action brought. Fifth. That as to the fifth prayer—on the pleadings and facts in this case—the defendant rightfully recovered in the court below on the following grounds, collectively : 1st. Because he had title in fee simple to real estate, lying within the jurisdiction of the court to which he brought suit. 1 £ p* Because he had actual seisin (see Ward v. Fuller et al., 15 Pick., 185) of the same within the time of limitation al-owed by law, and brought his action therefor in season. • Because his writ of right against the tenant in possession of the freehold for the recovery of a fee simple after ooci was a ProPer remedy. Green v. Liter, 8 Cranch, rM? \ ? V* Prince' 4 Mass., 64; Hunt v. Hunt, 3 Mete, t ass.), 175 ; Jackson on Real Actions, 15; Stearns on Real ctions, 350, 370. As to forms of writs in all actions in Massachusetts, Stearns, 91, 92, 200, 244. th * because, by the Judiciary Act of Congress of 1789, COU j below had jurisdiction over the subject of controversy and the parties. Vol. xvi.—25 885 362 SUPREME COURT. Homer v. Brown. 5th. Because no fact in the case for the jury to consider was in dispute between the parties. 6th. Because the pleadings put in issue the whole subject in dispute and passed upon by the court and jury. 7th. Because the opinion of the State Court (which seems not to have at all considered the very important and essential feature of the will touching the large mass of real and personal property given in trust to the executor, and divisible in four parts) being upon the construction of a will only, had no binding force in the United States courts, and was entitled only to a confidence created by its reasoning. Lane et al. v. Fzc/c, 3 How., 464; Foxcraft N. Mallet, 4 How., 379; Thomas et al. n. Hatch, 3 Sumn., 170. 8th. That if the judgment in the State court, instead of a nonsuit, had been for the tenant; yet as that action was by writ of entry, it would be no bar to a writ of right, which would be a higher remedy. Stearns on Real Actions, p. 359. 9th. Because the conveyances of Samuel and others worked no forfeiture of the remainder given to the heirs of Samuel. Stearns et ux. v. Winship et ux., 1 Pick. (Mass.), 318; 4 Kent., 255. Commissioner’s notes to revised Statutes of Massachusetts, pt. 2, c. 59, § 6. *Mr. Justice WAYNE delivered the opinion of the Court. This cause has been brought to this court from the Circuit Court of the United States for the District of Massachusetts, by a writ of error. The action is a writ of right. The demandant declares that he has been deforced by the tenant, Fitz Henry Homer, of certain premises claimed by him as his right and inheritance, of which he was seised in fee within twenty years before the commencement of his suit, at the May term of the Circuit Court, A. d., 1851. A motion was made at a subsequent term to quash the writ, upon the ground that the remedy by a writ of right had been abolished by the Revise Statutes of Massachusetts, c. 101, § 51. The court deme the motion. Then the defendant, Fitz Henry Homer, who is tenant of a part of the land demanded, tendered the £®ne{a issue on a joinder of the raise, on the mere right of the e mandant, as to that of part of the land of which the de en ant is tenant; with pleas of general non-tenure as to a par of the demanded premises, and of special non-tenure as o . residue. His tender was allowed, and such pleas were e, upon which the counsel of the demandant joined issue. 386 DECEMBER TERM, 1853. 363 Homer v. Brown. sequently, the defendant asked leave to amend his pleas by striking out the pleas of the general issue and general nontenure, as the same had been pleaded, which was permitted, and he filed a plea of joinder of the mise on the mere right, with pleas of non-tenure. The demandant joined issue on the first plea, and filed a replication averring that, from any thing alleged, he was not precluded from having his action against the defendant, because, at the time of suing out his writ, the tenant was tenant of the freehold, as has been supposed in the writ, of all the residue of the demanded premises; and he prayed that the same might be .inquired of by the country. Issue having been taken upon the replication, the cause was tried. At the trial, the demandant put in evidence the will of William Brown, dated the 26th April, 1815, with a codicil dated 30th May, 1816, upon which he rested his title. The tenant produced the record of a judgment in a writ of entry, brought by the defendant in error against the plaintiff in error, in the Supreme Judicial Court of Massachusetts, embracing the premises here demanded, and which had been submitted to that court on an agreement of facts, in which a judgment of nonsuit was directed by the court; and this agreement of facts and judgment the tenant offered in evidence as a bar or estoppel to the demandant, so far as the premises were identical with those claimed in this writ of right, and moved the court so to instruct the jury. The tenant then put in the deeds of William Brown, Zebiah C. Tilden, Sally Brown, and Samuel Livermore Brown, *dated May 5, 1824, who were the only children and sole heirs at law of William Brown, the testator, main- L taining that the grantors were enabled, by virtue of the will and codicil, to pass all the title to the demanded premises which the testator had at the time of his death. tenant further moved the court to instruct the jury that the action could not be maintained, because writs of right to recover lands in the State of Massachusetts had been abolished by its laws. Also, to instruct the jury that the demandant took nothing and codicil of William Brown, and that on the p eadings and facts in the case the demandant could not maintain this action. Another instruction was asked, namely, a the rights and title of the demandant, and those under w iom he claims to the demanded premises, or any part there-oh aXe barred by the Statute of Limitations of Massa-usetts. But the counsel for the tenant, now the plaintiff nrneyr°r }n ^?'8; courL stated in his argument that his other P jers tor instruction were not relied upon. The court 387 364 SUPREME COURT. Homer v. Brown. refused to give either of the instructions just recited and instructed the jury that the demandant was entitled to a verdict for that part of the demanded premises as to which the tenant had pleaded the general issue; and as to that part of the demanded premises to which the tenant had put in pleas of non-tenure, that their verdict should be for the tenant. The counsel for the defendant excepted to the refusals and to the instructions which the court gave, and the jury returned a verdict for the demandant, “ that on the first issue, being the general issue, the jury find that the said George L. Brown hath more mere right to have an undivided moiety of so much of the demanded premises as is thus described (northerly by Clinton street, sixteen feet; easterly by the centre of a brickwall, dividing the premises from land formerly of D. Packer, deceased, fifteen feet eight inches ; southwardly by land, formerly of Savage, now of Homer, the defendant, twenty-three feet, with the appurtenances to him and his heirs, as he hath above demanded the same) than the said Homer has to hold the same as he now holds it, as the said Brown by his aforesaid writ hath above supposed; and that the demandant was seised of the’same, as by him in his writ alleged. On the second and third issues, being upon the pleas of general and special non-tenure, the jury find that the said Fitz Henry Homer was not at the date of the writ, has not been since, and is not now, seised as of freehold of any part of the land therein described, as the said Brown by his aforesaid writ hath above supposed. We think that the remedy by a writ of right for the re-covery *of corporeal hereditaments in fee simple, may still be resorted to in the Circuit Court of the United States for the District of Massachusetts, though the same has been abolished in the courts of that State, and that the court did not err in instructing the jury accordingly. Such arem-edy existed in the courts of Massachusetts until the year 184V, and it became, by the Judiciary Acts of 1789 and 1702, a remedy in the Circuit Court for that district; any subsequen legislation of the State abolishing it in its courts does not extend to the courts of the United States, because it is a mat er of process which is exclusively regulated by the acts ot Uon gress. Wayman v. Southard, 10 Wheat., 1. It is as P!’°pes? alone, however, that it continues in the courts of the Um e States, subject to the limitation prescribed by the Revise Statutes of Massachusetts, as to the time within wine i sue a remedy may be prosecuted in its courts. , The second instruction asked was also properly re us • A judgment of nonsuit is only given after the appearanc 388 DECEMBER TERM, 1853. 365 Homer v. Brown. the defendant, when, from any delay or other fault of the plaintiff against the rules of law in any subsequent stage of the case, he has not followed the remedy which he has chosen to assert his claim as he ought to do. For such delinquency or mistake he may be nonpros’ d, and is liable to pay the costs. But as nothing positive can be implied from the plaintiff’s error as to the subject-matter of his suit, he may reassert it by the same remedy in another suit, if it be appropriate to his cause of action, or by any other which is so, if the first was not. Blackstone, 295; 1 Pick. (Mass.), 871; 2 Mass., 113. It is not, however, only for a non-appearance, or for delays or defaults that a nonsuit may be entered. The plaintiff in such particulars may be altogether regular, and the pleadings may be completed to an issue for a trial by the jury; yet the parties may concur to take it from the jury with the view to submit the law of the case to the court upon an agreed statement of facts with an agreement that the plaintiff shall be nonpros’d^ if the facts stated are insufficient to maintain the right which he claims. The court in such a case will order a nonsuit, if it shall think the law of it against the 'plaintiff, but it will declare it to be done in conformity with the agreement of the parties, and its effect upon the plaintiff will be precisely the same and no more than if he had been nonpros’d for a non-appearance when called to prosecute his suit, or for one of those delays from which it may be adjudged that he is indifferent. The Supreme Court of Massachusetts, in deciding the cause submitted to it, did so in conformity to an agreement between the parties, but its judgment cannot be pleaded as a bar to the suit, though in giving it an opinion was expressed upon the merit of the *demandant’s claim under the will of his grandfather, William *-Brown. The court was also asked to instruct the jury that the demandant was estopped from prosecuting this action by his agreement in his previous suit to submit it upon a statement of facts. In every view which can be taken of an estoppel, that agreement cannot be such here, because the demandant does not make in this case any denial of a fact admitted by him in that case. He rests his title here to the demanded premies upon the same proofs which were then agreed by him o be facts. This he has a right to do. His agreement only os opped him from denying that he had submitted himself to « nonsuited, or f^at he was not liable to its consequences. e come now to the third prayer for an instruction which ®epied. It was that the demandant takes nothing er he will of William Brown, and that he has no title to 889 366 SUPREME COURT. Homer v. Brown. the demanded premises or any part thereof. The land sued for is a part of what the testator designates in his will, the estate bought from Mr. Stoddard. He bequeathes the rent or improvement of the store upon it, with the wharf privilege, to his son, Samuel L. Brown, during his natural life, “ and the premises to descend to his heirs.” It is here said that this bequest and devise was revoked by the testator in the codicil to his will. Care must be taken in the application of the codicil to the will, but in our opinion the testator’s intention may be satisfactorily shown from the language which he uses in the codicil, and from its direct connection with one of the bequests in the will to Samuel. The latter will be more readily seen by a recital of all the testator’s bequests to Samuel, before we make the application of the codicil to that to which we have referred. The first bequest is that already stated of the rent or improvement of the store and wharf privilege of the Stoddard property. He then directs his son William, as some consideration for the difference in the value of the devise to him over that of his bequest to Samuel, to vest one thousand dollars in stock, the interest of which is to be paid to Samuel during his life and the principal to descend to his heirs. The third bequest to Samuel is one fourth part of a mass of real and personal estate as it is mentioned in the will, and all of his other property not before or hereafter disposed of, as the same may be turned into money, with this direction to his executor, to vest one half of one fourth of it in stock or real estate, “ the dividend or rent of which is to be paid to Samuel as it may arise, and the principal or premises to descend to his heirs.” The testator then bequeathes to Samuel the other half of that fourth in money when collected to stock his farm or for other pur- Poses* The difference between this last and the othei -* bequests to Samuel being that he had in all of the others only a life-interest, and in this an unqualified and absolute right. Now, the question is, what qualifications have been made by the testator’s codicil of his bequests in the will to Samuel and his heirs, and whether the codicil does not relate exclusively to that bequest of money left to Samue to stock his farm and for other purposes? That must e determined by the language of the codicil. If that is su cient to indicate the testator’s meaning, we are not permi e to search out of it for an inference of his intention. i bears directly upon one of his bequests to Samuel in sue a way as to change it from an absolute gift into a life-in eies , in conformity with the prevalent intention of the tes o manifested throughout the body of his will, to leave to bam 390 DECEMBER TERM, 1853. 367 Homer v. Brown. only a life-interest in any part of his estate, except as to that bequest of the one half of one fourth already mentioned to stock his farm and for other purposes, no other application of the codicil can be made to any other bequest in the testator’s will. We learn from the codicil that Samuel had sold his farm between the date of the will and that of the codicil, for the stocking of which the testator had given to him a sum of money. And then the testator states his inducement for making the codicil to be Samuel’s apparent relinquishment “ of every intention to agricultural pursuits,” and that being absent at sea to qualify himself for a seafaring life, he considers it to be more for his interest and happiness to repeal and revoke “ the part of my will wherein any part of my estate, real or personal, is devised or bequeathed to my son Samuel therein named,” and in lieu thereof to bequeathe to him only the income, interest, or rent of the real or personal estate during his life. Now, excepting the unqualified bequest of the money to stock his farm, the testator had not, in either of his other bequests, left to Samuel any more than the income, interest, or rent or any part of his real or personal estate; declaring that the property or stock from which such rent or income might arise, should go to his heirs. With such corresponding intentions, both in the will and in the codicil, in regard to Samuel, the codicil cannot be considered as a revocation of the former interest given to Samuel for his life, and afterwards to his heirs, unless the testator has used language showing an express intention to exclude Samuel’s heirs from that which had been given to him for his life, and afterwards without any limitation to them. That the testator has not done. The only words in the codicil which have bee? in the argument to show that the testator meant to do so, is his uncertain declaration at the end of it, that it was his will that the real and personal estate out of which amuel was *to have the income during his life, th. k h*s death g° to the legal heirs. It was said *-at these words—the legal heirs—in connection with those immediately preceding, “ so that no more than the income, m erest, or rent of any portion of his real or personal, and 110 , . e tee of said real, may come to the said Samuel,” meant no ing, unless they related to the devise of the Stoddard es-11$ J’,an Same v. Thomas, d., 385. Cited. Franklin Branch ^ank v. State of Ohio, 1 Black, 475; Wnght v. Sill, 2 Id., 544; Meyer v. I °f Muscatine, 1 Wall., 393; Von Hoffman v. City of Quincy, 4 Id., 554; °f th? Friendless v. Rouse, 8 Id., ’”8; PennsyZrania College Cases, 13 ofA Co. v. East Saginaw, Id., Id ’ v‘ Penns!llvo-tiia, 21 onri Barrington v. Tennessee, 5 'Jtto, 690. The cases upon this subject will be found pretty fully collated in the notes to Gordon v. Appeal Tax Court, 3 How., 133. 3 See also Dred Scott v. Sandford, 19 How., 604; Jefferson Branch Bank v. Skelly, 1 Black, 442; Davis v. Gray, 16 Wall., 220; Talcott v. Township of Pine Grove, 1 Flipp., 128, 129; Corbin v. Board of Comm’rs, 1 McCrary, 527 ; Floyd v. Blanding, 54 Cal., 46; State v. West R. R. Co., 66 Ga., 567; Lynn v. Polk, 8 Lea (Tenn.), 259, 318; Robertson v. Land Commissioner, 44 Mich., 278; State v. Young, 29 Minn., 539; Mechanics' Bank v. City of Kansas, 73 Mo., 558; Matheny v. Golden, 5 Ohio St., 361, 429. - 393 369 SUPREME COURT. State Bank of Ohio v. Knoop. certified by the court, and ordered to be made part of the record herein, that in the above entitled cause the petitioner claimed to collect, and prayed the aid of the court to enforce the payment of, the tax in the petition mentioned, under an act of the General Assembly of the State of Ohio, passed March 21st, 1851, entitled “An act to tax banks, and bank and other stocks, *the same as other property is now tax- -I able by the laws of this State,” a certified copy of which is filed as an exhibit in this cause, marked “ A.” The said defendant, by way of defence to the prayer of said petitioner, &c., set up an act, entitled “ An act to incorporate the State Bank of Ohio, and other banking companies,” enacted by the General Assembly of the State of Ohio, February 24th, 1845, a certified copy of which is filed as an exhibit in this cause, marked “ B ” ; under which act the defendants organized, and became and was a branch of the State Bank of Ohio, exercising the franchises of such bank prior to and ever since the year 1847 ; and that the defendant claimed that, by virtue of the operation of said act last mentioned, the State of Ohio had entered into a binding contract and obligation, whereby the State of Ohio had agreed and bound herself not to impose any tax upon the defendant, and not to require the defendant to pay any tax for the year 1851, other or greater than six per cent, on its dividends or profits, as provided by the sixtieth section of the said act of February 24th, 1845. And it is further certified, that there was drawn in question in said cause the validity of the said statute of the State of Ohio, passed March 21st, 1851, herein before mentioned, the said defendant claiming that it was a violation of the said alleged agreement and contract between the State of Ohio and the said defendant, and on that account repugnant to the Constitution of the United States, and void; but the court here held and decided: 1st. That the sixteenth section o said act of February 24th, 1845, to incorporate the. State Bank of Ohio, and other banking companies, contains no pledge or contract on the part of the State not to alter or change the mode or amount of taxation therein specified; bu the taxing power of the General Assembly of the State o Ohio over the property of companies formed under ac Is the same as over the property of individuals. And, ’ That whether the franchises of such companies maj be re voked, changed, or modified, or not, the act of March ♦ 1851, upon any construction, does not impair any rig cured to them by the act of 1845, and is a constitutions, valid law. And it is further certified, that the decision the question as to the validity of the said statute o » 394 DECEMBER TERM, 1853. 370 State Bank of Ohio v. Knoop. was necessary to the decision of said cause, and the decision in the premises was in favor of the validity of said statute. The court do further certify, that this court is the highest court of law and equity of the State of Ohio in which a decision of this suit could be held. And it is ordered, that said exhibits A and B be made parts of the complete record in this cause. The contents of exhibits A and B are stated in the opinion of the court. *The case was argued by Mr. Stranberry and Mr. pgYl Venton, for the plaintiff in error, and by Mr. Spalding L and Mr. Pugh, for the defendant in error. The points made by the counsel for the plaintiff in error were the following: 1st. That the Piqua branch of the State Bank of Ohio is a private corporation. The principle governing this point is, that if the whole interest of a corporation do not belong to the public, it is a private corporation. Angell & A. Cor., §§31 to 36 inclusive ; Dartmouth College v. Woodward, 4 Wheat., 636; Baily v. Mayor of New York, 3 Hill (N. Y.), 531; Bank United States v. Planters' Bank of Georgia, 9 Wheat., 907; Miners' Banky. United States, 1 Greene (Iowa), 553; Bonaparte v. Camden Amboy R. R. Co., 1 Baldw., 222. 2d. The act of the 24th of February, A. d., 1845, providing for the creation of this private corporation, became, by its acceptance, a contract between the State and the corporators, which contract is entitled to the protection of that clause of the Constitution of the United States which prohibits the States from passing any law impairing the obligation of contracts. 1 Angell & A. Corp., §§ 31, 469, 767; Dartmouth College v. Woodward, 4 Wheat., 636: Gordon v. Appeal Tax Court, 3 How., 145; West River Bridge v. Dix, 6 Id., 531; Planters' ^fnk of Mississippi v. Sharp, Id., 326-7; Bast Hartford v. artford Bridge Company, 17 Conn., 93; New Jersey v. Wil-7 Cranch, 164; Pletcher v. Peck, 6 Id., 88; Terrett v. ayl°r, 9 Id., 43 : Town of Pawlett n. Clarke, 9 Cranch, 292 ; a es y. Stetson, 2 Mass., 143; Enfield Toll Bridge n. Conn. \ -i a 7 Conn., 53; McLoren v. Pennington, 1 Paige Wl’ . i 7 ’ 2. Ke?t’ Com., 305, 306; Greene n. Biddle, 8 ; University of Maryland v. Williams, 9 Gill. & J. > J’ a’ Bayne N' Bal^win,^ Sm. & M. (Miss.), 661; ^oeiaeen Academy v. Mayor of Aberdeen, 13 Id., 645; Young 395 371 SUPREME COURT. State Bank of Ohio v. Knoop. v. Harrison, 6 Ga., 130; Coles v. Madison county, Breese (HL), 120; Bush v. Shipman., 4 Scam. (Ill.), 190 ; The People v. Marshall, 1 Gilm. (HL), 672; State v. Hayward, 3 Rich. (S. C.), 389; Baily v. Railroad Co., 4 Harr. (Del.), 389; LeClercqx. G-allipolis, 7 Ohio, 217 ; State v. Com'l Bank of Cincinnati, Id., 125; State v. Wash. Soc. Library, 9 Id., 96; Michigan Bank v. Hastings, 1 Doug. (Mich.), 225; Bank of Pennsylvania Commonwealth, 19 Pa., 151; Hardy v. Waltham, 9 Pick. (Mass.), 108. 3d. The right of a State to tax the property of a private *079-1 Corporation (such as a bank) or to tax any specified J property of private persons may, by legislative contract, be wholly relinquished, commuted, or limited to an agreed amount, and no State law can impair the validity of such contract. Angell & Ames on Corp., §§ 469-472 inclusive; Gordons. Appeal Tax Court, 3 How., 133 ; Gordon's Ex'rs v. Baltimore, 5 Gill (Md.), 231; Bank of Cape Fear v. Edwards, 5 Ired. (N. C.), 516; Bank of Cape Fear v. Deming, 7 Id., 516; Union Bank of Tennessee v. State, 9 Yerg. (Tenn.), 490; State of New Jersey v. Bury, 2 Harr. (N. J.), 84; Gordon v. State, 1 Zab. (N. J.), 527 ; Johnson v. Commonwealth, 7 Dana, (Ky.), 342; Bank of Illinois v. The People, 4 Scam. (HL), 304 ; Williams v. Union Bank of Tennessee, 2 Hump. (lenn.), 339 ; Atwater v. Woodbridge, 6 Conn., 223 ; Osborne v. Humphrey, 7 Conn., 335 ; East Hartford v. Hartford Bridge Company, 17 Conn., 93; State v. Com I Bank of Cincinnati, 7 Ohio, 125. . In the absence of adjudicated cases to establish the right of the legislature of a State thus to relinquish, commute, or limit the amount of taxation, it might and ought to be inferred from the uniformity and extent of its exercise by the States from their earliest history to the present time. In the case of Briscoe v. Bank of Kentucky, 11 Pet., 31 , the court say, “that a uniform course of action involving t e right to the exercise of an important power by the State governments for half a century, and this almost without que® tion, is no unsatisfactory evidence that the power is, rig f exercised. Cin., Wil. f Zanesville R. R. Co. v. Com rs Ctin-ton Co., 21 Ohio, 95. . .1 In accomplishing the lawful purposes of legislation, choice of means adapted to the end must be left exc usn j to the discretion of the legislature, provided ^he_meams are not prohibited by the Constitution. Cin., Wd. $ ville R. R. Co. v. Com'rs Clinton Co., 21 Ohio, 95.. 4th. The plaintiff in error claims that by the six ie 396 DECEMBER TERM, 1853. 372 State Bank of Ohio v. Knoop. tion of the act of 24th of February, 1845, the State, by contract, (and not by legislative command,) fixed and agreed upon the time, manner, and amount of taxation to be imposed upon and paid by said bank, which contract is mutually binding on the parties, and cannot be changed or abrogated by either without the consent of the other. This last proposition involves an interpretation of so much of said law as relates to the subject of taxation in two aspects: 1. Whether the sixtieth section be a contract on the subject of taxation, as claimed by the plaintiff in error, or a law dictating and commanding the amount of taxation, as claimed by the defendant; in error. *2. If it be a contract, whether it was temporary and depending on the will of the legislature, or per- •-manent, and to remain in force during the term of the charter. The court lay down the doctrine in Charles River Bridge n. Warren Bridge, 11 Pet., 545, that in the construction of statutes creating corporations, the rules of the common law must govern in this country; and in the same opinion, at page 548, the court say, that the rules of construing a statute which surrenders the taxing power, are the same as those that aPPty any other affecting the public interest. In the case of the Sutton Hospital, Lord Coke lays down the rule of the common law in the construction of charters in the following terms, namely, “ That the best exposition of the King’s charter is upon the consideration of the whole charter to expound the charter by the charter itself, every material part thereof being explained according to the true and genuine sense, which is the best method.” The rule of interpretation is laid down by the Supreme Court in Charles River Bridge v. Warren Bridge, 11 Pet., 549. Also, by Judge Story, in his dissenting opinion, at page 600. Also, in case of Richmond Railroad Company v. Louisa Railroad Company 13 How., 81. . Where a right is not given in express words by the charter, it may be deduced by interpretation, if it is clearly inferrible from some of its provisions. Stourbridge Canal v. Wheely, 2 Barn. & Ad., 792 ; Union Bank of Tennessee v. The State, 9 Yerg. (Tenn.), 495. In adopting the rule of expounding the charter by the charter itself, the court is referred to all that part of the act ot incorporation which is subsequent to the forty-fifth section. In construing statutes making grants for private enterprise, it is a settled principle, st. That all grants for purposes of this sort are to be con-397 373 SUPREME COURT. State Bank of Ohio v. Knoop. strued as contracts between the government and the grantee, and not as mere laws. 11 Pet., 660. Judge Story’s opinion. 