Volume 52 — United States Reports

This was an appeal from the .Circuit Court of the United States for the Eastern District of Pennsylvania, sitting as a court of equity. It was a bill filed in 1839, by Samuel and Eleazer L. Cohen, citizens of the State of New Jersey, against Simon Gratz, Leah Phillips, and twelve other persons.

This case was brought up, by writ of error, from the District Court of the United States for the Northern District of Mississippi. The United States sued out process against James A. Girault, "William M. Gwin, Hay Battle Harrison, and Alexander J. McMurtry, and declared for a debt of $ 100,000 by bond, bearing date the 8th. of July, 1838, executed by the defendants to the United States, with condition, reciting that the defendant Girault had been appointed by the.

<p>This cause was brought up, • by writ of error, from the District Court of the United States for the District of Texas.</p> <p>It was an ejectment, conducted by way of petition and answer, for a house and lot in the county and city of Galveston, in the State of Texas,' being lot No. 13 in block No. 681.</p> <p>The suit was brought by Oakey against Bennett; the administrator of William Hall, and John H. lilies, tenant in possession. In the bill of exceptions the suit is denominated an action of “ trespass to try titles ■”; but as the petition prayed for the restoration of the property, as well as damages, it seems more proper to call it an ejectment.</p> <p>Upon the trial, the plaintiff sought to derive his title from Hall, under whom the defendants claimed also.</p> <p>In 1842, Hall was in possession of the lot by purchase from John S. Snydor, but no deed was at that time made.</p> <p>On the 9th of February, 1843, Hall (calling himself William Hall, late of Galveston, Texas) filed a petition .in the. District Court of the United, States for the Eastern District of Louisiana, praying for the benefit of the bankrupt act of the United. States, passed August 19th, 1841. The legal notice was given,. and on the 10th of March, 1843, he was declared a bankrupt, and F. B. Conrad, of New Orleans, appointed assignee.</p> <p>On the 3d of April, 1843, Snydor executed a deed to Hall of the house' and lot in Galveston.,</p> <p>In March, 1844, Hall died, and Bennett, the defendant, was appointed administrator by the Probate Court of Galveston County in Texas.</p> <p>In May, 1845, Conrad, the assignee of Hall, petitioned the District Court for an order to sell the effects of the bankrupt, and, the usual preliminary proceedings being had, a public sale took place for cash. An article in the inventory was “ all the right, title, and interest of the bankrupt in and to a house and lot in Galveston, Texas.” Samuel W. Oakey became the purchaser of this for the price of four hundred dollars, and on the 18th of June, 1845, Conrad executed to Oakey a deed which conainedthe following recital, viz.: —</p> <p>“ And the said William Hall, bankrupt, at the time he filed-his petition in said court to be declared a bankrupt, and at the time, said 10th March, 1843, when he was declared and decreed a bankrupt, was possessed of a claim.to a house and lots in the city of Galveston’, of the exact nature of which the said Francis B. Conrad, assignee as aforesaid, could not obtain any exact knowledge or description; which claim, whether it was one or in plurality,.on a house or houses, building or buildings, more or less in number, of lots, parcel, or parcels of land, be they what they were, situated in the city of Galveston, republic of Texas, by said act of Congress, and the decrees of said court on said bankrupt’s petition, with all his property and rights of property, of every name and nature, and whether real, personal, or mixed, became, by the mere operation of said act thus made and'provided, ipso facto from the time of such decreé aforesaid, and was deemed.to be, divested out of such bankrupt, without any other act, assignment, or conveyance whatsoever, and the same became vested by force of the samé in Francis B. Conrad, assignee as aforesaid. All of which rights of property or real estate, whatever might be the nature of his. title thereto, or interest therein, which was situated in the city of Galveston, republic of Texas, it was my intention to sell, as assigneé as aforesaid, at public auction; ,and the said court, on . considering my petition to that effect; made judgm'ent thereon, and issued an order of sale under date of 23d May,. 1845 ; and by virtue of said order of sale by said court, and after due and lawful advertisement made by William F. Wagner, United States marshal for the district, and at the time and place designated in said advertisement, at the hour of 12, noon, on this 18th day of June, A. D. 1845, the. said marshatdid,.under my direction, then and there publicly cry, adjudicate, and sell to Samuel W. O.akey, the last and highest bidder, ".as follows, viz.: ‘ all the right,- title, and interest of the said bankrupt ( William Hall) in and to a house and lots in the-city of Gal- . veston, Texas, being lot 13, block 681, or lot 9, block 622, or ■ both,’ and sold without any guaranty whatever. The said ■ Samuel W. Oakey.became the purchaser for the price and sum of four hundred* dollars, the receipt of which is hereby, as it already has been, acknowledged; In consideration thereof, I, the said Francis B. Conrad, assignee as aforesaid, have bargained,. sold, conveyed, assigned, transferred, set over,” &c., &c.</p> <p>This deed was afterwards recorded in Texas. '</p> <p>On the 12th of December, 1846, Bennett settled an account with the Probate Court, showing that he was-in advance for the estate $ 1,811.03. , -</p> <p>"‘On the 25th of January, 1847, Oakey filed a petition in the District Court of the United States fe*the District of Texas, which, after having been the subject of sundry pleas and demurrers and motions, was finally withdrawn, and an amended peti-' tion filed on the 31st of May, 1848,. This was the subject of-some motions too, but at length issue was joined, on the 5th. of-June, .1848, and the cause "came on for trial. Being left to a jury, they found a verdict for the defendants.</p> <p>The bill of exceptions sets forth all the deeds offered in evidence by the plaintiff, foi the purpose of showing a title in Hall, and also the record of the proceedings in bankruptcy, to show that this title passed to-himself. This part of the bill is-not necessary to an understanding of the prayers addressed, to the court, and it is therefore omitted. Nor is it necessary to insert the evidence, as offered by the defendant, to prove interlineations and falsifications of the record. The following are the prayers addressed to the court on the part of the plaintiff.</p> <p>'“ The plaintiff requests the court to charge the jury,.—</p> <p>“ 1st. That if the jury find, from the evidence, that at the date of Hall’s bankruptcy he was seized and possessed of the premises in question, and that, being so possessed, he, Hall, voluntarily applied to the honorable United States District Court of Louisiana to be declared a bankrupt, and was, in accordance with the act of Congress of the 19th of August, 1841, adjudged and decreed by the court to be a bankrupt, such voluntary petition and decree operated to divest and pass Hall’s estate in the premises, and vested the property as absolutely in Hall’s assignee as he,. Hall, might have done by his own voluntary conveyance.</p> <p>“ (Which instruction the court gave.)</p> <p>“ 2d. That if the said assignee, Conrad, so appointed by said court, in execution of the order of said court sold said property to plaintiff for a valuable consideration, such bankruptcy, decree, order, sale, and purchase passed the right of property as effectually to plaintiff as Hall might have done by his voluntary' deed of conveyance.</p> <p>“ (Which second instruction the court refused to give.)</p> <p>“3d. That if Hall did petition, and at the time of his petition in bankruptcy surrendered the premises in question as part of his assets, although he only had possession thereof under a purchase by inchoate title, which was afterwards perfected by full grant, such subsequently acquired title enured to the benefit of plaintiff.</p> <p>“ (Which third instruction the court refused.) ■</p> <p>“ 4th. That if the jury find from the evidence that Hall applied to the proper court, by his own .voluntary petition, for the ■ benefit of the act of Congress of the United States of the 19th of August, 1841, and obtained a decree of bankruptcy on said voluntary application, then all the property of said Hall, of every kind and nature whatever, real, personal, Or mixed, was thereby divested out of said Hall, and vested as fully and effectually in his proper assignee, duly appointed, as the same was previously vésted in Hall.</p> <p>“ (Which instruction the court gave.)</p> <p>“ 5th. That the act of the United States Congress of the 19th of August, 1841, was recognized and adopted by the laws of Texas as part of the law of the republic of Texas.</p> <p>“ (And this fifth instruction the cqurt refused to give, saying, that 4he law of the republic of Texas referred to recognized the bankrupt’s discharge, but did not affect his real estate, and here directs the clerk to insert the law referred to, which is an act of the republic of Texas, approved February, 1841, laws of that year, p. 143, entitled “An Act for the relief of those who have taken the benefit of the insolvent laws of other countries.”</p> <p>•“ 6th. That if Hall made a voluntary assignment in Louisiana of the premises in question, in order to obtain the benefit of the said act of the 19th of August, 1841, such assignment was, and is, in point of law, equivalent to a voluntary conveyance made by Hall of said premises to the. plaintiff.</p> <p>“ (Which instruction the court refused.)</p> <p>“ 7th. That the transcript of the record, marked A,, from the United States District Court of Louisiana, is competent and conclusive evidence of what it purports to contain, arid what is recited therein; and that under law said transcript of record is entitled to full faith and credit.</p> <p>“ 8th. That Bennett is in no better condition in relation to the property in controversy than Hall himself would have been had he been living and the defendant in this suit.</p> <p>• “ (This charge, the eighth, the court gave.)</p> <p>“ As to the seventh instruction asked, the court charged the jury that full faith and credit should be given to the transcript of the record of the court in Louisiana; that is, that it is entitled to the same force and efficacy here that it would be entitled to in the court where the transaction was had, and of which it purports to.be the record; that in this dOurt, as in' that, parol testimony is competent to show that that which claims to be a record is void for forgery.</p> <p>“ 9th. That if the jury believe from the evidence, that after Hall’s act of bankruptcy he became a citizen of Texas, Oakey being and remaining a citizen of the United States until the annexation of Texas to the United States,, then, by the act of annexation, the property in question became as absolutely Oakey’s as though Texas hád been one of the United States at the date of the bankruptcy, the act of. annexation having, by relation, removed every disability growing out of the laws of the place where the land is situated, and of Oakey’s personal right to hold.</p> <p>“ (Ninth refused by the coiirt.)</p> <p>“ 10th. That if the jury believe from the pleadings and evidence that Oakey has derived his title from or through Hall’s . voluntary abi, either of record or by conveyance, and that the defendant. Bennett only clairris as Hall’s administrator, and lilies as his tenanb then Bennett is orily the personal-representative of Hall, and, as such, a proxy, and as fully, and effectually estopped from denying Oakey’s title as Hall himself would have been, and that/ Hall would have been absolutely estopped.</p> <p>“ (Refused by the' court.).</p> <p>“ 11th. That, if the jury find for the plaintiff, they may find the rents as damages.</p> <p>“ (Which the court gave.)</p> <p>“ 12-th. That the act for the relief of persons who have taken the benefit of foreign insolvent laws of Texas, passed February, 1841, (before referred to,) recognizes a surrender under a foreign bankrupt law, if honestly made, as a valid and legal mode of transferring the bankrupt’s real estate lying in Texas.</p> <p>“ (Which the. court refused.)</p> <p>“ 12th.- That Oakey is vested with all the rights that were vested in Conrad by virtue of his due appointment as assignee of Hall. '</p> <p>“ (And this twelfth instruction the court refused to give.)</p> <p>“ And to the failure and refusal of the court to give the instructions hereinbefore asked, and by the court refused as noted, and to the giving, the said several instructions, not asked, which by the court were given as hereinbefore set forth, the said plaintiff at the time excepted.</p> <p>“ And now, for the purpose of saving the said several exceptions taken, as well as to set forth the whole facts of the case, the court seals this bill of exceptions, and orders the same to be filed and made a part of the record, which is done 5th June, 1848. John C. Watrous, [l. s*]</p> <p> U. S. Judge” </p> <p>The case came up to this court upon all these points.</p> <p>The points made in the arguments of counsel which are not touched upon in the opinion of the court are omitted in this ^report.</p> <p>Third Point. There was error in the court below in refusing ta charge that the plaintiff became vested- with the rights of property, which had been vested in Conrad by Hall’s bankruptcy. (Charge asked for in Nos. 2 and 12.)-</p> <p>1. The. court had charged, that the decree which discharged Hall divested him of his property, and vested it in Conrad. And therein it was correct. ¡General Bankrupt Law, § 3.</p> <p>2. That the vested property in Conrad, when deeded to the plaintiff, passed Hall’s rights, is a sequitur of the charge given. The assignee had power to deed. General Bankrupt Law, §.15.</p> <p>3. The surrender and conveyance in Louisiana passed the property in Texas. This while she was yet a republic. Proviso in Act, 5 Texas Laws, p. 44; Dallam’s Digest, pp. 94, 95; Carr’s Guardian v. Wellborn, Dallam’s Digest, p. 624, and 1 Texas Reports, 463.*</p> <p>4. This was not a compulsory, but a voluntary transfer. A bankrupt’s property out of the jurisdiction of the tribunal passing it may not be transferred as against creditors of- the locus rei sita, when compulsory or scheduled in general terms; - but if he voluntarily surrenders it,''it passes. Selkrig v. Davies, 2 Rose, B. C. 291; Story, Conflict of Laws, § 38; Bank of Augusta v. Earle, 13 Pet. 519; 16 Pet. 57.</p> <p>,. Fourth Point. Had Hall been defendant in this suit, he would have been estopped from resisting plaintiff; and there was error in the refusing so to charge by the court. He had voluntarily surrendered property. It had vested in an assignee. That assignee had deeded it to plaintiff. Hall and the plaintiff were privies in the successive relationship of the latter to the former as to the same rights of property. 1 Greenleafon Evidence, § 189.</p> <p>The effect of Hall’s- surrender was to Vest' his property in his assignee, and in whomever the assignee might sell to. He is presumed to have known this, for it was the effect of his own deed. Even if in law his surrender in Louisiana did not pass Texas property, he could not set it up. Nullus commodum capere potest de injuria suá propria. And surely either Hall or his privy in representation cannot now deny the title of plain-. tiff, who, a bona, fide purchaser, by reason of their own act, will else be prejudiced by their taking advantage of Hall’s wrong (assuming that' any existed).</p> <p>Fifth Point. If Hall was thus estopped, Bennett, the defendant, was also estopped. (Error in charging to contrary.) That he was in the same condition in which Hall, if defendant, would have been, was charged by the court. And this was so. ‘Bennett was Hall’s administrator, and his privy in representation. 1 Greenleaf on Evidence, § 189. The admissions of an. intestate bind his administrator. Smith v. Smith, 3 Bing. N. C. 29; Ivat v. Finch, 1 Taunt. 141.</p> <p>The record of bankruptcy was in evidence, which- would have bound Hall, and also Bennett, his administrator. 1 Green-leaf On Evidence, §§ 522,523. There was no evidence to show that Bennett was holding for creditors. He was Hall’s :admin-istrator in a personal capacity only. -</p> <p>Sixth Point. The title to the property in controversy (lot 13, block No. 681, city of Galveston) was in Hall when he was decreed bankrupt, —the time-at which his property vested in the assignee. General Bankrupt Law, § 3.</p> <p>Hall bought from Snydor, in the autumn of 1842, by parol agreement; went into occupation, and made improvements. Snydor testifies, that he considered Hall owner all this time; “ he would have made the.deed at any time after the bargain and sale.” The deed was made April 3d, 1843; discharge by decree, June 16th, 1843.</p> <p>■ “ In the case of a parol contract for the sale of lands, if after-wards carried into effect by a conveyance, the deed will; relate back to the date of the contract,” &c. 4-Kent’s Com. 451, note, last edition; Clary v. Marshall, 5 B. Monroe, 266.</p> <p>By the Texas statute of "frauds, estate, for less than five years could be made by parol. Dallam’s Digest, 61.</p> <p>There was part-performance of the parol sale; —</p> <p>1. By occupation. Wilber v. Paine, 1 Ham. Ohio, 251; Gregory v. Mitchell, 1 Hoff. 470.</p> <p>2. By improvements. Parkhurst v. Van Cortlandt, 1 Johns. •Ch. 274.</p> <p>' Part-performance of parol contract for lands saves the statute of' frauds. 4 Kent’s Com. 451.</p> <p>There was error in the face of these matters of fact and law, in refusing to charge !as asked for. . (Charge 3.)</p> <p>Seventh Point. If Hall had possessed any creditors' in ' Texas at the time he surrendered his Texas property, (which does not appear so to be,) and who were thereby prejudiced, Hall could have pleaded his discharge in Louisiana against •their demands.</p> <p>. This by statute of Texas. It would be a legal mocitery, in construing this statute, to say that, while it recognized the validity of. a' foreign discharge, it did not recognize the effect of that discharge. There was error in charging the latter. (Charge 12.)</p> <p>Eighth Point. As against, every person but the Stats', the assignee, although not a citizen of Texas, as well as plaintiff, could succeed to Hall’s rights, and hold land.</p> <p>Aliens may take by purchase, and hold land, until office found. Fairfax v. Hunter, 7 Cranch, 603.</p> <p>This is so well established, said a distinguished justice of this court, thát the reason is only a search for the antiquary.</p> <p>And until land is seized by the State, aliens may convey or maintain action. 13 Wend. 546.</p> <p>Naturalization relates back, and confirms- title' to land purchased during alienage. Jackson v. Beach, 1 Johns. Cas. 399.</p> <p>Texas, as a republic, having slept on her rights to escheat the land vested by Hall in his assignee, (conceding, argumenti gratia, such right to have existed,) when admitted as a State, the disability of the assignee was removed; and the annexation operated to confirm his title in the same manner as naturalization. There was error in refusing so to charge, as at charge 9.</p> <p>The points made by the counsel for the defendant were the following: —</p> <p>1. This is an action of trespass to try title .under the statutory regulation of Texas, which declares that the trial shall be regulated by the principles of ejectment. Hartley’s Digest of Texas Laws, p. 969. It requires a legal title to sustain the action in this court.</p> <p>2. The transfer of land by a foreign bankruptcy is not such a title. Whatever may be doubtful as to the effect of a foreign assignment in bankruptcy upon personal estate, it is universally admitted that it cannot convey real property, which is regulated by the law of the situs. Story, Conflict of Laws, §§ 422 a, 428, 591.</p> <p>3. The record shows that Oakey was a citizen of Louisiana at the date of the sale to him. He was therefore an alien, and the tenth section of the general provisions of the constitution of the republic forbids aliens to hold land except by titles emanating from the government. Hartley’s Dig. 38; Story, Confl; § 429. At common law a party may take by purchase, and hold until office found; but he cannot take by operation of law, or by descent, or by bankruptcy. As he cannot hold, the law will not cast the title upon him. •</p> <p>4. The act of the Texas Congress does not recognize conveyances by foreign bankrupt assignments. It is confined to the effect of the discharge. The discharge is one thing, the assignment another, and they are quite different in their effects. The Texas bankrupt law required a regular deed of assignment from, the debtor. Hartley’s Dig. 114,115.</p> <p>5. The bankrupt law of the United States of 1841 does not provide for an assignment. . It requires the applicant to present a petition, with a list of his creditors and their places of residence, together with a schedule of his property, &c., and when declared a bankrupt, the third section provides that title to all his property, real and personal, shall -be vested in assignees “ by operation of law,” without any other assignment or transfer. Such an act can have no extra-territorial force on real property, for the obvious reason, that there would be. a defect of jurisdiction. The authority of the court could not extend to lands beyond the United States.</p> <p>The title to lands must be passed according to the law of the site. The pretended transfer of the assignee,' Conrad, could not pass title to lands in Texas, because it was not a deed at common law, nor according to the provisions of the laws of Texas. It had neither a seal, nor the scroll recognized by the statutes of Texas. It had no subscribing witness, nor was it acknowledged before any judge or other officer,-as' required .by the statutes of Texas. If the judgment of the court of bankruptcy- could have had any extra-territorial force Or authority to transfer real estate, the instrument of the commissioner Conrad cannot operate as a bleed to pass the fee. Hartley’s Dig. 128. Under any. aspect of the case, it could not support ejectment. More especially when it was shown that there were Texas creditors at the time Hall was- declared a bankrupt.</p> <p>6. The registered copy of the conveyances was not competent evidence, because not legally admitted to record. The originals were not. acknowledged and proved, as required by the Texas registry act, and were not, therefore, evidence under; her judiciary act. Hartley, 839; lb. 255.</p> <p>7. The description in the transfer of the commissioner, of a “ house and lot in Galveston,” was not sufficient without the interlineation of the number and block, which was proved by the marshal to have been made after the sale, and in the handwriting of the vendee. This of itself was sufficient to avoid the deed unless explained, and the onus of the explanation was oh the vendee.</p> <p>The following authorities were cited in addition, to show that title to land in Texas did not pass to the assignee of- a bankrupt under the laws of a foreign country: — Kirby, 313 ; 1 Har. . & McHenry, 236; 2 lb. 463; 2 Hayw. 24;' 4 McCord, 519; 1 Rep. Con. Ct. 283; 6 Binney, 353; 6 Pick. 286 ; Bee, 244; 5 Cranch, 302; 12 Wheaton, 361; 3 Wendell, 538 ; 2 ■ Kent’s Com., 1st edition, 330 ; 20 Johnson, 254 ; 4 Wheaton, 213; 2 Story, 360 and 630; 1 Metcalf and Perkins’s Dig. 400,-pi. 123, 124; 1 U. States Dig. (Supplement), 270, pi. 93, 94.</p>

