author: Mr. Justice Barbour

text:
    The United States, Plaintiff in error, vs. Jacob Knight, Benjamin Knight, Isaac Knight, and Edward Knight, Defendants in error.
    Action on a bond given tb the United States for the liberty, of the jail yard in, Portland, in the state of Maine. The condition of the bond was, that J. K. and B. K. “ should continue true prisoners in the custody of the jailer, within the limits of the jail yard.” It was agreed by the counsel for the plaintiff and defendants, that J. K. and B. K. had remained within “the limits of the jail yard,” as established under the laws of 1787, of Massachusetts, then prevailing in Maine; the limits of the jail yard having in October, 1798, been extended over the whole county; but had not remained within the limits established on the 29th May,, 1787, and'existing when the act of Congress was passed, 4th January, 1800, authorizing persons under process from the United States to have “the jail limits,” as"established by the laws of the state. Held, that the act of Congress of 19th May, 1828, gives the debtors imprisoned under executions from the-Oourts of the United Spates, at the suit of the United States, the privilege of jail limits in the several states, as they were fixed by the laws of the several states at the date of thát act.
    Whatever might be the liability of the officer wh"o took the bond from the defendants; if the jail limits continued to be such as were established under the law of Massachusetts of 1787; the bond not having been taken under that law, and the condition being different from the requirements of those regulations; the parties to the bond, the suit being upon the'bond, are bound for nothing whatsoever, but what is contained in the condition; • whether it be of be hot conformable with the law.
    The statute of May 19th, 1828, entitled, “ An Act further to regulate Processes in the Courts of the United States,” which proposes only to regulate the mode of proceeding in civil suits, does not divest the public of any right, dogs not violate any principle of public policy, but on the contrary makes provision, in accordance with the policy which the government has indicated, by many acts of previous legislation, to conform to state laws, in giving to persons imprisoned under their execution the privilege of jail limits, embracing executions at the suit of the United States.
    The cases Wayman vs. Southard, 1 Wheat. 10; and Beers vs. Houghton, 9 Peters, 332, cited, and affirmed.
    IN error to the Circuit Court of the United States for the District of Maine.
    The United States, in 1838, instituted an action of debt against the defendants in error, on a bond executed by them on the 30th day of January, 1S3S, for the sum of seventeen thousand four hundred and ninety-four dollars and four cents; the condition of which was as follows:
    “The condition of the abové written obligation is such, that whereas the said Jacob and Benjamin Knight have been and now aré imprisoned in the prison at Portland, in the said Maine district, by virtue of an execution issued against them on a judgment obtained against them by the said United States, at -the District Court of the United States for Maine district, which was begun and holden at Portland, within and for the district of Maine, on the first Tuesday of December, A. D. 1837, for the sum of eight thousand four hundred and sixty-two dollars and thirty-six cents, principal, and one hundred and six'tv-one dollars and seventy-nine'cents for interest thereon, to the 19th day of December, aforesaid,, and costs of suit taxed at twenty-four dollars and forty-seven cents, and also for all legal .interest that may accrue on said sum of eight thousand four hundred and sixty-two dollars, and thirty-six cents, from the said 19th December, until said, judgment shall be fully .discharged and satisfied, with one hundred cents more, for one writ of execution, and the officer’s fees and charges for commitment, taxed at ninety-seven dollars and forty cents.
    “ Now, if the said Jacob Knight, and Benjamin Knight, from the time of executing this bond, shall continue true prisoners, in the custody of the jailer, within the'- limits of the jail yard, until they shall be lawfully discharged, and shall not depart without the exterior bounds of said jail yard, until lawfully discharged from said imprisonment, according to the laws'of the United States in-such cases made and provided, and commit no manner of' escape, then the said obligation to be void; otherwise to remain in full force.”
    In this case the parties in the Circuit Court agreed to the following statement of facts: “On the 30th day of January, last past, Jacob and Benjamin Knight were committed to the jail in the city, of Portland, on an execution issued on a judgment in favour of the said United States, against said Jacob and Benjamin; whereupon the said Jacob and Benjamin,.as principals, and Isaac and Edward Knight as sureties, gave the bond declared pn in this suit;.that said Jacob and Benjamin continued to remain within the limits of the town of Portland, exclusive of the 'islands, and did not depart therefrom up to the time of the commencement of this suit, nor have they since departed therefrom; but neither the said Jacob nor Benjamin, from the time of the execution of said bond, nor afterwards, at any timé, lodged in the night time within the walls of said jail, but remained at large within the limits of said town of Portland, exclusive of the islands belonging to the same, both day and night.
    “ If, upon the foregoing facts, the Court are of opinion that the condition of said bond has' been -broken by the said Jacob and Benjamin, and that they have made an escape, then the Court are to render judgment, to be entered as of said October term, and as on verdict rendered for the said United States; and if the Court shall b,e of opinion that the obligation of the bond has not been broken, then judgment to be rendered, in manner aforesaid, for the said defendants.”
    And each party reserves to themselves the right to a writ of error, to reverse any such judgment, as may, as aforesaid, be rendered by said Court in the case.
    The justices of the peace of the county of Cumberland, on the 29th May, 1787, established the “proper boundaries of the jail yard in the coünty, to be: beginning at the bottom of Love lane, at low-water mark; thence up said lane, including the houses.on each side thereof- to the northerly side of Back street; thence down said Back street, including the houses on both sides thereof, to King street; from thence down said King street, including the houses on both sides thereof, to low-water mark; thence by low-watpr mark'to the first bounds, including all the ground and' buildings within the aforesaid limits.”
    Afterwards, oh the 16th of October, 1798, the limits of the jail yard were extended to “ the town pf Portland, exclusive of the islands:” and on the 10th of September, the judge's of the Court of Sessions ordered, “that the bounds of the jail yard be'extended, over the whole county, and to the exterior limitfe thereofwhich are hereby fixed and established as the bounds of the jail yard for the said county of Cumberland.”.
    At the October sessions of the Circuit Court, judgment, oil the facts agreed, was given, that “ the obligation of the bond was not broken;” and the United States prosecuted this writ of error.
    The case was argued by Mr. Gilpin, Attorney General of the United States,- for the plaintiff in error;. and by Mr. Evans, for the defendants.
    Mr. Gilpin, for the United States,
    submitted to the Court that the obligation, of the bond given by the defendants to the United States wafe broken :
    1. Because they were only entitled, pursuant ^o the act of Congress of 6th'January, 1800, to the like privileges of the yards or' limits of the said jail, as persons confined on process from the Courts of Maine were entitled to at the time that act was passed. 1 Story’s Laws ti. S. 715.
    2. Because the privileges of persons confined on process from the Courts of Maine at the time that act was passed, did not extend to the privilege of'being outside of the walls of the jail during the night-time.
    Mr. Gilpin continued:
    The conditions of the bond which the defendants gave to the United States were: 1. That Jacob and Benjamin Knight should continue true prisoners in the custody of the jailor, within the limits of the jail yard, until they should be lawfully discharged. 2. That they should not, depart -without the.exterior limits of the jail yard, until lawfully discharged from imprisonment according to, the laws of the:United States:'and, 3. That they should commit no manner of escape. A violation of either of thesé conditions, by Jacob or Benjamin Knight, entitled‘the United States to a judgment for.the penalty of the bond, The facts are, that although neither of them did depart beyond the limits of the town of Portland exclusive of the islands, which constituted the boundaries of the jail yard, yet neither of them did at any time lodge at night within the walls of the jail, but’ both went, at large within the boundaries' during the night as well as the dáy. The Circuit Court, adjudged that this was no breach of either of the conditions of the bond.
    The correctness of this judgment depends upon the meaning of “ true imprisonment)” and an escape” therefrom. ,A true imprisonment, under an execution from the Courts of the United States, is that which the laws of the United States prescribe, and an act of the prisoner, before his discharge, at variance therewith, is an escape. The United States, not having' jails in the states for the custody of their prisoners, recommended to the state legislatures, on the 23d September, 1789, (1' Story’s'Laws, 70,) to make it “ the duty of the keepers of their jails,, to receive and safe keep therein, all prisoners committed under the authority of the United States,” until lawfully discharged; and to subject them to the same penalties as in the case of prisoners committed under the state laws. '• To this recommendation Massachusetts,;of which Maine then constituted a part, acce'ded on the 26th February, 1790, (1 Laws of Massachusetts) 487 ;)• thus-requiring all prisoners committed under the laws of the United States, to be “received and safely kept” in the jails of Massachusetts. On the 5th May, Í7.92, (l Story’s Laws, 246-,) Congress extended, for a limited period, to persons so imprisoned, “ like privileges of the yards or limits of the jails,”- as persons confined for debt under judgments of the state Courts; ..but subject also to “the like regulations and restrictions.” These privileges they renewed, also for -limited periods, in 1794 and 1796, (1 Story’s Laws, 340. 441;) and finally made them permanent by the aCt of 6th January, 1800. 1 Story’s Laws, 715. Since then, and previous to the present suit, they have passed no additional act upon the subject. The law, therefore, in regard to the imprisonment of debtors of the United States is, that they are to have the same privileges, and be subject to the same restrictions, while in jail, as debtors under process from the state Courts had or were subject to, on the 6th January, 1800; that then,- and only then, are they “ truly imprisoned;’? and that the jailor is subject to the penalties attendant on their “ escape,” if he allows them any other privileges, pr relaxes any of those restrictions.
    What, then, were the privileges and restrictions of an imprisoned debtor in Massachusetts in 1800?- They were, as declared in the act of 21st February, 1785, (1 Laws of Massachusetts, 221,) that he might have “a chamber and lodging in any of the houses or apartments belonging to the prison, and liberty of the yard within the day time.” These were the privileges of the debtors,' and- the restrictions upon them : to lodge in any apartment belonging to the jail, and to be at large within the limits of the yard in the day time. To lodge elsewhere, or to be set at large even within the limits of the yard during the night, was not a “ true imprisonment;” but clearly amounted to “ an escape.” The words of the law seem too plain to permit a doubt as to this construction; but if there be-any, it is removed by the judicial decisions of the Courts of Massachusetts. The rule laid down in the case of M‘Keen vs. Delancey, 5 Cranch, 32, that the construction given by the State Courts to state statutes is to be adopted, has been always upheld by this Court. Applied- to the present case, it is conclusive. A series of decisions upon this statute has established, as.au absolute restriction on the privileges of an imprisoned debtor, that he must lodge in an apartment belong to the jail j and that .he must not be' absent from such ‘lo'dging, or outside of the-jail, at night; it has established,-that a violation of this restriction is “ án escape.” Bartlett vs. Willis,', 3 Mass. Rep. 105. Clapp vs. Cofran, 17 Mass. Rep.101. Freeman vs. Davis, 7 Mass. Rep. 301. Burroughs vs. Lowder, 8 Mass. Rep. 379.- -Trull vs. Wilson, 9 Mass. Rep. 154.
    It is thus.apparent, that under the laws;of Massachusetts an imprisoned debtor who should lodge outside of the jail, or be absent therefrom at night, would not remain, a true prisoner,” but would “ commit an escape:” and. as the acts of Congress of 1789 and 1800, while they extend-the same privileges, also impose the same restrict tions on debtors imprisoned on process from the Courts of the United States; it follows that Jacob and Benjamin Knight did ho.t “remain true prisoners,”; but that • their acts amount to the .cojnmission oí '“ an escape.” Consequently, the condition of the bond of the defendants has been broken, and the judgment of thé Court-below is erroneous.
    Mr. Evans, for the. defendants in error,
    contended .that the condition of the bond in 'suit’had not been broken:
    .' “ 1. Becaüse the act of Congress of 6th January,. 1800, gives to persons imprisoned bn execution, at the-suit of .the United States, the same privileges-and liberty of jail, limits as the laws of the states, at the time of such imprisonment, allow to persons confined on processes issuing,from the state Courts; 'and- by the laws of Maine, in force at the date of the bond “1 suit, .it was not required of persons .entitled to the jail limits, to remain within the walls of the jail in'the-bight-time. ' ,
    “2.- Because, by the act.of Congress of 1828, ch. 68, the same proceedings on writs of execution-, issuing from Courts of the United States, are required, as were then uséd in the'state Courts: and by' the laws of Maine, then, in force, proceedings on processes issuing from the.state Courts, did not require debtors, who'Were entitled.to. .the jail limits, to remain within the walls 'of the prison at night. 1
    “The bond was given stipulating, that the debtors to the United States, Jacob Knight and Benjamin Knight, should continue within the limits of the jail- yajd until they should be lawfully discharged:' and the agreed facts state,-.that “they continued to remain within the limits of the town- of Portland, exclusive of the islands, and did not depart therefrom, up to the time of the commencement of the suit.”
    - - It is said, that they had not-continued within " the limits’! which-were established when Congress passed the act of 23d September, 1.789, those limits having been established under-the laws.'of Massaehusetts, prevailing in Maine, authorizing the usé of her jails by the United-States, on the 27th of May, 1787. It is admitted, the defendants continued, from the time of the execution of the bond, witbin the jail limits established under the .laws of Maine, before the bond was- given, and in force up to ■ the period at which this suit was instituted.
    What laws relative tp jail .limits are in force in the state of Maine? The United States do not deny, that if the laws now in force apply to the, case of the defendants, they are not liable on the bond!
    When the state of Maine came into the Union, all the laws of 'Massachusetts,- which had before been in force, were repealed. The act of the legislature of Massachusetts, authorizing the use of her jails by.the United-States, of 26th February, 1790, did not exist. No laws but those of-Maine, since she became a state, give to the United States the right to confine her debtors in the jails' of that state. Such persons, can only be confined in the jails of Maine, according to- the laws of Maine.
    It is submitted to the Court, that the acts of Congress of 23d September, 1789, (1 Story’s Laws of the United States, 70;) of 5th May, 17.92, (2 Story’s Laws, 246,) and the acts of 1794, 1796, and 1800, adopted,'prospectively, the legislation of the states as they might from time to time regulate the jail yards. This is the plain stipulation of the laws. The legislatures of the states stood on a kind of contract. If you will grant to the United States the tise of your jails, persons wlio may be -confined at the instance of the United States shall be.subject to the regulations of. the states. r
    The construction of the acts of Congress which is claimed by the United States, would place citizens of the United States, when sued in the state Courts, in a different situation from that in which they would be when under execution by process from the Courts of the United States. This would produce discord and dissatisfaction ; complaints would be justly urged against the laws of the United States as-oppressive. The purpose of the law was to produce harmony. ' The fair and liberal construction of the legislation of Congress on this subject is, that person's confined at the suit of the United Stapes, shall have the same regulations applied to them as are in-force in relation to persons imprisoned under,process from the Courts of the states of the Union.
    The acts of Congress relating to process in the Courts of the United States, declare that the forms of- process shall be the same as the forms “now” used in the states. Such has been th.e construe-, tion of the process acts. But in the act of 1789, relative to imprisonment, and in the subsequent acts of Congress, there is nó such term as “now.” . The cases which have beén cited by the Attorney General, as to the process acts, have, therefore, no application to the imprisonment acts.
    It has been questioned whether Congress have the power, constitutionally, to, adopt, prospectively, the legislation of states. This is no longer, a question — so far as- the action of Congress can ■ give a construction to the Constitution — Congress have prospectively adopted the state practice in actions in the Circuit Courts.