2d. That they are to receive a reasonable construction. And if from the express words of the act, or just and plain inference from the terms used, the intent can be satisfactorily made out, it is to prevail and be carried into effect. But if the language be ambiguous, or the intent cannot be satisfactorily made out from the terms used, then the act is to be taken most strongly against the grantee and most beneficially to the public. 11 Pet., 600. The following points made on behalf of the defendant in error, are copied from the brief of Mr. Spalding. The first section of the “ act to tax banks, and bank and *3741 °^er *sfocks, the same as other property is now taxable J by the laws of this State,” passed March 21,1851, reads as follows: “ That it shall be the duty of the president and cashier of each and every banking institution incorporated by the laws of this State, and having the right to issue bills or notes for circulation, at the time for listing personal property under the laws of this State, to list the capital stock of such banking institution, under oath, at its true value in money, and return the same, with the amount of surplus and contingent fund belonging to such banking institution, to the assessor of the township or ward in which such banking institution is located, and the amount so returned shall be placed on the grand duplicate of the proper county, (and upon the city duplicate for city taxes, in cases where such city tax does not go upon the grand duplicate, but is collected by the city officers,) and taxed for the same purposes and to the same extent that personal property is or may be required to be taxed in the place where such bank is located; and such tax shall be collected and paid over in the same manner that taxes on other personal property are required by law to be collected and paid over: Provided, however, that the capital stock of any bank shall not be returned or taxed for a less amount than its capital stock paid in.” The single question presented in this case is the following. Has the Legislature of Ohio, in the enactment last recite . impaired the obligation of a contract, within the meaning o the prohibition contained in the tenth section of the nrs article of the Constitution of the United States? I maintain that it has not, and, in support of my posi ion, respectfully advance, for the consideration of the court, ie following propositions: „ . 1st. The act of the General Assembly.of the State ot 1 ’ 398 DECEMBER TERM, 1853. 374 State Bank of Ohio v. Knoop. entitled “ An act to incorporate the State Bank of Ohio, and other banking companies,” passed February 24, 1845, is not a contract in the sense in which that term is used in the Constitution. It is a system of rules and regulations prescribed by the law-making power in the State for the government of all the citizens of Ohio who may choose, within certain limits, to embark in the business of banking. It is as mandatory in its character as any law upon the statute book, and some of its mandates are enforced under the severest penalties known to the law. See § 67. It is susceptible of amendments and it has been amended, without objection, in its most important features. 46 Ohio Laws, 92; 48 Id., 35. At the time of its enactment, February 24, 1845, there was a general law in force in Ohio, providing that *all subsequent corporations, whether pos-sessing banking powers or not, were to hold their L charters subject to alteration, suspension, and repeal, in the discretion of the legislature. Ohio Laws, vol. 40, p. 70. The Bank of Toledo v. The City of Toledo, 1 Ohio St., 622, 696. 2d. “With the sole exception of duties on imports and exports, the individual States possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants ; and any attempt on the part of the national government to abridge them in the exercise of it would be a violent assumption of power unwarranted by any article or clause of its Constitution.” Alexander Hamilton, No. 32, Federalist, p. 140. 3d. The taxing power is of such vital importance, and is so essentially necessary to the very existence of a State government, that its relinquishment cannot be made the subjectmatter of a binding contract between the legislature and mdividuals or corporations. It is a prerogative of sovereignty that must of necessity always be exerted according t0 present exigencies, and consequently must of necessity continue to be held by each succeeding legislature, undi-mimshed and unimpaired. The Mechanics and Traders Bank V. Henry Debolt, 1 Ohio St., 591; Brewster v. Hough, 10 N. •, 138 ; The Providence Bank v. Billings, 4 Pet., 514 ; The ti°iTtr^OrS Charles River Bridge v. The Proprietors of Warren Bridge, 11 Pet., 420, and cases therein cited; The Rwer Bridge Company v. Dix, 6 How’., 507 ; The Rich-13 H Company v. The Louisa Railroad Company, St section of the “Act to incorporate the c Bank of Ohio, and other banking companies,” passed 399 375 SUPREME COURT. State Bank of Ohio v. Knoop. February 24, 1845, provides only a measure of taxation for the time being, and does not relinquish the right to increase the rate as the future exigencies of the State may require. Debolt v. The Ohio Life Insurance and Trust Company, 1 Ohio St., 576; 10 Pa. St., 442; 10 N. H., 138; 13 How., 71; 9 Ga., 517 ; 2 Barn. & Ad., 793 ; 3 Pet., 289 ; lb., 168, 514; 11 Id., 544. 5th. The Supreme Court of Ohio has done nothing more than give a construction to a statute law of the State, (the act of 1845,) that is, to say the least, somewhat ambiguous. By this construction, the act of March 21, 1851, does no violence to the Constitution of the United States. This court is in the habit of adopting the interpretation given by the State courts to the statutes of their own State. Surely it will not, in this instance, undertake to give a construction counter *3761 ^ie *State court, when that counter construc- -* tion will bring subsequent legislation of the State into conflict with the Federal Constitution. 10 Wheat., 159; 11 Id., 361; 4 Pet., 137; 6 Id., 291; 16 Id., 18 ; 7 How., 40, 219, 818; 13 Id., 271; 14 Id., 78, 79. Upon the 3d point the counsel cited these further authorities: 16 Pet., 281; 8 How., 584; 10 Id., 402: 4 N. Y., 423; 2 Den. (N. Y.), 474; 5 Cow. (N. Y.), 538; 7 Id., 585; 1 El. & Bl., 858. And read the following extract from Local Laws of Ohio, vol. 43, p. 51: An act to incorporate the Milan and Richland Plank Road Company, passed January 31, 1845 : Sec. 9. “ That in consideration of the expenses which said company will necessarily incur in constructing said road, with the appurtenances thereof, and in keeping the same in repair, the said road and its appurtenances, together with all tolls and profits arising therefrom, are hereby vested in said corporation, and the same shall be forever exempt from any tax, imposition, or assessment whatever.” An act to incorporate the Huron Plank Road Company, passed February 19, 1845. Local Laws, vol. 43d, PP' ’ 114. The ninth section is copied exactly from the ninth sec tion of the Milan and Richland charter. iin. On the 4th point: 8 How., 581; 9 Id., 185; 19 Ohio, 1 > 1 Ohio St., 313; 4 Wheat., 235; 4 Cranch, 397; 7 How., 10 Id., 396. On the 5th point; 5 How., 342. Mr. Justice McLEAN delivered the opinion of the court. 400 DECEMBER TERM, 1853. 37G State Bank of Ohio v. Knoop. This is a writ of error t6 the Supreme Court of the State of Ohio. The proceeding was instituted to reverse a decree of that court, entered in behalf of Jacob Knoop, treasurer, against the Piqua Branch of the State Bank of Ohio, for a tax of twelve hundred and sixty-six dollars and sixty-three cents, assessed against the said branch bank for the year 1851. By the act of 1845, under which this bank was incorporated, any number of individuals, not less than five, were authorized to form banking associations to carry on the business of banking in the State of Ohio, at a place designated ; the aggregate amount of capital stock in all the companies not to exceed six millions one hundred and fifty thousand dollars. In the fifty-first section it is provided that every banking company authorized under the act to carry on the business of banking, whether as a branch of the State Bank of Ohio, or as an independent banking association, “shall be held and adjudged to be a body corporate, with succession, until the 1st of May, *1866 ; and thereafter until its affairs [-#977 shall be closed.’’ It was made subject to the restric- ■-tions of the act. The fifty-ninth section requires “ the directors of each banking company, semiannually, on the first Mondays of May and November, to declare a dividend of so much of the net profits of the company as they shall judge expedient; and on each dividend day the cashier shall make out and verify by oath, a full, clear, and accurate statement of the condition of the company as it shall be on that day, after declaring the dividend, and similar statements shall also be made on the first Mondays of February and August in each year.” This statement is required to be transmitted to the auditor of State. The sixtieth section provides that each banking company under the act, or accepting thereof, and complying with its provisions, shall, semiannually, on the days designated for declaring dividends, set off to the State six per cent, on the profits, deducting therefrom the expenses and ascertained losses of the company for the six months next preceding, which sum or amount so set off shall be in lieu of all taxes to ''bich the company, or the stockholders therein, would otherwise be subject. The sum so set off to be paid to the treas- On or(^er ^ie audit°r °f State. I he Piqua Branch Bank was organized in the year 1847, under the above act; and still continues to carry on the business of banking, and continued to set off and pay the semi- Vol. xvi.—26 401 377 SUPREME COURT. State Bank of Ohio v. Knoop. annual amount as required; and on the first Mondays of May and November, in 1851, there was set off to the State six per cent, of the profits, deducting expenses and ascertained losses for the six months next preceding each of those days, and the cashier did, within ten days thereafter, inform the auditor of State of the amount to set off on the 15th of November, 1851, the same amounting to $862.50 ; which sum was paid to the treasurer of State, on the order of the auditor; which payment the bank claims was in lieu of all taxes to which the company or its stockholders were subject for the year 1851. On the 21st of March, 1851, an act was passed entitled “An act to tax banks and bank and other stocks, the same as property is now taxable by the laws of the State.” This act provides that the capital stock of every banking company incorporated by the laws of the State, and having the right to issue bills or notes for circulation, shall be listed at its true value in money, with the amount of the surplus and contingent fund belonging to such bank; and that the amount of such capital stock, surplus, and contingent fund, should be taxed for the same purposes and to the same extent that personal property was or might be required to be taxed *070-1 in the place *where such bank is located; and that such tax should be collected and paid over in the same manner that taxes on other personal property are required by law to be collected and paid over. In pursuance of this act there was assessed, for the year 1851, on the capital stock, contingent and surplus fund of the Piqu'a Bank, a tax amounting to the sum of twelve hundred and sixty-six dollars and sixty-three cents. The bank refused to pay this tax on the ground that it was in violation of its charter. Suit was brought by the State against the bank for this tax. The defence set up by the bank was, that the tax imposed was in violation of its charter, which fixed the rate of taxation at six per cent, on its dividends, deducting expenses and losses; but the Supreme Court of the State sustained the act of 1851, against the provision of the charter by which, it is insisted, the contract in the charter was impaired. We will first consider whether the specific mode of taxation, provided in the sixtieth section of the charter, is a contract. The operative words are, that the bank shall, “ semiannually on the days designated in the fifty-ninth section for declaring dividends, set off to the State six per cent, on the profits, deducting therefrom the expenses and ascertained losses of the company for the six months next preceding, which sum or amount so set off shall be in lieu of all taxes to which such 402 DECEMBER TERM, 1853. 378 State Bank of Ohio v. Knoop. company, or the stockholders thereof, on account of stock owned therein, would otherwise be subject.” This sentence is so explicit, that it would seem to be susceptible of but one construction. There is not one word of doubtful meaning when taken singly, or as it stands connected with the sentence in which it is used. . Nothing is left to inference. The time, the amount to be set off, the means of ascertaining it, to whom it is to be paid, and the object of the payment, are so clearly stated, that no one who reads the provision can fail to understand it. The payment was to be in lieu of all taxes to which the company or stockholders would otherwise be subject. This is the full measure of taxation on the bank. It is in the place of any other tax which, had it not been for this stipulation, might have been imposed on the company or stockholders. This construction, I can say, was given to the act by the executive authorities of Ohio, by those who were interested in the bank, and generally by the public, from the time the bank was organized down to the tax law of 1851. In the case of Debolt v. The Ohio Insurance and Trust Company, 1 Ohio, 563, new series, the Supreme Court, in considering the 60th section now before us, say: “ It must be admitted the section contains no language importing a surrender *of the right to alter the taxation prescribed, unless it is to be inferred from the words, ‘ shall be in L lieu of all taxes to which such company, or the stockholders thereof, on account of stock owned therein, would otherwise be subject ’; and it is frankly conceded that if these words had occurred in a general law they would not be open to such a construction. If the place where they are found is important, we have already seen this law is general in many of its provisions, and upon a general subject. Why may not this be classed with these provisions, especially in view of the fact, that in its nature it properly belongs there? We think it should be regarded as a law prescribing a rule of taxation, until changed, and not a contract stipulating against any change: a legislative command and not a legislative compact with these institutions.” And the court further say, “the taxes required by this act are to be in lieu of other taxes— that is, to take the place of other taxes. What other taxes ? The answer is, such as the banks or the stockholders ‘ would otherwise be subject to pay. The taxes to which they would otherwise subject were prescribed by existing laws, and this, in effect, operated as a repeal of them, so far as these institutions were concerned.’ ” With great respect, it may be suggested there was no gen-403 379 SUPREME COURT. State Bank of Ohio v. Knoop. eral tax law existing, as supposed by the court, under which the banks chartered by the act of 1845 could have been taxed, and on which the above provision could, “ in effect, operate to repeal.” The general tax law of the 12th of March, 1831, which raised the tax to five per cent, on dividends, and which operated on all the banks of Ohio, except the “ Commercial Bank of Cincinnati,” was repealed by the small note act of 1836, and that could operate only on banks doing business at the time of its passage. The act of the 13th of March, 1838, repealed the act of 1836, so far “ as it restricts or prohibits the issuing and circulation of small bills.” The act of 1836 authorized the treasurer of State to draw upon the banks for the amount of twenty per cent, upon their dividends, as their proportion of the State tax; and provided that if any bank should relinquish its charter privilege of issuing bills of less denomination than three and five dollars, the tax should be reduced to five per cent, upon its dividends. As the prohibition of circulating small notes was repealed, the tax necessarily fell. Neither the twenty nor the five per cent, could be exacted. The five per cent, was a compromise for the twenty; as the twenty was repealed by the repeal of the prohibition of small notes, neither the one nor the other could be collected. But if this were not so, the Bank Act of 1842, which im-*ooa-i posed *a tax of one half per cent, on the capital stock -* of the bank, repealed, by its repugnancy, any part of the act of 1836 which, by construction or otherwise, could be considered in force. And the act of 1842 was repealed by the act of 1845. There is a general act in Ohio declaring that the repeal of an act shall not revive any act which had been previously repealed. Swan’s Stat., 59. If this statement be correct, as it is believed to be, the legislature could not have intended, by the special provision in the sixtieth section, to exempt the bank from tax by the existing law, as no such law existed, but to exempt from the operation of tax laws subsequently passed. This is the cleai’ and fair import of the compact, which we think would not be rendered doubtful if a tax law had existed at the time the act of 1845 was passed. The 60th section is not found in a general law, as is intimated by the Supreme Court of the State. The act of 1845 is general only in the sense, that all banking associations were permitted to organize under it; but the act is as special to each bank as if no other institution were incorporated by it. We suppose this cannot be controverted by any one. 404 DECEMBER TERM, 1853. 380 State Bank of Ohio v. Knoop. This view is so clear in itself that no illustration can make it clearer. Every valuable privilege given by the charter, and which conduced to an acceptance of it and an organization under it, is a contract which cannot be changed by the legislature, where the power to do so is not reserved in the charter. The rate of discount, the duration of the charter, the specific tax agreed to be paid, and other provisions essentially connected with the franchise, and necessary to the business of the bank, cannot, without its consent, become a subject for legislative action. A municipal corporation, in which is vested some portion of the administration of the government, may be changed at the will of the legislature. Such is a public corporation, used for public purposes. But a bank, where the stock is owned by individuals, is a private corporation. This was not denied or questioned by the counsel in argument, although it has been controverted in this case elsewhere. But this court and the courts of the different States, not excepting the Supreme Court of Ohio, have so universally held that banks, where the stock is owned by individuals, are private corporations, that no legal fact is susceptible of less doubt. Mr. Justice Story, in his learned and able remarks in the Dartmouth College case, says: “ A bank created by the government for its own uses, where the stock is exclusively owned by the government is, in the strictest sense, a public corporation.” “ But a bank whose stock is owned by private persons is a *private corporation, although it is erected by the. r*oo-| government, and its objects and operations partake *-of a public nature. The same doctrine, he says, may be affirmed of insurance, canal, bridge, and turnpike companies. There can be no doubt that these definitions are sound, and are sustained by the settled principles of law.” It by no means follows that because the action of a corporation may be beneficial to the public, therefore it is a public corporation. This may be said of all corporations whose objects are the administration of charities. But these are not public, though incorporated by the legislature, unless their funds belong to the government. Where the property of a corporation is private it gives the same character to the institution, and to this there is no exception. Men who are engaged in banking understand the distinction above stated, and also that privileges granted in private corporations are not a legislative command, but a legislative contract, not liable to be changed. 405 381 SUPREME COURT. State Bank of Ohio v. Knoop. This fact is shown by the following circumstances: “ An act to regulate banking in Ohio,” passed the 7th of March, 1842. The 1st section provided, “that all companies or associations of persons desiring to engage in and carry on the business of banking within this State, which may hereafter be incorporated, shall be subject to the rules, regulations, limitations, conditions, and provisions contained in this act, and such other acts to regulate banking as are now in force, or may hereafter be enacted, in this State.” The 20th section of that act provided that a tax of one half per cent, per annum on its capital should be paid, and such other tax upon its capital or circulation as the general assembly may hereafter impose. An amendment to this act was passed the 21st February, 1843; but the act and the amendment remained a dead letter upon the statute book. No stock was subscribed under them, and they were both repealed by the act of 1845, under which nearly three fourths of the banks in Ohio were organized. This act contained the express stipulation that “ six per cent, on the dividends, after deducting expenses and losses, should be paid in lieu of all taxes.” This compact was accepted, and on the faith of it fifty banks were organized, which are still in operation. Up to the year 1851, I believe, the banks, the profession, and the bench, considered this as a contract, and binding upon the State and the banks. For more than thirty-five years this mode of taxing the dividends of banks had been sanctioned in the State of Ohio. With few exceptions the banks were so taxed, where any tax on them was imposed. In the case of The State of Ohio v. The Commercial Bank of Cincinnati, *3891 10 Ohio, 535, the Supreme *Court of Ohio say, we -* take it to be well settled, that the charter of a private corporation is in the nature of a contract between the State and the corporation. Had there ever been any doubts upon this subject, those doubts must have been removed by the decision of the Supreme Court of the United States, in the case of Woodward v. Dartmouth College; And the court remark, “ the general assembly say to such persons as may take the stock, you may enjoy the privileges of banking, if you will consent to pay to the State of Ohio, for this privilege, four per cent, on your dividends, as they shall from time to time be made. The charter is accepted, the stock is subscribed, and the corporation pays, or is willing to pay, the consideration stipulated, to wit, the four per cent.” And the court say, “ here is a contract, specific in its terms, and easy to be understood.” “ A contract between the State and 406 DECEMBER TERM, 1853. 382 State Bank of Ohio v. Knoop. individuals is as obligatory as any other contract. Until a State is lost to all sense of justice and propriety, she will scrupulously abide by her contracts more scrupulously than she will exact their fulfilment by the opposite contracting party.” This opinion commends itself to the judgment, both on account of its sdund constitutional views and its elevated morality. It was pronounced at December term, 1835. That decision was calculated to give confidence to those who were desirous to make investments in banking operations, or otherwise, in the State of Ohio. Ten years after this opinion, and after an ineffectual attempt had been made by the act of 1842, and its amendment in 1843, to organize banks in Ohio, without a compact as to taxation, the act of 1845 was passed, containing a compact much more specific than that which had been sustained by the Supreme Court of the State. Under such circumstances, can the intentions of the Legislature of Ohio, in passing the act of 1845, be doubted, or the inducements of the stockholders to vest their money under it. Could either have supposed that the 60th section proposed a temporary taxation? Such a supposition does great injustice to the legislature of 1845. It is against the clear language of the section, which must ever shield them from the imputation of having acted inconsiderately or in bad faith. They passed the charter of 1845, which they knew would be accepted, as it removed the objections to the act of 1842. Can the compact in the 60th section be “ regarded as a law prescribing a rule of taxation until changed, and not a contract stipulating against any change ; a legislative command, and not a legislative compact with these institutions ? ” We cannot but treat with great respect the language of the highest judicial tribunal of a State, and we would say, that in our opinion it does *not import to be a legislative com- r*ooo mand nor a rule of taxation until changed, but a con- •-tract stipulating against any change, from the nature of the language used and the circumstances under which it was adopted. According to our views, no other construction can be given to the contract, than that the tax of six per cent, on the dividends is in lieu of all subsequent taxes which might otherwise be imposed; in other words, taxes to which the company or the stockholders would have been liable, had the specific tax on the dividends on the terms stated not been enacted. In the opinion of the Supreme Court of the State, it is said, the 60th section in effect, repealed the existing law 407 383 SUPREME COURT. State Bank of Ohio v. Knoop. under which the bank would have been taxed, and that this is the obvious application of the language used; and they add, “ that the General Assembly intended only this, and did not intend it to operate upon the sovereign power of the State, or to tie up the hands of their successors, we feel fully assured. To suppose the contrary would be to impeach them of gross violation of public duty, if not usurpation of authority.” So far as regards the effect of the 60th section to repeal existing laws, if no such laws existed, it would follow that no such effect was produced, and we may presume that this was in the knowledge of the legislature of 1845; and in saying that the compact was intended to run with the charter, we only impute to the legislature a full knowledge of their own powers, and the highest regard to the public interest. The idea that a State, by exempting from taxation certain property, parts with a portion of its sovereignty, is of modern growth ; and so is the argument that if a State may part with this in one instance it may in every other, so as to divest itself of the sovereign power of taxation. Such an argument would be as strong and as conclusive against the exercise of the taxing power. For if the legislature may levy a tax upon property, they may absorb the entire property of the taxpayer. The same may be said of every power where there is an exercise of judgment. The Legislature of Ohio passes a statute of limitations to all civil and criminal actions. Is there no danger that in the exercise of this power it may not be abused? Suppose a year, a month, a week, or a day should be fixed as the time within which all actions shall be brought on existing demands, and if not so brought, the remedy should be barred. This is a supposition more probable under circumstances of great embarrassment, when the voice of the debtor is always potent, than that the legislature will inconsiderately exempt property from taxation. Under a statute of limitation, as supposed, the remedy of *8841 *creditor would be cut off, unless the courts should -* decide that a limitation to bar the right must be reasonable, but this power could not be exercised under any constitutional provision. It could rest only on the great and immutable principles of justice, unless the time was so short as manifestly to have been intended to impair or destroy the contract. To carry on a government, a more practical view of public duties must be taken. When the State of Ohio was admitted into the Union by the act of the 30th of April, 1802, it was admitted under a 408 DECEMBER TERM, 1853. 