. This was .an appeal from the decree of the Circuit Court of the United States for the District of Louisiana, sitting as a prize court.. . Baptiste Guillem, a French citizen, was domiciled in Mexico, .and had resided there about three years before the war with the United, States was declared. His occupation was that of cook in a hotel, and he was engaged in it in Vera. Cruz when hostilities with this country commenced.

• This was an appeal from the District Court of the United States for the Southern District of Mississippi. The case arose under the áct óf 26th May, 1824 (4 Stat. at Large, 52), as revived and reenacted by the act .of June 17, 1844 (5 Stat. at Large, 676).' A petition was presented to the district Court of the United States for the Southern.

This case was brought up from the Supreme Court of Louisiana, by a writ of error issued under the twenty-fifth section of the Judiciary Act. ; By agreement of counsel in the State court, many .original documents were used in the trial in the Supreme'Court of Louisiana, which were left out of the record when it was transmitted to this court. .

Held: “ that a permission to settle, obtained on a requite, but not followed by an actual settlement, did not give a right superior to that resulting from an actual settlement without permission, or, in. other words, from a naked possession.” And in the case of Blanc v. Lafayette, decided during the present term, the person from whom the appellant deduced his title had upon a petition to the Spanish intendant obtained an…

<p>This was an appeal from the Circuit Court of the United States for the District of Louisiana, sitting as a court of equity! It was a bill filed, by McCoy against Rhodes and wife, under the following circumstances.</p> <p>On the 6th of December, 1839, Rhodes purchased in his own name from theUnited States, under the preemption law of 1838, and entered at the land-office at Ouachita, Louisiana, the following parcel of land: N. W. quarter of section 29, township 10 north, range 10 east, containing 160-j-o^r acres; and paid for the same $1.25 per acre, making in the whole $200.25.</p> <p>..On -the next day, viz. the 7th of December, 1839, Rhode's executed a deed for the above' property to "Eli Montgomery, a.resident of the city of Natchez, in the State of Mississippi. The .consideration stated in the deed was $1,500 cash: It was executed before Lewis F. Lanney, parish judge and ex officio notary public of the parish of Concordia, in Louisiana. This deed,, howevqr, was-not recorded in the office of the judge of the parish until the 10th of December, 1841.</p> <p>On the 10th of December, 1839, Rhodes entered at the land-office, in the name-of Montgomery, the following pieces of land, viz.: S. W. quarter and west half of N. E. quarter of section 29, = 240yo!o acres; S. E. quarter of section 30,= 161-1^0% acres; N. W. quarter of section 32, = 160 acres.</p> <p>These three parcels' were éntered, as has just been remarked, in the name of Montgomery.</p> <p>On the 2^th of February, 1840, James H. McCoy obtained a judgment against Zachariah Rhodes in the Ninth District Court in the parish of Concordia for $ 1,546.27, with interest thereon at the rate of eight per cent, from the 26th of March, 1839, till paid, and costs.</p> <p>On the 7th of March, 1840, this judgment was duly recorded -in the office of the parish judge and ex officio recorder of mortgages in and for the parish of Concordia.</p> <p>On the 10th of December,-1841, Montgomery recorded the deed which had been executed to him by Rhodes on the 7th of December, 1839, and on the same day executed a deed of the three parcels of land which had been entered in his name, to Thomas J. Ford of Adams County and State of Mississippi. The consideration is stated in the deed to have been the following, viz.: —The sum of three thousand dollars cash, which the said Eli Montgomery doth hereby acknowledge to have received, and the eight promissory notes of the said Thomas J. Ford, of even date herewith, and payable to the order of the said Eli Montgomery, for the amount and for the time as follows, viz.:’ First, a note for the sum of eight hundred dollars; second, a note for the sum of one thousand dollars; another note for the same sum of one thousand dollars, and a note for the . sum of five hundred and thirty-three dollars thirty-three and one third cents, all payable on the 1st day of January, 1843; -next, the two notes of the said Ford, for the sum of one thousand dollars each, and' also a note for the- sum of thirteen hundred and thirty-three dollars thirty-three and one third cents, payable on the 1st day of January, 1844; and lastly, the note of the. said Ford for the sum of three thousand three hundred arid thirty three dollars, thirty-three and one third cents, payable- on the 1st day of January, 1845, all paraphed by me, the said notary, ‘ Ne varietur,’ to, identify them here- • with, and payable at the office of the judge of' the parish of Concordia.”</p> <p>.The wife of Montgomery renounced all'her rights of dower and rights of every kind in and to the property, which stood -.mortgaged for the payment of the notes.</p> <p>On the 2d of November, 1842, Ford -conveyed the property to Mrs. Lumind.a Rhodes, for the consideration of ten thousand dollars. Zachariah, the husband of Luminda, being present, declared that he accepted this act for his said wife, and “ duly ■ authorizes and assists her herein.”</p> <p>On the 28th of January, 1845, James H. McCoy, a citizen of the State of Mississippi, filed his bill in the Circuit Court of the United States for the District of Louisiana, against' Zachariah Rhodes and Luminda Montgomery his wife. It averred-that Rhodes conspired with Montgomery to cheat and , defraud the complainant; that the conveyance of the 7th of December, 1839, from Rhodes to Montgomery, was fraudulent and void; that the entry of the lands on the 10th of December, in the ñatee of Montgomery, was fictitious and fraudulent, and that the whole transaction was intended to benefit Rhodes and defraud his creditors; that Luminda, the wife of Rhodes* was the niece of Montgomery; that the recording of the judgment on the 7th of March, 1840, operate^ as a judicial mortgage upon all the lands; and played for a sale of the lands in order to discharge the judgment.</p> <p>On the 3d of December, 1845, Rhodes and wife answered the bill. They admitted the entry of the lands, but averred that they were paid for with money actually furnished by Montgomery, and were intended to be his property; that Montgomery afterwards sold the lands to Ford, and that the respondents had no interest or participation therein; that after said sale was made, the notes "of the said .Ford were paid to this respondent, Luminda Montgomery, by the said Eli Montgomery, for moneys due to her from the estate of her deceased father, Joseph Montgomery, of whom the said. Eli Montgomery was executor, or administrator of his estate, and that the said notes being secured by mortgage on all the said lands, and the said Ford having become embarrassed, and unable to pay the same, the lands were taken by this respondent, Luminda, in satisfaction of- said notes, by agreement between these respondents and said Ford, and the conveyance made accordingly, for the sole use of this respondent, Luminda.</p> <p>.They then denied all fraud* combinations, deceptions, or cheating, &c., &c.</p> <p>A general replication was put in and depositions were taken.</p> <p>On the 24th of January, 1848, the cause came on to be heard on the bill, answers, exhibits, and proofs, when the Circuit Court decreed that the complainant’s bill should' be dismissed, with costs.</p> <p>A petition for a rehearing was afterwards filed, alleging that the decree was erroneous, in this amongst other things, that the recording of McCoy’s judgment was., prior in .date to the recording of the1 deed from Rhodes to Montgomery, by which deed the land entered on the 6th of December was conveyed to Montgomery; the judgment being recorded on the 7th of March, 1840, and the deed on the 10th of December, 1841.</p> <p>But' the court overruled the application for a rehearing, upon which the complainant" appealed to this court.</p> <p>The points taken by the- counsel for the appellant were the "following: —</p> <p>The claim of the plaintiff for a mortgage on the northwest quarter, of section 29, which was entered in the name of. Rhodes, has three distinct and separate foundations, any one of which is sufficient to support it.</p> <p>Even if the statement in the answer, that Rhodes entered it as the agent of Eli Montgomery, &c., were true; or if he had transferred it, for a good and valuable consideration, to Montgomery, and in good faith; still, as the legal title did vest in Rhodes, arid it was. not again divested, as to complainant, by transfer and record thereof, while the mortgage of complainant had, in the mean time, become fixed upon it; under the laws of Louisiana, there is no question that the mortgage-creditor’s claim prevails oyer that of the vendee. (See Act of 1810, in Bullard and Curry’s Digest, p. 596, § 7, No. 37. See Adelaide Mary v. Francois Lampré, 6 Rob. 315; 2 La. R..124; Gradenigo v. Wallett, 9 Rob. 16; Carraby v. Desmarre et al., 7 Martin, N. S. 661; Duplessis v. Boutté, 11 La. R. 346; Lee v. Daramon and another, 3 Rob. 162.) But the case of Gravier et al. v. Baron et al., 4 La. R. 239, is among the earliest, and is - one of the most important, cases on the subject. In that case, the land had been alienated in 1815; in 1824 a judgment was obtained against the. vendor, which was recorded- in the parish of St. Mary’s, where the land lies. ■ The public act of sale made in 181.5 had not, been recorded in St. Mary’s parish before'the judgment was there recorded. The claim of the creditor was, in that case, preferred to that of the vendee.</p> <p>The English law, we know, is othérwise; but the decisions of our Supreme Court, on the construction of our- statute law, which is a local law of property, must govern the case. The inconvenience.of two different cons'tructio.ns, diametrically opposite, of the same local law of property, has ever been appreciated by this court; and doubtless it will be regarded in this case.</p> <p>But the fact is, the assertion in the answer, that Rhodes was the agent of Eli Montgomery in making the .entry of said quarter-section, is absolutely false, as appears from the record. He made that entry in virtue of the act of .Congress of' the 22d of June, 1838, granting preemption rights to actual settlers,' &e.</p> <p>He was required, by the terms of the act of 1838, to swear that he actually settled on the land, occupied, and entered it for himself aloné, and for no one else. (See. 5. Statutes at Large, 251.) The register and receiver swear that he did enter the said quarter-section in virtue of his preemption right, under said act of 1838.</p> <p>The depositions of the register and receiver, &e., taken in connection with the requirements of said act, are conclusive against yielding any credit whatever to the answer of defendants. We must beg leave to remark, however, that, if false statements are made in the answer, no perjury is thereby committed by Mrs. Luminda Montgomery, as she has not swont to her answer at all. It was . sworn to only by Rhodes, the other defendant.</p> <p>It being established, then, that this land was entered by Rhodes for himself, in virtue of his preemption right, under the act of 1838, of course there can be no pretence for insisting on the validity of the transfer of said quarter-section by Rhodes to Eli Montgomery. The answer says it was made in pursuance of a previous, agreement to that effect. If any such previous agreement existed, and yet the land was entered according to- law, the agreement was corrupt, and in'violation of law, and the conveyance made in pursuance thereof is void to all intents and purposes.</p> <p>Any thing done in violation of a prohibitory law (says our Louisiana Code, Art. 10) is null.</p> <p>The same thing has ever been maintained in the courts of England and in this court. See Bank of United States "v. Owens,, 2 Peters, 538.</p> <p>That no valúe passed from Montgomery to Rhodes for this transfer is too. apparent, from all the circumstances of the case, to .admit of a doubt.</p> <p>The deed says, it is true, that the consideration of the. transfer was $ 1,500 cash, in hand paid; but the answer negatives the existence of any such thing,; it says, the entry was made by Rhodes, as the agent of Montgomery, and the transfer was made in pursuance of. a previous- agreement, without stating what was the consideration of the previous agreement; while the depositions of the register and receiver, and the documents attached to them, prove conclusively that Rhodes was entitled to enter said quarter-section in virtue of the preemption granted him by the act of 1838, and that he did so enter it.</p> <p>All this certainly proves, that no consideration ever passed .from Montgomery to Rhodes, for said sale and transfer of said northwest quarter of section No. 29, T. 10, R. 10.</p> <p>It must be apparent, then, that the said quarter-section, by the entry thereof in the name of Rhodes, on the 6th of December, 1839, in virtue of his preemption right under the act of 1838, vested in him all the title, both legal and equitable, to said tract of land. It is also equally apparent, that no consideration was given by Eli Montgomery for the transfer thereof to him, in December, 1839;. .and also, that, even if said transfer had been made for a good, adequate, and valuable consideration, and in good faith, yet, under the laws of Louisiana, in consequence of the failure to record the deed in Concordia until long after the judgment of complainant had been there recorded, it was ■of .n.o validity whatever as- to the rights of complainant, as tó whom the said sale is the same as if it had never been made. See' 6 Robinson, 315.</p> <p>What has been said abpve is peculiar to the lot or quarter-section of land entered in the name of Rhodes.</p> <p>We have some things still to say, which are alike applicable to all the lands on which complainant claims a mortgage.</p> <p>In the answer, it is stated that the notes of Ford were paid by Eli Montgomery to Luminda Montgomery, in satisfaction of moneys due her from her father’s estate, &c.; and that these notes were given by her to Ford, as the price of the transfer from him to her of the lands mentioned in the bill.</p> <p>No proof whatever has been offered in support of the allegation of the answer, that the notes were paid by Eli Montgomery to Luminda, in satisfaction of moneys due her from her father’s estate. The truth of the answer was put in issue by the replication; and therefore this allegation of the answer requires proof. See opinion of Chancellor Kent, in Hart v. Ten Eyck, 2 Johns. Ch. Í59, 90, and authorities there referred to:—</p> <p>“ When the answer is put in issue, the defendant must support by proof all the facts upon which he means to insist, while the plaintiff may rely upon every fact admitted, which he conceives material, without being bound to the admission of any others. But when the answer is offered in evidence at law, n6 part of it is immediately in issue. It is only parcel of the evidence, and- if one side introduce it, the other may insist upon the whole being read; and if read, it does not necessarily follow that it must be wholly admitted as true, or wholly rejected as false. The credit of any and every part is left to the jury, who are not bound to believe equally the whole answer, but .'may believe what makes against, without believing what makes for, the party who swears in the answer. This rule is applicable to every kind of evidence, and has been often acknowledged by the judges at law.” /</p> <p>“ The distinction, therefore,” as Evans says, “ is not between courts of law and equity, but between pleadings and evidence. If an answer is introduced collaterally, it ought to be treated precisely as in a court of law,” &c. •</p> <p>Here it is admitted by the answer, that the notes were given to Luminda Montgomery; and though stated to be in payment, &e., yet no proof is administered of the indebtedness of Eli Montgomery, and therefore, under all the circumstances of the case, the allegations of fraud seem to be fully proven.</p> <p>As the matter stands, it is clear that Luminda Montgomery gave no consideration for the notes; and by consequence it is also true that Eli Montgomery gave no consideration for the land.</p> <p>The conclusion deduced from this rule of evidence, as applicable to this case, is much strengthened by the fact, that an •important part of the answer has been disproved by two credible witnesses, and by documents; and therefore the rule applies to the whole answer, that, if a witness is provento have wilfully sworn falsely in one particular, his whole testimony is discredited;</p> <p>The truth is, the lands were always, in fact, the property of Zachariah Rhodes, except while the title was in Ford, during which time he held the notes of Ford for the unpaid price. These notes were finally given up to Ford in consideration of a transfer of the lahd, &c.</p> <p>But even if it were true, as is stated in the answer, that the notes of Ford were given by Eli Montgomery to Luminda in ' satisfaction of a just debt due her for moneys coming from her father’s estate, still it would form no ground for dismissing the complainant’s bill; because the lands were acquired on the 7th of November, 1842, during the existence of the community between the defendants; and • although the deed is taken in the name of the wife, and even if the price was paid with the proper funds or effects of the wife, they are still the property of the community. (See- Civil Code of Louisiana, Art. 2371 : see also 10 La. Rep. 148; lb. 181.)</p> <p>If the defendant Luminda Montgomery has applied her proper effects in the purchase of the lands, (which is denied by complainant,) she has a tacit mortgage on all the immovable property of her’ husband, and on the immovablés, of the community (which, includes these lands), for thq satisfaction thereof. This claim she must set up against the complainant (after suit instituted against her husband for separation of property) by original, or cross bill, &c.</p> <p>. She has not set it up, nor could she be heard to set it up in an answer.</p> <p>We think it fully established, then, that, even if the acquisition of the lands was made with the funds of Luminda Montgomery., and the deed taken in her own name, as it was, still She cannot lawfully oppose the foreclosure of complainant’s mortgage.</p> <p>But it is not true that the lands were acquired with her funds or effects. In any form of action against her husband, his heirs, or his creditors, it is indispensably necessary for her to establish, by proof, that the property was acquired with her funds or effects. This has not been done in this case, nor could it be done, because it is not true.</p> <p>In 'the answer it is stated that the debt due complainant was contracted by Zachariah Rhodes prior-to his intermarriage with Ruminda Montgomery, which took place on the 28th of December, 1834; and that therefore it cannot be satisfied out of the effects of the com'munity.</p> <p>The record shows, that the judgment of McCoy against Rhodes was rendered on the 24th day of February, 1840, with interest thereon from the 26th day of March, 1839. If the debt was contracted prior to the 26th of March, 1839, it does not appear by any evidence in the record; and the presumption of law is, that that is the date of its origin.</p> <p>If the fact was otherwise, the respondents, should show it by evidence. The answer, as above said, cannot establish the fact.</p> <p>Since the above was written, we find, on inspection of the papers in the case, in the Circuit Court, that a copy of the record of the suit of McCoy v. Rhodes, in the State -court, is on file, and we suppose it was offered in evidence. .If this is true, it appears by that record that the debt was contracted by Rhodes on the 12th of August, 1838.</p> <p>We therefpre rely on the following propositions ¡as established: —</p> <p>1. The land which is designated as the northwest quarter, of section 29, in township 10 of range 10, was entered at the land-office, and purchased by Zachariah Rhodes in his own name, and for his own use, from the United States, on the 6th day of December, 1839, in virtue of a Settlement thereon, and preemption right granted him under the act of Congress of 1838, granting preemption rights, &c..</p> <p>2. That said quarter-section of land,'though nominally conveyed, by public act dated on the 7th day of December, 1839, from Zachariah Rhodes to Eli Montgomery, was, because the conveyance to Montgomery was fraudulent, still actually the property of Rhodes, until the 10th of December, 1841,'when it -was, at the instance of said Rhodes, conveyed by Eli Mont-' gomery to Thomas'J. Ford.</p> <p>3. That the said transfer to Montgomery did not have any effect as against complainant; because the said conveyance was made without any lawful consideration, and with intention of defrauding creditors; and also because the deed of transfer was not recorded in the conveyance office of the parish of Concordia, until long after the judgment of complainant had been recorded in the mortgage office of said parish, within whose limits, at that time, the land lay.</p> <p>Note.— Since the recording of the judgment of complainant, and since the recording of the conveyance of Rhodes to Montgomery, that part of the then parish of Concordia in which the land lies has been stricken off from Concordia, and it now forms a part of the parish of Tensas.</p> <p>4. That the entry of the other lands in the name of Eli Montgomery, made by Rhodes on the 10th day of December, 1839, át the land-office at Monroe, was, in truth, an entry and purchase of said lands by said Rhodes for his own use and benefit; and that the use of the name of the said Montgomery was intended as, and was, a fraud upon the creditors of Rhodes; and consequently-said lands, from the date of the purchase until the 10th day of December, 1841, (when they Were conveyed and sold by. Eli Montgomery, at the instance of said Rhodes, to Thomas J. Ford,) remained and continued to be the property of Zachariah Rhodes. That consequently, the judgment of complainant operated as a mortgage on all said lands from the date of its record in the mortgage office of Concordia, to wit, 7th March, 1840.</p> <p>5. That from the 2d day of November, 1842, when all said lands mentioned in the bill were conveyed by Thomas J. Ford to Luminda Montgomery, the lands all beeame the property of the community existing between said Zachariah Rhodes and Luminda Montgomery, his wife; and as such, (evert if not, before that time, subject to the debt due complainant,) became affected with the mortgage claim set up in the bill.</p> <p>Note.— The division of the parish of Concordia did,not take pláce till 17th March, 1843. See Session Acts of 1843, page 35.</p> <p>• (The judgment of complainant was recorded in Concordia on the 7th of March, 1840.) ’</p> <p>6. That the judicial mortgage of complainant attached to, and became fixed on, all the lands mentioned in the. bill, from and after the 7th day of March, 1840, the date on which it was recorded.</p>