      ■ .In regulating the militia, Congress have adopted, prospectively, the' state regulations; and have consented to the .discipline of the militia being under and in conformity with state .laws. Exemption from militia duty is determined by.the state rules.
    There is no case in which it. has been decided that thé powers of the legislation of the United States are not prospective. In the case of the United States vs. Noah, sheriff, &c., it was decided, that, a .“ sheriff of a Court under the act of Congress of January 6th, 1S00, is bound to take a bond for the limits as provided by the. state laws, from a prisoner confined in process from the Courts of the United States; and false imprisonment would lie on his refusal.” Paine’s C. C. R. 368. It was also decided in the same cáse, that “process” in the act includes executions as well as mesne process: and that a bond for the limits, taken by the sheriff, from a prisoner under process from the Courts of the United States, has in all respects the same incidents, and the like legal effect with a bond taken under the.state laws.
    The.'act of the legislature of New York, making it the duty.of the sheriffs of counties to receive prisoners committed under pro-mess from the Courts of the United States, was passed in 1801, and this act gave the sheriffs of the state, authority to take bonds .for the limits. The act of Congress authorizing the confinement of the prisoners under process of the United States, was passed on the 6th January, 1800. This case fully decides the adoption of the prospective or future legislation of the states, in such matters. This decision has never been questioned.
    The bond sued upon in the case before the Court, was not taken under the Massachusetts law of 1789. The condition of the bond is that the persons shall continue true prisoners within the limits of-the jail yard. What is the provision in the law of Massachusetts ?. Not that prisoners should have liberty of the jail yard within the prison. The law of 17S9 was, that the person should continue within the limits of the prison. This -is not the jail yard. This will be found fully explained.in 3 Mass. Rep. 98.
    The construction which the Court will give to this bond will be strict. ■ ■ The. action is against the sureties, and they are entitled to all the benefits of such a construction. Cited 9 Wheat. 680.
    . The act of Congress of 19th May, 1828, c’n. 68, provides, that writs of execution and proceedings shall be such as the laws of the state shall determine. Proceedings are to be according to the provisions of the state lawsi It.has been decided in Beers vs. Houghton, 9 Peters, 329, that proceedings comprehend all the acts after execution. In that case a discharge by the state law of Ohio discharged the bail.
    If the interpretation of “'proceedings” is not such atf is contended for, no power exists to extend the privileges of the jail limits as regulated by the state, laws. If the acts of Congress on this subject are not prospective in the new states, no authority, of this kind exists.
    It is submitted, that the act of Congress of 1828, extends to all suits by the United States. The provision is as .to all process issuing from the Courts of the United Sfates; no distinction exists as to suits hy the United States. ■
    There was a ease decided in Massachusetts,.where a party confined at the suit of the United States; had the benefit of the.poor debtor’s, act; an act passed after the act of 1789.
    Mr. Gilpin, Attorney -General, in reply,
    The positions attempted to be established on the part of the plaintiffs in error, were these: that if Jacob and Benjamin Knight had not “ remained true prisoners,” or had committed what amounted to “an escape,” in contemplation of the laws of the United'States, the condition of the bond was broken, and the judgment of the Circuit Court was erroneous; that the law of the United States ascertaining these points, was the act of 6th January, 1800, (1 Story’s Laws, .715,) which gáve the.privileges and adopted the restrictions in rer gard to imprisoned debtors, which then existed under the state laws; and that these state láws made it “an escape,” if the debtor lodged at night elsewhere than in an apartment belonging to the jail, or had remained..outside of the jail at night;- which it was admitted Jacob, and Benjamin Knight had done.
    .It is Contended on the part of the defendants in error, that even if the .acts-of Jacob-and Benjamin Knight, did amount to an escape under the state laws thus relied on, y.et that the- bond now sued upon, yras.noj: taken in conformity with those laws; that its condition, instead of being in the words of the statute of Massachusetts, is simply that the. parties shall'not depart without the exterior bounds of the jail yard, which they have ' not done;. and that, therefore, the condition has not béen broken, though, they were not within the prison walls at night. To this it is replied, that, even, supposing the Words of the statute hot to have been sufficiently followed, in setting forth, in the bond, the particular condition referred to, yet this objection is met by the' last- clause,-which provides, in general terms, that the parties shall “commit no manner of escape.”' The acts of the parties do clearly constitute “ an escape.” under the statute in question, and amount to a breach of that condition, so asió render them liable to the penalty, even if they were not. sc> iri, regard to the other conditions.
    It is also contended, that even if the privileges of an imprisoned debtor depend on the act óf 6th January, 1800, yet that the construction which limits, them to such as were allowed by tne state laWs, in force at that time, is incorrect. To this it is replied, that the .words bf the act distinctly adopt the regulations of the states' existing, at the time Of its passage, and no others; th.at it could never be the intention Of Congress, if it were within their constitutional power, to sanction prospective legislation oyer which they exercised.no-control; and that, by'repeated decisions of this-Court, it has been held that in adopting state laws of . this character, those only are included,which are actually in existence at'the time. Way-man vs. Southard, 10 Wheat. 41. United States Bank vs. Halstead, 10 Wheat. 59.. Beers vs. Houghton, 9 Peters, 361. Wilcox vs. Hunt, 13 Peters, 378. Anonymous, Peters’ C. C. Rep. 1.
    But the principal ground taken on behalf of the defendants in error is, that, the privileges -of imprisoned debtors, at the time this suit was brought, did not.depend on the act of Congress of 6th January, 1800, but on the act of 19th May, 1828;' (4 Story’s Laws, 2221,) which declared that “ writs of execution and other final process in the Courts of the United States-, and the proceedings thereon, should be the same as were then used in the state Gourts.” To this it is answered, that the act referred to does not apply, to suits in which the United States-are plaintiffs; and that if it did, the.“ proceedings” therein mentioned do not embrace the privileges of the jail limits, as then used in the states.-
    It is a -settled rule, that in general statutes which ■ regulate the recovery of debts, the government is not bound unless they are made applicable to it in express terms, or by necessary implication. This is no invidious prerogative right, but a rule .founded on well ascertained public policy, necessary to protect the public, interests against the negligence of public officers; -and specially to guard the public revenue; It is a rule adopted in many if not all the states of this Union, and probably in most other countries, as well as in the United States; and it has been sanctioned by repeated.judicial decisions. United States vs. Wilson, 8 Wheat, 256. ■« United States vs. Soare,- 2 Mason, 314. United States vs'. Greene, 4 Mason, 433. United States vs. Hewes, (lately decided by Judge Hopkinson in the District Court jof Pennsylvania.) Staughton vs. Baker, 4 Mass. Rep, 528. People vs: Rossiter, 4 ' Cowen, 143. Corn vs. Baldwin, 1 Watts, 54. King vs. Allen, 15 East, 340.
    The act of 19th -May, 1828, is certainly nót applicable, by its terms, to suits to which the United States are.parties; and the whole course of legislation by Congress, in regard to public debtors, refutes any implication that they could intend so to.apply it. They have from the earliest period specially legislated in regard to the debtors of the United States, and the remedies against them; although general laws, independent of these, were at the same time in existence and full force, to regulate the proceedings in all suits between individuals. They adopted their own system in regard to their own debtors; they have from time to timé ajtered and amended that system, without reference to private suits. On the same day, the 6th June, 1798, we find two acts of Congress passed “ for the relief of persons imprisoned for debt;” the one applicable to private suits, the other to those brought by the United States. 1 Story’s Laws, 506. By the act of 2d March, 1799, (1 Story’s Laws, 630,) special and exclusive privileges are given for recovering the. amount of unpaid revenue bonds, in suits brought by the United States. On the 6th January, 1800, the general provisions of an act for relieving imprisoned debtors, are made applicable to those “ imprisoned at the suit of the United States,” by express terms. 1 Story’s Laws, 715.- On the 3d March, 18.17, we have an act of a similar character, limited by its terms to persons indebted to the United States. 3 Story’s Laws, 1652. On the 15th May, 1820, on the 3d March, 1825, and On the 2d March, 1831, (3 Story’s Laws, 1791,1997; 4 Story’s Laws, 2236,) we find acts of Congress legislating specially in regard to public debtors; which show conclusively that they were not embraced within the general provisions for the recovery of debts due from orié individual to another. It has been clearly the intention of Corigress to keep under their own control the Gourse of proceeding against public debtors; they never intended to blend this with the general regulations they might establish in regard to private, suits; much less can it be conceived that, they intended that persons indebted, or in'default to the treasury of the United States; in relation to whom they had passed so many special laws; should be entitled to every privilege which the laws of each different state might deem it just to extend to a private and individual debtor.
    Supposing, however, that the act of 19th May; 1828, is to be construed as embracing, by implication, suits in which the United States are plaintiffs; yet it is submitted that the privileges of the jail limits, which are given to an imprisoned debtor, are not'“ proceedings on a writ of execution or other final process,” within the meaning of that act.
    The language of the act itself is clear. It is confined tó “proceedings on an execution.” The privileges of the jail limits, are in no sense such. Proceedings on an-execution are. something done by virtue thereof; something which the writ has directed to be done; something that “ proceeds” between the time that the writ issues and is returned. The term, says Chief Justice Marshall, “ denotes progressive action;” it relates “ to the conduct of the officer while in possession of the execution;”, it “prescribes'his conduct in executing the process.” Wayman vs. Southard, 10 Wheat. 2$. 31, 32. “The form of the writ,” says Judge Thompson, “contains, substantially, what is to be done under it;” it is the “duty of the officer to execute the process according to its commands.” United States Bank vs. Halstead, 10 Wheat. 57. 64. These proceedings include, in the language of Judge Story, “the, conduct of the officer in.the .service of the process, arid the exemption of the defendant from arrest.” Beers. vs. Houghton, 9 Peters, 362. 368.. Such,, clearly, is the meaning of “ proceedings on an execution;” obedience to the commands of the writ; progressive acts done by the officer of the Court in pursuance of its requirement; his return that he has done so: these are the proceedings on the writ, and they are complete when the marshal has so returned it; the writ itself has then become a part of, the records of the Court, and no further proceeding on it- can take piace. The defendants have been committed, as the writ directed; the privileges to which they máy be entitled are independent of that process; they form no, part of the conduct of the marshal; he has nothing to do with them.: how'then can they be regarded as a portion of his proceedings ?