384 State Bank of Ohio v. Knoop. compact that “ the lands within the State sold by Congress shall remain exempt from any tax laid by or under the authority of the State, whether for State, county, township, or any other purposes whatever, for the term of five years from and after the day of sale.” And yet by the same law the State “ was admitted into the Union upon the same footing with the original States in all respects whatever.” Now, if this new doctrine of sovereignty be correct, Ohio was not admitted into the Union on the footing of the other sovereign States. Whatever may be considered of such a compact now, it was not held to be objectionable at the time it was made. The assumption that a State, in exempting certain property from taxation, relinquishes a part of its sovereign power, is unfounded. The taxing power may select its objects of taxation ; and this is generally regulated by the amount necessary to answer the purposes of the State. Now the exemption of property from taxation is a question of policy and not of power. A sound currency should be a desirable object to every government; and this in our country is secured generally through the instrumentality of a well-regulated system of banking. To establish such institutions as shall meet the public wants and secure the public confidence, inducements must be held out to capitalists to invest their funds. They must know the rate of interest to be charged by the bank, the time the charter shall run, the liabilities of the company, the rate of taxation, and other privileges necessary to a successful banking operation. These privileges are proffered by the State, accepted by the stockholders, and in consideration funds are invested in the bank. Here is a contract by the State and the bank, a contract founded upon considerations of policy required by the general interests of the community, a contract protected by the laws of England and America, and by all civilized States where the common or the civil law is established. In Fletcher v. Peck., 6 Cranch, 135, Chief Justice Marshall says, “The principle asserted is, that one legislature is competent to repeal any act * which a former legislature was compe- r*ooc tent to pass, and that one legislature cannot abridge L the powers of a succeeding legislature.” “The correctness of this principle,” he says, “so far as respects general legislation, can never be controverted. But if an act be done under a law, a succeeding legislature cannot undo it. When, then, a law is in its nature a contract, a repeal of the law cannot divest those rights; and the act of 409 385 SUPREME COURT. State Bank of Ohio v. Knoop. annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community.” And in another part of the opinion he says, “ Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the Constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the States are obviously founded on this sentiment; and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State.” “No State shall pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts. A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.” In this form he says, “ the power of the legislature over the lives and fortunes of individuals is expressly restrained. What motive, then, for implying, in words which import a general prohibition to impair the obligation of contracts, an exception in favor of the right to impair the obligations of those contracts into which the State may enter.” The history of England affords melancholy instances where bills of attainder were prosecuted in parliament to the destruction of the lives and fortunes of some of its most eminent subjects. A knowledge of this caused a prohibition in the Constitution against such a procedure by the States. In the case of the State of New Jersey v. Wilson, 7 Cranch, 164, it was held, “ that a legislative act, declaring that certain lands, which should be purchased for the Indians, should not thereafter be subject to any tax, constituted a contract which could not be rescinded by a subsequent legislative act. Such repealing act being void under that clause of the Constitution of the United States which prohibits a State from passing any law impairing the obligation of contracts.” In 1758 the government of New Jersey purchased the *8861 Indians’ *title to lands in that State, in consideration -* of which the government bought a tract of land on which the Indians might reside, an act having previously been passed that “ the lands to be purchased for them shall not hereafter be subject to any tax, any law, usage, or custom to the contrary thereof in any wise notwithstanding.” The Indians continued in possession of the lands purchased until 1801, when they applied for and obtained an act of the legis-410 DECEMBER TERM, 1853. 386 State Bank of Ohio v. Knoop. lature, authorizing a sale of their lands. This act contained no provision in regard to taxation; under it the Indian lands were sold. In October, 1804, the legislature repealed the act of August, 1758, which exempted these lands from taxes; the lands were then assessed, and the taxes demanded. The court held the repealing law was unconstitutional, as impairing the obligation of the contract, although the land was in the hands of the grantee of the Indians. This case shows that although a State government may make a contract to exempt property from taxation, yet the sovereignty cannot annul that contract. In the case of Gordon n. The Appeal Tax, 3 How., 133, Mr. Justice Wayne, giving the opinion of the court, held, “ that 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 accepted. But that the corporate property of the bank, being separable from the franchise, may be taxed, unless there is a special agreement to the contrary.” And the court say, the language of the eleventh section of the act of 1821 is, “ And he it enacted, that upon any of the aforesaid banks accepting and complying with the terms and conditions of this act, the faith of the State is hereby pledged not to impose any further tax or burden upon them during the continuance of their charters under this act.” This, the court say, is the language of grave deliberation, pledging the faith of the State for some purpose, some effectual purpose. Was that purpose the protection of the banks from what that legislature and succeeding legislatures could not do, if the banks accepted the act, or from what they might do in the exercise of the taxing power. The terms and conditions of the act were, that the banks should construct the road and pay annually a designated charge upon their capital stocks, as the price of the prolongation of their franchise of banking. The power of the State to lay any further tax upon the franchise was exhausted. That is the contract between the State and the banks. It follows, then, as a matter of course, when the legislature go out of the contract, proposing to pledge its faith, if the banks shall accept the act not to impose any further tax or burden upon them, that it must have meant by these words an exemption *from some other tax than [-*007 a further tax upon the franchise of the banks. The *-latter was already provided against; and the court held that the exemption extended to the respective capital stocks of the banks as an aggregate, and to the stockholders, as persons on account of their stocks. The judgment of the Court of 411 387 SUPREME COURT. State Bank of Ohio v. Knoop. Appeals of Maryland, which sustained the act imposing an additional tax on the banks, was reversed. It will be observed that the above compact was applied to the stocks of the bank and the interest of the stockholders by construction. The Supreme Court of Ohio say in relation to this case, that “the power to tax and the right to limit the power were both admitted by counsel, and taken for granted in the consideration of the case; and that a very large consideration had been paid for the extension of the franchise and the exemption of the stock from taxation.” In relation to the admissions of the counsel it may be said that they were men not likely to admit any thing to the prejudice of their clients, which would be successfully opposed; nor would the court, on a constitutional question, rest their judgment on the admissions of counsel. Whether the consideration paid by the banks was large or small, we suppose was not a matter for the court, as the motives or consideration which induced a sovereign State to make a contract, cannot be inquired into as affecting the validity of the act. In the argument, the case of the Providence Bank n. Billing, was referred to, 4 Pet., 561. This reference impresses me with the shortness and uncertainty of human life. Of all the judges on this bench, when that decision was given, I am the only survivor. From several circumstances the principles of that case were strongly impressed upon my memory; and I was surprised when it was cited in support of the doctrines maintained in the case before us. The principle held in that case was, that where there was no exemption from taxation in the charter the bank might be taxed. This was the unanimous opinion of the judges, but no one of them doubted that the legislature had the power, in the charter or otherwise, from motives of public policy, to exempt the bank from taxation, or by compact to impose a specific tax on it. And this is clear from the language of the court. The chief justice in that case says: “that the taxing power is of vital importance, that it is essential to the existence of government, are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be presumed. No one can controvert the correctness ot these axioms.” *The relinquishment of such a power J is never to be presumed; but this implies it may be relinquished, or taxable objects may be exempted, if specially provided for in the charter. And this is still more clearly expressed, as follows: “We will not say that a State may not 412 DECEMBER TERM, 1853. 388 State Bank of Ohio v. Knoop. relinquish it; that a consideration sufficiently valuable to induce a partial release of it may not exist; but as the whole community is interested in retaining it undiminished, that community has a right to insist, that its abandonment ought not to be presumed, in a case in which the deliberate purpose of a State to abandon it does not appear.” Such a case was not then before the court. There was no provision in the Providence Bank charter which exempted it from taxation, and in that case the court could presume no such intention. But suppose, in the language of that great man, “ a consideration sufficiently valuable to induce a partial release of it, and such release had been contained in the charter; would not that have been held sufficient ? And of the sufficiency of the consideration, whether it was a bonus paid by the bank, or in supplying a sound currency, the legislature would be the exclusive judges. This would, constitute a contract which a legislature could not impair. The above case is a strong authority against the defendants. The Chief Justice further says, “ any privileges which may exempt the corporation from the burdens common to individuals, do not flow necessarily from the charter, but must be expressed in it, or they do not exist.” But if so expressed, do they not exist ? A case is cited from the Stourbridge Candi v. Wheely, 2 Barn. & Ad., 793, to show that no implications in favor of chartered rights are admissible. Lord Tenterden says, “ that any ambiguity in the terms of the contract must operate against the adventurers, and in favor of the public; and the plaintiffs can claim nothing that is not clearly given them by the act.” In the same opinion his lordship said : “Now, it is quite certain that the company have no right expressly to receive any compensation, except the tonnage paid for goods carried through some of the canals or the locks on the canal, or the collateral cuts, and it is therefore incumbent upon them to show that they have a right clearly given by inference from some of the other clauses.” Neither this, the Rhode Island Bank case, nor the Charles River Bridge case, affords any aid to the doctrines maintained, with the single exception, that a right set up under a grant must clearly appear, and cannot be presumed; and this has not been controverted. *That a State has power to make a contract which r#oon shall bind it in future, is so universally held by the •-courts of the United States and of the States, that a general citation of authorities is unnecessary on the subject. Dart- 413 389 SUPREME COURT. State Bank of Ohio v. Knoop. mouth College v. Woodward, 4 Wheat., 518; Terrett v. Taylor, 9 Cranch, 43; Town of Pawlett, Id., 292. Mr. Justice Blackstone says, 2 Bl. Com., 37, “ that the same franchise that has before been granted to one, cannot be bestowed on another, because it would prejudice the former grant. In the King v. Pasmore, 3 T. R., 246, Lord Kenyon says, that an existing corporation cannot have another charter obtruded upon it, or accept the whole or any part of the new charter. The reason of this, it is said, is obvious., A charter is a contract, to the validity of which the consent of both parties is essential, and therefore it cannot be altered or added to without consent.” There is no constitutional objection to the exercise of the power to make a binding contract by a State. It necessarily exists in its sovereignty, and it has been so held by all the courts in this country. A denial of this is a denial of State sovereignty. It takes from the State a power essential to the discharge of its functions as sovereign. If it do not possess this attribute, it could not communicate it to others. There is no power possessed by it more essential than this. Through the instrumentality of contracts, the machinery of the government is carried on. Money is borrowed, and obligations given for payment. Contracts are made with individuals, who give bonds to the State. So in the granting of charters. If there be any force in the argument, it applies to contracts made with individuals, the same as with corporations. But it is said the State cannot barter away any part of its sovereignty. No one ever contended that it could. A State, in granting privileges to a bank, with a view of affording a sound currency, or of advancing any policy connected with the public interest, exercises its sovereignty, and for a public purpose, of which it is the exclusive judge. Under such circumstances, a contract made for a specific tax, as in the case before us, is binding. This tax continues, although all other banks should be exempted from taxation. Having the power to make the contract, and rights becoming vested under it, it can no more be disregarded nor set aside by a subsequent legislature, than a grant for land. This act, so far from parting with any portion of the sovereignty, is an exercise of it. Can any one deny this power to the legislature ? Has it not a right to select the objects of taxation and determine the amount ? To deny either of these, is to take away State sovereignty. *3901 *1$ musf be admitted that the State has the soyer- -* eign power to do this, and it would have the sovereign power to impair or annul a contract so made, had not the 414 DECEMBER TERM, 1853. 390 State Bank of Ohio v. Knoop. Constitution of the United. States inhibited the exercise of such a power. The vague and undefined notion, that every exemption from taxation or a specific tax, which withdraws certain objects from the general tax law, affects the sovereignty of the State, is indefensible. There has been rarely, if ever, it is believed, a tax law passed by any State in the Union, which did not contain some exemptions from general taxation. The act of Ohio of the 25th of March, 1851, in the fifty-eighth section, declared that “the provisions of that act shall not extend to any joint-stock company which now is, or may hereafter be organized, whose charter or act of incorporation shall have guaranteed to such company an exemption from taxation, or has prescribed any other as the exclusive mode of taxing the same.” Here is a recognition of the principle now repudiated. In the same act, there are eighteen exemptions from taxation. The federal government enters into an arrangement with a foreign State for reciprocal duties on imported merchandise, from the one country to the other. Does this affect the sovereign power of either State ? The sovereign power in each was exercised in making the compact, and this was done for the mutual advantage of both countries. Whether this be done by treaty, or by law, is immaterial. The compact is made, and it is binding on both countries. The argument is, and must be, that a sovereign State may make a binding contract with one of its citizens, and, in the exercise of its sovereignty, repudiate it. The Constitution of the Union, when first adopted, made States subject to the federal judicial power. Could a State, while this power continued, being sued for a debt contracted in its sovereign capacity, have repudiated it in the same capacity ? In this respect the Constitution was very properly changed, as no State should be subject to the judicial power generally. Much stress was laid on the argument, and in the decisions of the Supreme Court, on the fact that the banks paid no bonus for their charters, and that no contract can be binding which is not mutual. This is a matter which can have no influence in deciding the legal question. The State did not require a bonus, but other requisitions are found in the charter, which the legislature deemed sufficient, and this is not questionable by any other authority. The obligation is as strong on the otate, from *the privileges granted and accepted, as if r*oni a bonus had been paid. E 391 Another assumption is made, that the banks are taxed as 415 391 SUPREME COURT. State Bank of Ohio v. Knoop. property is taxed in the hands of individuals. No deduction, it appears, is made from banks on account of debts due to depositors or others, whilst debts due by an individual are deducted from his credits. If this be so, it places banks on a very different footing from individuals. The power of taxation has been compared to that of eminent domain, and it is said, as regards the question before us, they are substantially the same. These powers exist in the same sovereignty, but their exercise involves different principles. Property may be appropriated for public purposes, but it must be paid for. Taxes are assessed on property for the support of the government under a legislative act. We were not prepared for the position taken by the Supreme Court of Ohio, that “no control over the right of taxation by the States was intended to be conferred upon the General Government by the section referred to, or any other, except in relation to duties upon imports and exports.” This has never been pretended by any one. The section referred to gives the federal government no power over taxation by a State. Such an idea does not belong to the case, and the argument used, we submit, is not legitimate. We have power only to deal with contracts under the tenth section of the first article of the Constitution, whether made by a State or an individual; if such contract be impaired by an act of the State such act is void, as the power is prohibited to the State. This is the extent of our jurisdiction. As well might be contended under the above section that no power was given to the federal government to regulate the numberless internal concerns of a State which are the subjects of contracts. With those concerns we have nothing to do; but when contracts growing out of them are impaired by an act of the State, under the federal Constitution we inquire whether the act complained of is in violation of it. The rule observed by this court to follow the construction of the statute of the State by its Supreme Court is strongly urged. This is done when we are required to administer the laws of the State. The established construction of a statute of the State is received as a part of the statute. But we are called in the case before us not to carry into effect a law of the State, but to test the validity of such a law by the Constitution of the Union. We are exercising an appellate jurisdiction. The decision of the Supreme Court of the State is before us for revision, and if their construction of the c°n' tract in question impairs its obligation, we are required to *qq9-| reverse their judgment. To follow the Construction -* of a State court in such a case, would be to surrender 416 DECEMBER TERM, 1853. 392 State Bank of Ohio v. Knoop. one of the most important provisions in the federal Constitution. There is no jurisdiction which we are called to exercise of higher importance, nor one of deeper interest to the people of the States. It is, in the emphatic language of Chief Justice Marshall, a bill of rights to the people of the States, incorporated into the fundamental law of the Union. And whilst we have all the respect for the learning and ability which the opinions of the judges of the Supreme Court of the State command, we are called upon to exercise our own judgments in the case. In the discussion of the principles of this case, we have not felt ourselves at liberty to indulge in general remarks on the theory of our government. That is a subject which belongs to a convention for the formation of a constitution; and, in a limited view, to the law-making power. Theories depend so much on the qualities of the human mind, and these are so diversified by education and habit as to constitute an unsafe rule for judicial action. Our prosperity, individually and nationally, depends upon a close adherence to the settled rules of law, and especially to the great fundamental law of the Union. Having considered this case in its legal aspects, as presented in the arguments of counsel, and in the views of the Supreme Court of the State, and especially as regards the rights of the bank under the charter, we are brought to the conclusion, that in the acceptance of the charter, on its terms, and the payment of the capital stock, under an agreement to pay six per cent, semi-annually on the dividends made, deducting expenses and ascertained losses, in lieu of all taxes, a contract was made binding on the State and on the bank; and that the tax law of 1851, under which a higher tax has been assessed on the bank than was stipulated in its charter, impairs the obligation of the contract, which is prohibited by the Constitution of the United States, and, consequently, that the act of 1851, as regards the tax thus imposed, is void. The judgment of the Supreme Court of Ohio, in giving effect to that law, is, therefore, reversed. Mr. Justice CATRON, Mr. Justice DANIEL, and Mr. Justice CAMPBELL, dissented. Mr. Chief Justice TANEY gave a separate opinion, as follows : I concur in the judgment in this case. I think that by the sixtieth section of the act of 1845, the State bound itself , by vol. xvi.—27 417 392 SUPREME COURT. State Bank of Ohio v. Knoop. contract to levy no higher tax than the one therein mentioned, upon the banks or stocks in the banks which organized under that law during the continuance of their charters. In my #ono-i judgment *the words used are too plain to admit of J any other construction. But I do not assent altogether to the principles or reasoning contained in the opinion just delivered. The grounds upon which I hold this contract to be obligatory on the State, will appear in my opinion in the case of the Ohio Life Insurance and Trust Company, also decided at the present term. Mr. Justice CATRON. This is a contest between the State of Ohio and a portion of her banking institutions, organized under a general banking law, passed in 1845. She was then a wealthy and prosperous community, and had numerous banks which employed a large capital, and were taxed by the general laws five per cent, on their dividends, being equal to thirty cents on each hundred dollars’ worth of stock, supposing it to be at par value. But this was merely a State tax, payable into the State treasury. The old banks were liable to taxes for county purposes, besides; and when located in cities or towns, for corporation taxes also. These two items usually amounted to much more than the State tax. Such was the condition of Ohio when the general banking law was passed in 1845. By this act, any number of persons not less than five might associate together, by articles, to carry on banking. The State was laid off into districts, and the law prescribes the amount of stock that may be employed in each. Every county was entitled to one bank, and some to more. Commissioners were appointed to carry the law into effect. It was the duty of this Board of Control to judge of the articles of association, and other matters necessary to put the banks into operation. Any company might elect to become a branch of the State Bank, or to be a separate bank, disconnected with any other. Fifty thousand dollars was the minimum, and five hundred thousand the maximum, that could be employed in any one proposed institution. By the fifty-first section, each of the banking companies authorized to carry on business was declared to be a body corporate with succession to the first day of May, 1866, with general banking powers; with the privilege to issue notes of one dollar and upwards, to one hundred dollars; and each bank was required to have “ on hand in gold and silver coin, or their equivalent, one half at least of which shall be in 418 DECEMBER TERM, 1853. 