This case was brought up, by writ oi error, trom the Circuit Court of the'United States for the District of Louisiana. As the decision turned upon a question of pleading, it is proper to insert the petition, and, the. exceptions which were taken to it, by way of'demurrer.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana. It was a suit brought upon a collector’s bond against Thomas Gibbes Morgan, the principal, and Thomas W. Chinn, Micajah Courtney, Josiah Barker, and John Davenport, sureties. The bond was executed on the 14th of.

This was an appeal from the District Court of the United States for the District of Texas. The facts in the case are sufficiently stated in the opinion of the court.

This1 case was brought up', by writ of error, from the Circuit* Court of the United States for the District of Louisiana. Mr. Justice McKinley did not sit on the trial of. this cause in the Circuit Court In February, 1849, there were two commercial houses, one trading under the name, of A. H. Gossip & Co. in New York, and the other under the name of Gossip & Co. in New Orleans.

This case was brought up, by writ of error, from the Circuit Court of the United States for Massachusetts.

<p>Where a case is brought up by an appeal from a judgment on the common law side of the Circuit Court, instead of by a writ of error, it must be dismissed.</p>

<p>This case was brought up from the Supreme Court of the State of Texas, by a writ of error issued under the twenty-fifth section of the Judiciary Act.</p> <p>The plaintiff in error, Thomas M. League, applied to the District- Court for the county of Galveston, in Texas (State court), for a-mandamus to be issued to John De Young, the surveyor, and his deputy, to compel them to survey a' league and labor of land, which League alleged that he was entitled, to by virtue of a certificate issued to Catín F. McRea by the board of land commissioners of the county of San Augustine, republic of Texas, on the 21st of June, 1838 ; which certificate League alleged had been assigned to him.</p> <p>Instead of tracing, chronologically, the history of the laws, the reporter refers to the narrative given in the opinion of the court. The following is a list of the public documents set forth by the petitioner as exhibits to his petition, and which occupied upwards of a hundred printed pages of the record.</p> <p>I. A decree of the Congress of the State of Coahuila and Texas. March 24,1825.</p> <p>2: Instructions to Commissioners. September 4,1827t_</p> <p>3. Decree of the Congress of the State of Coahuila and Texas. May 2,. 1835.</p> <p>4. Declaration of the People of Texas in General Convention assembled. November 7,-1835.</p> <p>5. Establishment of a Provisional Government in Texas. November 13,1835.</p> <p>'6. Declaration of Independence of Texas. March.2,1836.</p> <p>7. Constitution and Declaration of Rights of Texas. March 17,1836.</p> <p>8. An act entitled “An act to reduce into one act, and to amend, the several acts relating to the establishment of a General Land-Office.” December 14,1837.</p> <p>9. Joint Resolution respecting County Surveyors. December 29,1837.</p> <p>10. An act amending an act supplementary to an act entitled “An act to reduce into one act, and to arfiend, the several acts relating to the establishment of a General Land-Office.” January 26, .1839.</p> <p>II. An act to detect fraudulent land certificates, and to provide for issuing patents to legal claimants. January, 23, 1840.</p> <p>12. An act prohibiting the location of fraudulent land claims. February 5,1840.</p> <p>13. An act to provide for the return of surveys, for the collection of government dues on lands, and for other purposes. February 5, 1840.</p> <p>14. An act defining the mode by.which the holders of con- • ditional certificates shall establish the same. January 15, 1841.</p> <p>15. An act supplementary to an act to detect fraudulent land certificates, and to provide for issuing patents to legal claimants. February 4,1841.</p> <p>16. An act supplementary to an act supplementary to an ;act to detect fraudulent land certificates, and to provide for the issuing patents to legal claimants. 1843.</p> <p>17. Ordinance of the Convention of Texas, accepting the proposal of the Congress of the United States to admit Texas into the Union. July 4,1845.</p> <p>18. Constitution of the State of Texas. 1845.</p> <p>19. An act to establish a General Land-Office for the State of Texas. May 12,1846.</p> <p>' On the 30th of June, 1847, League filed his petition in the District Court for the-, first judicial district of the State of Texas, in and for the county of Galveston.</p> <p>On the 1st of December, 1847, the District Court laid a rule upon the defendants to show cause why a peremptory mandamus should not issue as prayed, and on the 21st of December, 1847, the defendants filed a general demurrer and exception, upon the ground that the plaintiff’s petition is not sufficient in law. The following is.a summary of their answer.</p> <p>1st. Because it does not appear that the plaintiff has any cause of action against the defendants.</p> <p>2d. Because this is really a suit against the State of Texas,. which has not given its consent to be so sued.</p> <p>And for further special exceptions the defendants say, —■</p> <p>1st. It does not appear from said petition that the people of Texas made any contract by which they were or are bound to concede, grant, or perfect title to,-, any such land, &c.</p> <p>2d. It does not appear .that the said supposed rights and claims to land of persons residing in Texas on the day of the declaration of independence were ever vested and established, as the plaintiff in his said petition alleges and pretends.</p> <p>3d. Because the constitution of the republic of Texas amounts to no contract between the,people of Texas in their corporate capacity, &c., and any persons or class of persons residing in Texas, as the plaintiff in his petition pretends ; nor does it appear that the people of Texas, in their corporate political capacity, agreed, contracted, or promised as the plaintiff alleges and pretends.</p> <p>4th. It does not appear that the general land law of the republic of Texas ever amounted to a contract between the people of Texas and any person, in the petition mentioned, nor does it appear that said people, through their representatives, ever promised, contracted, or agreed that such certificate should be sufficient evidence to authorize any lawful survey, or, for any person holding or owning such certificate, to survey such lands as he might point out, &c.</p> <p>5th. It does not appear that the said people contracted or agreed that such certificate should be sufficient evidence to authorize the surveyor, &c., to survey any lands forming a portion of the public domain; or that they are bound to make such survey; or that by refusing so to do they are guilty of any neglect or breach of duty.</p> <p>After reserving all exceptions; &c., the defendants for plea' say, the plaintiff ought not to have or maintain his action, for that the general land law is unconstitutional, &c.</p> <p>' And for further plea they say, that the act “ to detect fraudulent land certificates,” and that," to prohibit the location of fraudulent land claims,” &c., and the act “ supplementary to the act to detect fraudulent land certificates,” &c., were not made in violation of the constitution of the republic of Texas, as the said plaintiff pretends; nor do said acts, nor does the eleventh article of the constitution of the State of Texas, contravene the Constitution of the United States, as said plaintiff also pretends; and that the said plaintiff (as he admits) never established said certificate according to said acts, or according to said eleventh article, nor has he attempted so to do.</p> <p>For further plea he says, the board of general and local commissioners under the ■ first-mentioned act failed and refused to report this certificate as genuine; that its location was prohibited until so reported, or established under the said supplementary act, or the said eleventh article ; and that, until it might be so established, the said plaintiff was entitled to no location or survey thereof.</p> <p>That the said supplementary act, while it remained in force, and the said eleventh article, gave a sufficient and an adequate mode of establishing said certificate, which said plaintiff failed to adopt; and that he has not made the proof, nor complied \vith the requisites, prescribed by the said eleventh article of the constitution of the State of Texas.</p> <p>They answer that they were not bound to make said survey, and that their said refusal has violated no law nor any legal right of the' plaintiff, and amounts to no breach or neglect of duty on their part.</p> <p>The defendants annexed two exhibits to their answer; one was “■ An Act to regulate proceedings in the District Courts,” consisting of 158 sections, and occupying thirty pages, of the printed record, and the other, " Rules for the Government of the District Courts, adopted by the Supreme Court, 23d April, 1847.”</p> <p>On the 22d of December, 1847, the District Court, after argument, dismissed the rule which had been laid nisi upon the defendants, and' at December term, 1847, the Supreme Court of 'Texas, tó which the case had been carried, affirmed the decision.</p> <p>League sued out a writ of error, and brought the case up to this court.</p> <p>The counsel for the plaintiff in error made the .following points.</p> <p>I. The decision of the commissioners awarding the' head right certificate set forth in the, pleadings, was a judicial decision.</p> <p>First. The republic was bound under a prior obligation to award the land. Constitution of Republic, § 10; Colonization Law of Coahuila and Texas, 1825; Decree No. 16, p. 15; 1 White’s New Recopilación, p. 559; Decree of Coahuila and Texas,- No. 309, p. 297 ; Declaration of People in Convention, art. 8, p. 4; Plan of Provisional Government, art. 15; Declaration of Independence, p.-4; Acts establishing General Land- • Office, Dec. 14,1837, §§ 11,15,17, 36; Laws of 1837, p. 62.</p> <p>Second. The proceedings -involved a lis pendens, a subject-matter to be settled between the claimant and the government. Midhurst v. Waite, 3 Burr. 1259; 2 Hill, 11, 14; 26 Wend. 212, 220. •</p> <p>Third. The subject-matter to be settled required, and the acts provided, that proof should be taken, hnd in some cases a jury was introduced in order to ascertain and settle the rights of the parties. Act of 1837, §§ 11,17.</p> <p>. Fourth. An. appeal to a higher tribunal was given to the claimant in case the decision was against him. The State dispensing with such appeal in its own behalf, on the ground that the commissioners, as is usual in such cases, were designed to represent them. McMin v. Stafford, 2 Bibb, 487; 19 Wend. 56, 59; 9 Ib. 508; 8 Johns. 44, 69; 3 New Hamp. 265; 4 Bingham, 686; Phillips on Evidence, Cowen & Hill’s notes, pp. 906-915, No; 637; Ib. 997, 1000, No. 694; Ib. 853, No. 609; 1 Peters, 201, 666, 667; 1 Bibb, 22, 229; 3 Bibb, 137, 426; 3 Littell, 152, 154; 7 Dana, 141; 4 Yerger, 525; 6 Yerger, 85, 86; 2 Dall. 317.</p> <p>Fifth. The powers were'1 transferred to the District Court by the act of 1839.</p> <p>Sixth. The fact that proceedings are summary does not divest them of their judicial character.</p> <p>II. The proceedings being judicial, the decision therein, that • the claimant is entitled to a-head right certificate,.is -also judicial.</p> <p>III. The said decision, and the head right certificate issued and founded upon it, is a perfect right to the quantity of land awarded, framing ari obligatory contract, as solemn and binding as a more formal judgment, and is conclusive unless re-, versed upon review for error, and cannot be impeached collaterally. 1 Douglass, 407; 4 Greenleaf, 531; Le Guen v. Gouverneur and Kemble, 1 Johns. Cas. 437; 19 Wend. 56; Moody v. Thurston, Strange, 481; Grignon’s Lessee v. Astra, 2 Howard, 319; Hargrave’s Law Tracts, 446; 1 Salkeld, 396; 2 Bos. & Pul. 392; 1 Bibb, 22, 229; 2 Bibb, 487, 488,134; 3 Bibb, 137, 138, 426; 3 Litt. 152,160; 7 Dana, 141; 2 Tennessee R. 21; 1 Yerger, 303, 328, 346, 350; 4 Yerger, 525; 1 Cook, 214, 216; 1 Stewart, 504; Walker, 492; 1 Peters, 666, 667; 18 Peters, 517; 7 Wheat. 240, 244; 1 Peters, 212; 8 Peters, 444; 9 Peters, 153, 154; 20 Howell’s State Trials, 538; Ambler, 761; 7 T. R. 269; Co. Lit. 303, c; 4 Rawle, 288; 1 Salkeld, 230; 7 Missouri R. 15; 5 Howard, 28; 6 Peters, 728, 732; 1 Texas R. 438, 788, 801, 802, 804; 6 Peters, 728, 732; 6 Cranch, 87 et seq.; 9 Howard, 171, 445, 447; 7 Durnf. & East, 692, per Ld; Kenyon; 3 Dallas, 54; 1 Peters, 340; Cowen and Hill’s Phillips, 891; b Johnson, 689; Smith v. Lewis, 1 Irish T. R. 20, 43; 2 Bos. & Pul. 392; 13 Peters, 498; Mackeldy, Comp. Civil Law, Kauffman’s ed., § 208; 1 Pothier on Cont. (Evans’s edition), 350,-416; Hugo, Histoire du Droit Romain, § 373; Wig. 2, 17, 50; Code, 752; Extravaganza, 2, 27; 1 Moreau and Carlton’s Part. 321; Recop. Castella, tit. 4, 6,17; Institutes, 292; 1 White’s New Recop. 306, 307; 2 Texas R. 320, 272.</p> <p>IV. A judgment'establishing and conferring u. general right is just as obligatory as if it awarded a specific parcel of land or personal property, and is as much protected by the Constitution.</p> <p>V. ' The decision in question was complete, and not inchoate, and adequate remedies had been provided for its execution.</p> <p>VI. The acts of 29th January, 1840, 5th February, 1840, 4th February, 1841,12th May, 1846, and the State constitution of 1845, article 11, delay and hinder this claimant in enforcing his said decisioii as well prior as subsequent to the annexation of Texas; and,' so far. as they delay and hinder the enforcement of said decision since the annexation, they violate the United States Constitution, and prior thereto the Texas Declaration of Rights of 1836. 2 Howard, 608; 10 Conn. 522, 541; 1 Pick. 224; 13 Vermont, 525; 2 Stewart, 30; 1 Dana, 481, 486; 9 Yerger, 490; Minor, 23; 7 Gill & Johns. 7; 17 Johns. 195, 215; 3 Howard, 133; 4 Wheat. 122, 197; 1 Howard, 311; 4 Litt. 47; 8 Wheat. 1; 1 Denio, 128; 4 Gill & Johns. 146, 148; 9 Howard, 245; 6 Cranch, 87; 1 Simons, 251; 2 Chancery R. 497; 4 Wheat. 5,18; Peck, 18; 4 Lift. 34, 47; Story on Const. §§ 1368, 1391; 2 Ld. Raym. 952; 3 Greenleaf, 326; 2 Texas R. 319, 320.</p> <p>First. The constitution of the State of Texas of 1845, article 7, § 20, provides “that-the rights of property and of action which have been acquired under the constitution and laws of the republic of Texas shall not be divested.” And as the rights of property and of action in this case were so acquired, .established, and protected by the decision of the board of land commissioners, they could not be divested, barred, or affected by attaching to their assertion such conditions as are specified in the eleventh article of the said constitution. 'Nor could the said rights be utterly barred, and declared to be for. ever null and void, as in the said last-mentioned article is attempted to be done.</p> <p>Second; The certificate produced in this case never was declared to be null and void by any' law of the republic of Texas, and, upon the adoption of the State constitution, was conclusive evidence of a valid and subsisting right founded on contract, although delayed arid clogged by such unauthorized modifications of the remedy for its enforcement as precluded the plaintiff from the immediate enjoyment of its benefit;</p> <p>Third. The State constitution recognized the right founded Upon it, but sought to couple it with such remedies as impaired the obligation, and finally destroyed it altogether, in direct violation of the provisions of the federal Constitution.</p> <p>Fourth. The certificate, as a judicial act, estopped the State from denying the right it established; and the subsequent steps necessary to obtain a patent being mere ministerial acts, the State had no authority so to regulate them, or to obstruct-theh performance, as to impair that right. The remedy was subject to such modification as the State" saw fit to make without prejudice to-the right; but that was absolute and inviolable.</p> <p>Fifth. All the laws formerly in force in the republic of Texas, now alleged to be in force in, the State of Texas, and relied on to defeat and hinder the plaintiff in procuring a survey and patent on the certificate described in this suit, are in force by virtue of their, supposed adoption, continuance, and recognition by the State constitution, and as such are in manifest derogation of the provision of the .federal-Constitution prohibiting the passage of laws impairing the obligation of contracts.</p> <p>VII. This court has jurisdiction on writ of error to review the decision of the Supreme Court of Texas, it being the highest court of law within that State, and involving the validity of a statute, as well as a constitutional provision of this State, together with the authority exercised under them, on the ground of their being repugnant to the United States Constitution, and of the decisión in favor of their validity. Constitution U. States, Art. 1, § 10; Act of Congress, Sept. 24, 1789, § 25; Constitution of Texas, 1837; Declaration of Rights, Art; 16.</p> <p>It is sufficient if it appear- on the record that the question must have arisen. Davis v. Packard, 6 Peters, 41; Hickie v. Starke, 1 Peters, 94; Harris v. Dennie, 3 Peters, 292; Smith v. Hunter, 7 Howard, 738.</p> <p>Rights of property remain the same after as before the adoption of the State constitution. State Constitution, Art. 7, § 20; 7 Peters, 51, 87; 1 Dall. 78; 2 Dall. 394, 395.</p> <p>VIII. The common law was in force in Texas in 1837 (Laws of Texas, 1836, pp. 156, 157), and the mandamus in the present case was the appropriate remedy. Marbury v. Madison, 1 Cranch, 137; Bradley v. McCrab, Dallam’s Digest, 504, 506, 524, 381; Boman v. Moody, Dallam, 512; Allen v. Ward, Dal. 371, 137; Dallam, 366; 2 Texas R. 57, 357, 451, 67, 78; Hartley’s Dig. 120; Hartley’s Dig. 237, art. 643; 12 Peters, 620; 1 Texas R. 84, 85, 542; 1 Simons, 251.</p> <p>IX. No other constitutional remedy has heen provided in Texas for the present case; and not to allow the mandamus would be a denial of justice, and would defeat the provision of the United States Constitution.' In regard to impairing the obligation of contracts, a dissent on the part of the State to the remedy cannot be inferred from acts providing an unconstitutional remedy. Directory upon government, 9 Marsh. 423; Angel & Ames, 137, 138, 157; 1 Mur. 155; 4 Cow. 297; 7 Cow. 402; 5 Cow. 269; 8 Barn. & Cres. 29; 11 Wend. 611; 5 Hill, 21; 5 Jacob’s Law Dict. 76; 6 Hill, 62, 646; 3 Serg. 6 Rawle, 29.</p> <p>The counsel for the defendant in error made the following points.</p> <p>The writ of error alleges that the decision of the Supreme Court of Texas was against the validity of the treaty of the United States which was drawn in question, and was in favor of the statutes and of the eleventh article of the constitution of the State of Texas, which were drawn in question on the ground that they were repugnant to the Constitution, treaties, and laws of the United States. ■</p> <p>It is respectfully submitted, that the only treaty which can possibly bear any relation whatever to the merits of this cause is that by which Texas was annexed to the United States; and in considering the terms and‘stipulations of that treaty, it seems difficult to arrive at the conclusion that it intended to make valid that class of claims to which this belongs. The reverse of the proposition appears to conform much moré to the intention of the treaty.</p> <p>For the joint resolution of Congress for the annexation of Texas provides, “ that the'territory belonging'to the republic of Texas may be erected into a new State with a republican form of government, to be adopted by the people of said republic, by deputies in convention assembled, with the consent of the existing government, in order that the same may be admitted as one of the States of this Union.”</p> <p>It further provides, that “ the constitution of said State, with the proper evidence of its adoption by the. people of the said republic of Texas, shall be transmitted to the President of the United States, to be laid before Congress for its final action, on or before the 1st of January, 1846.”