      Such, too, appears to be the evident meaning of the acts of Congress, or there has been a system of parallel legislation equally inadvertent and unnecessary. The object of the act of the 19th May, 1828, is, by its title, " to regulate' processes;” and it relates to the ““ proceedings on final process.” Now if these words include within them the privileges of jail limits given by the state laws to an imprisoned debtor, then were the acts of Congress of 30th May, 1794, (1 Story’s LawSj 340,) of 28th May, 1796, .(1 Story’s Laws, 441,) and of 6th January, 1800, (1 Story’s Laws, 715,) totally useless.; since at the time each of these laws was passed, the former act “ to regulate processes,” passed on the Sth May, 1792, (1 Story’s Laws, 257,) was in full force; and embraced the “ proceedings on final process,” in language even more full than that of the act of 19th May, 182S. Is it conceivable that if Congress considered the words of the act of 8th May, 1792, which direct that "the modes.of proceeding in suits shall be the same as were then used in-the-state Courts,” as embracing the privileges of the jail limits, to which a debtor was entitled by the state laws; they would have passed-the acts of 1794, 1796, and 1800, for the express purpose of conferring those privileges ? Again: the titles of the .acts show conclusively that their objects were different. The acts of 8th May, 1792, and 19th May, 1828, are stated to be acts for the regulation of processes; those of 1794, 1796, and 1800, are stated to be for the relief of imprisoned debtors, and they clearly arise out of the resolution of Congress, of 23d September, 1789, (1 Story’s Laws, 70,) which placed the prisoners of the United States in state jails; and were intended-to put them on thé same footing, with respect to the mode of imprisonment, as other debtors then were.
    The same distinction may, it is thought, be traced in the decisions of this Court upon the language of these acts. When its opinions are'attenlively examined, it will not be found that it has ever considered the privileges of the jail limits, given by the act of 6th January, 1800, as embraced in the process acts. In the case of Randolph vs. Donaldson, 9 Cranch, 85, the custody of a prisoner, after his commitment, was held to be a matter with which the marshal had nothing to do ; although the act of 24th September, 1739, directs that officer to execute all process, and consequently devolves upolx him every act which can be regarded as a proceeding thereon. In the case of Wayman vs. Southard, 10 Wheaton, 20, the whole scope of the opinion refers to the conduct of the marshal while the \vrit is in his hands, as. constituting his “ proceedings on the execution.” It speaks, in express terms, of- the act of 1800, as that which authorizes the marshal to allow the benefit of prison rules, to those who'are-in. custody under process issued from the Courts of the United States, in the same manner as to persons imprisoned under state process; it refers to the previous temporary laws having the same object in view; and it alludes, with evident doubt, to an argument deriving' this authority from the process act. 10 Wheaton, 35. The facts of that case also show-the nature of the proceedings; they were the correctness of the marshal’s mode.of sale under a fieri facias; the correctness of the return made by him; the question whether or not he had obeyed the commands of the writ. In the case of the Bank of the United States vs. Halstead, 10 Wheaton., 54, a similar question was involved; it related to the propriety of the marshal’s conduct, and whether, or not he had proceeded correctly iri his mode of executing the process. The casé of Beers -vs. Houghton, 9 Peters, 356, arose expressly on the mode of proceeding by the marshal under an execution. He was directed by the writ to arrest a person ; he found him to be exempted by the state laws from arrest; his return, to that effect was held to be proper;- his proceedings were strictly proceedings on the execution; the person he was ordered to arresr was, in point of fact, legally discharged from custody, as completely as if he had paid the debt; and the marshal so made his return. As far as the proceeding on -the execution was involved, it was in no respect similar to the privilege of the jail limits; the latter is a mere incident to the custody of the debtor, whether granted or not, the -proceedings under the writ go on; it does appear upon the record; it doés not ■ affect in any way the discharge or satisfaction of the debt. '
    ■It thus appears, that whether we take the words and plain intent of the act of 19th May, 1S28; or the general scopé of legislation by Congress, iii regard.to processes, and to the imprisonment .of debtors'; or' the’cour&e of judicial'decision, as applied to the'proceedings of a marshal in the execution of final process;- the provisions of. that act cannot be properly considered as embracing the privilege of jail, limits, or-as applicable to the present case.- • That case must depend on'the provisions of the act of 6th January, 1800; which, by subjecting the defendants to the laws of Massachusetts, then -in existence,' deprives them of the privilége to-which they would have been entitled, had they, no,t failed, to -co.mply with the term's prescribed by-that law, which aje also the conditions mentioned in the bond.
   Mr. Justice Barbour