393 State Bank of Ohio v. Knoop. gold and silver coin in its vault, an amount equal to thirty per cent, of its outstanding notes of circulation ” ; and whenever the specie on hand, or its equivalent, shall fall below twenty per cent, of the Outstanding notes, then no more notes shall be circulated. The equivalent to specie, meant deposits that might be drawn against in the hands of eastern banks, or bankers of good credit. In this provision constituted the great value of the franchise. The 59th section declares that semiannual dividends shall be made by each bank of its profits, after deducting expenses; and the 60th section provides, that six per cent, per annum of these profits shall be set off to the State, “ which sum or amount so set off shall be in lieu of all taxes to which such company, or the stockholders thereof on account of stock owned therein, would otherwise be subject.” This was equal to thirty-six cents per annum on, each hundred dollars of stock subscribed, supposing it to yield six per cent, interest. By an act of 1851, it was declared that bank stock should be assessed at its true value, and that it should be taxed for State, county, and city purposes, to the same extent that personal property was required to be taxed at the place where the bank was located. As this rate was much more than that prescribed by the 60th section of the act of 1845, the bank before us refused to pay the excess, and suffered herself to be sued by the tax collector, relying on the 60th section, above recited, as an irrepealable contract, which stood protected by the Constitution of the United States. It is proper to say that the trifling sum in dispute in this cause is the mere ground of raising the question between the State of Ohio and some fifty of her banks, claiming exemption under the act of 1845. The taxable property of these banks is about eighteen millions of dollars, according to the auditor’s report of last year, and which was used on the argument of this cause, by both sides. Of course, the State officers, and other tax payers, assailed the corporations claiming the exemption, and various cases were brought before the Supreme Court of Ohio, drawing in question the validity of the act of 1851 in so far as it increased the taxes of the banks beyond the amount imposed by the 60th section of the act of 1845. The State court sustained the act of 1851, from which decision a writ of error as prosecuted, and the cause brought to this court. The opinions of the State court have been laid before us, or our consideration; and on our assent or dissent to them, the case depends. 1 he first question made and decided in the Supreme Court 419 394 SUPREME COURT. State Bank of Ohio v. Knoop. of Ohio was, whether the 60th section of the act of 1845, purported to be in its terms, a contract not further to tax the banks organized under it during the entire term of their existence ? The court held that it imported no such contract ; and with this opinion I concur. *oqki *The question was examined by the judge who J delivered the unanimous opinion of the court, in the case of Debolt v. The Ohio Life Insurance and Trust Company^ 1 Ohio St., 564, with a fairness, ability, and learning, calculated to command the respect of all those who have his opinion to review; and which opinion has, as I think, construed the 60th section truly. But, as my brother Campbell has rested his opinion on this section without going beyond it, and as I concur in his views, I will not further examine that question, but adopt his opinion in regard to it. The next question, decided by the State court is of most grave importance ; I give it in the language of the State court: “ Had the general assembly power, under the constitution then in force, permanently to surrender, by contract, within the meaning and under the protection of the Constitution of the United States, the right of taxation over any portion of the property of individuals, otherwise subject to it ? ” On which proposition the court proceeds to remark: “ Our observations and conclusions upon this question, must be taken with reference to the unquestionable facts, that the act of 1851 was a bond fide attempt to raise revenue by an equal and uniform tax upon’ property, and contained no covert attack upon the franchises of these institutions. That the surrender did not relate to property granted by the State, so as to make it a part of the grant for which a consideration was paid; the State having granted nothing but the franchise, and the tax being upon nothing but the money of individuals invested in the stock; and that no bonus or gross sum was paid in hand for the surrender, so as to leave it open to controversy, that reasonable taxes, to accrue in future, were paid in advance of their becoming due. What effect a different state of facts might have, we do not stop to inquire. Indeed, if the attempt has here been made, it is a naked release of sovereign power without any consideration or attendant circumstance to give it strength or color; and, so far as we are advised, is the first instance where the rights and interests of the public have been entirely overlooked. u Under these circumstances, we feel no hesitation in saying the general assembly was incompetent to such a task. This conclusion is drawn from a consideration of the limited au- 420 DECEMBER TERM, 1853. 395 State Bank of Ohio v. Knoop. thority of that body, and the nature of the power claimed to be abridged. “ That political sovereignty, in its true sense, exists only with the people, and that government is “founded on their sole authority,” and subject to be altered, reformed, or abolished only by them, is a political axiom upon which all the American *governments have been based, and is ex-pressly asserted in the bill of rights. Such of the sov- *-ereign powers with which they were invested, as they deem necessary for protecting their rights and liberties, and securing their independence, they have delegated to governments created by themselves, to be exercised in such manner and for such purposes as were contemplated in the delegation. That these powers can neither be enlarged or diminished by these repositories of delegated authority, would seem to result, inevitably, from the fundamental maxim referred to, and to be too plain to need argument or illustration. “ If they could be enlarged, government might become absolute ; if they could be diminished or abridged, it might be stripped of the attributes indispensable to enable it to accomplish the great purposes for which it was instituted. And, in either event, the constitution would be made, either more or less, than it was when it came from the hands of its authors; being changed and subverted without their action or consent. In the one event its power for evil might be indefinitely enlarged ; while in the .other its capacity for good might be entirely destroyed; and thus become either an engine of oppression, or an instrument of weakness and pusillanimity. “ The government created by the constitution of this State, (Ohio,) although not of enumerated, is yet one of limited powers. It is true, the grant to the general assembly of “legislative authority” is general; but its exercise within that limit is necessarily restrained by the previous grant of certain powers to the federal government, and by the express limitations to be found in other parts of the instrument. Outside of that boundary, it needed no express limitations, for nothing was granted. Hence this court held, in Cincinnati, Wilmington, fie. R. R. v. Clinton Co., 1 Ohio St., 77, that any act passed by the general assembly not falling fairly within the scope of “legislative authority,” was as clearly void as though expressly prohibited. So careful was the convention to enforce this principle, and to prevent the enlargement of the granted powers by construction or otherwise, that they expressly declared in art. 8, § 28—“ To guard against the transgression of the high powers we have dele- 421 396 SUPREME COURT. State Bank of Ohio v. Knoop. gated, we declare that all powers, not hereby delegated, remain with the people.” When, therefore, the exercise of any power by that body is questioned, its validity must be determined from the nature of the power, connected with the manner and purpose of its exercise. What, then, is the taxing power? And to what extent, and for what purposes has it been conferred upon the legislature ? That it is a power incident to sovereignty—“ a power of vital importance to the very existence of every government ”—has been as *3971 °^en declared as it has been spoken *of. Its impor- -I tance is not too strongly represented by Alexander Hamilton, in the 30th number of the Federalist, when he says: “ Money is with propriety considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most important functions. A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue ; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and in a short course of time perish.” “ This power is not to be distinguished, in any particular material to the present inquiry, from the power of eminent domain. Both rest upon the same foundation—both involve the taking of private property—and both, to a limited extent, interfere with the natural right guaranteed by the constitution, of acquiring and enjoying it. But, as this court has already said, in the case referred to, “neither can be classed amongst the independent powers of government, or included in its objects and ends.” No government was ever created for the purpose of taking, taxing, or otherwise interfering with the private property of its citizens. “ But charged with the accomplishment of great objects necessary to the safety and prosperity of the people, these rights attach as incidents to those objects, and become indispensable means to the attainment of those ends.” They can only be called into being to attend the independent powers, and can never be exercised without an existing necessity. “ To sustain this power in the general assembly, would be to violate all the great principles to which I have alluded. It would affirm its right to deal in, and barter away the sovereign right of the State, and thereby, in effect to change the constitution. When the general assembly of 1845 convened, 422 DECEMBER TERM, 1853. 397 State Bank of Ohio v. Knoop. it found, the State in the unquestionable possession of the sovereign right of taxation, for the accomplishment of its lawful objects, extending to ‘ all the persons and property belonging to the body politic.’ ” When its successor convened, in 1846, under the same constitution, and to legislate for the same people, if this defence is available, it found the State shorn of this power over fifteen or twenty millions of property, still within its jurisdiction and protected by its laws. This and each succeeding legislature had the same power to surrender the right, as to any and all other property; until at length the government, deprived of every thing upon which it could operate, to raise the means to attain *its necessary ends, by the exercise pgqg of its granted powers, would have worked its own in- *-evitable destruction, beyond all power of remedy, either by the legislature or the people. It is no answer to this to say that confidence must be reposed in the legislative body, that it will not thus abuse the power. “But, in the language of the court, in McCulloch v. Maryland, 4 Wheat., 316, ‘is this a case of confidence?’ ” “For every surrender of the right to tax particular property not only tends to paralyze the government, but involves a direct invasion of the rights of property, of the balance of the community; since the deficiency thus created must be made up by larger contributions from them, to meet the public demand.” The foregoing are some of the reasonings of the State court on the consideration here involved. With these views I concur, and will add. some of my own. The first is, “ That, acts of parliament derogatory from the power of subsequent legislatures, are not binding. Because, (as Blackstone says,) the legislature being in truth the sovereign power, is always equal, always absolute; and it acknowledges no superior on earth, which the prior legislature must have been if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with proper contempt these restraining clauses which endeavor to tie up the hands of succeeding legislatures. When you repeal the law itself, says he, you at the same time repeal the prohibitory clause which guards against repeal.” If this is so under the British government, how is it in Ohio? Her Supreme Court holds that the State constitution of 1802 expressly prohibited one legislature from restraining its successors by the indirect means of contracts exempting certain property, from taxation. The court says,—Power to exempt property, was reserved to the people ; thev alone 423 $98 SUPREME COURT. State Bank of Ohio v. Knoop. could, exempt, by an organic law. That is to say, by an ^mended constitution. The clause mainly relied on declares, J‘that all powers not delegated, remain with the people.” Now it must be admitted that this clause has a meaning; and it must also be conceded (as I think) that the Supreme Court of Ohio has the uncontrollable right to declare what that meaning is; and that this court has just as little right to question that construction as the Supreme Court of Ohio has to question our construction of the Constitution of United States. In my judgment the construction of the court of Ohio is proper; but if I believed otherwise I should at once acquiesce. Let us look at the matter fairly and truly as it is, and see what a different course on part of this court would lead to; nay, what Ohio is bound to do in self-defence and for self-preservation, under the circumstances. fconq-i *In 1845 a general banking law is sought at the J hands of the legislature, where five dollars in paper can be circulated for every dollar in specie in the bank, or on deposit, in eastern banks or with brokers. One dollar notes are authorized; every county in the State is entitled to a bank, and the large ones to several; the tempting lure is held out of six per cent, interest on five hundred dollars for every hundred dollars paid in as stock: thus obtaining a profit of twenty-four dollars on each hundred dollars actually paid in. That such a bill would have advocates enough to pass it through the legislature, all experience attests; and that the slight tax of thirty-six cents on each hundred dollars’ worth of stock, subscribed and paid, was deemed a privilege, when the existing banks and other property were taxed much higher, is plainly manifest. As was obvious, when the law passed, banks sprang up at once—some fifty in number having a taxable basis last year of about eighteen millions. The elder and safer banks were, of course, driven out, and new organizations sought under the general law, by the stockholders. From having constructed large public works, and made great expenditures, Ohio has become indebted so as to require a very burdensome tax on every species of property; this was imposed by the act of 1851, and on demanding from these institutions their equal share, the State is told that they Were protected by a contract made with the legislature of 1845, to be exempt from further taxation, and were not bound by the late law, and, of course, they were sued in their own courts. The Supreme Court holds that by the express terms of the State constitution no such contract could be made by the legislature of 1845, to tie up the hands of the legislature 424 DECEMBER TERM, 1853. 399 State Bank of Ohio v. Knoop. of 1851. And then the banks come here and ask our protection against this decision, which declares the true meaning of the State constitution. It expressly guarantees to the people of Ohio the right to assemble, consult, “and instruct their representatives for their common good and then “to apply to the legislature for a redress of grievances.” It further declares, that all powers not conferred by that constitution on the legislature are reserved to the people. Now, of what consequence or practical value will these attempted securities be if one legislature can restrain all subsequent ones by contracting away the sovereign power to which instructions could apply ? The question, whether the people have reserved this right so as to hold it in their own hands, and thereby be enabled to regulate it by instructions to a subsequent legislature, (or by a new constitution,) is a question that has been directly raised only once, in any State of the Union, so far as I know. In the case of Brewster v. Hough, 10 N. H., 139, it *was raised, and Chief Justice Parker, in delivering the L opinion of the court in a case in all respects like the one before us, says, “That is is as essential that the public faith should be preserved inviolate as it is that individual grants and contracts should be maintained and enforced. But there is a material difference between the right of a legislature to grant lands, or corporate powers, or money, and a right to grant away the essential attributes of sovereignty or rights of eminent domain. These do not seem to furnish the subjectmatter of a contract.” This court sustained the principle announced by the Supreme Court of New Hampshire, in the West River Bridge case. A charter for one hundred years, incorporating a bridge company, had been granted; the bridge was built and enjoyed by the company. Then another law was passed authorizing public roads to be laid out, and free bridges to be erected; the commissioners appropriated the West River Bridge and made it free ; the Supreme Court of Vermont sustained the proceeding on a review of that decision. And this court held that the first charter was a contract securing the franchises and property in the bridge to the company; but that the first legislature could not cede away the sovereign right of eminent domain, and that the franchises and property could be taken for the uses of free roads and bridges, on compensation being made. Where the distinction lies, involving a principle, between that case and this, I cannot perceive, as every tax-payer is compensated by the security and comfort government affords. 425 400 SUPREME COURT. State Bank of Ohio v. Knoop. The political necessities for money are constant and more stringent in favor of the right of taxation; its exercise is required daily to sustain the government. But in the essential attributes of sovereignty the right of eminent domain and the right of taxation are not distinguishable. If the West River Bridge case be sound constitutional law (as I think it is), then it must be true that the Supreme Court of Ohio is right in holding that the legislature of 1845 could not deprive the legislature of 1851 of its sovereign powers or of any part of them. It is insisted, that the case of the State of Ohio v. The Commercial Bank of Cincinnati, 7 Ohio, 125,- has held otherwise. This is clearly a mistake. The State in that case raised no question as to the right of one legislature to cede the sovereign power to a corporation, and tie up the hands of all subsequent legislatures : no such constitutional question entered into the decision; nor is any allusion made to it in the opinion of the court. It merely construed the acts of assembly, and held that a contract did exist on the ground that by the charter the bank was taxed four per cent.; and therefore the *4011 charter must *be enforced, as this rate of taxation ad- -* hered to the charter, and excluded a higher imposition. It would be most unfortunate for any court, and especially for this one, to hold that a decision affecting a great constitutional consideration, involving the harmony of the Union, (as this case obviously does,) should be concluded by a decision in a case where the constitutional question was not raised by counsel; and so far from being considered by the court, was never thought of: such a doctrine is altogether inadmissible. And in this connection I will say, that there are two cases decided by this court, (and relied on by the plaintiff in error,) in regard to which similar remarks apply. The first one is that of New Jersey v. Wilson, 7 Cranch, 164. An exchange of lands took place in 1758 between the British colony of New Jersey and a small tribe of Indians residing there. The Indians had the land granted to them by an act of the colonial legislature, which exempted it from taxes. They afterwards sold it, and removed. In 1804, the State legislature taxed these lands in the hands of the purchasers; they were proceeded against for the taxes, and a judgment rendered, declaring the act of 1804 valid. In 1812, the judgment was brought before this court, and the case submitted on the part of the plaintiff in error without argument; no one appearing for New Jersey. This court held the British contract with the Indians binding; and, secondly, that it run 426 DECEMBER TERM, 1853. 401 State Bank of Ohio v. Knoop. with the land which was exempt from taxation in the hands of the purchasers. No question was raised in the Supreme Court of New Jersey, nor decided there, or in this court, as to the constitutional question of one legislature having authority to deprive a succeeding one of sovereign power. The question was not considered, nor does it seem to have been thought of in the State court or here. The next case is Gordon’s case, 3 How., 144. What questions were there presented on the part of the State of Maryland, does not appear in the report of the case, but I have turned to them in the record, to see how they were made in the State courts. They are as follows • “1st. That at the time of passing 'the general assessment law of 1841, there was no contract existing between the State and the banks, or any of them, or the stockholders therein or any of them, by which any of the banks or stockholders can claim an exemption from the taxation imposed upon them by the said act of 1841.” “ 2d. That the contract between the State and the old banks, if there be any contract, extends only to an exemption from further ‘taxes or burdens,’ of the corporate privileges of *banking; and does not exempt the property, either real or personal, of said banks, or the individual *-stockholders therein.” “ 3d. That even if the contract should be construed to exempt the real and personal property of the old banks, and the property of the stockholders therein, yet such exemption does not extend to the new banks, or those chartered since 1830, and, moreover, that the power of revocation, in certain cases in these charters, reserves to the State the power of passing the general assessment law.” “ 4th. That the imposition of a tax of 20 cents upon every one hundred dollars’ worth of property, upon both the old and new banks, under the said assessment law, is neither unequal nor oppressive, nor in violation of the bill of rights.” “5th. That taxation upon property within the State, wherever the owners may reside, is not against the bill of rights.” On these legal propositions the opinion here given sets out by declaring that, “The question, however, which this court is called on to decide, and to which our decision will be confined, is—Are the shareholders in the old and new banks, lable to be taxed under the act of 1841, on account of the stock which they owned in the banks?” “e paragraph is the one relied on as adjudging he question, that the taxing power may be embodied in a 427 402 SUPREME COURT. State Bank of Ohio v. Knoop. charter and contracted away as private property, to wit: “ Such a contract is a limitation on the taxing power of the legislature making it, and upon succeeding legislatures, to impose any further tax on the franchise.” “ But why, when bought, as it becomes property, may it not be taxed as land is taxed which has been bought from the State, was repeatedly asked in the course of the argument. The reason is, that every one buys land, subject in his own apprehension to the great law of necessity, that we must contribute from it and all of our property something to maintain the State. But a franchise for banking, when bought, the price is paid for the use of the privilege whilst it lasts, and any tax upon it would substantially be an addition to the price.” As the case came up from the Supreme Court of Maryland, this court had power merely to reexamine the questions raised in the court below, and decided there. All that is asserted in the opinion beyond this is outside of the case of which this court had jurisdiction, and is only so far to be respected as it is sustained by sound reasoning; but its dicta are not binding as authority; and so the Supreme Court of Maryland held in the case of the Mayor $c. of Baltimore v. The Baltimore and Ohio B,ailroad Company, 6 Gill (Md.), 288. The State of Maryland merely asked to have her statutes *40^1 *construed, and if, by their true terms, she had promised J to exempt the stockholders of her banks from taxation, then she claimed no tax of them. She took no shelter under constitutional objections, but guardedly avoided doing so. If an expression of opinion is authority that binds, regardless of the case presented, then we are as well bound the other way, by another quite equal authority. In the case of East Hartford v. Hartford Bridge Co., 10 How., 535, Mr. Justice Woodbury, delivering the opinion of the court, says: The case of G-oszler v. The Corporation of Georgetown, 6 Wheat., 596, 598, “appears to settle the principle that a legislative body cannot part with its powers by any proceeding so as not to be able to continue the exercise of them. It can, and should, exercise them again and again, as often as the public interests require.” .... “ Its members are made, by the people, agents or trustees for them, on this subject, and can possess no authority to sell or grant their power over the trust to others.” The Hartford case was brought here from the Supreme Court of Connecticut, by writ of error, on the ground that East Hartford held a ferry right secured by a legislative act that was a private contract. But this court held, among other things, that, by a true construction of the State laws, 428 DECEMBER TERM, 1853. 403 State Bank of Ohio v. Knoop. no such contract existed; so that this case cannot be relied on as binding authority more than Gordon's case. If fair reasoning and clearness of statement are to give any advantage, then the Hartford case has that advantage over Gordon s case. It is next insisted that the State legislatures have in many instances, and constantly, discriminated among the objects of taxation; and have taxed and exempted according to their discretion. This is most true. But the matter under discussion is aside from the exercise of this undeniable power in the legislature. The question is whether one legislature can, by contract, vest the sovereign power of a right to tax, in a corporation as a franchise, and withhold the same power that legislature had to tax, from all future ones ? Can it pass an irrepealable law of exemption ? General principles, however, have little application to the real question before us, which is this: Has the constitution of Ohio withheld from the legislature the authority to grant, by contract with individuals, the sovereign power; and are we bound to hold her constitution to mean as her Supreme Court has construed it to mean ? If the decisions in Ohio have settled the question in the affirmative that the sovereign political power is not the subject of an irrepealable contract, then few will be so bold as to deny that it is our duty to conform to the construction they have settled ; and the only objection to *conformity that I suppose could exist with any one is, that the construction is not settled. How is the fact ? The refusal of some fifty banks to pay their assessed portion of the revenue for the year 1851, raised the question for the first time in the State of Ohio; since then the doctrine has been maintained in various cases, supported unanimously by all the judges of the Supreme Court of that State, in opinions deeply considered, and manifesting a high degree of ability in the judges, as the extract from one of them, above set forth, abundantly shows. If the construction of the State constitution is not settled, it must be owing to the recent date of the decisions. An opinion proceeding on this hypothesis will, as I think, involve our judgment now given in great peril hereafter; for if the courts of Ohio do not recede, but firmly adhere to their construction until the decisions, now existing, gain maturity and strength by time, and the support of other adjudications conforming to them, then it must of necessity occur that this court will be eventually compelled to hold that the construction is settled in Ohio; when it must be followed to avoid conflict between the judi-429 404 SUPREME COURT. State Bank of Ohio v. Knoop. cial powers of that State and the Union, an evil that prudence forbids. 