</p> <p>The proposition contained in this joint resolution was assented to by the government of Texas,'and it was also assented -to by the people of' said republic, by an ordinance of the deputies, in convention assembled, on the 4th of July, 1845.</p> <p>A constitution fot the State of Texas was formed in accordance with the provisions of the- said joint resolution. Among other things, this constitution contains a provision that it shall be submitted to the people of Texas (for their adoption or rejection) on the second Monday in October, 1845; and it further provided, that at the same.time the' vote should be taken for and against annexation. The eleventh article also provided, that certificates of the class upon which this suit was instituted should be established according to the provisions of the afore-, said supplementary act, before the 1-st of July, 1847, and if not so established or sued upon as therein provided before that time, the said certificates, and all locations and surveys thereon, should be for ever null and void. It further provided, that the aforesaid ordinance should be attached thereto and form a part thereof.</p> <p>This constitution was adopted, and annexation was assented to by the people of Texas. The constitution, the evidence of its adoption by the people of Texas, and their assent to anriexation, have been duly transmitted to the President of the United States. Upon these, with all their 'terms and conditions, by a joint resolution of Congress, Texas was admitted as one of the States of the Union.</p> <p>Then here was a proposition for annexation made by the government of the United States. The, proposition is accepted by Texas, but, among other things, upon the conditions contained in the eleventh article of her State constitution. These' conditions are accepted and adopted by the general government. Then we contend that this article cannot be justly said to be repugnant to any treaty of the United States. On the contrary, it may be said to be incorporated into the treaty for annexation, and to form a part of it. So far from being condemned by the treaty, it is most solemnly guaranteed by it.</p> <p>It may be considered to be a more correct view of the subject to say that Texas proposed to be annexed to the United States, and, among other things, upon the conditions contained in the eleventh article of her State- constitution ; and that this proposition was accepted by the 11 jo.int resolution of Congress for the admission of the State of. Texas into the Union.” Upon either view of the subject, this article forms a. part of the treaty, and is sustained, in place of being condemned, by it.</p> <p>If these views of the subject be considered as at all correct, then the eleventh article of the constitution of the State of Texas violates no law of the United States ; for the joint resolution last aforesaid may be said to be a treaty, or a law, or a .contract (for it partakes of the nature of all these) of the ■ United States, in. which this article may be said to be fully incorporated as a part of either. Then, so far from being considered as a violation of any law of the United States, it may itself be regarded as a law of that government.</p> <p>Let us now see whether the said acts of the republic of Texas, or the eleventh article aforesaid, at all contravene that provision of the Constitution of the United'States which says, that “ no State shall pass any law impairing the obligation of contracts.” Now it would seem obvious enough, that laws enacted by Texas, and a constitution adopted by her when she was an independent republic, could in no wise contravene the Constitution of the general government. Texas being then a separate republic and an independent government, could not have been considered as restrained by a constitutional provision against the States of this Union. It cannot be said that these laws or this article were made in violation of the terms of the Constitution of the United States. And it does not seem to be consistent either with the terms or with the spirit and meaning of that instrument, to say that the convention which framed or the people who adopted it designed this clause as an inhibition against separate or independent republics or nations.</p> <p>Again, it is obvious enough that it was not the intention of this clause to inhibit Congress from passing any law, or making any treaty, impairing the obligation of contracts. And whether we view the annexation of Texas as affected by the one or the other of these means, we must still agree that it was consummated'by the consent and act of Congress. And, in whatever view it may be seen, we most respectfully contend, that it must still be regarded as a law, of an act of Congress, unrestrained byrthis clause of the Constitution of the United States.</p> <p>And viewing annexation as a contract between two independent nations, and both equally competent to contract, it seems consistent with reason and law, that both of the.contracting parties should be bound by all its terms and stipulations. It would certainly be a; departure from the ordinary construction of contracts to determine that in this instance it was binding upon one side only. The want of equity of such an interpretation becomes extremely prominent, When it is borne in mind that the provisions ■ of the eleventh article of her Statq constitution were offered, on the part of Texas, as an indispensable condition of the contract.</p> <p>And it is further contended, that there never existed between the grantee of the certificate and' either the republic or the State of Texas, any contract which the aforesaid acts.of the republic, or the eleventh article of the constitution of the State, could have impaired. The only law under which the grantee could claim any land of the republic was decree No. 190 of the Congress of the State of Coahuila and Texas (see Laws Coahuila and Texas, 189); or the act of 1835 (see Laws Coahuila- and Texas); or the tenth section under the general provisions of the constitution of the Republic of Texas. Now, in order to make the contract valid between the grantee and the State of Coahuila and Texas, he must have complied with the provisions of the said decree No. 190, particularly that contained in the eighth article, and then, by the twenty-second article, he would have been entitled to the one half of a sitio of grazing land. It will be seen' from the certificate that the grantee.was a foreigner; for it says that he proved he arrived in the republic of Texas in the year 1834. Then we contend, that-if the claim be regarded as being-based upon that law, viz. decree No. 190, it amounted to no contract, for there is nothing to show that the grantee ever complied with its requisitions, and the quantity contained in the certificate very far exceeds that prescribed by the law.</p> <p>If, on the other hand, it be regarded as based upon the said act of Coahuila and Texas of 1835, or the said tenth section of the constitution of the late republic, then we contend that there was no contract between the grantee and the republic; for, by reference to the act of 1835, and to this section of the' constitution, it will be seen that their provisions only amount to a donation of lands to those persons who were residing in Texas before the passage of the act of 1835, or on the day of the declaration of independence.</p> <p>In addition to the head rights which the citizens received, the republic paid each soldier for whatever services he might render. Ordinances and Decrees of the Constitution, 22, §§ 4, 5; Ibid. 78, 79, 87, 88, 93; and 1 Statutes, 34, § 4.</p> <p>Upon these provisions alone claims for head rights rested, until the 14th of December, 1837, when the Congress of the republic passed an act, entitled “ An Act to reduce into one act, and to amend, the several acts relating to the establishment of a general land-office.” See 2 Laws, 62. It will be seen by reference to this act (particularly its twelfth section), that this gave to colonists, or persons residing in Texas, no new right, but only intended to provide an adequate remedy by which those rights might be rendered available which had accrued under the said colonization laws, and under the said tenth section of the constitution of the republic. It was, in other words, a law creating a remedy by which preexisting rights might be litigated; but it purported to give no new •right, and least of all does it seem to intend to create, on the part of the republic, a technical and binding contract, which subsequent enactments could never change. And we contend that the right to any land exists (if it exists at.all) by virtue of a compliance', on the part of the grantee, with the provisions of the colonization law,of 1832, or in consequence of his having been included within the provision of the act of 1835, or that of the tenth section under the general provisions of the constitution of the late republic, and not by virtue of any certificate obtained under the act of 1837, which, we contend, relates not at all to the right, but to the remedy only. In other' words, if he had any right, it was not because he obtained the certificate under the act of 1837, but because he had •made with the State of Coahuila and Texas a valid contract for it under the act of 1832, or because it had been donated to him by the act of 1835, or by said tenth article in the constitution of the late republic.</p> <p>We contend that the issuance of the certificate created no contract whatever on the part of. the government. For the granting of the certificate was based upon no consideration; whereas, under every system of laws, a consideration is an indispensable, requisite' of a legal and valid contract.</p> <p>And it will be clearly seen, by reference to the acts of 1840, and to the eleventh article of the constitution of the State, that they affect no right which may have accrued either under the act of 1832 or under that of 1835, or the said tenth section of the constitution of the late republic. They neither affect to repeal the law of 1832, nor that of 1835, nor to render null any right or contract which existed in virtue of their provisions; nor do they affect to withdraw, or to'defeat, or to impair this constitutipnal provision. So far from annulling, or divesting, or -destroying these rights, it was the direct object and tendency of the acts of 1840, and of the constitutional provision of 1845, to guard, to sustain, and to secure them.</p> <p>The acts, &c., complained of by the plaintiff in error, only intended to change, .the remedy provided by the act of 1837.; and this is all which they really effect.</p> <p>The republic of Texas was not bound, by the terms of any contract, to pass the act of 1837. ' This was a law gratuitously passed by its legislature. The republic had entered into no obligation or contract to pass such a law; and least of all had it obligated itself to permit this remedial law to remain for ever unchánged. Nor was there an application for a survey while the provisions of the seventeenth section of the act of 1837 remained in force; but he waited till the proffer contained in that section was in effect repealed, or withdrawn, by the act of-1840.</p> <p>Again, remedial laws may, at any time, be altered, or even repealed.</p> <p>This action, it may be said, is based entirely upon the seventeenth section of the act of 1837. And this section, by its terms, contemplates the passage of subsequent laws altering its provisions.</p> <p>This section regards the certificate, not as a contract, but as. “ sufficient evidence to authorize the .surveyor to survey the land.” The terms of the section give to the certificate that force only. Now, evidence belongs to the remedy; and the legislature can, at any time, alter, or even repeal, the remedy. Story, Conflict of Laws, § 467, noté; Townsend v. Townsend, Peck, 15-18; 6 U. S. Cond. Rep. 535; Mason v. Haile, 12 Wheat. 370; Sampeyreac case, 7 Peters, 222; Ibid. 546, 549, 550, 557; Springfield v. Hampden Commissioners, 6 Pick. 508.</p> <p>An act, like that of 1837, which confers jurisdiction, is subject. entirely to the control of the legislature. Stoover v. Immell, 1 Watts, 258; Road in Hatfield, 4 Yeates, 392. The repeal would have divested all such rights, under the provisions of the act, as have not been consummated. Buller v. Palmer, 1 Hill, 324, 330; Meller’s case, 1 Blackf. 451; Meiggs v. Hunt, 12 Moore; Rey v. Goodwin, 4 Moore & Payne, 441, 451; Dwarris on Statutes, 676.</p> <p>If the above position be correct, thén Texas had the power to modify or change the act of 1837 by those of 1840.</p> <p>It is conceived that the Sampeyreac case, 7 Peters, 222, bears a striking analogy to this. ■ In that case suit was instituted in the Superior Court of the Territory of Arkansas, in the name of Bernardo Sampeyreac, against the United States, to recover a tract of land in the ^petition described. During the same year (about the 20th of December) a judgment was rendered in favor of the plaintiff. No appeal was taken within one year; and consequently, by. the terms of the statute under which the suit was instituted, the decision became final and conclusive between the parties.. The interest in this decree was by deed (purported to be made'by Sampeyreac) transferred to John J. Bowie, and in December, 1828, Bowie trans?, ferred the deerée to Joseph Stewart. Oñ the 13th of December, 1828, Stewart’s application was admitted in the land-office. At the April term, 1830, the United States attorney filed a bill of review; in which he stated that the decree was obtained by fraud, that the witnesses committed perjury, _and that Sampeyreac was a fictitious person. Subsequently to this, viz. on the 8th of May,1830, an act was made giving the courts power to revise,such decrees upon bills of review. It was contended that the act of 1830 was unconstitutional, because made in violation of that- provision of the Constitution of the United States which says that “ no person shall be deprived of property without due process of law ” ; and also that which says that “ private property shall not .be taken for public use without just compensation.” ' See Dartmouth College v. Woodard, 4 Wheat. 644, 645. But the decree in the Sampeyreac case was reversed; and it was decided that the act of 1830 applied only. to the remedy, and therefore did not violate the Constitution of the United States.</p> <p>When the certificate was issued, and when the acts of 1837 and 1840 were enacted, the laws of Mexico were in force in Texas. That system provides, that, if a judgment be fraudulent or be obtained by perjury, the party against whom it was rendered- may have it annulled at any time within twenty years from the day of its date, &c. 1 Partidas, 321, 322; 1 White, 306. _ _ '</p> <p>_ _ . Again, this is a mandamus against the State without its consent; and it is an attempt to evade the well-established principle, that the sovereign authority cannot be sued in its own courts without its express assent to the suit.</p> <p>• Where a party has another specific remedy, a mandamus never issues at all. 5 Comyn’s Dig. 21. The act of 1840 did not take away all remedy, and the act of 1841 gave a remedy which is reasonable, adequate, and complete.</p> <p>It is contended that the plaintiff in this cause can occupy no higher ground than that which could' have been occupied by the grantee of the certificate. The certificate is at best but the evidence of a naked right or a chose in action, which by the general law was neither assignable nor transferable. And there is no special law which enables the grantee to sell or transfer the certificate. But the tenth section under the general provisions of the constitution of the republic, the fifteenth section of the first general land law (1 Laws, 129), and the twelfth and seventeenth sections of the present act, only made valid the sale or transfer of the right which the claimant had to the land. He "could sell his own right or claim to the land, but nothing more.</p> <p>This court has decided that the clause in the Constitution of the United States, upon which the plaintiff relies, has no retrospective operation. Owings v. Speed, 5 Wheat. 420.</p> <p>The case under consideration is stronger than the one cited; for the acts of 1840, and the constitutional provision of 1845, were in full force when Texas was an independent republic, and their continuance may be said to be guarantied by the treaty of annexation.</p> <p>The case of Calder v. Bull (3 Dall. 386) may be said to bear a striking similitude to-this. There the Probate Court had rendered a decree in that cause, and the adverse party. had so long slumbered over his rights, that this decree had, -. under- the law, become final by the lapse of -time. The State of Connecticut- then- passed a law annulling this decree, and this court unanimously determined that, this law did not violate the Constitution of the. general government. A State can pass retrospective laws creating contracts where none existed before ; it can pass retrospective laws ; can exercise judicial functions; and it can pass a law that will divest vested rights. Satterlee v. Matthewson, 2 Pet. 412, 413;</p> <p>■ These are powers certainly as great as those complained of, which Texas exercised while she Was a separate republic.</p> <p>We might suppose this to be a contract in the strict sense of that term, and still we believe it could be successfully contended that the acts of 1840 never even violated the constitution of the late republic, and that the eleventh article.of the State constitution could, under no view, violate the Constitution of the United States. For the “ obligation” of a contract is defined to be “ the law that binds a party to perform his undertaking.” Sturges v. Crowninshield, 4 Wheat. 197; Ogden v. Saunders, 12 Wheat. 318; Blair v. Williams, 4 Littell, 34; Lapsley v. Brashear, Ibid. 47.</p> <p>The Constitution refers to and preserves the legal, not the moral obligation. Ogden v. Saunders, 12 Wheat. 337.</p> <p>The “ obligation ” of contracts intended by the constitution is not the universal law' of civilized nations any more than the moral law, &c. Ogden v. Saunders, 12 Wheat. 213.</p> <p>The republic never gave its consent to be thus sued; and had it been given, it might have been withdrawn at pléasure. Story’s Const. 625. So that the republic could not have been legally bound to perform its contracts'; or, in other words, there was- no legal obligation to perform them.</p> <p>Under. the Constitution of the United States, and amendments thereto, a State cannot be sued in the courts of that government, except by another State. -Then under this government there are no means of compelling a State to perform. its contracts with individuals, in cases in which the State maybe defendant. Then there is no legal obligation to perform them. See second section under article third, and the eleventh article of the Amendments.</p> <p>Texas was not annexed until the 16th of February, 1846, the day on which the first legislature of the State convened. See the joint resolution for annexing Texas, &c., approved the 1st of March, 1845; 5th, 6th, 7th, and 8th sections of the 13th article of the constitution of Texas; acts of Congress of 1845 and 1846,17 lb. 23, § 3.</p> <p>See act of 14th January, 1843, Hartley’s Digest, 649.</p> <p>It is evident that the rights of individuals to real estate in Texas were based upon, the constitution and laws of the republic. By virtue of these, lands were acquired and held. It is • evident that the constitution and laws .could at all times have been annulled by the same power that created them. Had.this been done, then we contend that all private property would have reverted immediately to the general mass. For a distinguished author has truly said, “ Property and laws áre born together and die together. Before laws were made, there was no property; take away laws, and property ceases.” J. Bentham’s Theory of. Legislation, 139. If the people of Texas would do this while they had an independent government, they could certainly do what was far less than this; namely, could say that certificates of this class sued on should be established in the mode prescribed in their constitution, or that • they should, never be established at all.</p>