delivered the opinion of the Court.

This casé came before us upon a writ of error to the Circuit Court of the United States,'for the District of. Maine.

It was an action brought upon a bond given to the United States, in the year 1S38, for the liberties of the'jail yard in Portland. The ' general issue was pleaded, with leave to give special matter' in ev.i-dence. The condition Of the. bond,'after reciting that Jacob Knight and Benjamin Knight have been, and now are, imprisoned in thé prison at Portland, in Maine District, by virtue of an execution issued, against them, on a judgment Obtained against them by the' United States,, at the District Court of the United States, for the Maine District/ &c., proceeds as follows: “ Now if the said Jacob Knight and Benjamin Knight, from the time of executing this bond, shall continue true prisoners, in the custody of the. jailor, within the limits of the 'jail yard, úntil they shall be -lawfully discharged, and shall not depart without the exterior bounds of said jail yard until lawfully discharged from said imprisonment,'according tó'the laws of the United States, in such cases made an A provided, and commit no manner of escape, then the said obligation to be void; otherwise, to remain in full force.”

■ The parties agreed to a- statement of' facts, as follows r “- On the 30th of January last past, the said Jacob and Benjamin were committed to-the jail in the city of Portland-, on an execution issued on a judgment in favour of the United .States, ..gainst-said Jacob.and Benjamin: whereupon the said Jacob and Benjamin,.as principals, and the said Isaac and Edward, as sureties, gave the bond declared on in this suit; that Jacob and Benjamin continued to remain within the limits of the town of Portland, exclusive of the islands, and did not depart therefrom, up to the time of the commencement of this suit,.nor have they sincé departed therefrom; but neither the said Jacob nor Benjamin, from the time of the execution of said bond, nor afterwards at any time, lodged in the night time within the walls of said jail, .but remained at large' within the limits of said town of Portland, exclusive of the islands belonging to the same, both day and night.”'