1. The result of the foregoing opinion is, that the sixtieth section of the general banking law of 1845 is, in its terms, no contract professing to bind the Legislature of Ohio not to change the mode and amount of taxation on the banks organized under this law; and for this conclusion I rely on the reasons stated by my brother Campbell, in his opinion, with which I concur. 2. That, according to the constitutions of all the States of this Union, and even of the British Parliament, the sovereign political power is not the subject of contract so as to be vested in an irrepealable charter of incorporation, and taken away from, and placed beyond the reach of, future legislatures; that the taxing power is a political power of the highest class, and each successive legislature having vested in it, unimpaired, all the political powers previous legislatures had, is authorized to impose taxes on all property in the State that its constitution does not exempt. It is undeniably true that one legislature may by a charter of incorporation exempt from taxation the property of the corporation in part, or in whole, and with or without consideration ; but this exemption will only last until the necessities of the State require its modification or repeal. 3. But if I am mistaken in both these conclusions, then, I am of opinion that, by the express provisions of the constitution of Ohio, of 1802, the legislature of that State had with-*40^1 *from its powers the authority to tie up the J hands of subsequent legislatures in the exercise of the powers of taxation, and this opinion rests on judicial authority that this court is bound to follow; the Supreme Court of Ohio having held by various solemn and unanimous decisions, that the political power of taxation was one of those reserved rights intended to be delegated by the people to each successive legislature, and to be exercised alike by every legislature according to the instructions of the people. This being the true meaning of the nineteenth and twenty-eighth sections of the bill of rights, forming part of the constitution of 1802 ; one section securing the right of instructing representatives, and the other protecting reserved rights held by the people. Whether this construction given to the State constitution is the proper one, is not a subject of inquiry in this court; it belongs exclusively to the State courts, and can no more be questioned by us than State courts and judges can question our construction of the Constitution of the United States. 430 DECEMBER TERM, 1853. 405 State Bank of Ohio v. Knoop. For these reasons I am of opinion that the judgment of the Supreme Court of Ohio should be affirmed. Mr. Justice DANIEL. In the views so clearly taken by my brother Campbell of the character of the legislation of Ohio, impeached by the decision of the court, I entirely coincide. I will add to the objections he has so well urged to the jurisdiction of this court, another, which to my mind at least is satisfactory; it is this, that one of the parties to this controversy being a corporation created by a State, this court can take no cognizance, by the constitution, of the acts, or rights, or pretensions of that corporation. Mr. Justice CAMPBELL. I dissent from the opinion of the court. The question disclosed by the record, is contained in the sixtieth section of an act of the General Assembly of Ohio, “ to incorporate the State Bank of Ohio and other banking companies of that State,” adopted February,-1845. The section provides, that every banking company organized by the act, or complying with its provisions, shall semiannually, at designated days, set off to the State, six per cent, of the net profits for the six months next preceding, “ which sum or amount so set off shall be in lieu of all taxes to which such company, or the stockholders thereof, on account of stock owned therein, would otherwise be subject”; and the cashier was required to report the amount to the auditor and to pay it to the treasurer; but in computing the profits of the company for the purposes *afore-said, the interest received on the certificates of the L funded debt held by the company, or deposited with and transferred to the treasurer of the State, or to the board of control by such company, shall not be taken into the account.” I have extracted the last clause merely because it forms a part of the section. It is not usual for governments to levy taxes upon the certificates of their funded debt, and Ohio had, in an early statute, forbidden taxation of hers. This clause was a cumulative precaution, wholly unnecessary. Swan, Stat., 747, § 5. The case lies in the solution of the question whether the clause directing the banks to set apart semiannually, upon the profits for the six months preceding, six per cent, in lieu of all other taxes to which the company or the stockholders w°uld otherwise be subject on account of the stock, institutes an unalterable rule of taxation for the whole time of the 431 406 SUPREME COURT. State Bank of Ohio v. Knoop. corporate existence of these banks ? The General Assembly of Ohio thinks otherwise, and has imposed a tax upon the stock of the banks, corresponding with the taxes levied upon other personal property held in the State. The payment of this tax has been resisted by the banks. The Supreme Court of Ohio, by its judgment, affirms the validity of the act of the general assembly, and has condemned the bank to the payment. This judgment is the matter of consideration. The section of the act above cited furnishes a rule of taxation, and while it remains in force a compliance with it relieves the banks from all other taxes to which they would otherwise be subject. Such is the letter of the section. The question is, has the State of Ohio inhibited herself from adopting any other rule of taxation either for amount or mode of collection, while these banks continue in existence ? It is not asserted that such a prohibition has been imposed by the express language of the section. The term for which this rule of taxation is to continue is not plainly declared. The amounts paid according to it discharge the taxes for the antecedent six months. Protection is given in advance of exaction. The clause in the section, that this “ sum or amount, so set off, shall be in lieu of all taxes to which such company or the stockholders thereof would otherwise be subject,” requires an addition to ascertain the duration of the rule. It may be completed in adding, “ by the existing laws for the taxation of banks,” or “ till otherwise provided by law,” or at “the date of such apportionment or dividend.” Or, following the argument of the banks, in adding, “during the existence of the banks.” Whether we shall select from the one series of expressions, leading to one result, or the expression leading to another altogether different, depends upon the rules of interpretation applicable to the subject. *4071 *The first inquiries are of the relations of the parties J to the supposed contract to its subject-matter, and the form in which it has been concluded. The sixtieth section of the act of 1845, was adopted by the General Assembly of Ohio in the exercise of legislative powers, as a part of its public law. The powers of that assembly in general, and that of taxation especially, are trust powers, held by them as magistrates, in deposite, to be returned, after a short period, to their constituents without abuse or diminution. The nature of the legislative authority is inconsistent with an inflexible stationary system of administration. Its office is one of vigilance over the varying wants and changing elements of the association, to the end of ameliorating its. 432 DECEMBER TERM, 1853. 407 State Bank of Ohio v. Knoop, condition. Every general assembly is organized with the charge of the legislative powers of the State; each is placed under the same guidance, experience, and observation; and all are forbidden to impress finally and irrevocably their ideas or policy upon the political body. Each, with the aid of an experience, liberal and enlightened, is bound to maintain the State in the command of all the resources and faculties necessary to a full and unshackled self-government. No implication can be favored which convicts a legislature of a departure from this law of its being. The subject-matter of this section is the contributive share of an important element of the productive capital of the State to the support of its government. The duty of all to make such a contribution in the form of an equal and apportioned taxation, is a consequence of the social organization. The right to enforce it is a sovereign right, stronger than any proprietary claim to property. The amount to be taken, the mode of collection, and the duration of any particular assessment or form of collection, are questions of administration submitted to the discretion of the legislative authority; and variations must frequently occur, according to the mutable conditions, circumstances, or policy of the State. These conditions are regulated for the time, in the sixtieth section of this act. That section comes from the law-maker, who ordains that the officers of certain banking corporations, at stated periods, shall set apart from their property a designated sum as their share of the public burden, in lieu of other sums or modes of payment to which they would be subject; but there is no promise that the same authority may not, as it clearly had a right to do, apportion a different rate of contribution. I will not say that a contract may not be contained in a law, but the practice is not to be encouraged, and courts discourage the interpretation which discovers them. A common informer sues for a penalty, or a revenue officer makes a seizure under a promise that on conviction the recovery shall be shared, and yet the State discharges the forfeiture, or prevents the recovery by pqng a repeal of the law, violating thereby no vested right *-nor impairing the obligation of any contract. 5 Cranch, 281; 10 Wheat., 246; 6 Pet., 404. A captor may be deprived of his share of prize-money, pensioners of their promised bounty, at any time before their payment. 2 Russ. & M., 35. Salaries may be reduced, officers having a definite tenure, though filled, may be abolished, faculties may be withdrawn, the inducements to vest capital impaired and defeated by the Vol. xvi.—28 433 408 SUPREME COURT. State Bank of Ohio t>. Knoop. varying legislation of a State, without impairing constitutional obligation. 8 How., 163; 10 Id., 395; 3 Id., 534; 8 Pet., 88; 2 Sandf. (N. Y.), 355. The whole society is under the dominion of law, and acts, which seem independent of its authority, rest upon its toleration. The multifarious interests of a civilized State must be continually subject to the legislative control. General regulations, affecting the public order, or extending to the administrative arrangements of the State, must overrule individual hopes and calculations, though they may have originated in its legislation. It is only when rights have vested under laws that the citizen can claim a protection to them as property. Rights do not vest until all the conditions of the law have been fulfilled with exactitude during its continuance, or a direct engagement has been made, limiting legislative power over and producing an obligation. In this case it may be conceded that at the end of every six months the payment then taken is a discharge for all antecedent liabilities for taxes. That there could be no retrospective legislation. But beyond this the concessions of the section do not extend. A plain distinction exists between the statutes which create hopes, expectations, faculties, conditions, and those which form contracts. These banks might fairly hope that without a change in the necessities of the State, their quota of taxes would not be increased; and that while payment was punctually made the form of collection would not be altered. But rhe general assembly represents a sovereign, and as such designated this rule of taxation upon existing considerations of policy, without annexing restraints on its will, or abdicating its prerogative, and consequently was free to modify, alter, or repeal the entire disposition. I have thus far considered the sixtieth section of the act as a distinct act, embodying a State regulation With the view of ascertaining its precise limitations. I shall, however, examine the general scheme and object of the act, of which it forms a part, to ascertain whether a different signification can be given to it. Before doing so, it is a matter of consequence to ascertain on what principles the inquiry must be conducted. *4091 *Three cases occurred in this court, before either of -* the members who now compose it belonged to it, in which taxation acts of the States or its municipal authorities, involving questions of great feeling and interest, were pronounced invalid. In the last of these the court said, “that in a society like ours, with one supreme government for national purposes, and numerous State governments for other 434 DECEMBER TERM, 1853. 409 State Bank of Ohio v. Knoop. purposes, in many respects independent and in the uncontrolled exercise of many important powers, occasional interferences ought not to surprise us. The power of taxation is one of the most essential to a State, and one of the most extensive in its operation. The attempt to maintain a rule which shall limit its exercise is undoubtedly among the most delicate and difficult duties which can devolve on those whose province it is to expound the supreme law of the land, in its application to individuals.” The court in each of these cases affirm, “ that the sovereignty of the State extends to every thing which exists by its authority, or is introduced by its permission, and all on subjects of taxation.” 2 Pet., 449; 9 Wheat., 738; 4 Id., 316. The limitations imposed by the court in these cases excited a deep and pervading discontent, and must have directed the court to a profound consideration of the question in its various relations. The case of the Providence Bank v. Billings, 4 Pet., 514, enabled the court to give a practical illustration of sincerity with which the principle I have quoted was declared. A bank, existing by the authority of a State legislature, claimed an immunity from taxation against the authority of its creator. The court then said “ however absolute the right of an individual (to property) may be, it is still in the nature of that right, that it must bear a portion of the public burdens, and that portion is determined by the legislature.” The court declared that the relinquishment of the power of taxation is never to be assumed. “ The community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not plainly appear.” These principles were reaffirmed, their sphere enlarged, and their authority placed upon broad and solid foundations of constitutional law and general policy, in the opinion of this court, in the case of the Charles River Bridge, 11 Pet., 420. No opinion of the court more fully satisfied the legal judgment of the country, and consequently none has exercised more influence upon its legislation. The Supreme Court of Pennsylvania, speaking of these cases, says, “ they are binding on the State courts not merely as precedents, and therefore proving what the law is, but as the deliberate judgment of that tribunal *with whom the final decision of all such questions rest. The State courts have almost *-universally followed them. But no tribunal of the Union has acceded to the rule they lay down with a more earnest appre- 435 410 SUPREME COURT. State Bank of Ohio v. Knoop. ciation of its justice than did this court.” Pa. St., 144; 10 Pa. St., 142. The Supreme Court of Georgia says, “the decision, based as it is upon a subject particularly within the cognizance and jurisdiction of the Supreme Court of the United States, is entitled to the highest deference.” And the eminent Chief Justice of that court adds, “that the proposition it establishes commands my entire assent and approbation.” 9 Ga., 517; 10 N. H., 138; 17 Conn., 454; 21 Vt., 590; 21 Ohio (McCook’s Rep.), 564; 9 Ala., 235; 9 Rob. (La.), 324; 4 N. Y., 419; 6 Gill (Md.), 288. The chief justice, delivering the opinion of this court in that case, quotes with approbation the principle, that the abandonment of the power of taxation ought not to be presumed in a case in which the deliberate purpose to do so did not appear, and says, “ The continued existence of a government would be of no great value, if, by implications and presumptions, it was disarmed of the powers necessary tQ accomplish the ends of its creation, and the functions it was designed to perform transferred to the hands of privileged corporations. The rule of construction announced by the court was not confined to the taxing power; nor is it so limited in the opinion delivered. On the contrary it was distinctly placed on the ground that the interests of the community were concerned in preserving, undiminished, the power in question; and whenever any power of the State is said to be surrendered or diminished, whether it be the taxing power or any other affecting the public interest, the same principle applies, and the rule of construction must be the same.” The court only declared those principles for which the commons of England had struggled for centuries, and which were only established by magnanimous and heroic efforts. The rules that public grants convey nothing by implication, are construed strictly in favor of the sovereign, do not pass any thing not described nor referred to, and when the thing granted is described nothing else passes; that gefieral words shall never be so construed as to deprive him of a greater amount of revenue than he intended to grant, were not the inventions of the craft of crown lawyers, but were established in contests with crown favorites, and impressed upon the administration, executive and judicial, as checks for the people. The invention of crown lawyers was employed about such phrases, as ex speciali gratia, certa scientia mero motu, and non obstante, to undermine the strength of such rules, and to enervate the force of wholesome statutes. A writer of 436 DECEMBER TERM, 1853. 410 State Bank of Ohio v. Knoop. the seventeenth century says, “ from the time of William *Rufus, our kings have thought they might alienate r*4-ii and dispose of the crown lands at will and pleasure; *-and in all ages, not only charters of liberty, but likewise letters-patent for lands and manors, have actually passed in every reign. Nor would it have been convenient that the prince’s hands should have been absolutely bound up by any law, or that what had once got into the crown should have been forever separated from private possession. For then by forfeitures and attaintures he must have become lord of the whole soil in a long course of time. The constitution, therefore, seems to have left him free in this matter; but upon this tacit trust, (as he has all his other power,) that he shall do nothing which may tend to the destruction of his subjects. However, though he be thus trusted, it is only as head of the commonwealth; and the people of England have in no age been wanting to put in their claim to that to which they conceived themselves to have a remaining interest; which claims are the acts of resumption that from time to time have been made in parliament, when such gifts and grants were made as become burdensome and hurtful to the people. Nor can any government or State divest itself of the means of its own preservation; and if our kings should have had an unlimited power of giving away their whole revenue, and if no authority could have revoked such gifts, every profuse prince, of which we have had many in this kingdom, would have ruined his successor, and the people must have been destroyed with new and repeated taxes; for by our duty we are likewise to support the next prince. So that if no authority could look into this, a nation must be utterly undone without any way of redressing itself, which is against the nature and essence of any free establishment. Our constitution, therefore, seems to have been, that the king always might make grants, and that these grants, if passed according to the forms prescribed by the law, were valid and pleadable, against not only him, but his successors. However, it is likewise manifest that the legislative power has had an uncontested right to look into those grants, and to make them void whenever they were thought exorbitant.” Nor were they careless or indifferent to precautionary measures for the preservation of the revenues of the State from spoliation or waste. Official responsibility was established, and the Lords High Treasurer and Chancellor, through whose offices the grants were to pass, were severally sworn “that they would neither know nor suffer the king’s hurt, nor his 437 411 SUPREME COURT. State Bank of Ohio v. Knoop, disheriting, nor that the rights of his crown be distressed by any means as far forth as ye may let; and if ye may not let it, ye shall make knowledge thereof clearly and explicitly to the king with your true advice and counsel.” *4191 *Tbe responsibility of these high officers, as the his- -* tory of England abundantly shows, was something more than nominal; nor did the frequent enforcement of that rule of responsibility, nor the adoption by the judges of the stringent rules I have cited, protect the revenues of the State from spoliation. “ The wickedness of men,” continues this writer, “was either too cunning or too powerful for the wisdom of laws in being. And from time to time great men, ministers, minions, favorites, have broken down the fences contrived and settled in our constitution. They have made a prey of the commonwealth, plumed the prince, and converted to their own use what was intended for the service and preservation of the State. That to obviate this mischief, the legislative authority has interposed with inquiries, accusations, and impeachments, till at last such dangerous heads were reached.” Davenant’s Dis. passim. Nor let it be said that this history contains no lessons nor instructions suitable to our condition. The discussions before this court in the Indiana Railroad and the Baltimore Railroad cases exposed to us the sly and stealthy arts to which State legislatures are exposed, and the greedy appetites of adventurers, for monopolies and immunities from the State right of government. We cannot close our eyes to their insidious efforts to ignore the fundamental laws and institutions of the States, and to subject the highest popular interests to their central boards of control and directors’ management. This is not the time for the relaxation of those time-honored maxims, under the rule of which free institutions have acquired their reality, and liberty and property their most stable guaranties. The Supreme Court of Pennsylvania says, with great force, “ that if acts of incorporation are to be so construed as to make them imply grants of privileges, immunities, and exemptions, which are not expressly given, every company of adventurers may carry what they wish, without letting the legislature know their designs. Charters would be framed in doubtful or ambiguous language, on purpose to deceive those who grant them; and laws, which seem perfectly harmless on their face, and which plain men would suppose to mean no more than what they say, might be converted into engines of infinite mischief. There is no safety to the public interest, except in the rule which declares that 438 DECEMBER TERM, 1853. 412 State Bank of Ohio v. Knoop. the privileges not expressly granted are withheld.” 19 Pa. St., 144. The principles of interpretation, contained in these cases, control the decision of this, if applied to this act. Indeed, the argument of the plaintiff rests upon rules created for, and adapted to, a class of statutes entirely dissimilar. We were invited to consider the antecedent legislation of Ohio, in reference to its *banks, the discouraging effects of that « legislation, and then to deal with this act, as a medi- c cinal and curative measure; as an act recognizing past error, and correcting for the future the consequences. It is proper to employ this argument to its just limit. The legislation of Ohio since 1825 certainly manifests a distinct purpose of the State to maintain its powers over these corporations, in the matter of taxation, unimpaired. With a very few exceptions this appears in all the statutes. It is seen in the act of 1825, in the charters granted in 1834, in the acts of 1841-2-3, the two last being acts embracing the whole subject-matter of banking. It is said this austerity was the source of great mischief, depreciated the paper currency of the State, and occasioned distress to the people, and that the change apparent in the act of 1845 was the consequence. The existence of a consistent and uniform purpose for a long period is admitted. The abandonment of such a purpose, and one so in harmony with sound principles of legislation, cannot be presumed. If the application of these principles in Ohio was productive of mischief, we should have looked for an explicit and unequivocal disclaimer. We have seen that the act contains no renunciation of this important power. And it may be fairly questioned whether the people of Ohio would have sanctioned such a measure. I know of no principle which enables me to treat the sixtieth section of this act as a remedial statute. Even the dissenting opinions m the Charles River and Louisa Railroad cases, which have formed the repertory from which the arguments of the plaintiffs have been derived, do not in terms declare such a rule, and the opinions delivered by the authority of the court repel such a conclusion. Nor can I consider the decision in 7 Ohio, 125, of consequence in this discussion. That case was decided upon a form of doctrine which after the judgments of this court, before cited, had no title to any place in the legal judgment of the country. . The case was decided in advance of the most important and authoritative of those decisions. It is not surprising to hear that the judges who gave the judgment, afterwards renounced its principle, or that another State court has disapproved it, (19 Pa. St., 144,) or that it has not been 439 413 SUPREME COURT. State Bank of Ohio v. Knoop. followed in kindred cases, 11 Ohio, 12, 393 ; 19 Id., 110; 21 Id. (McCook), 563, 604, 626; and at the first time when it came up for revision it was overruled. It remains for me to consider the act of 1845, its purpose and details, in connection with the sixtieth section of the act, to ascertain whether it is proper to assume that the State has relinquished its rights of taxation over the banking capital of the State. The act of 1845 was designed to enable any number, not *414'1 *fewer than five persons, to form associations to carry -* on the business of banking. The legislature determined the whole amount of the capital which should be employed under the act—that it should be distributed over the State, according to a specified measure of apportionment; that the bills to circulate as currency should have certain marks of uniformity, and be in a certain proportion to capital and specie on hand, and that a collateral security should be given for their redemption. The act contains measures for organization, relating to subscriptions for stock, the appointment of officers and boards of management; sections, of a general interest, referring to the frauds of officers, the insolvency of the corporations, their misdirection and forfeiture; sections containing explicit and clear statements of corporate right and privilege, the capacities they can exercise, the functions they are to perform, and the term of their existence. The act initiates a system of banking of which any five of its citizens may avail, and which provides for the confederacy of these associations under the general title of the State Bank of Ohio, and its branches, and their subjection to a board of control, appointed by them. More than fifty banks have been formed under this act, and thirty-nine belong to the confederacy. Some of the banks over whose charters the State has reserved a plenary control, are by the act permitted to join it. It is said “ that the whole of this act is to be taken; the purpose of the act and the time of the act. It is a unit.” It will not be contended that the fifty-first section of this act, by which this multitude of banking companies are adjudged to be corporations, with succession for twenty years, places every other relation established by the act, beyond the legislative domain for the same period of time. For there are in the act measures designed for organization and arrangement for the convenience and benefit of the corporators only; there are concessions creating hopes and expectations out of which rights may grow by subsequent events; there are sections 440 DECEMBER TERM, 1853. 