This case was brought up from the Supreme Court of Louisiana, by a writ of error issued under the twenty-fifth section of the Judiciary Act. It appeared from the record that the judgment óf the Supreme Court of Louisiana was rendered on the 25th of October, 1843. The petition for the writ of error was addressed to the'Honorable George Eustis, Chief Justice of the Supreme Court of the State of Louisiana. It was thus indorsed.

Tins was an appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania, sitting as a court of equity. o In the early part of the year 1841, there was a commercial firm in the city of Richmond, Virginia, trading under the name of Martin & Franklin, wno were dealers in tobacco and manufacturers of the article.

This case was brought up, by writ of -error, from the District Court of the United States for the Northern District of Florida. It was - an action of trespass quare clausum fregit, brought by the United States,/or cutting, trees upon the public lands, commenced in the Superior Court of West Florida in T844, to which the defendant pleaded not guilty on the 26th. of March, .1845.

This was an appeal from the Circuit Court of the United States for the District of Louisiana, sitting as a court of equity. The suit was originally brought by Stockton in the District Court (State court) of Louisiana, by petition, to enforce a judicial mortgage against a plantation and slaves in the parish of Carroll, which once belonged to Nicholas W. Ford, but at that time was in the possession of James C. Ford, the defendant below, and appellee here.

Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1851), was a United States Supreme Court decision credited with introducing into United States patent law the concept of non-obviousness as a patentability requirement, as well as stating the applicable legal standard for determining its presence or absence in a claimed invention.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District óf Columbia, holden in and for the county of Washington. James Reeside, in his lifetime, was one of the contractors with the Post-Office' Department for the transportation of the mail, and claimed sundry extra allowances, which were not allowed by the Department.

<p>A motion on the part of the defendants in error, for a rule upon the plaintiff in error to file a copy of the record, overruled.</p>

<p>A bill by the State of Florida against the State of Georgia ordered to he filed, .and process of subpoena directed to be issued against the State of Georgia.</p>

This case was pending under a writ of error issued to the District. Court of the United States for the Northern District of Mississippi. “ This case was depending before this court at its last term . upon a writ of error, operating as a supersedeas, and was then •dismissed because the record did not show that a citation had been issued and served on the defendant in error.