Upon this agreed, state of facts, the Court gave judgment for the defendants: to reverse whieh, this writ of error is brought.

It appears from the record,'that at a Court of General Sessions of the Peace, for the county of Cumberland within which Portland is situated, held in the year 1798, the limits of the town of Portland, exclusive of the islands, were fixed and determined, as the boundaries of said jail yard ; and.that the Court of Sessions at Portland, in the year 1832, extended the bounds of the jail yard over the whole county, and to the exterior limits thereof. It appears, also, from the facts ’ agreed, that Jacob and Benjamin Knight continued to remain within the town of Portland, exclusive df the islands, withoutever having departed therefrom; but that neither of them lodged in the night time within the walls of the jail, but went at large, both day and night, within the limits of the town of Portland, exclusive of the islands.

' Upon this state of facts, it has been contended by the Attorney General, that the imprisoned debtors were guilty of an escape; because they-were not within the, walls of the jail in the night time ; although they always continued both day and night, within the limits of the jail yard. It is said, that the only act of Congress in force, at the date of the bond, in question* which entitled the parties to the privileges of jail yards when imprisoned on process issued from any Court of the United States, at the suit of the United States, was the act of the 4th January, 1800; which enacts, “that persons imprisoned on process issued from any Court of the United States, as well at the suit of the United States, as at the suit of any person or persons; in civil actions, shall be entitled, to like privileges of the jails, or limits of the respective jails, as persons-confined in like cases on procfess,,from the Courts of the'respective states are entitled to, and under the like regulations and restrictions.” That this act of Congress only adopted the state laws then in force; that by the law of Massachusetts (of which Maine was then a part,) then in force, .as construed by her Courts, it was an escape for a debtor, having the liberty of the yard, to be without the walls of the prison in the night time; although he was within the limits of the yard. It is certainly true, that this-Court has construed the act; of Congress adopting state laws- in relation to writs and processes, and the proceedings thereon, as applying to the state laws then in force. 10 Wheat. 1. 51. 9 Peters, 331. It is also equally clear, that the construction of the laws of Massachusetts then in force, as to the debtor being without the walls of the prison during the night time being an escape, is such as has been stated; the decisions cited at the bar fully show it.

Whilst, however, we admit these premises, we cannot yield our assent to the conclusions drawn from them.

If it were even conceded that thé'act of Massachusetts of 1784 was in force at the date of the execution of the bond in question; although it would subject the officer to liability, yet it would not have affected these parties. From the language of that áct, a person imprisoned for debt, was allowed to have a chamber and lodging in any of the houses, or-apartments belonging to the prison, and liberty of the yard within tire day time.. It was the- construction put on the.se words, which made it necessary for the debtor, to be within the walls of the prison in the night time. In the bond in question, there is no such language. Whilst, therefore, the officer might have been liable, for taking from, the debtor a bond, not in conformity with the statute, but extending to him a greater privilege than was allowed by law; yet in this case, the suit being on the bond, the- parties are bound for nothing whatsoever, but what is contained in the condition of the bond, whether it be or be not conformable with the law. The condition of this bond is satisfied by the parties not departing without the exterior bounds of the jail yard, whether they are within the prison walls in the night time, 5r not: and .it appears from the agreed case, that they did not depart without those bounds; there was then no breach'of the condition of the bond.

But we now proceed to the consideration of another question of very great practical importance in the Courts of the United States; and that is, whether the act of 1828, May 19th, entitled an “ act fur-, ther to regulate .processes,-in the Courts of the United States,” has not since its passage regulated the right of imprisoned debtors to the. privilege of the jail liberties ?

The third section of that act is in the following words: “And be it further enáctéd, that writs of execution and other final process, issued on judgments and decrees rendered in any of tlje Courts of the United States, and the proceedings thereupon, shall be the same, except their style, in each state) as are now used in the Courts of such state;” &c., with a proviso, “that it shall be in the power of the Courts, if they see fit, in their discretion, by rules of . Court, so far to alter final process in said Courts, as to. conform the same to any change which may be adopted by the legislatures of- the respective states, for the state Courts.”

. It is first objected, that whatsoever may be the construction of this section, as now governing executions, in case of other parties, yet it does not embrace those issued' on judgments rendered in favour of the United States; and this upon the groúnd that the United States áre never to be considered as embraced, in.ány statute, unless expressly named.

The words of this section being, “ that writs of execution and other final process, issued on judgments and decrees rendered in any of the' Courts of the United States;” it is obvious; that the language is sufficiently comprehensive to embrace them: unless they are to be excluded, by a construction founded upón the principle just stated. In Bacon’s Abridgment, title Prerogative, 3 — 5, it is said, that the general, rule is, that where ah act of Parliament is made.. for the public good, the advancement of religion and justice, an.d to prevent, injury and wrong, the king shall be bound by such act, though not particularly named- therein. But where.a statute is general, and thereby any prerogative, right, title, or interest, is divested, or taken-from the king, in such case he shall not be bound; unless the statute is made by express words, to extend to him. - It is a settled principle, that the king is not, ordinarily, barred, unless. named by an act of limitations. The principie expressed in the maxim, milium tempus occurrit regi, rests upon the ground, that no. laches shall "be imputed to him. The doctrine, that, the government should not, unless named, be bound by an act of limitations, is in accordance with that just cited from Bacon, because if bound, it would be barred of a right; and, in all such cases, is not to be construed to be embraced unless named, or what would be equivalent,unless the language is such as to show clearly that-such was the intent of the act. The same principle has been decided in New York, Massachusetts, Pennsylvania, and no doubt, in.other states; and all upon the same ground. Not upon any notion of prerogative; for even in England, where the doctrine is stated under the head of prerogative, this, in effect, means nothing more than that this exception is made' from the statute, for the public good; and the king represents the nation. The real ground is a great principle of public policy, which belongs alike to all governments, that the public interest should not.be prejudiced by the negligence of public officers, to whose care they, are confided. Without undertaking to lay down any general rule .'as applicable to cases of this kind, we feel satisfied, that when, as in this case, a statute which proposes only to regulate the mode of proceeding in suits, does not divest the public of any right,-does not violate any principle of public policy; hut Qn the contrary, makes provisions in accordance with the policy which the government has indicated by many acts of previous legislation, to conform to state laws, in giving to persons imprisoned under their execution, the privilege of jail limits; we shall best carry into effect the legislative intent, by construing the executions at the suit of the United States, to be embraced within the act of .1828. •

Having come tó Ibis conclusion, it only remains to inquire whether the words in the act .of 1S2S, “th,e-proceedings thereupon,” (that is on executions,) embrace as a part of those proceedings, the rights of an imprisoned debtor to have the privilege of the. jail limits? Upon'this question, we are relieved from the necessity of argument, by the decisions, of this Court.

In the.case of Wayman vs. Southard, this Court was expounding the meaning of .the words, modes of proceeding,” in the process act of 1792;.and the question was, whether these words included “ proceedings ou executions.” They decided, that they did; but the act of 1S2S-,- passed, after the decision of the case of Wayman vs. Southard, adopted the very terms, “ proceedings on executions/? because the .expression is, “proceedings thereupon,” referring to executions,, which.hqd just preceded it. Andthe reasoning of the Court in Wayman- vs. Southard, proves clearly, that these: last words: would include -proceedings-by debtors to obtain the privilege of the jail liberties. . In the same case of Wayman vs. Southard, it was objected, that the. process act of 1792 ought not to be construed as embracing the proceedings on executions, because i-f it did, it wpuld furnish the rule as well' for-writs of capias ad satisfaciendum; as of fieri facias; and that the marshal would be aS much bound to allow a prisoner the benefit of .the rules under the act of 'Congress of 1800, as to sell upon the notice, and on the credit'prescribed by the state laws; and fhat as the act of 1800 had, by separate and distinct legislation, provided for the jail limits, Congress could nojt be- supposed to have provided for the same subjects in the procéss act.. But the Court considered this separate provision as .to the-jail limits, merely as a cumulative act of legislation, with a view to remove doubts that might have arisen from the jails in which prisoners were confined not belonging to the United States. And this answers the argument urged at the bar, upon the ground of the several acts which, especially-, provided for jail liberties, against the construction of the act of 1.828,; which would- extend to embrace the privilege of jail liberties, within .the -terms, “proceedings thereupon,” that i.s, on executions, In Beers et al. vs. Houghton, 9 Peters, 362, this Court in construing this very act of 1828, say, “the words,-the proceedings oh writs of execution, and-other final process', must from their very import' be construed to include all the laws, which regulate the rights, duties and conduct of officers, in thé service of such process, according to the exigency, upon .the person, or property of the execution debtor; and also, all,the ex- . eruptions from arrest, or imprisonment under-each process, created by-those laws.