414 State Bank of Ohio v. Knoop. which convey present rights, or from which rights may possibly arise in the form of a contract; there are others which enter into the general system of administration, affect the public order, and tend to promote the common security. Some of these provisions may be dispensed with by those for whose exclusive benefit they were made. Some may be altered, modified, or repealed, to meet other conditions of the public interest, and some perhaps may not be alterable except with the consent of the corporators themselves. To determine the class to which one enactment or another belongs, we are referred to those general principles I have already considered. In this act, *of seventy-five sec-tions, which organizes a vast machinery for private *-banking, which directs the delicate and complex arrangements for the supply of a paper currency to the State, and determines the investment of millions of capital, we find this sixtieth section. The act is enabling and permissive. It makes it lawful for persons to combine and to conduct business in a particular manner. It forms no partnership for the State, compels no one to embrace or to continue the application of industry and capital according to its scheme. It grants licenses under certain conditions and reservations, but is nowhere coercive. Among the general regulations is the one which directs the banks at the end of every six months to ascertain their net profits for the six months next preceding and to set apart six per cent, for the State in the place of the other taxes or contributions to which they would be liable. But the legislature imposes no limit to its power, nor term to the exercise of its will, nor binds itself to adhere to this or any other rule of taxation. The subject affects the public order and general administration. It is not properly a matter for bargain or barter; but the enactment is in the exercise of a sovereign power, comprehending within its scope every individual interest in the State. It is a power which every department of government knows that the community is interested in retaining unimpaired, and that every corporator understood its abandonment ought not to be presumed in a case in which the deliberate purpose to abandon it does not appear.” I have sought in vain in the sixtieth section of the act, in the. act itself, and in the legislation and jurisprudence of Ohio, for the expression of such a deliberate purpose. My opinion is that the Supreme Court of Ohio has faithfully applied the lessons inculcated by this court, and that its judgment should be affirmed. 441 415 SUPREME COURT. Ohio Life Insurance and Trust Company v. Debolt. ORDER. This cause came on to be heard on the transcript of the record from the Supreme Court of Ohio, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said Supreme Court of Ohio in this cause be, and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said Supreme Court of Ohio for further proceedings to be had therein in conformity to the opinion of this court. *41 fi-] *The Ohio Life Insurance and Trust Company, J Plaintiff in error, v. Henry Debolt, Treasurer of Hamilton County, Defendant in error. There being no opinion of the court, as such, in this case, the reporter can only state the laws of Ohio which were drawn into question. In 1834, the Legislature of Ohio passed an act incorporating the Ohio Life Insurance and Trust Company, with power, amongst other things, to issue bills or notes until the year 1843. One section of the charter provided that no higher taxes should be levied on the capital stock or dividends of the company than are or may be levied on the capital stock or dividends of incorporated banking institutions in the State. In 1836, the legislature passed an act to prohibit the circulation of small bills. This act provided, that if any bank should surrender the right to issue small notes, the treasurer should collect a tax from such bank of five per cent, upon its dividends; if not, he should collect twenty per cent. The Life Insurance and Trust Company surrendered the right. In 1838, this law was repealed. In 1845, an act was passed to incorporate the State Bank of Ohio and other banking companies. The 60th section provided that each company should pay, annually, six per cent, upon its profits, in lieu of all taxes to which such company or the stockholders thereof, on account of stocks owned therein, would otherwise be subject. In 1851, an act was passed to tax banks and bank and other stocks, the same as other property was taxable by the laws of the State. There was nothing in previous legislation to exempt the Life Insurance and Trust Company from the operation of this act.1 This case was brought up from the District Court of the State of Ohio, in and for the county of Hamilton, by a writ 1 Distinguished. Jessup v. Carnegie, 80 N. Y., 448. Followed. North Missouri R. R. v. Maguire, 20 Wall., 61; Talcott v. Township of Pine Grove, 1 Flipp., 129, 176. Cited. Rice v. Railroad Co., 1 Black, 380; 442 Davis v. Gray, 16 Wall., 220; Farrington v. Tennessee, 5 Otto, 691; Thompson v. Perrine, 16 Id., 591; Burgess v. Seligman, 17 Id., 34; South Pacific R. R. Co. v. Orton, 6 Sawy., 195. DECEMBER TERM, 1853. 416 Ohio Life Insurance and Trust Company v. Debolt. of error issued under the 25th section of the Judiciary Act. The court was held by the Honorable John A. Corwin, Chief Justice of the Supreme Court of the State of Ohio, presiding, and the Honorable Alfred G. W. Carter, and the Honorable Edward Woodruff, and the Honorable John B. Stalle, Judges of the Court of Common Pleas, in and for the county of Hamilton, associates. The following certificate, which was a part of the record, explains the nature of the case: And thereupon, on motion of the counsel for the said The Ohio Life Insurance and Trust Company, defendants, it is ordered to be certified and made a part of the record that the said company did set up, by way of defence to the prayer of the bill of complainants, a certain act of the general assembly of this State, entitled An act to incorporate the Ohio Life Insurance and Trust Company, passed the twefth day of February, in the year eighteen hundred and thirty-four; and also a certain other act of the general assembly, entitled An act to prohibit the circulation of small bills, passed the fourteenth day of March, in the year eighteen hundred and thirty-six; and thereupon *claimed, that in virtue of the said acts, and of the instrument of writing, “ Exhibit *-B,” attached to its answer, the general assembly of this State had entered into a contract with the said company never to impose upon the property of the said company a greater or different burden of taxation than five per cent, upon its dividends of net profits, and that therefore the act of the general assembly, entitled An act to tax banks, and bank and other stocks, the same as other property is now taxable by the laws of this State, passed the twenty-first day of March, in the year eighteen hundred and fifty-one, impaired the obligation of a contract, and therein was repugnant to the Constitution of the United States ; but the court decided that there was no conflict between the said several acts, for the reason that the said act passed the fourteenth day of March, in the year eighteen hundred and thirty-six, expired, and ceased to have any effect or operation as respects The Ohio Life Insurance and Trust Company, on the first day of January, in the year eighteen hundred and forty-three, when the power of the said company to issue bills or notes for circulation expired and ceased by the terms of the said act passed the twelfth day of February, in the year eighteen hundred and thirty-four; and that there was, therefore, at the date of the said act passed the twenty-first day of March, in the year eighteen hundred W-one, no such contract, agreement, pledge, or understanding as the said company claimed; and that the said act 443 417 SUPREME COURT. Ohio Life Insurance and Trust Company v. Debolt, passed the twenty-first day of March, in the year eighteen hundred and fifty-one, was, in that respect, constitutional and valid; and it was ordered to be further certified on the same motion, that the said company did likewise set up by way of defence to the prayer of said bill a certain act of the general assembly of this State, entitled An act to incorporate the State Bank of Ohio and other banking companies, passed the twenty-fourth day of February, in the year eighteen hundred and forty-five, and thereupon claimed that in virtue of the said last-mentioned act, and of the said act passed the twelfth day of February, in the year eighteen hundred and thirty-four, the general assembly of this State had entered into a contract with the said company not to impose upon the property of the said company a greater or different burden of taxation than six per cent, upon its dividends of net profit, until after the first day of May, in the year eighteen hundred and sixty-six, and that therefore the act of the said general assembly, entitled An act to tax banks, and bank and other stocks, the same as other property is now taxable by the laws of this State, passed the twenty-first day of March, in the year eighteen hundred and fifty-one, impaired the obligation of a contract, and therein was repugnant to the Constitution of the *41United States, *but the court decided that the said J act passed the twenty-fourth day of February, in the year eighteen hundred and forty-five contained no pledge on the part of the State not to alter the amount, or the mode of taxation therein specified, but that the taxing power of the general assembly of this State over the property of companies formed under that act, was and is the same as over the property of individuals, and that there was, consequently, no such contract, agreement, pledge, or understanding as the said company claimed ; and that whether the franchises of companies organized under the said last-mentioned act, could not be revoked, changed, or modified, the said act passed the twenty-first day of March, in the year eighteen hundred and fifty-one, did not, upon any construction, impair any right secured to such companies, by the said act passed the twenty-fourth day of February, in the year eighteen hundred and forty-five, and that the said act passed the twenty-first day of March, in the year eighteen hundred and fifty-one, was therefore a constitutional and valid law. And it is ordered to be certified, also, that the question of the validity of the said act passed the twenty-first day of March, in the year eighteen hundred and fifty one, was material and necessary to the decision ot this cause, and that the validity of the said act was drawn in question (in the manner and to the intent herein before 444 DECEMBER TERM, 1853. 418 Ohio Life Insurance and Trust Company v. Debolt. specified) as being repugnant to the Constitution of the United States, and that the decision of the court was in favor of the validity of the said law. And it is further certified that this court is the highest court of law and in equity in the State of Ohio, in which a decision in this suit can be had. The several acts mentioned in the above certificate, are stated in the opinions delivered by the judges of this court, and it is not necessary to set them forth in extenso. The case was argued by Mr. Worthington and Mr. Stanberry, for the plaintiff in error, and by Mr. Spalding and Mr. Pugh, for the defendant in error. The following points, on behalf of the plaintiff in error, are taken from the brief of Mr. Worthington, filed for himself and Mr. Mathews. Points for Plaintiff.—I. Our first point involves the taxing power, the objects and subjects of taxation, and the manner and extent of its exercise. This power, under the Constitution of Ohio, of 1802, is legislative, and placed under the control of the general assembly, subject only to the few limitations put upon it by the instrument of its creation, and by the Constitution of the United States. Constitution of Ohio, of 29th of Nov., 1802, Art. 1, § 1; Id., Art. 8, § 23 ; McCulloch v. State *of Maryland, 4 Pet. Cond., 475, 486; Nathan v. Louisiana, 8 How., 82 ; Mager v. Grima et *-al., 8 Id., 490 ; The People n. Mayor Per annum, secured by unencumbered real . estate within the State of Ohio, of at least double the value in each case, of the sum so secured. By the 23d section it is declared that, “ the company shall have power until the year 1843, to issue bills or notes to an amount not exceeding twice the amount of the funds deposited with said company, for a time not less than one year, other than capital; but shall not, at any time, have in circulation an amount greater than one half the capital actually paid in and invested in bonds or notes secured by an unencumbered real estate, agreeably to the 7th section of this act, nor a greater amount than twice the amount of deposits, &c. The section under which the claim to a limited taxation is maintained, is only made certain by reference to the taxes levied on the capital stock or dividends of other incorporated 472 DECEMBER TERM, 1853. 445 Ohio Life Insurance and Trust Company v. Debolt. banking institutions. And more satisfactorily to arrive at this result, it may be proper to see what construction has been given to the section by the officers of State, whose duty it was to assess the tax and collect it. The act of the 12th of March, 1831, imposed a tax on banks of five per cent, upon the amount of their dividends. This tax was paid by the Trust Company until the act of the 14th of March, 1836, called the act to prohibit the circulation of small bills. Under this act the auditor was authorized to draw in favor of the Treasurer of State for twenty per cent, on the dividends of the banks, provided, if they should agree in the form required to relinquish the right under their charters to issue five dollar bills, and three dollars, the auditor should draw only for five per cent. The Trust Company acceded to the proposal, and filed the necessary papers relinquishing the right to issue the small bills as required. But this made no difference in the amount of the tax paid by the bank. The tax continued the same rate of five per cent, on the dividends of banks until the act of 1845 was passed, containing the following compact: “ Each banking company, organized under this act, or accepting thereof, and complying with its provisions, shall semiannually, on the days designated in the fifty-ninth section, set off to the State six per cent, on the profits, deducting therefrom the expenses and ascertained losses of the company for the six months next preceding; which sum or amount, so set off, shall be in lieu of all taxes to which such company, or the stockholders thereof, on account of stock owned therein, would otherwise be subject,” &c. As the power of the State to exempt property from taxation, under a compact which binds it, has been discussed somewhat *at large in the case of the Piqua Branch Bank v. Knoop, at this term, nothing farther need L now be said on the subjects there examined; but the point, whether there is a contract which should exempt the Trust Company Bank from general taxation, must be considered. There are two grounds under which this bank claims an exemption. 1. Under its original charter. 2. Under the small note act of 1836. The second I shall not consider. . .The twenty-fifth section in the charter guarantees that “no higher taxes shall be levied on the Trust Company than on the capital or dividends of incorporated banking institutions ln the State.” Now, to make this provision specific as to the 473 446 SUPREME COURT. Ohio Life Insurance and Trust Company v. Debolt. amount of the tax, the other banking institutions of the State to which the section refers, must be ascertained. Some doubt may arise, whether the institutions referred to were such as were existing at the time the charter was granted, or to banks subsequently taxed. As the words in the section, in relation to taxation of the bank, are, u than are or may be levied,” it would seem to embrace the future law of taxation, as well as the one in force at the date of the charter. Taking this as the true construction, the tax of five per cent, on the dividends was properly assessed under the act of 1831 and 1836. At the time the charter of this company went into operation, some of the banks were taxed four per cent, on their dividends; but as the greater number were taxed five per cent, on their dividends, the Auditor of State drew for five. This seemed to be a reasonable construction of the twentyfifth section, as it refers to a general rule of taxation, and not to a particular one. The tax shall not be higher than that on the incorporated banks of the State. After the act of 1845, the Trust Company was chargeable with six per cent, on the dividends, deducting expenses and ascertained losses, on the ground that a very large proportion of the banks of the State were so taxed; and that would seem to come within the intention of the Trust Company charter. Without doing violence to the language of the twenty-fifth section, it cannot be said to embrace the highest rate of taxation nor the lowest; that rate which would include the greater number of banks, would seem to be just. And that was the construction given by the auditor before the tax law of 1851. The act of the 12th of March, 1851, imposed a much higher tax on banks, by assessing it on all the property of the banks, instead of the six per cent, on the dividends. This embraced the banks chartered under the act of 1845, as well as all others. And if this law had been held to be constitutional, it would, undoubtedly, apply to the Trust Company. *4471 *On the 21st of March, 1851, the same day the above J tax law was passed, an act to authorize free banking was enacted, which continued in force until it was repealed by the adoption of the constitution. Under this law it is ascertained, from the report of the auditor, that thirteen banks, or about that number, were organized. There were about fifty banks organized under the act of 1845. Four of the old banks were not included in this organization. Now, all the banks organized under the act of 1845, as we have held in 474 DECEMBER TERM, 1853. 447 Ohio Life Insurance and Trust Company v. Debolt. the Piqua Branch Bank case, were not subject to a higher tax than six per cent, on their dividends. At the time the tax law of 1851 was made to operate on the Trust Company, there does not appear to have been a bank in the State on which such tax could be assessed. There were, it is believed from the report of the Auditor of State, thirteen banks organized under the Bank Act of 1851, passed on the same day as the Tax Act; but not one of those banks was in operation until some time after the tax took effect on the Trust Company. This Bank Act was repealed by the new constitution so as to arrest the further organization of banks under it. Now, from these facts the question arises, whether the twenty-fifth section shall be held to apply to the fifty banks in operation under the act of 1845, or the thirteen banks which were afterwards organized under the act of 1851. It is true that the act of 1851, imposing the tax, was intended to affect all the banks, and especially the Trust Company, but that act being held to be unconstitutional, cannot be considered as governing the twenty-fifth section of the Trust Company charter. The provision in that section, that “ no higher duties shall be levied on the capital stock or dividends of the company than are or may be levied on the capital stock or dividends of incorporated banking institutions in the State,” must refer to a legal taxation ; and if this be the correct interpretation, then, at the time this tax law was passed, there was not a bank in the State on which the tax could take effect. The twenty-fifth section referred to incorporated institutions and not contemplated incorporated banks. Such a construction must be given to the section, if it have any effect. This reference, embracing the taxation under the act of 1845, gives to the Trust Company charter the same effect as if the sixtieth section of the act of 1845 had been embodied m it. By reference it constitutes a part of the Trust Company charter, and it would seem to me that nothing short of this gives to the twenty-fifth section the effect it was intended to have. That section has been relied on by the bank as a pledge or compact, not complete within itself as to the amount of the tax; but by reference to existing incorporated banks, embracing *the tax imposed upon them as the tax in- r*44o tended to be applied to the Trust Company. *- In this view this section is made certain, and contains all the requisites of a contract. The same certainty would make good a grant for land. And this is sufficient. The restriction of the power of the Legislature of Maryland, in regard to taxing the banks of that State, was made out by construe. 475 448 SUPREME COURT. Ohio Life Insurance and Trust Company v. Debolt. .tion as clearly and as satisfactorily as if it had been expressed in words. Would anyone contend that the Legislature of Ohio could tax the Trust Company under its charter, without any reference to existing incorporated banks? This was done by the tax law of 1851. But the legislature may have supposed that law would operate upon all banks in the State. As that law cannot so operate, this tax on the Trust Company then should be considered as taxing the Trust Company without reference to any existing banks, but to those which might or might not be organized under the act of 1851. This, it seems to me, is in violation of all sound rules of construing the twenty-fifth section. The Supreme Court of the State considered this charter of the Trust Company as resting on the same footing as the other banks. In the discussion of the subject the sixtieth section of the act of 1845 was examined. They rightly considered that section as applying, by reference, to that company; and, in this respect, 1 entirely agree with them. I think the Trust Company stands upon the same basis, and should have the same judgment applied to it, as was applied to the banks under the act of 1845. In the argument of the counsel against the Trust Company Bank, it was insisted that the rule which is to determine the amount of taxation, is found in the banking companies under the act of 1851, and not under the act of 1845. And this is founded chiefly on the fact that the act of 1851 was a general law, and imposed a tax upon all the banks of Ohio. This argument would be unanswerable, if the existing banks were subject to the tax law of 1851. But, under our decision, that law has no operation on the existing banks; and this fact was not considered by the counsel. The decision in the Piqua Bank case has taken this ground from the counsel. For they did not, in any part of their argument, contend that the tax could apply to the Trust Company as “ incorporated banks,” when no such banks were incorporated. This would seem to be in violation, not only of the words of the 25th section, but of the clear import of that section. Neither the supreme court of the State nor the counsel relied upon such an argument. The court of the State and the counsel in the Trust Company case, discussed the 60th sec-*4491 ti°n *of the act of 1845, as by reference, constituting -I a part of its charter. And this is the true question in the case. The privilege of issuing bills of circulation, which terminated in 1843, can have no effect upon the question of taxa-476 DECEMBER TERM, 1853. 