Held: that the grantor having averred in the deed that he was seized of a remainder in fee, expectant on the death of his father, he was estopped from setting up, that, at the time of the grant, he was not duly seized of the estate according to the averment; that tfie estoppel run with the land, and bound not only the grantor, but all claiming under him ; and that the defendant was, therefore, equally estopped from…

Held: that, to make Bogan’s proof valid, it must be presumed by the court and jury that Bogan proved all the necessary facts to constitute a good will to pass lands, the same as if Bogan then had proved the same facts before the jury. ■ But that evidence might be let in on the trial to contradict what Bogan was presumed to have proved in 1788, before the Sumner County Court, when the will was there recorded.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia. It was an action brought by Parks for services rendered by Samuel Parks to John Ross, in the removal of the Cherokee nation to the western side of the Mississippi, in .the years 1838 and 1839. The bills of' exception set forth in extenso all the evidence offered by the plaintiff upon the trial.

This was an appeal from the Circuit Court of the United States for the District of Arkansas, sitting as a court of equity. It was a' bill-filed by Merrill, the appellee, against Fowler and Badgett and other persons, under the following circumstances.

<p>This case was brought up from the Supreme Court of Tennessee, by a writ of error issued under the twenty-fifth section of the Judiciary Act.</p> <p>Clements, the plaintiff in error, was the" marshal of the United' States District of Middle Tennessee.</p> <p>The.action was a replevin brought by Berry against Clements, in the Circuit Court of Davidson County, Tennessee "(State court), and upon the trial in that court the following statement of facts was. agreed upon.</p> <p>Daniel Berry v. J. B. Clements.</p> <p>Replevin. — Circuit Court, Davidson County.</p> <p>In this case the defendant comes and defends the wrong and injury, when, &e., and says he is not guilty in manner and form as the plaintiff in declaration hath alleged, and of this he . puts himself on the country, and the plaintiff also; and the following facts are agreed upon between the parties: — On the 20th of January, 1848, William H. Inskeep, Albert Moulton, Edward D. Woodruff, and John Sibley, citizens of the State of Pennsylvania, trading in partnership under the firm Ins-keep, Moulton, & Woodruff, brought an action of debt against Charles F. Berry, a citizen of the State of Tennessee, and resident of Nashville, in the Circuit Court of the United State's for the District of Middle Tennessee, upon several notes of hand executed by said Berry, payable to said Inskeep, Moulton, & Woodruff; the writ and copy of the declaration was served by the marshal upon the said Charles F. Berry on the 20th of January, 1848. The writ was returned to the court with the declaration at March term, 1848, and the following entries were made on the rule docket, and minutes,’ as by the copy' hereunto annexed, and made part of the ease agreed, marked A: Inskeep, Moulton, & Woodruff, debt, -20th January, 1848, executed and delivered defendant a copy of declaration. Declaration filed March 1st, 1848; ruled for plea by 8th March; no plea being filed by attorney, takes judgment by default. Circuit Court of United States, Middle Tennessee District. Thursday, March 9th, 1848, court adjourned until to-morrow morning, 10 o’clock. Friday, March lQtb, 1848, court met according to adjournment. William H. Inskeep, Albert Moulton, Edward W. Woodruff, and John Sibley, trading under the firm of Inskeep, Moulton, & Woodruff, v. Charles F. Berry. The plaintiffs appear by their attorney, and a judgment by default having been taken in this cause on the 8th of March, 1848, and no motion having been made to have the same set aside, it is therefore considered by the court that said judgment by default be affirmed, and that the plaintiffs recover against said defendant $ 1,316.68, their balance of- debt in the declaration mentioned, and the further sum of $ 44.22, their damage sustained by reason of the detention thereof, and their cost in this behalf expended, and that execution issue. Session of court commenced on the 6th March, 1848.. A true copy. J. McGavock, clerk, by G. M. Fogg, deputy. Berry’s deed received at register’s office 51 minutes after 9, on the 10th March. Inskeep & Co. Judgment obtained about half-past ten o’clock same day.</p> <p>The said Circuit Court of the United States commenced its session on Monday, the 6th day of March, 1848. On the 10th day of March, 1848, Charles F. Berry, the debtor, executed a deed of trust to the plaintiff in this cause, a copy of which is hereunto annexed, and made a part of this case agreed :</p> <p>“ Know all men by these presents, that I, Charles F. Berry, of the county of Davidson, and State of Tennessee, of the one part, and Daniel Berry, of the county and State aforesaid, of the other part, witnesseth, that I, the said Charles F. Berry, for and in consideration of the sum of $5, to me in hand paid by the said Daniel Berry, and the other consideration hereinafter mentioned, hath this day bargained, sold, transferred, and conveyeAd, and do by these presents-bargain, sell, transfer, and convey, to the said Daniel Berry all my stock of dry goods of every description, and all sorts of ware now in the storehouse occupied by me on the public square in Nashville, and also in a storeroom occupied by me in Nashville, amounting together to the sum of about $ 12,000, as per invoice book made oirt this day; three horses, one negro man slave, named Abraham, one buggy, all my accounts of every description, and the book containing the same; all the notes, that are due me, and also my interest, whatever it may be, in the unsettled business of the firm of A. D. & C; F. Berry; also, all the interest I have in and to the following-described lots or pieces of ground, viz. lots No. 5 and 6, as described in a plat made by C. W. Nance, of lots adjacent-'to the town of Nashville, on Cherry Street, fronting thirty feet each on Cherry, and also lots A and-B, in No. 20, in the plan of South Nashville, and lots No. 3 and 4 adjoining F. B. Fogg’s lot on Cherry Street. To have and to hold said property, of every description, to the said Daniel Berry, his heirs and representatives for ever. I, the said Charles F. Berry, bind myself, my heirs and representatives, to warrant and defend the title to the same, or any part thereof, to the said Daniel Berry, his heirs and assigns, against the lawful claims of all persons whomsoever. But this deed is made for the following use and trust, and for no other purpose ; that is to say, that the said Daniel Berry and A. D. Berry are my accommodation indorsers on the notes, most of them, embraced in schedule A, and whereas I am anxious to secure them, and also the payment of ail the claims therein specified, to the persons to whom said claims are due, and also to secure the claims specified, in the schedule B to the person therein named, which schedules are to be registered with this deed. Now, if I, the said Charles F. Berry, shall well and truly pay off and satisfy said debts mentioned in schedules A and B on or before the 1st day of December, 1849, then this deed to be void; but if I shall fail to do so, then the said Daniel Berry shall sell whatever remains of said property upon such terms as will be most for the interest of the creditors, and apply the proceeds to the payment, first, of the debts mentioned in schedule A, until they are all paid and satisfiedand, secondly, to the payment of the debts*mentioned in schedule B, if there L-iiall be enough after, paying the expenses of executing this trust; if not, to make a pro^ rata distribution of the proceeds amongst them. In order to make it more certain that said debts shall be . paid within the time specified, I hereby authorize the said Daniel Berry, as trustee, to take immediate possession of all the above-described property, and that he rimy proceed to sell the same upon such terms as will make it yield the .most money; and that he-take possession of all my books of accounts, notes, &c., and proceed to collect the debts due me as speedily as he can, and to apply the proceeds of the goods and property, and the money collected by him, to the payment of the debts in the order above specified ; but that he shall not be forced to make a general sale of said property, goods, &c., until the expiration of said time.</p> <p>“ In testimony whereof, I, the said Charles F. Berry, have, hereunto set my hand and seal, this the 10th day of March, 1848.</p> <p>“ C. F. Berry.”</p> <p> “State of Tennessee, Davidson County. </p> <p>“ Personally appeared before me, Robert B. Castleman, clerk of the County Court of said county, the within-named C. F. Berry, the bargainer, with whom I am personally acquainted, and who acknowledges that he executed the within deed of trust for the purposes therein contained.</p> <p>“ Witness my hand at office, this 10th day of March, 1848.</p> <p>“ R. B. Castleman.”</p> <p> “State of Tennessee, Davidson County. ■ ■ </p> <p>“Register's Office, March 11,1848.</p> <p>“ I, William James, register of. said county, do hereby certify that the foregoing deed of trust and certificate are duly registered in my office, Book No. 10, pages 574, 575, and that they'were received March the 10th, 1848, 9f£ o’clock, A. M., and entered in- Note Book 2, page 20.</p> <p>“ William James.”</p> <p>And the same was lodged for registration in the register’s office, at the time mentioned in the memorandum upon said deed, on the 20th of March, 1848 ; an execution, being a writ of fieri facias, issued upon said judgment, and came to the hands of the marshal on the 21st of March, and by him, on the 24th of March, was levied upon the goods, wares, and merchandise particularly specified in the levy,-a copy; of which is hereunto annexed, marked C, together with the return of the marshal.</p> <p>“ The \President of the United States to the Marshal of the Middle District of Tennessee, greéting:</p> <p>“ You aré hereby commanded, that of the goods and chattels, lands and tenements, of Charles F. Berry, in yOur district, you causé to be made $1,379.85, which William H. Inskeep, Albert Moulton, Edward W. Woodruff, and John Sibley, trading under the firm of Inskeep, Moulton, & Woodruff, in the Circuit Court of the United States for the in the Middle District of Tennessee, recovered against him for balance of debt, damages, and cost, in a certain action of debt in the said court, lately determined, wherein the said Inskeep, Moulton, & Woodruff were plaintiffs, and said Charles F. Berry was defendant, whereof said defendant is convicted, as appears of record, and have the said money ready to rendér before the judge of our said court at'Nashville, on the first Monday in September next; herein fail not, and have then and there this writ.</p> <p>“ Witness the Honorable Roger B. Taney, Chief Justice of the Supreme Court of the United States, this first Monday in March, A. D. 1848, and in the. seventy-second year óf our independence. Jacob McGavock, Clerk?</p> <p>“ Issued March 20th, 1848 ; came to hand 21st March, 1848; levied this fieri facias upon the following goods,. wares, and merchandise, as the property of Charles F. Berry, this 24th day of March, 1848. Then follows a long list of goods of several pages, specifying each article, item by item, amounting in all to the sum of $ 2,549.11; the prices annexed to the foregoing list of goods were the invoice prices as furnished by>the defendant, but the defendant and myself not agreeing as to the present value of the goods, we called in the following persons, merchants of Nashville, to wit, John B. Johnston, C. Connor, B. F. Shields, and A. J. Duncan, who valued the goods to be worth $1,402, or 55 cents in the-dollar upon the invoice prices. J. B. Clements,</p> <p> Marshal of the■ U. S. District of Middle Tennessee? </p> <p>“ The sale of said goods, wares, and merchandise was stopped by a writ of replevin from the Circuit Court of Davidson County, sued out at the instance of Daniel Berry, against me, as marshal; which writ was executed upon me by the.sheriff of Davidson County, on the 4th day of April, 1848, and the goods delivered up to said Daniel Berry, by the advice and consent of the plaintiff’s attorneys. September 4,1848.</p> <p>“ J. B. Clements, M. fil. D. T.</p> <p>“A.true copy. J. McGavock, Clerk?</p> <p>Marshal’s fees, commissions on the amount of this execution, by G. M. Fogg; deputy, say on $ 1,360.90,. at 2i per cent. . '. . . . • • $ 34.02</p> <p>.Serving this fieri facias, . . . . . . • 2.00.</p> <p>$ 36.02</p> <p>These goods were in the store of Charles F. Berry, and had not been removed therefrom, but Daniel Berry, the trustee, was at the store at the time of the levy, and stated that the said Charles F. was his agent, and the trustee claimed the goods as included in the deed of trust; the goods levied upon were taken possession of by the marshal, and after the writ of replevin was served, they were delivered up by the marshal to Daniel Berry; the goods, wares, and merchandise levied upon were, before the execution of the deed of trust aforesaid, the property of Charles F. Berry. If, upon the above facts, the law is with the plaintiff, then judgment is to be rendered for him, with costs; if for the defendant, the marshal, then judgment is to be rendered for him against the plaintiff and his security, for the amount of the-judgment in the federal court; interest and cost as taxed by the federal court.