This quotation.covers the.whole ground of cohtroversy, on ,the effect of these words, “proceedings thereupon.? We,are.of opinion, therefore, that, the act of./1828, giyes to debtors imprisoned under' executions, from the Courts of the United. States at the.suit of. the United States, the privilege of the jail limits in the several states, as they were fixed by the laws of the several states at the date of that act;

We give no opinion, whether that act would extend so far as to enable the imprisoned debtors of the United States to avail themselves of the bénefit of the insolvent laws of the statesj as the question does not arise in' this case. .

Upon the whole .view of the case] we think the judgment of the Circuit Court c'orrebt, and it is, therefore, affirmed.

This cause-, came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maine, and was argued by counsel. On cdnsideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said Circuit Court, in this cause be, aiid the same is h'ereby, affirmed.


source: Caselaw Access Project

author: Mr. Justice Catron

license: Public Domain

text:
    Samuel L. Fowler, Plaintiff in error, vs. Harris Brantly and others, Defendants in error.
    Action on a promissory note for two thousand dollars, drawn for the purpose of being discounted at the Branch Bank at Mpbile, payable'to the cashier of the bank or bearer, and upon which was written an order to credit the person to whom the note was'sent, to be by him offered for discount to .the bank for the use of the drawers, the order being signed by all the makers of the note. The bank refused to discount the note, and it was marked with a pencil mark, in the manner in which- notes are marked by the Bank which are offered for discount. The agent of the drawers, to whom the note, was entrusted .to bé offered for discount, put it into circulation, after endorsing it; having disposed of it for one thousand two hundred dollars, for his own benefit, without the knowledge of the drawers; and communicated to the purchaser of, the note that it had been offered for discount, and rejected by the bank. The note was afterwards given to other persons in part, payment of. a previous debt, anil credit for the amount was given in the account with their debtors. The form of the note was that required by the bank when notes are discounted, and had not been used before it had been so required by the bank. The Circuit Court instructed the jury that the plaintiff was not entitled to recover from the draw- ■ ers of the note. Held, that the instruction was correct.
    The known custom of the bank, and its ordinary modes of transacting business, including the prescribed forms of notes offered for discount, entered into the contract of those giving notes for the purpose'of having them discounted at the bank; end the parties to the note must be understood as having agreed to govern themselves by such customs and modes of doing business: and this, whether they had actual knowledge of them or.not: and it was the especial duty of all those dealing with the note to ascertain them, if unknown. This is the established doctrine of the Supreme Court, as laid down in Renner vs. The Bunk of Columbia, 9 Wheat.; in Mills vs. The Bank of the United States, 11 Wheat.; and in The Bank of 'Washington vs. Triplett and Neale, 1 Peters, 32.
    A note over-due, or a bill dishonoured, is a circumstance of suspicion to put those dealing for it afterwards on their guard; and in whose hands it is open to the same defences it was in the hands of the holder, when it fell due. After maturity, such paper cannot be negotiated.
    IN error to the Circuit Court of the United States for the Southern District of Alabamá.
    In the Circuit Court of Alabama an action was instituted on a promissory note, by the plaintiff in error, against the defendants; and a- verdict and-judgment were entered for the defendants. The plaintiff took exception to the charge of the Court, and prosecuted this writ of error.
    The facts of the case, and the matters which .were the subjects of the exceptions taken to~the rulings of the Court, are fully stated in the opinion of the Court.
    The Case was argued.at January term, 1839, by Mr. Ogden, for-the plaintiff in error; and by Mr. Van De Graff, for the'defendants. It was held under advisement, for a reference to a¡ statute of Alabama, until this term.
   Mr. Justice Catron

delivered the opinion of the Court.

This is an action of' assumpsit by the assignee of a note against the makers. The questions of law arising in this cause depend on the construction of a note of hand, in the following words:

“Selma, Dallas County, Alabama, March 1st, 1S36.

“ Eleven months after date, we, Harris Brantly, Peyton S. Graves, and Hugh Ferguson, jointly and severally, promise to pay Andrew Armstrong, cashier, or bearer, two thousand, dollars, value received, negotiable and payable at the Branch Bank of the state of Alabama, at Mobile. (Signed) Harris Brantly,

Peyton ,S. Graves,

Hugh Ferguson.

“Credit: Diego M‘Voy.

Harris Brantly,

Peyton S. Graves,

Hugh Ferguson.”

The note had on it the two endorsements of Diego M‘Voy and William D. Primrose; and that of Taulmin, Hazard, and Company was stricken out. On the face of the note there was, in pencil, the figures 169.

The defendants, the three makers, introduced evidence to prove that the note, in its present form, (except the endorsements,) was sent by one of the makers to M‘Voy, who was his factor in Mobile, to be offered for discount in the Branch Bank of the state in that city as an accommodation note; the proceeds of which were to be forwarded to said maker. That the note was offered for discount and rejected. The factor then proposed to raise money on the note for his own use, without the knowledge of the.makers, and intended to conceal the appropriation of the note from them. The first person to whom he offered to sell the note deemed the attempt a fraud, and refused to purchase. M‘Voy then endorsed and transferred the note to Primrose for one thousand two hundred dollars, communicating to him it had been offered for discount at the bank and rejected.

Taulmin, Hazard, and Company held a note for three thousand two hundred and fifty dollars, on Black, endorsed by Vail and Dade, and by Primrose, and which was past due; to discharge which, in part, Primrose transferred the note iii controversy to Taulmin, Hazard, and Company; and Taulmin, Hazard, and Company endorsed the same before its maturity, to the plaintiff, Fowler, and received credit on their account; they being largely indebted to him at the time.

The leading feature in the cause, involving the principle on which it turns, is this: the note was in the form prescribed by the bank to those who desired accommodations at it; which form was not in use before its adoption there. The memorandum on the left hand side of the noté, and signed by the drawers, was designed to show the officers of the bank to whose credit the money was to be placed, should the note he discounted; and by the usages of the bank, no other person than the one thus named could receive the. money.

- Primrose testified, he knew from the pencil mark on the face of the note,'it had been offered,for discount and refused, when he purchased it.. The cashier proved the pencil mark was made according to the usage of the bank on all notes offered for discount and refused.-

' To a part of the first instruction, that held, if the plaintiff-tóok the, noté in payment .of .a pre-existing debt,, due to him from Taulmiri, Hazard, and Company, ihen. the jury ought to find for the defendants, exception is taken; and the Court refused to instruct the jury, that, if the plaintiff took the note fairly in payment of a debt due to him, ^before its' maturity, without notice of the purpose for which M‘Voy had held it, then he was entitled ta recover.

. And also refused to instruct, if the jury believed plaintiff took-.the note bona fide in payment of a previous debt, that, he had no notice of any fraud; and there were, no circumstances to put him upon an inquiry, into any fraud committed on the part of M'Voy, he was entitled to recover.

■There were other -instructions asked, and -refused; but, as they are in effect the same as those recited, an answer to which will .cover the whole cajfee, they need ftot be further noticed.

The known customs of the bank, and its ordinary modes of transacting business, including the .prescribed forms'of notes offered for discount, were matters of proof, and entered into the contract; and the parties to it must be understood as having governed themselves by such- customs and modes of doing business; and this, whether they .had actual knowledge of them, or not; and it was. especially the duty of all those dealing for. the paper in question to ascertain them if unknown. Such' is the established doctrine of this Court, as laid down in Renner vs. The Bank of Columbia, 9 Wheaton. Mills vs. The Bank of the United States, 11 Wheaton, and the Bank of Washington vs. Triplett and Neale, 1 Peters, 32, 33.