449 Ohio Life Insurance and Trust Company v. Debolt. tion. That company still exercised, under its charter, its hanking powers as a bank of deposit, and did a much larger business than any bank of the State. After 1843, as before that period, its dividends were taxed as the other banks. It ■was in fact a bank, and discounted, and was the principal bank in the State. These facts appear from the taxes paid to the auditor, which constitute a part of the record. In the argument it is assumed that this bank is taxed at the rate only at which individuals are taxed. From the facts before us, I think there is a mistake in this statement. The capital of this bank is stated in the charter to be two millions of dollars. From the record it appears that eight per cent, is the average dividend declared. This would give one hundred and sixty thousand dollars, as dividend, per annum. From the report of the auditor of Ohio I observe the taxes charged against the Trust Company, including the penalties incurred for that year, amounts to the sum of $108,-477.85. This sum, deducted from the dividends for the year, will leave only the sum of $51,523 to be distributed among the stockholders. This would give to them little more than two and a half per cent, on their capital. But if the bank had paid the tax, without incurring any penalty, it would have amounted to a sum not much below seventy thousand dollars. This would take nearly one half of the profits of the year. This result must convince any one that there must be some error in the statement, that this bank is taxed no more than property is taxed in the hands of individuals. No free people would pay nearly one half the profit of a large concern, in taxes. But I think this result may be accounted for. The capital of this bank is loaned at seven per cent., and distributed among the counties of the State. Funds are received on deposits for which four per cent, per annum, or a higher rate of interest is paid. The bank having the general confidence of business men, its deposits are large, the notes payable to the bank, bills of exchange, &c., are all assessed at their face, as capital, and also, it is supposed, all moneys on deposit. From these no deduction is made on account of debts due to depositors or to other persons, as the law requires, in assessing the personal property of an individual. No trust company, organized as this company is organized, can do business under such a pressure of taxation. This bank was organized when the currency of Ohio was *deranged, and embarrassments were general through-out the country. The general bankrupt act followed, *-after the lapse of some years. The agency of the Trust 477 450 SUPREME COURT. Ohio Life Insurance and Trust Company v. Debolt. Company Bank, in distributing its capital in every county in the State, as required by its charter, conduced to correct the evils of a vitiated currency in the State; and, in that respect, has continued to exercise a salutary influence over its circulation. These considerations, I am aware, have nothing to do with the constitutional question in the case, and I only advert to them in answer to the argument that this bank has no ground of complaint, as it is taxed on its property as if the property were in the hands of an individual. Mr. Justice WAYNE dissented from the judgment of the court. Mr. Justice CURTIS. I dissent from the judgment of the majority of the court in this case. I consider the twenty-fifth section of the charter of the company to be a contract by the State with the corporation, that the rate of taxation of this company shall not at any time be higher than the rate of taxation actually and legitimately imposed on banking institutions; that this contract is not complied with by passing an act to tax banks, which could not, and did not operate, in point of fact, to tax the banking institutions of the State ; that what was bargained for and granted was not conformity to an inoperative general law, but conformity to the actual and legal rate of taxation of banks for the time being; and consequently, as when the tax in question was levied, the banking institutions existing in the State were not subject to the law under which the Life and Trust Company was taxed, and were not liable to pay the rate of taxation imposed on that company, the obligation of the contract of the State to impose on the Life and Trust Company no higher taxes than are or may be imposed on banking institutions, has been impaired ; because when this tax was imposed it was a higher tax than was or could be legitimately imposed on the then existing banking institutions of the State. I do not go into an extended examination of this subject, because it involves only a construction of this particular contract, and though important to the parties, is not of general interest. Upon the other questions involved in the case, namely, as to the power of the legislature of Ohio to make a contract fixing the rate of taxation of certain property for a term of years,—as to the duty of this court to expound the contract whose obligation is alleged to be impaired—and the propriety of accepting the construction *4514 Constitution of the State which had been prac- J tised on by all the branches of its government, and 478 DECEMBER TERM, 1853. 451 Gamache et al. v. Piquignot et al. acquiesced in by the people for many years, when the contract in question was made, I fully concur in the views of the chief justice, as expressed in his opinion. Mr. Justice NELSON concurs with Mr. Justice CURTIS. ORDER. This cause came on to be heard on the transcript of the record from the District Court of the State of Ohio, for Hamilton county, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the judgment and decree of the Supreme Court of Ohio, in this cause as remitted to the District Court of the State of Ohio for Hamilton county, and contained in the transcript of the record filed in this cause, be and the same is hereby affirmed, with costs, and interest at the same rate per annum that similar judgments or decrees bear in the courts of the State of Ohio. Louis D. Gamache, Samuel and Leonore Gamache, by Guardian, Wilson Primm, Louis Primm, John Caven-den, and Abby P. True, Plaintiffs in error, v. Francois X. Piquignot, and the Inhabitants of the town of Carondelet. In 1812, Congress passed an act (2 Stat, at L., 748) entitled “An act making further provision for settling the claims to land in the territory of Missouri.” It confirmed the titles to town or village lots, out lots, &c., in several towns and villages, and amongst them the town of Carondelet, where they had been inhabited, cultivated, or possessed, prior to the twentieth day of December, 1803. In 1824, Congress passed another act (4 Stat, at L., 65) supplementary to the above, the first section of which made it the duty of the individual owners or claimants, whose lots were confirmed by the act of 1812, to proceed within 18 months to designate their lots by proving cultivation, boundaries, &c., before the recorder of land titles. The third section made it the duty of this officer to issue a certificate of confirmation for each claim confirmed, and furnish the surveyor-general with a list of the lots so confirmed. This list was furnished in 1827. Afterwards, in 1839, another recorder gave a certificate of confirmation; an extract from the registry showing that this second recorder entered L the certificate in 1839; and an extract from the additional list of claims, _which addition was that of a single claim, being the same as above. These three papers were not admissible as evidence in an ejectment brought by the owners of this claim. The time had elapsed within which the recorder could confirm a claim. 479 452 SUPREME COURT. Gamache et al. v. Piquignot et al. This case was brought up from the Supreme Court of Missouri by a writ of error issued under the 25th section of the Judiciary Act.1 It was an action in the nature of an ejectment brought by the plaintiffs in error, for the recovery of a tract of land described in the declaration as survey No. 120 of the out lots and common field lots of the village of Carondelet. The substance of the two acts of Congress of 1812 and 1824 is given in the caption of this report, and need not be repeated. Upon the trial, the plaintiff offered the three following pieces of evidence, all of which were rejected by the court. There was much other evidence offered both by the plaintiffs and defendants; but as the opinion of this court turned chiefly upon the propriety of this rejection, the other pieces of evidence, and instructions of the court founded thereon, will be omitted. It will be perceived that each one of the three purports to derive its efficacy from the certificate of Mr. Conway, in 1839. The plaintiffs then offered in evidence the following certificate of confirmation of the recorder of land titles of Missouri, as follows, to wit: (Indorsed on the outside “ Jno. Bte. Gamache, sen., 6 by 40 arpens, field of Carondelet. Fees -fl, paid.”) John Baptiste De Gamache, sen., or his legal representatives, claims an out lot, adjoining the village of Carondelet, containing six arpens in front by forty in depth, bounded, northerly, by the common fields; eastwardly, by the Mississippi River (leaving a tow between it and the river) ; south, by an out lot claimed by the legal representatives of Gabriel Constant, (lalmond,) sen., an[d] west by the land formerly the property of Antoine Riehl. John Baptiste Maurice Chatillon, being duly sworn, says he knows the land claimed, and that he is about sixty-six years of age, and that he was born in Kaskaskia, and A. D., seventeen hundred and eighty-eight he removed from Ste. Genevieve to Carondelet, where he has resided ever since; that A. D., seventeen hundred and ninety-seven or ninetyeight he was employed by John Baptiste Gamache, sen., to fence in a field which said Gamache had been clearing, and working for about two years within this field lot; and he, this respondent, says, he did fence in about three arpens of. this land, and did build a cabin on the same at this time; and this deponent further says that Gamache did cultivate this same field for five or six years until his death;. 1 Reported below, 17 Mo., 310. See post, *512. 480 DECEMBER TERM, 1853. 453 Gamache et al. v. Piquignot et al. *and this deponent further says he always understood [-*453 this land was owned by said John Baptiste Gamache. *- his John Baptiste Maurice Chatillon. mark. Sworn to before me, July 6th, 1825. Theodore Hunt, Recorder L. T. Translated to witness. J. V. Garnier. Recorder’s Office, St. Louis, Missouri, 22tZ January, 1839. I certify the foregoing within to be truly copied from book No. 2, page 46, of the minutes of the proceedings of the recorder of land titles in the State of Missouri, under the act of Congress of the 26th May, 1824, entitled “ An act supplementary of an act passed on the 13th day of June, 1812,” entitled “ An act making further provisions for settling the claims to land in the territory of Missouri,” all of record in this office, and confirmed by the act of 13th June, 1812, above cited. F. R. Conway, U. S. Recorder of Land Titles in the State of Missouri. To Daniel Dunklin, Esq., U. S. Surveyor of Public Lands, St. Louis, Mo. Together with a certified extract from the registry of certificates from the office of the recorder of land titles as follows, to wit: Registry of Certificates of confirmation on town lots, out lots, and common field lots, issued by the Recorder of Land Titles. In whose name issued. Date. Situation. Remarks. Quantity. The following claim was omitted hy Mr. Hunt, late recorder, in furnishing the list of claims proven up before him, to wit: John Baptiste de Gamache. Sth July, 1825. Carondelet fields. Bounded north by the common fields, eastwardly by the Mississippi, (leaving a tow [path] between it and the river,) south by an out lot claimed by the legal representatives of Gabriel Constant, (lalmond,) sen., and westwardly by the land formerly the property of Antoine Rheil. VOL. XVI.—31 481 454 SUPREME COURT. Gamache et al. v. Piquignot et al. *The above claim entered by me in the book, 12th -* March, 1839, having this day furnished the surveyorgeneral with a description thereof. F. R. Conway, Recorder. Recorder’s Office, St. Louis, January 23d, 1851. The above is correctly copied from the registry on file in this office. Adolph Renard, U. S. Recorder of Land Titles in the State of Missouri. And also a certified extract from the list of claims proved before the recorder of land titles, under the act of 26th of May, 1824, (in which is contained the Gamache claim to which particular reference was made at this stage of the case,) transmitted by the recorder of land titles to the surveyor-general of the United States in Illinois and Missouri, certified from the office of the surveyor-general, as follows, to wit: (This was a list of cases transmitted by Mr. Hunt to the surveyor-general, as a supplemental report. The cases bear various dates, the last being 12th April, 1830. They were 16 in number. Then came the following, transmitted by Mr. Conway, accompanied by a certificate by him, dated 12th March, 1839, stating that it had been omitted to be furnished by his predecessor, Mr. Hunt. No. 17 — Not in list. John Baptiste de Gamache, senior, or his legal representatives, claim an put lot adjoining the village of Carondelet, containing six arpens in front by forty in depth, bounded northerly by the common, eastwardly by the Mississippi, (leaving a tow between it and the river,) south by an out lot claimed by the legal representatives of Gabriel Constant, (Lalamand) senior, and west by the land formerly the property of Antoine Rheil. John Baptiste Maurice Chatillon, being duly sworn, says he knows the land claimed, and that he is about sixty-six years of age, and that he was born in Kaskaskia, and A. d., 1788, he removed from St. Genevieve to Carondelet, where he has resided ever since; that A. D., seventeen hundred ninety-seven or ninety (8) eight he was employed by John Baptiste Gamache, senior, to fence in a field—which said Gamache had been clearing and working in for about two 482 DECEMBER TERM, 1853. 454 Gamache et al. v. Piquignot et al. years within this field lot—and he, this deponent, says he did fence about three arpens of this land, and build a cabin on the same, at this time. And this deponent further says, that Gamache did cultivate this same field for five or six years, until his death. And this deponent *further says, he always understood this land was owned by said John Baptiste Gamache. his (Signed) John Baptiste Maurice X Chatillon. mark. Sworn to before me, July 6th, 1825. (Signed) Theodore Hunt, Rec'r L. T, Translated to witness by J. V. Garnier. The plaintiff also offered in evidence a certified extract from Hunt’s minutes, containing the entry of Gamache’s claim, with a description of the lot; and also the evidence therein recorded, but the court refused to receive it; and also testimony to prove the inhabitation and cultivation of the lot prior to December, 1803, and until his death in 1805. There was also much other evidence which need not be stated in this report. The defendants offered evidence. 1. To show a title under the act of Congress, of 1812, as commons of Carondelet. 2. An adverse possession for twenty years. 3. Rebutting evidence. After the evidence was closed various instructions wrere asked for, both by the counsel for plaintiff and defendant, some of each of which were given and some refused by the court, as the verdict was for the defendants, and the case was brought up by the plaintiffs, only those instructions and refusals to which they excepted, will be here stated. Instructions for plaintiffs refused. 3. The jury are instructed that, as against such a claim and cultivation, or possession, as that mentioned in said second instructions, । no adverse user as commons as a ground of title, under ' the act of Congress of 13th June, 1812, can prevail, unless such user existed in fact by an actual occupation and use as commons of the same ground, visible and continued, notorious, hostile, and exclusive [and then], only to the extent that such actual occupation and use as commons existed in fact, and to the exclusion of such claim and cultivation, or possession, by Gamache, of the same land as an out ot, or cultivated field lot, of the village, prior to the 20th ( ay of December, 1803 ; provided the jury also believe, from 483 455 SUPREME COURT. Gamache et al. v. Piquignot et al. the evidence, that the tract of land in the declaration described was claimed and inhabited, cultivated or possessed, by John B. Gamache, senior, prior to the 20th day of December, 1803, as an out lot or cultivated field lot of said village, with such a cultivation or possession as that mentioned in the said second instructions for the plaintiffs. 4. If the jury believe, from the evidence, that the claim of the village of Carondelet to commons, prior to the 20th day of December, *1803, was bounded north (in part) -I [by] the cultivated lands of the village, and that, prior to said date, the lot of land in said declaration described as having been claimed by Gamache was one of the cultivated lands of the village, then there is no conflict of title in this case, and the defendants have shown no title to the land in controversy. 5. The jury are instructed that, on the evidence given in this case, the statute of limitations is no bar to this action, unless they shall believe’, from the evidence, that the town of Carondelet, or those holding under said town, have had an adverse possession in fact of the land in controversy in this case by an actual occupation on the ground, visible and continued, notorious, hostile, and exclusive, for at least twenty years next preceding the commencement of this suit. 7. The jury are instructed that the survey No. 120, and the plats and field notes thereof given in evidence by the plaintiffs, are evidence of the true location, extent, and boundary of the out lot of the village of Carondelet, claimed under John B. Gamache, senior, by his legal representatives. 8. The certified extract from the minutes of Recorder Hunt, taken under the act of Congress of 26th of May, 1824, [is] evidence that the tract of land therein mentioned and described was claimed and inhabited, cultivated or possessed, by John B. Gamache, senior, prior to the 20th day of December, 1803, and evidence that the same was confirmed to John B. Gamache, senior, or his legal representatives, by the act of Congress of 13th June, 1812. 9. The certified extract from [the] registry of certificates from the recorder’s office, offered in evidence [by the plaintiffs, is evidence] that the out lot therein mentioned was confirmed to John B. Gamache, senior, or bis legal representatives, by the act of 13th June, 1812. 10. The certified extract from the list of claims transmitted by the recorder of land titles to the surveyor-general, and certified from the office of the surveyor-general, relating to the claims of the legal representatives of John B. Gamache, senior, is evidence of said claim and the extent and boundary 484 DECEMBER TERM, 1853. 456 Gamache et al. v. Piquignot et al. thereof, and that the same was confirmed by the act of Congress of 13th June, 1812. 11. The certificate of confirmation of the recorder of land titles in Missouri, given in evidence by the plaintiffs, shows a primd facie title from the United States, in the legal representatives of John B. Gamache, senior, to the land therein described. To which decision of the court, refusing said instructions, the plaintiffs by their counsel excepted. *The defendants then asked the following instruc-tions, which were given by the court, as follows, to *-wit: Instructions given to defendants. 5. If the jury find that the land spoken of by the witnesses as actually cultivated and possessed by Gamache did not embrace the land now in dispute, they ought to find for the defendants. 17. The survey No. 120, read by the plaintiffs, is no evidence of title, nor of the extent and boundaries of Gamache’s claim. 18. The testimony taken before Hunt, and read in evidence by the plaintiff, is not to be regarded by the jury in the present case, the defendant insisting that the claim had been abandoned. To the giving of which instructions the [plaintiffs] by their counsel excepted. The verdict being for the defendants, the case was carried by the plaintiffs to the Supreme Court of Missouri, where the judgment of the court below was affirmed. It was then brought to this court by the plaintiffs, by a writ of error issued under the twenty-fifth section of the Judiciary Act. It was argued by Mr. Holmes, for the plaintiffs in error, and Mr. Picot, for the defendants. Only those points will be noted which are connected with the decision of the court. The counsel for the plaintiffs in error made the following: III. The certificate of the recorder of land titles, offered in evidence in this case, dated the 22d of January, 1839, was competent and admissible evidence of the facts necessary to give title under and by virtue of the act of 13th June, 1812, and showed a primd facie title in the legal representatives of Gamache, of the date of that act, to the lot therein described. Macklot v. Dubreuil, 9 Mo., 489, a certificate issued in 1842 held good, and evidence of title; Boyce v. Papin, 11 Id., 16; Hunter v. Hemphill, 6 Id., 106; and Sarpy v. Papin, 7 Id., 485 457 SUPREME COURT. Gamache et al. v. Piquignot et al. 503, one in possession, merely, not showing a title, cannot question the certificate, or survey ; Soulard v. Allen, (Sup. Court of Mo., Oct. term, 1853,) a certificate issued by Conway, since 1839, held good. The objection of the Supreme Court of Missouri to this case of Gamache v. Piquignot is based on the omission of this claim in the first list sent to the surveyor-general. No limit of time was fixed by the terms, or spirit of the act, within which the certificate must be issued, after proof made within the eighteen months prescribed, or when the power of the recorder to issue it was to cease. IV. The certified extract from the registry of certificates was competent evidence, that the certificate, authorized by *4r81 ^ie ac^ *°f 26th May, 1824, had been duly issued by J the recorder of land titles, for the claim therein mentioned and described, and that the same had been confirmed by the act of 13th June, 1812. McGill v. Somers, 15 Mo., 80 ; Biehler v. Coonce, 9 Mo., 351, an extract from this same registry of certificates held admissible evidence. Roussin v. Parks, 8 Mo., 544. V. The certified extract from the surveyor-general’s list of claims proved was competent evidence that this claim had been officially reported to him by the recorder of land titles, as a claim that had been duly proved before him within the eighteen months, and that the surveyor-general had authority by law to survey it, as such. McGill v. Somers, and other cases cited: the act of Congress of the 29th April, 1816, 3 Stat, at L., 324, authorized the survey to be made. VI. The certified extract from the books of Hunt’s minutes of testimony, was competent and admissible evidence, for the purpose of showing, that whatever title the government had in this out lot, at the date of the act of 13th June, 1812, as between the government and the claimants, had passed to the claimants; a matter in which the defendants, as third persons, had no interest and no concern, at least until they should show some prior or superior title to this land. McGill v. Somers, 15 Mo., 80-86, extracts from these same “ recorder’s (Hunt’s) minutes,” and from the surveyor-general’s list, held admissible evidence as good as the certificate itself. Biehler v. Coonce, 9 Mo., 351; Roussin v. Parks, 8 Mo., 544. 1. On the same principle as a deed that constitutes a link in a plaintiff’s chain of title, and to which the defendant may be no party nor privy ; and 2. On the principle of a deposition taken to perpetuate testimony, the government and the claimants being the only parties concerned in the effect of it, and both being present at the taking of it, by authority of the act of Congress. 486 DECEMBER TERM, 1853. 458 Gamache et al. v. Piquignot et al. 3. Like a deposition, it is evidence tending to prove the existence of the facts prior to 1803, necessary to bring this out lot within the operation of the act of 1812, as a grant of title. 4. The Supreme Court of Missouri, (Gamble, J., delivering the opinion of the court in this case,) affected to treat this testimony of witnesses as if it had been some mere volunteer “ affidavits ” of the parties themselves, made extrajudicially, and without authority of law. Me Grill e. Somers, the same judge (delivering the opinion of the court) held an extract from these same “ minutes,” to be evidence as good as the certificate. In Soulard v. Allen, October term, 1853, Scott, J., delivering the opinion of the court, (Gamble, J., not sitting,) held a certificate of Conway (recorder) issued upon these “ minutes” of testimony to be good evidence. * All the pMcn certificates that have been issued by Hunt or Conway, L since the eighteen months expired, were necessarily based on these “ minutes ” of the proof made. Memory of three large volumes of proof was out of the question ; and the surveyor-general’s list was not a record of the recorder’s office, otherwise than as Hunt’s books of minutes were the original from which that list was drawn off as an abstract, in 1827. 5. Nothing had been done by any officer of the government at the date of the taking of this testimony, in relation to the claim of commons, that recognized any right or title of the inhabitants of the town of Carondelet to the land included in this out lot as commons. The survey of the commons, No. 3102, and the outline survey of the common field, No. 3103, were made in 1834. VII. The fact that this claim had been omitted in the first list furnished by recorder Hunt to the surveyor-general, and that it was not reported till the 12th of March, 1839, has no legal effect whatever on the title or any right of the claimant under the act of the 26th of May, 1824, nor upon the validity or admissibility of the above documents as evidence; for, 1. The entry of the claim in the books of Hunt’s minutes as a claim proved and the certificate issued upon it, as such, are the proper legal evidence of the decision of the. recorder of land titles upon the sufficiency of the proof made. Mack-lot v. Dubreuil, 9 Mo., 490: the recorder passed upon the facts referred to him when he issued the certificate ; the point was made in Mr. Gamble’s brief, that the recorder had no authority to issue a certificate in 1842, but it was not specially noticed in the opinion of the court, which held the certificate good. 2. The powers conferred and the duties imposed by the 487 459 SUPREME COURT. Gamache et al. v. Piquignot et al. act were conferred and imposed on the recorder of land titles, (a perpetual officer,) and not upon Theodore Hunt, merely; he was expressly required, by the third section of the act, to issue such a certificate, and no limit of time was fixed by the act within which he was to make his decision on the proof taken within the eighteen months, or report the claims to the surveyor, or issue the certificate, nor in which his power to do so was to cease, otherwise than by a complete performance of the duties imposed on him. Act of the 26th of May, 1824, 4 Stat, at L., 65. 3. The second clause of the third section of that act, requiring a list of claims proved to be furnished the surveyorgeneral, was merely directory, and imposed a ministerial duty only on the recorder of land titles, touching the internal administration of the land-office, and it was not intended by the act to be a condition precedent to the issuing of a certifi-*4R01 ca^e’ nor even *to the right of the claimant to have a J survey made of his claim, according to law, as a confirmed lot. Lytle v. State of Arkansas, 9 How., 314—333. Perry v. O' Hanlon, 11 Mo., 589—595: parties are not to be prejudiced by delays and omissions of merely ministerial officers and government agents. Taylor v. Brown, 5 Cranch, 234: a law requiring an officer to record surveys within two months, and return a list, is merely directory, and the validity of the survey is not affected, if not done. In point by principle and analogy. 4. The certificate containing an accurate description of the lot, so that any surveyor could find it, was all the evidence of title the claimants needed; and no public survey was necessary for them, though a convenience to them, as well as to the government. Ott v. Soulard, 9 Mo., 603—4, where the calls are ascertained by the grant, the construction is then matter of law for the court. Menard's Heirs v. Massey, 8 How., 293, as to certainty of description, “ Id certum est," &c. Smith v. U. States, 10 Pet., 338; a grant is good if capable of definite location by its description, without a survey. Chouteau v. Eckhart, 2 How, 344: an act gives title, if the land can. be identified as confirmed without resort to a survey. United States v. Lawton, 5 How., 10: the identity of the land granted may be established by the face of the grant, or by survey. ■ The proof made ascertains, (for the certificate,) designates, and proves the tract, which was granted by the act of 1812. 5. The list of claims proved was not required to be sent to the surveyor-general for the purpose of being the only and 488 DECEMBER TERM, 1853. 460 Gamache et al. v. Piquignot et al. conclusive evidence for or against the claimants, nor was it made so by the terms or nature of the act, either of the fact that a claim had been proved and a certificate issued, or of the recorder’s decision on the proof; nor was it of any importance to the claimant whether the claims were all reported at once or not; but the first list was sufficient information and good evidence for the surveyor-general of what it contained, and the supplementary lists were likewise good evidence, and sufficient to authorize a survey to be made of the claims reported, when reported. 