</p> <p>F. B. Fogg, for Defendant.</p> <p>Ewing & Whitworth, Attorneys for Plaintiffs.</p> <p>Upon this agreed state of facts, the Circuit Court of Davidson County were of opinion that the law was with Clements, the defendant, and gave judgment accordingly. Berry carried the case to the Supreme Court of Errors and Appeals of Tennessee, where the judgment of the Circuit Court was reversed. Clements sued out a writ of error under the twenty-fifth section of the Judiciary Act, and brought the case up to this court.</p> <p>The act of Congress of 8th May, 1792, requires all writs and processes, &c. to bear teste of the Chief Justice of the Supreme Court, and . the uniform practice in the State and Federal courts in Tennessee is to teste the executions as of the first day of the term from which the execution issues. Executions are liens on personal property, and relate to their teste. When a judgment awards an execution, what does it award? A process that bears teste from the first day of the court. In Johnson v. Ball, 1 Yerger, 291, it was decided, and is the settled law of Tennessee, that the statute 29 Charles II. § 3, providing that the personal property of a debtor should only be bound from the delivery of the execution to the sheriff, is not in force in Tennessee, but that it bound as at common law. Preston v. Surgoine, Peck, 80. It is true that in the case of Murfree’s Heirs v. Carmack, 4 Yerger, 270, it was decided that, where a mortgage deed for land was registered on the same day judgment was obtained, and no proof was given as to the precise time of the judgment, the mortgage would take preference of the judgment, the judgment being only a lien from the day of its date; but at the same term of the court, in the same.book, p. 358, the same court decided, in the case of Porter v.' Earthman, that judgments rendered upon different days of the same term relate to the first day of the term as between creditors, although the records may show the day upon which each was rendered. Can the statute requiring the minutes of the court to be read every day, and to be signed by the judge, be intended for. any other purpose than to prevent errors and mistakes, and can such statutes have any effect upon the fieri of-executions and judgments in the federal court? The same reason applies to prevent- the debtor from giving a preference by deeds of trust to other creditors, as would apply among creditors themselves.. The debtor knew a judgment by default had been rendered against him on the 8th of March; that- it would be absolute if he did. not set it aside; and he chose to give a preference by deed on the 10th of March! Is it doing injustice to third persons, the creditors provided for in that deed, to say, that the judgment and execution would overreach that debt ?</p> <p>In the case of Farley v. Lea, 4 Devereux and Battle’s Law Reports, p. 169, the Supreme Court of North Carolina decided, that judgments of a court of record, on whatever day of the term they may be rendered, iii law relate to, and are considered judgments of, the first day of the term, so that an execution tested on the first Monday of a court, being the 8th of May, 1833, upon a judgment rendered on the 12th of May, 1833, would overreach a deed of'trust executed and registered on the 9th of May, 1833. Judge Gaston in his opinion says, that this legal relation of a judgment to the first day of the judicial term is as perfect as was at common law the relation of an act of Parliament to the first day of the legislative session. The law of relation applicable to judgments has been in part changed in that country by the statute of 29th Charles II.; but .in this State (North Carolina), and also in Tennessee, it remains as it was at common law. He also says, that in England the statute 29 Charles II. has provided that, against purchasers, no writ of execution shall bind the goods, but from the time such writ was delivered to the sheriff. There being no such statute in North Carolina or Tennessee, the writ of execution binds against all persons from the teste, as it yet does in England, where purchasers are not concerned. The teste of our writ of fieri facias, being from the first Monday in March, 1848, the execution overreached the deed of trust. In Coutts v. Walker, 2 Leigh, 268, the Court of Appeals of Virginia decided that a judgment rendered on the 2d of March, 1821, the term commencing the 21st of February preceding, overreached a deed of trust executed on the 28th of February, and registered the 2d of March. See 4 Comyn’s Digest, Execution, D, 1, and authorities there cited. In Wynne v. Wynnes, 1 Wilson, 39, thé reason of the rule is stated: “ The general intendment of the law is, that every judgment has relation to the first day of the term, because the court cannot determine every suitor’s case in one day.” Another reason, as stated by the judge in 2 Leigh, may have been to prevent debtors from withdrawing their property from the effects of judgments against them, by alienations made after' it was known that, in the course of a term, a judgment would pass.</p> <p>The practice of the Circuit Courts in Tennessee is regulated by rules which have been in force for a long period. The rule applicable to the suit upon which the execution in this case was founded provides, “ that, if the pleadings are not filed by the defendant on or before the first day of the term, the court may on that day fix the time when the. pleadings are to be closed, and judgments entered.” The day fixed for closing the pleadings was the 8th of March, and judgment by default wa^ then entered, and the only thing remaining to be done was to draw that judgment out formally by the clerk, and calculate the interest, which was not done, owing to a press of business by the clerk, until the 10th of March, the day of the execution of the deed of trust. It is believed that the judgment by default on the 8th of March was not, in the words of the Supreme Court of Tennessee, “ wholly inoperative.” It-might have been so, had it not been-affirmed on the 10th of March, during the same term ; but the entry of the last date refers to the judgment of the 8th, is founded upon it, adopts and affirms it. It is true, if'no judgment had been entered during the same term, and the cause had been continued, and the final judgment had been, entered at a subsequent term, there would have been no relation to the preceding term, and the execution would then have been tested on the first day of the term, when the final judgment was entered.</p> <p>All the cases decided upon the subject of the lien of executions in Tennessee,-except two, are collected in Meigs’s Digest, title ‘Execution, 959. Those two are the present case, and that of the Union Bank v. McClung, which will be reported in 9 Humphreys, p. 91, and is upon the relation of an alias execution. The- English doctrine is in 2 Tidd’s Practice, 998, where he says the fieri facias must be tested in term time, and made returnable in term time. By the law of Tennessee, and the practice of- the federal courts irons., their first establishment, all executions bear teste from the first Monday of the term from which they purport to have been issued, and are made returnable to the first Monday of the succeeding term.. . There is no difference in the form of the process -from the State and federal courts, except that the former are tested by the clerks, and the latter, by the act of Congress of the 8th of May, 1792, bear teste of the Chief Justice of the Supreme Court of the United States.</p> <p>The plaintiff in error submits that the execution in the cause which came to his hands, authorized him to levy upon chattels belonging to the defendant on the 6th day of March, 1848, the first day of the term, or at all events upon the personal property that he owned on the 8th of March, when the judgment by default was obtained.</p> <p>There are two questions presented for consideration in this court: —</p> <p>1st. Whether the court has jurisdiction of the cause?</p> <p>2d. Which had the prior lien, the execution or the deed ?</p> <p>The defendant in the State court was the marshal, and acting under the authority of the Circuit Court of the United States in levying the execution ; but this suit does not dispute his authority t>r deny his right to its proper exercise; he is sued' as a trespasser, for going beyond even the claimed limits of his legal power. If the property levied upon belonged rightly to Daniel Berry, then he was improperly exercising his power, and this was a question of law and fact equally competent for decision in the federal or State tribunals. If the facts of the case proved that -any. question was raised in the -{3j;ate court in regard to the validity of the judgment or execution under which the marshal acted, or the legal- authority of the marshal to levy on the property of the defendant in the execution, then the jurisdiction would have been clear in a decision against their validity; but here the only question decided by the State court was the title.of the property levied upon. The defendant in error had no forum.for the ascertainment of his rights but the State tribunal, and as he did not question the validity of the judgment or general authority of the- marshal, the case does not come within the spirit or the letter of the Judiciary Act of 1789.</p> <p>2d. The question as to the. priority of the liens is, under the process act of 1828, entirely dependent upon what may be the law of Tennessee on this subject, and .was therefore a peculiarly fit súbject for decision in the State court.. It has long been held in Tennessee,,that the statute of 29 Charles II., in regard to the lien of judgments and executions, is not in force in that State; the lien of an execution remains, therefore, as at common law, subject, however, to the statutory modifications of that lien. "We. find it generally stated, in the earlier common law authorities, that the lien of an execution commenced from its teste, and, as the whole term was regarded as one day, the execution was tested of the first day. .The general rule of law, however, was,- that fictions which were intended for the attainment of justice never should extend to work an injury. See 3 Bl. Com. 43. Whenever, therefore, a fiction would work injustice, because of its inconsiotency with the truth, courts of law ought to look to the real facts. See 3 Bl. Com. 317; 2 Burr. 962. In accordance with this rule of law, it had repeatedly been decided in England that anterior to the statute of 29 Charles II. the lien of an execution only commenced, as against bond fide purchasers from the debtor, from the true date of the award of the execution. See 8 Coke, 171; Cro. Eliz. 174; 2 Showers, 480; Bingham on Executions, 190. These authorities Jiave been recognized in Tennessee. See 1 Yerg. 292 ; 7 Yerg. 529. The awarding of an execution in England is a judicial act, and the forms of all of bur judgments in Tennessee award an execution in pursuance of the English practice; until the rendition of the judgment "the issuance of an execution would be a void act, and would have no foundation on which to rest. The lien óf a judgment in Tennessee has been confined by statute to the date'of its rendition. See Nich. & Car. 419. It would be singular, therefore, to hold that the execution (which is the incident) had a superior lien to the judgment, which is the principal. , In accordance with this view, the Supreme Court of Tennessee say, in this very case: “ Under our practice, the proceedings of the term are, contrary to the practice of the common law, separated and distinguished by the division of days; the record shows the day on which the judgment is rendered, and the date thereof is indorsed upon the execution; to the end, perhaps, that .the officer, charged with the execution of the process, might be enabled more easily to discriminate between such, alienations of property as were valid, and those which were void as' against the judgment- and execution. Inasmuch, therefore, as under our law the precise day on which judgment is rendered is fixed and ascertained by the record, it necessarily follows, upon common law principles, that it cannot relate beyond that1 day as against .bond.fide purchasers for valuable consideration; nor can the execution issued thereon, if tested of the same term as the judgment, as against such purchaser, relate beyond the date of the judgment; and as the hour of meeting of the court on each day of the term, under our practice, is also ascertained by the record, the relation of the judgment or execution cannot extend, beyond that hour.”</p> <p>This investigation into the fraction of a day, for the ascertainment of truth, where there is record evidence to be obtained, is amply supported by the 'authorities. See 2 Stark. 787; 7 Com. Dig. 398; 2 B. & A. 586.</p>