The. note sued on is peculiar in its form; it was made for the purposes of discount, and only intended for negotiation at the bank, and not for circulation out of it. The pencil mark on its face when sold, w.as common to all rejected paper, and was put there by the officers of the bank as evidence of the fact that it had been offered and rejected ; and those dealing for it, with the mark on its face, must be presumed, fo have had knowledge what it imported; as the slightest inqqiry would have ascertained its meaning; These were the legal presumptions attached,to the contract, when.the plaintiff purchased it; and the explanatory evidence to prove the- custom of the bank, was introduced to enlighten the Court and jury in regard to the rules'governing the transaction, and furnishing the law of. the case; and'which the plaintiff, when he purchased the paper, is presumed to have known and understood; as the Court knew and understood it after.it was proved on the trial.

This, was the case made up of law and fact; on which the Court was asked tp chargei the jury,; and not the abstract; proposition whether, on a proper construction of the statutes of Alabama, nego.ti'able paper, payable in bank, purchased bona fide, "and without notice of-an existing infirmity,_but.taken in discharge óf a pre-existing debt, carried the Infirmity with it into the .hands of the purchaser ffor the reason, that the mode of payment was not in the usual course pf trade. , ,

A note oyer-due, or bill' dishonoured, is a circumstance of suspicion,, to put'those' dealing for it' afterwards oh their' guard; and in whose'hands it. is'open for the same defences it was in .the hands of the holder when it. fell due, 13 Peters, 79, After maturity, such paper cannot be negotiable “ in the due course of tradealthough still assignable.' "

So the paper before us carried on its face circumstances of suspicion, so palpable as to put those, dealing for it, before-, maturity, on their guard; and as to require at their hands strict inquiry into .the title of those -through whose hands' it had passed. ' Failing to be thus diligent, they must. abide, by the misfortune their negligence imposed, and stand in the.-condition-of M'Voy.

•As between him and the defendants, .there was-no contract .or liability pn their part: nor as bearer of the note, could he lawfully pass it-off in-the due course of. trade, so as'to'communicate a better title to .another; the face of the paper betraying its character and purposes, and M'Voy's want of authority.

All the rulings of the Court below must be referred to this paper, and to the special- case made by the- proofs, i Any instruction asked, wfiich .cannot be given to the whole extent asked, may be simply .refused; or it may be modified, at the discretion of the Court. No instruction was asked, that coujd. have' been lawfully given; to every one, the Court could well say,.and did.ln substance say, that under no circumstances could' a purchase of this note be made by the plaintiff, from Taulmin, Hazard, and, Company, so as to exempt it in the hands of the assignée,- from the infirmity it was subject to in the hands of M'Voy.

• And in regard to the last- part of the first instruction, where the .jury is in substance told* that if -they believed the note was taken in' payment of a pre-existing debt, due to plaintiff, from Taulmin, Hazardj and Company, still they should find for the defendants: "the Court might have gone further, and instructed the jury, that neither could the plaintiff recover had the note'been purchased bona-fide, and without notice of the ''raudulent conduct of M'Voy.

The judgment is, therefore, ordered to be affirmed.

. This cause came on to be heard on the transcript of the re.cord from the Circuit Court of the United States for the Southérn District of Alabama, and was argued by counsel. On consideration whereof, it is ordered and adjudged bv-this .Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with- costs.