6. No limit of time was fixed within which, if claims proved were not reported, they should never be reported at all. One object of the act was to get information for the surveyorgeneral, and obviously, the sooner he got it, and the whole of it, the better. 7. When the first list had been furnished to the surveyorgeneral, nearly two years after the expiration of the 18 months prescribed for the taking of the proof, (then supposed by the ^recorder to contain all,) and when, by supplementary lists, the omissions had been supplied, and the errors •-corrected, the act of Congress had then only, and not before, been fully and substantially complied with, in this respect. 8. Any merely extra-legal inference to be drawn from the fa,ct of the omission is rebutted by the fact, that there were other omissions and errors, certified by Hunt himself to have been errors in transcribing the former list from the books in his office, (Hunt’s minutes,) and conclusively rebutted, by the fact that a certificate was issued; for if the recorder’s opinion had been against the claim, at first, the issuing of a certificate shows that he had changed that opinion, and was satisfied with the proof. 9. The omission and delay have prejudiced nobody. The lot has not been set apart for schools, as a vacant lot, nor would it have been included in the survey of the commons, by Brown, if the commons belonging to the village.had been surveyed according to their claim and confirmation, as directed by the 2d section of the act of 26th May, 1824, nor if he had consulted the records of the recorder’s office, and the proof there made of this claim, as he ought to have done. This out lot was surveyed by Brown, at the same time, and under the same instructions, as the other town lots, out lots, and common fields of Carondelet (in 1839). Brown might as well have included other common fields as this one in his survey of commons, in 1834. Many of them were never proved before the recorder. 489 461 SUPREME COURT. Gamache et al. Piquignot et al. The counsel for the defendant in error made (amongst others) the following points: — I. The list returned by recorder Hunt, (certified to include a description of all the lots proved up before him,) which does not include a description of the Gamache claim, is conclusive against the plaintiffs. 3d sec., act of May 26, 1824, Stat, at L., vol. 4, p. 66. 1. Whether, if the plaintiffs had a certificate of confirmation issued by Hunt for their claim, they could dispute the correctness of the list need not be inquired into, seeing that the plaintiffs have no such certificate. The statute, however, designated two distinct matters of evidence which it would seem were both required to be possessed by a party claiming the benefits of the law. First, the certificate. This was intrusted to the claimant, whose claim was confirmed, and the plaintiffs should either have produced the certificate, or at least shown that it was issued. Second, the list. This was retained by the government as the record of what was confirmed ; and the plaintiffs should have shown *4621 *^ia^ included their claim. In this case it appears, -• affirmatively, that no such certificate was ever issued, and that neither the list nor the copy thereof embraces this claim. 2. It is not necessary, for the disposal of this case, to inquire into the validity of the acts of recorder Hunt in making supplemental and explanatory returns to the surveyor, subsequent to his return of the list required by law, seeing that the plaintiffs’ claim is not included in any such return. Whether such acts were valid or not, they are cumulative evidence against the claim of plaintiffs. They go to show, that even after reviewing and revising his decisions, the re-corder persevered in his rejection of the claim of Gamache s representatives. 3. The recorder expressly certified that the list contains all the lots confirmed by him. Courts cannot look behind that list. Similar lists have always been considered as binding on the ministerial departments of the government. 4. In the list are included numerous claims, proved before, and certified by the recorder as confirmed, and which were embraced within the limits of the claim. He must necessarily havd decided against the Gamache claim in deciding in favor of the adversary claims. The recorder acted in a judicial capacity in the execution of the extraordinary duties imposed on him by the act of 1824, and his decisions are res adjudicatce. 490 DECEMBER TERM, 1853. 462 Gamache et al. v. Piquignot et al. II. The certificate of confirmation issued by recorder Conway in 1839, is merely void. 1. It is void on its face. , 2. It is void for want of jurisdiction. The general powers of the recorder, as denoted by his title, are purely clerical, aud are set forth in the law creating the office. See sections 3 and 4 of act of March 2, 1805, Stat, at L., vol. 2, p. 326. The powers given to the recorder by the act of 1824, were entraordinary and judicial. Upon their execution the office as to such extraordinary powers became functus officio. The powers, if not enhausted, ceased by limitation. First, eighteen months from the passage of the act, the power to receive claims and evidence, expressly ended by the terms of the first section. The second section, although confined to regulating the duties of the surveyor, looks to a prompt determination of the duties of.the recorder. How could the surveyor, immediately after the expiration of the eighteen months, designate the vacant lots, (namely, those not certified and listed by the recorder as confirmed) unless the recorder had previously performed those duties? The third section contemplates the issuing of the recorder’s certificates within the eighteen months. After providing for *them, it proceeds to require, further, that so soon as the said term shall have expired, the recorder shall L furnish the surveyor with a list of the lots so proved. The list was designed to embrace the certified lots only. The act contemplates the impossibility of the recorder preserving in his breast during a term of near eighteen months, the remembrance of many hundreds of decisions, and points out the certificates, or registry thereof, as the record which he shall preserve of the lots “so proved,” and from which he is to compile his list. The making aud transmitting the list was the final act. That done, the powers conferred by the law ceased. Secondly. Although the office and general powers of the recorder are perpetual, yet special and temporary powers given for a particular purpose, will not endure forever. Granting that the powers conferred by the act of 1824, were not simply conferred on Hunt, the recorder for the time being, but on his office ; yet to have authorized Conway, or any successor, to have issued a certificate of confirmation, such successor should have succeeded to the office during the prescribed term of eighteen months, and the proof must have been made before him. 3. The head of the land department on the appeal of the 491 463 SUPREME COURT. Gamache et al. v. Piquignot et al. plaintiffs, has decided that the proceedings of Conway were of no avail under the law. III. The abstract from the registry of confirmations issued by Conway, is void. The certificate itself being a “ mere nullity ” as declared by the Supreme Court of Missouri, the fact that it was issued, and when, is of no importance. Its only use in the case is to show affirmatively, what might otherwise appear only negatively, that recorder Hunt issued no certificate of confirmation. IV. The extracts from Hunt’s minutes are not evidence. 1. Hunt was not a commissioner to take testimony, and the affidavits were received without notice, the co-defendant in this suit being then in the actual possession of the land. 2. The act required no recorded or written proof before the recorder, and the circumstance that affidavits were taken by Hunt, touching the Gamache claim, is no evidence that he considered it as proved to have been inhabited,, cultivated or possessed, prior to the 20th December, 1803, and that the land claimed was an out lot. 3. On the contrary, the circumstance that the claim was not entered in his list, is decisive to show that he was not satisfied with the proof. V. The return of the description of the Gamache claim to the surveyor, by Conway, in 1839, was merely null, and afforded no evidence of title whatever. *The abuses to which such a practice will lead are -J manifest. If Hunt’s list may be altered after twelve years have elapsed, alterations may be made at any distance of time ; if future recorders may supply fancied omissions, they may strike out such claims as they may regard as erroneously entered; if they can thus deal with the list of Hunt, they can do the same with Bates’s confirmations, and the numerous land titles depending on the action of the recorders of former days, will lie at the mercy of officers, selected not for their capacity to judge of the proofs of titles, but for their fidelity in taking care of books and papers. Mr. Justice CATRON delivered the opinion of the court. This case was brought here by writ of error to the Supreme Court of Missouri, and presents questions alleged to be cognizable in this court under the 25th section of the Judiciary Act. The plaintiffs claimed a tract of land of six arpents in front, and forty back, lying adjoining to the village of Carondelet, in Missouri. It was claimed as “an out lot"’ which had been confirmed by the act of Congress of June 13th, 1812, to John B. Gamache, the ancestor of the plaintiffs. 492 DECEMBER TERM, 1853. 464 Gamache et al. v. Piquignot et al. In support of this position there was offered, in evidence, certain documents issued from the office of the recorder of land titles. The first was a paper claimed to be a certificate of confirmation issued by Conway, the recorder of land titles, dated 22d January, 1839, under the act of Congress of the 26th May, 1824. The second was an extract from the registry kept by the recorder of certificates, issued by him under the act of 1824, by which it appears that Conway entered the certificate of Gamache’s representatives on that register on the 12th March, 1839, and furnished on that day to the surveyor-general a description of the land. The third was an extract from the additional list of claims furnished by the recorder to the surveyor-general on the 12th March, 1839, which addition was of the Gamache claim alone. There were other documents showing that Hunt, who was the recorder of land titles, who acted under the act of 1824 in taking proof of claims, and who filed with the surveyor the- list of claims proved before him, and filed one or two supplemental or explanatory lists after the first. The court below rejected the evidence offered. A survey of the claim of Gamache was made by a deputy surveyor under instructions from the surveyor-general, and the survey being returned to the office by the deputy and a plat made, the word “ approved ” was written upon it and signed by the then surveyor-general, but it never was recorded. It appeared, in evidence, that the practice of the surveyor’s office, *when a deputy surveyor made return of a survey which he had been instructed to make, was L to have the survey examined, to see the manner in which the deputy had followed the instructions given, and if he had followed them, his work was approved, and the approval evidenced by such writing as had been made in this case, which was intended to authorize the payment of the deputy for his work ; and that subsequently the survey was more carefully examined, and if found to be a proper survey in all respects it was recorded in the books of the office, which was the evidence .that it was finally adopted and approved, and that by the practice of the office certified copies of surveys were not given out until they were thus finally approved and recorded. Conway, who had been surveyor-general as well as recorder, testified that he would regard the survey of the Gamache claim as an approved survey, and would record it as such if he were in the office. It appeared in evidence, that the present surveyor-general refused to record it as an approved survey, or to certify it to the recorder as a survey of land for which a certificate of 493 465 SUPREME COURT. Gamache et al. n. Piquignot et al. confirmation is to issue, and that in that refusal he is sustained by the department at Washington. After the evidence was closed, the court, by an instruction, declared that the survey was not evidence of title, nor of the boundaries and extent of Gamache’s claim. A certified copy of the affidavits made before recorder Hunt, when he was taking proof under the act of 1824, was in evidence, but an instruction given to the jury substantially excluded them from consideration. On this state of facts the Supreme Court of Missouri held, among other things, as follows: “In the present case we have a recorder of land titles, fourteen years from the passage of this act attempting to give the evidence of title, by issuing a certificate of confirmation, and certifying the claim to the surveyor-general as one confirmed by the act of 1812. If the government of the United. States has confirmed the title set up by the plaintiffs by that act of Congress, then the party, as has been held in this court, does not lose his land by the failure to procure the evidence provided for by the act of 1824; and under these decisions the plaintiffs in this case, after the evidence was rejected, which they claimed was rightly issued under the last-mentioned act, proceeded to prove the cultivation and possession of their ancestor, Gamache, and claimed that the title was confirmed by the act of 1812.” “ If the evidence of title, purporting to be issued under the act of 1824, appeared undisputed by the United States, and acknowledged and treated by the government as effectual, *4661 then it may *be that a person who was a mere stranger -* to the title would not be allowed to dispute the correctness of the conduct of the officers in their attempt to carry out the law. But when we find that the government itself, in its own officers, arrests the progress of the title, and the whole reliance of the party in this case is upon the acts of the recorder, the correctness of which is denied by the government, we will examine his acts and give them effect only so far as they conform to the law.” “ That the recorder, under the act of 1824, was required to act in a quasi judicial character, is perfectly manifest, although there was no mode provided by the law for the expression of an opinion against the sufficiency of the evidence given before him. If a claim was, in his judgment, confirmed by the act of 1812, he issued to the party a certificate of confirmation, and included the lot in the descriptive list which he was required to furnish the surveyor-general. If there was a failure to prove the inhabitation, cultivation, or poe- 494 DECEMBER TERM, 1853. 466 Gamache et al. v. Piquignot et al. session to his satisfaction, he simply omitted to include the claim in his list, and he issued no certificate.” “ The acts required to be done when a claim was confirmed, were to be done immediately after the expiration of the time limited for taking the proof; and when we see, from the evidence offered by the plaintiff, that the recorder filed his list of confirmations with the surveyor in October, 1827, near twelve years before Conway, his successor, returned the present claim to that office, we cannot avoid the conclusion that this latter act was not within the scope allowed for such proceeding by the act of Congress. It is not necessary to maintain that if Hunt, the recorder who took the proof, had died before he acted upon the claims, his successor could not act upon them; but when he did act, and made out and furnished to the surveyor the list required by law, the conclusion is one which the law draws, that claims not within that list are claims not proved to his satisfaction.” The claim of Gamache was anxiously prosecuted before the department of public lands at Washington during the pendency of this suit, and was there decided by the commissioner in conformity to the decision of the Supreme Court of Missouri ; and which decision was confirmed by the Secretary of the Interior in September last. The reasons for this decision are here given in the language of the commissioner in reply to the plaintiffs’ counsel, prosecuting the claim. “ The surveyor-general at St. Louis having declined to approve the survey as made by Brown for Gamache, and to certify the same to the recorder—You apply to this office to give orders to surveyor-general Clark, “ requiring him to return the ^survey of the tract of six by forty arpens in the name of John B. Gamache, sr., or his legal rep- *-resentatives, to the recorder of land titles, and that the recorder be directed to issue to ‘you’ a certificate of confirmation in the usual form, that ‘you’ may have the evidence of your title in the usual form for the purpose of prosecuting your rights in the courts having competent jurisdiction.” “ In behalf of the representatives of Gamache it is maintained that they are confirmed by the act of 13th June, 1812. “ The first section of the supplemental act of 26th of May, 1824, made it the duty of the individual owners or claimants whose lots were confirmed by the act of 1812 on the ground of inhabitation,, cultivation, or possession prior to the 20th °k December, 1803, ‘to proceed within eighteen months after the passage of the act of 1824,’ to designate their said lots by 495 467 SUPREME COURT. Gamache et al. v. Piquignot et al. proving before the recorder of land titles for said State and territory the fact of such inhabitation, cultivation, or possession, and the boundaries and extent of each claim, so as to enable the surveyor-general to distinguish the private from the vacant lots appertaining to the said towns and. villages.” “ The third section of the said act of 1824 made it the duty of the recorder to issue a certificate of confirmation for each claim confirmed, but further declares as follows: “ And so soon as the said term shall have expired, he shall furnish the surveyor-general with a list of the lots so proved to have been inhabited, cultivated, or possessed, to serve as his guide in distinguishing them from the vacant lots to be set apart as above described, and shall transmit a copy of such list to the commissioner of the general land-office.” “A report or list, purporting to contain all the claims proved up under the said act of 1824, was accordingly returned to this office in 1827, but that list does not embrace this particular claim of Gamache for 6 X 40 arpens within the limits of the Carondelet Commons. We have no power to look behind that list in order to determine what has or has not been confirmed any more than we could look behind the face of a report of a board of commissioners or of the recorder, which had been confirmed by a law of Congress, and take cognizance of a case not embraced by such report, even if satisfied that it had been omitted by the reporting officer through inadvertence. This is a well-settled principle. See instructions to register and receiver, 13th April, 1835. 2d part Birchard’s Comp, printed laws, instructions and opinions, page 757, &c. “As the 3d section of the act of 26th of May, 1824, then expressly declares that the list to be furnished by the re-*4681 border *‘ shall serve as a guide ’ to the surveyor-general -I in the execution of the duties devolved on him by the act, and as it is not shown that the claim in question is embraced by that list, neither that officer, nor this office, has the power to treat the claim in question as confirmed and entitled to an approved survey, and, consequently, in my opinion, the commissioner has not the legal ability to comply with your application in the premises.” With the correctness of these decisions of the Supreme Court of Missouri and the department of public lands we entirely concur. Nor will we add any views of our own in support of the State decision, for the reason that the questions here presented are peculiarly local, being limited to the city of St. Louis and a few villages in the State of Missouri, the public at large having no concern with any question 496 DECEMBER TERM, 1853. 468 Gamache et al. v. Piquignot et al. presented in this cause. And after due consideration we here take occasion to say, that although it is in the power of this court, and made its duty, to review all cases coming here from the State courts of the last resort, in which was drawn in question and construed prejudicial to a party’s claim, the Constitution, or a law of the United States, or an authority exercised under them, still, in this peculiarly local class of cases asserting titles to town and village lots, confirmed by the act of 1812, we feel exceedingly indisposed to disturb the State decisions. So far the ability and soundness they manifest have commanded our entire concurrence and respect and are likely to do so in future. It is proper further to remark that the jury was instructed, at the request of the plaintiffs, that inhabitation and cultivation of a part of the lot, claiming the whole, would be good for the whole within the meaning of the act of 1812. The jury was also instructed, at the defendant’s request, “ that if the land spoken of by the witnesses as actually cultivated and possessed by Gamache, did not embrace the land now in dispute, they ought to find for the defendants.” In regard to these instructions the State court held that: “ The first instruction given for the defendant, if it stood alone, would be so entirely erroneous as to require a reversal of the judgment. That the jury should be required to find for the defendant, if the cultivation by the elder Gamache was not a cultivation of the precise piece of ground in controversy, would have been so gross a mistake, that neither the court nor the counsel asking the instruction could be supposed to have fallen into it. Accordingly, when we examine the second instruction given for the plaintiff, we find the court telling the jury that the cultivation of a part of a tract, under claim of the whole, was, under the act of 1812, a cultivation of the whole tract; *and, in looking into the case, we r*4pn see that the controversy was whether this cultivation *-of Gamache was not on an entirely different tract from that now claimed to include the premises in dispute. “We are satisfied that the jury must have understood the question to be, whether the cultivation of Gamache, spoken of by the witnesses, was at any place upon the tract to which his heirs now claim title, or at some place upon an entirely different tract. In this view of the question submitted to the jury, there would be no propriety in reversing the judgment for the instruction given for the defendant.” The instructions asked by the plaintiffs, which were refused by the court, all refer to the proceedings in the recorder’s Vol. xvi.—32 497 469 SUPREME COURT. Steamboat New World et al. v. King. office* the effect of which has been considered. On the whole it is ordered that the judgment be affirmed. ORDER. This cause came on to be heard on the transcript of the record, from the Supreme Court of the State of Missouri, 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 Steamboat New World, Edward Minturn, William Menzie, and William H. Webb, Claimants and Appellants, v. Frederick G. King. Where a libel was filed, claiming compensation for injuries sustained by a passenger in a steamboat, proceeding from Sacramento to San Francisco, in California, the case is within the admiralty jurisdiction of the courts of the United States.1 The circumstance that the passenger was a “steamboat man,” and as such carried gratuitously, does not deprive him of the right of redress enjoyed by other passengers. It was the custom to carry such persons free.2 The master had power to bind the boat by giving such a free passage. The principle asserted in 14 How., 486, reaffirmed, namely, that “ when carriers undertake to convey persons by the agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence.3 The theory and cases examined relative to the three degrees of negligence, namely, slight, ordinary, and gross. Skill is required for the proper management of the boilers and machinery of a steamboat; and the failure to exert that skill, either because it is not possessed, or from inattention, is gross negligence. The 13th section of the act of Congress, passed on the 7th of July, 1838, (5 Stat, at Large, 306,) makes the injurious escape of steam prima facie evidence of negligence; and the owners of the boat, in order to escape from responsibility, must prove that there was no negligence. *4701 *^e facts in this case, as disclosed by the evidence, do not disprove negli- -I gence. On the contrary they show that the boat in question was one of two rival boats which were “ doing their best ” to get ahead of each other; that efforts had been made to pass; that the engineer of the boat in question was restless, and constantly watching the hindmost boat; and that the owners of the boat have failed to prove that she carried only the small quantity of steam which they alleged. 1 Cited. Jackson v. Steamboat Magnolia, 20 How., 299. 2 See note to Philadelphia fyc. R. R. Co. v. Derby, 14 How., 486, where the liability of a common carrier for injuries to passengers carried free is discussed. 3 Followed. Pennsylvania Co. v. Roy, 12 Otto, 455. See also The Steamship Hammonia, 10 Ben., 514, Siegrist v. Arnst, 10 Mo. App., 201, 207. 498 DECEMBER TERM, 1853. 470 Steamboat New World et al. v. King. This was an appeal from the District Court of the United States for the Northern District of California. It was a libel filed by King, complaining of severe personal injury, disabling him for life, from the explosion of the boiler of the steamboat, New World, while he was a passenger, on her passage from Sacramento to San Francisco, in California. The District Court decreed for the libellant in twenty-five hundred dollars damages and costs ; and the owners of the boat appealed to this court. The substance of the evidence is stated in the opinion of the court. It was argued by Mr. Cutting, for the appellants, and by Mr. Mayer, for the appellee. Points for the appellants. First. The steamboat New World occupied no relation towards the libellant that imposed on her the duty to carry safely, or any duty whatever, as the libellant had not paid, and was not to pay any compensation for his transportation. 1. The master had no power to impose any obligation upon the steamboat, by receiving a passenger without compensation. It was not within the scope of his authority. G-rant v. Norway, 10 Mann. G. & S., 664, 688, reported also in 2 Eng. Law and Eq., 337, and 15 Jur., 296; Butler n. Basing, 2 Car. & P., 613; Citizens Bank n. Nantucket 8. B. Co., 2 Story, 32, 34; Pope v. Nickerson, 3 Story, 475 ; Gen. Int. Ins. Co. v. Buggies, 12 Wheat., 408 ; Middleton v. Fowler et dl., 1 Salk., 282. 2. There was no benefit conferred on the steamboat whence any obligation could result. 3. It was not a case of bailment. Story on Bailm., § 2 ; 2 Kent, Comm., 558; Ang. on Car., § 4. 4. The libellant assumed the risk of his own transportation. 5. The libellant stands in a less favorable relation than the steamboat’s servants, but she would not be liable to them for negligence of their fellow-servants. Farwell v. B. $ W. B. B. Co., 4 Mete. (Mass.), 49; Hayes v. Western B. B. Co., 3 7nUo h*