Held: in relation to sales under the revenue law of 1829, that the auditor’s deed alone was' prima facie evidence of title, yet they have never so held in 'relation to sales: under the revenue law'of 1823, under which the sale in this case was made, and the decisions above quoted have never been questioned.

Held: that a statute authority by which a man may be deprived of his estate must be strictly pursued.” The same doctrine will be found in Rea v. McEachron, 13 Wend. 465 ; Atkins v. Kinnan, 20 Wend. 241 ; and in Jackson v. Shepard, 7 Cowen, 88, as cited in 1 Hill, supra.

This case was brought up, by writ of error, from the Circuit Court of the United States, sitting for the County of Washington, in the District of Columbia. Oh the 7th of August, 1844, William H. Digges and William H. Van Burén entered into a contract in the city of Washington, as follows: — t! It is hereby agreed, between William Digges, of the city of Washington, carpenter, of the one part, and W. H. Van Burén, M. D., of the othér part, as follows:— u First.

This case was fought; up,-by writ of error, from the Circuit Court of the United States .for- Louisiana. There was only one point of evidence involved. ■ Three exceptions were taken during the progress of the trial by the plaintiff below, but, as the verdict was in his favor, they were not argued here.

<p>An agreement by a debtor to apply a certain portion of his crops towards the extinguishment of the debt in consideration of further indulgence, will take a case out of the statute of limitations, and may be set up in .avoidance of the plea byway of estoppel upon the debtor.</p> <p>The defendant is not at liberty to complain that the construction of this instrument was left to the jury, because it was so done at his own request, and because, if the court had construed it, the construction must have been unfavorable to the defendant. '</p> <p>The bankruptcy of the plaintiff prior to the timé when he took tho notes payable to himself was no legal defence to.the action. He was one of the persons authorized to settle up the insolvent estate, and whether or not he accounted to his creditors for the proceeds was no question between him and the maker of the notes. .</p> <p>The plea that the notes were given for African negroes imported into Texas after 1833 was no legal defence. The creditor had no connection with the person who introduced the negroes contrary to law. If the negroes had been declared to be free, the consideration of the notes would have failed, but the debtor still held them as slaves, and therefore received the full consideration for his notes.</p>

Held: and were in full charge of the cargo, no official connection continued, and no other is set up or pretended to be proved. *527 In strict law, then, it does not seem competent for him to prosecute any appeal in their behalf, separately or in conjunction with his own interests, without showing some special authority from them for that purpose. Several precedents fully sustain this view.

Ordered, that the time for taking testimony in the above cause by the commissioner appointed by the order entered 29th May, 1850, and for making the report to this court therein provided for, be extended till the further order of the court: and, that the authority to take testimony in said cause since the first day of the present term be, and the same is hereby, confirmed.

This case came up by writ of error to the Court of Appeals for the Western Shore of Maryland, being the highest court of law and equity in that State; which writ was issued under the twenty-fifth section of the Judiciary Act.' It was argued at last term, on- a motion to dismiss for want of jurisdiction^ But the court reserved the point till final-hearing.

This was an appeal from the Circuit Court of the United States for the District of Louisiana. The attorney of the United States filed an information in the nature of a bill in chancery against David M. Hughes, who was the real defendant, and also against Sewall and Hudson,nominal defendants. On the 12th of April, 1814, Congress passed an act (3 Stat. at Large, 122) for. the final adjustment of land titles in the State of Louisiana and Territory of Missouri.

This was an appeal from the District Court of the United' States for the Southern District, of Mississippi. .

This case was brought 'up from the Circuit Court of the United States for the Southern District of New York. ' It was reported in 6 Howard, 437, and at the conclusion of the report, of that case is the following.note: — “ Note. — After the. delivery of this opinion, the counsel for - the plaintiffs in error suggested that other questions were made below, which they desired id be considered, and therefore moved for another certiorari to bring them up.' This'was allowed, and…

Held: that royal donations should be liberally construed; and if such a donation be made to two persons conjointly, and one of them die without heirs, his portion accrues to the surviving donee. In like manner, law 234, page 74, of the Leyes del Estilo, declares, that he who receives a donation from the crown may do with it as he pleases. And Elizondo, in tom.

.This was an appeal from the District Court of the United States for the District Court of Louisiana. It was a petition filed in the District Court by the appellees,, who claimed a tract of land under the Maison-Rouge grant.- The District Court decided in favor of the petitioners, and the United States appealed to this court..

This ease was brought up, by writ of error, from the District Court of the United States for the District of Texas.