author: Mr. Justice M'Lean

text:
    John F. Games and Nathan Gilbert, Plaintiffs in error, vs. John Stiles, ex dem. of Walter Dunn, deceased, Defendant in error.
    A deed was executed in Glasgow, Scotland, by which land in Ohio, which had bqen patented tp David Buchanan by. the United States, was conveyed to Walter Sterling. The deed recited that it was made in pursuance of a decree of tlie Circuit Court of the United States, for the District of Virginia. No exemplification of the decree was offered in evidence in support of the deed. The Court held, that as Buchanan was the patentee of the land, although he made the deed in pursuance of the decree of the Circuit Court of Virginia, the decree fcould add nothing to the validity of the conveyance; and therefore it was wholly unnecessary to prove the decree. The deed was good without the decree.
    The possession of a deed, regularly executed, is prima facie evidence of its delivery. ■ Under, ordinary circumstances, no other evidence of the delivery of a deed than the possession of it, by the person claiming under it, is required.
    The grantor in the deed was David Carrick Buchanan; and he declares in it that he is the same person who was formerly David Buchanan. The Circuit Court were required to charge the jury that it was necessary to convince the jury, by proofs in Court, that David Carrick Buchanan is the same person as the grantor named in the patent, David Buchanan; and that the statement by the grantor was no proof to establish the fact. The Circuit Court instructed the jury that they-must be satisfied from the deed and other documents, and the circumstances of the case, that the grantor in the deed is the same person to whom the patent was issued; and they declared their opinion that such was the fact. By the-Court: The principle is well established, that a Court may give their opinion on the evidence to the jury, being careful to distinguish between matters of law and matters' of opinion, in regard to the .fact. When a matter of law is given by the Court to the jury, it should be considered by the Court as conclusive; but a mere matter of opinion as to the facts, will ohly have such influence on the jury as they may think it entitled to.
    The. law knows of but one Christian name,' and the omission or insertion of the middle .name, or of the initial letter of that name, is immaterial; and it is competent for the party to show that he is known as well without as with the middle name.
    A deed of lands sold for taxes cannot be read in evidence,, without proof that the requisites of the law which subjected the land to taxes had been complied, with. There can be no class of laws more strictly local in their character, and which more directly concern real property, than laws imposing taxes on lands, and. subjecting the lands to sale for unpaid taxes. They not only constitute a rule of property, but their construction -by the Courts of the state should be followed by the Courts of the United States, with equal if not with greater strictness than any other class of laws.
    The Supreme Court of Ohio has required a claimant under a tax title to show, before his title can be available, a substantial compliance with the requisites of the'law.
    In an action of ejectment, the defendants having entered into the consent rule, the plaintiff in Ohio is not to be called upon to prove the calls of the patent under which he claims, on the ground of establishing the different corners. The defendants are bound to admit, after they have entered into the consent rule, that they are in possession of the premises claimed by the lessor of the plaintiff.
    IN. error to the Circuit Court of the United States for the District of Ohio.
    In 1836, the lessee of the defendants in error instituted an action of ejectment against the plaintiffs in error, in the Circuit Court of the United States for the District of Ohio, for a tract of land lying between the Little Miami and Sciota rivers, in that part of the state of Ohio known as the Virginia Military District, being on a survey under a part of a military land, warrant for one thousand acres. The cause was tried at July term, 1838, and a verdict and judgment were, entered for the plaintiffs in the action, the defendant in error.
    On the trial of the cause, the defendant tendered a bill of excep-> tion?. The bill of exceptions states, that the plaintiff offered in evi-' dence in support of his action:
    First, A certified copy of a deed from David Carrick Buchanan to Walter Sterling, dated June 27th, 1825. The patent from the United States, dated 22d May, 18.02, ft>r the land in controversy, was granted to David Buchanan by the President of the United States, and the deed .was executed by David Carrick Buchanan, stating that he had formerly been David Buchanan. The defendants asked the Court to instruct the jury, that the statement in the deed by the grantor, that he had formerly been David'Buchanan, is.no proof that he was David Carrick Buchanan. This instruction the Court refused. -The deed from David. Carrick Buchanan recited that'the deed was executed in conformity with a decree of the Circuit Court of the United States for the Fifth' Circuit, in the Virginia District, to convey the .land described in it to Walter Sterling, in fee simple. The defendants excepted further to the introduction of the deed in evidence, because the proceedings of the Circuit Court of the United States in Virginia, recited in-the deed, were not produced with it. But the Court overruled the objection.
    Second, The defendants in their defence offered in evidence a certified copy of a paper, purporting to be a deed from William Middleton, auditor'bf Brown county, to John S. Wills, bearing^ date April 2;2d, 1824,for two hundred acres of land; and insisted it was duly acknowledged as such deed, and such copy was duly certified by the recorder of Brown coünty. The deed from William Middleton, the' auditor of Brown county, re'cited that a sale had been made bf two hundred acres of land, by William Middleton, county auditor, to John S. Wills, on -the 29th December, 1823, for arrearages of taxes due to the state of Ohio, for 1821, 1822, 1823, for the lands conveyed;' the land’being part of the land patented to Buchanan. The deed particularly described, by metes and bounds, the tract conveyed, and granted the. same, to John S. Wills, in fee simple. It was duly acknowledged according to the laws of Ohio, and recorded, in the proper office.
    The plaintiff objected to this deed as not competent to go to the jury without evidence bf the proceedings and acts of the public officers, prior, and at the sale of said land for the tax; and insisted it ought to be- admitted: and the Court sustained the objection, and overruled the .evidence, and declared their.opinion that the same evidence should not be admitted, and the same was rejected accordingly.
    The defendants then offered the same deed or copy of deed, accompanied by a duly certified copy of the record of the proceedings, át and before the sale of said land for taxes, bearing date 9th May, 1838, certified by Hezekiah Lindsey, county auditor of said county of Brown; which copies or papers, and certificates thereon, are referred to . as a part of the bill of ^ exceptions; whereupon, .the plaintiffs, by counsel, objected to the admission of the same on the ground that the samé did not contain all tlie legal requisites to justify and authorize said sale and conveyance of said land for taxes; and of this opinion was the Court, and declared their opinion tobe that the same ought not tobe admitted in evidence in,this case, and the same were rejected accordingly.
    . ■ The defendants below, gave in evidence a transcript of the record of the proceedings and decree of the Supreme Court of the state of Ohio, in a case-wherein White’s-heirs and J. S. Wilis’ heirs, and JH. Brush were complainants, and David Buchanan, in his lifetime, was defendant; find his unknown heirs, after his decease, were, by bill of revivor, made defendants;. wherein the title to the premises in question wás decreed to the complainants' in-tljat suit.
    The defendants asked-the Court to- instruct the jury, that, the' record ^of the proceedings and decree given in evidence- by defend-. ants, máy be considered by the jury as conveying the title to the land in controversy in that suit, to the complainants therein, and will, and ought to affect parties and privies, who had knowledge of the same, to prevent their taking title from the defendant therein from-the time-such knowledge existed. In place of this instruction, the Court instructed the jury, that to prevent Buchanan from making a good deed to those lands', it was. necessary, he should have notice, actual or constructive, prior to the.'making such,deed; and of the■ commencement of the suit; the service of the process or the order- of publication, giving such notice to appear and answer; and such'publication mádé, to be proved: if thé jury should find the. deed from Buchanan to Sterling, was dated June 27th, 1825,' and was-at that time delivered,.and. the order of -the Court' for the publication not made until August .following, as appears-in the recor.d aforesaid, -it was competent for Buchanan to make such deed to Sterling; and the Court declared their opinions accordingly.
    The defendant prosecuted this writ of error.
    The case was argued by Mr. Mason, for the plaintiffs • in error; and by Mr. Corwin, with whom Was Mr.' Bond, for the defendant.
    The counsel for the plaintiffs in error, Mr. Mason, assigned the following reasons for, the reversal Of the judgment of the Circuit Court:
    First, That on the trial of the cause, the Court- admitted as evidence in thé cause, a paper purporting to be a deed from, or signed by David Carrick Buchanan to Walter Sterling, as appears by bill of exceptions; which, for the reasons stated in the bill of exceptions should not have been admitted in evidence.
    Second, There is also error in this, that the Court, oh the trial aforesaid, admitted in evidence to the jury a copy of another .paper, purporting to be a deed from Walter Sterling to Walter Dunn; which, for the reasons. stated in the bill of exceptions, ought not to have been admitted in evidence.
    Third, There is also error in this, that the Court refused to admit a certified copy of a deed from William Middleton, auditor of Brown county, to John S. Wills, for two hundred acres of land, for the reasons stated in said bill of exceptions; whereas the same evidence ought to have been admitted.
    Fourth, There is also error in this, that said Court refused to admit the same deed or copy accompanied by a duly, certified copy of the record of the proceedings, at and before the sale of said lands for taxes, for the reasons stated in the bill of exceptions ; whereas, said evidence ought to have been admitted.
    Mr. Corwin, for the defendants,
    contended, that the proceedings of the Court in Virginia were not necessary to the validity of the deed; that a good consideration is stated in the deed, independently of that decree; that the title being in Buchanan, he had a right to convey with or without the authority of the decree.
    2. That it was not necessary, that the acknowledgment should aver or recite the delivery of the deed ; that possession of the deed was evidence to go to the jury of its delivery; that the recital of delivery in the deed, is evidence of that fact.
    3. That the recital in the deed, showing that the grantor, David Carrick Buchanan, Esq.,'was the same person formerly called David Buchanan, Esq., was evidence to go to the jury of the identity of the person named in the deed and patent.
    The counsel for the defendant also insisted, that it was incumbent on the party offering evidence of title growing out of a sale for nonpayment of taxes, to show that the law was in all material respects complied with under which the auditor acted; that neither the deed nor the record of the auditor shows such compliance. See 18 Ohio Laws, 70.
    4. That the defendants below claiming title under Brooke, through whom the lessor of plaintiff also claimed, it was not competent for them to dispute the-validity of their common title.
    5. That the identity of the land in question with that described in the title papers, is shown by the descriptive calls recited in the declaration, and those in the title papers of the plaintiff below, and is admitted by the consent rule.
    The defendant below asked the Court to charge the jury, that the statement in the deed from Buchanan to Sterling, reciting that David Carrick Buchanan, Esq., was formerly called David Buchanan, Esq., was no evidence that it was the same person who received the patent, and conveyed to Sterling. The Court refused so to charge, and instructed the jury that they must be satisfied from the deed, other documents, and the circumstances of the case, that David Carrick Buchanan, and David Buchanan, Were the same person; and declared their opinion, that such was the case; to which opinions the defendants excepted.
    1. The defendant in error insisted, that this exception only questions the propriety of the opinion given to the jury as to the fact of identity, as arising out of the proof before them.
    2. That it was proper for the Coürt-to. give such opinion, leaving the jury to decide on it for themselves. 1 Peters, 182. 190. 10 Peters, 80.
    3. That the recital in the deed is evidencfe to be considered by the jury, with other proofs in the cause, to show the identity of the grantee of the United States with the grantor to Sterling.
   Mr. Justice M'Lean

delivered the opinion of the Court.

This .case is brought before this Court .from the Circuit Court of Ohio, by a writ of error.

An action of ejectment was brought by Dunn against the defendants, in the Circuit Court, for the recovery of a certain tract of land; and on the trial, exceptions were taken to the rulings of the Court,' which being the points decided before this Court.

The first objection taken was, that the deed offered in evidence by'the plaintiff from David Carrick Buchanan to Walter Sterling, recited the proceedings and decree of a Court of the United States, for the. fifth circuit, and Virginia district, &c., and no exemplification .of the record of such proceedings and decree was offered' in evidence, in support of. the deed. Buchanan was the patentee of the land; and although he made the conveyance in • pursuance of the decree, yet as the. fee was in him, the decree could add nothing to the validity of the conveyance; and it was, therefore, wholly unnecessary to prove it. The deed was good without, the decree, and was only referred to by the grantor to show the consideration, in part, for making it.

The defendant also objected to thé admission of the deed in evidence, because “ it was not duly acknowledged, and proved, according to law; there being no proof of the delivery, either in the acknowledgment or other proof; except what appears on the deed, and that it was in possession of the lessor of the plaintiff.”

This deed was executed at Glasgow, in Scotland, and' its execution was proved by the two subscribing witnesses, who swore, “that they saw the said grantor seal as his own proper act and deed, in due form of law, acknowledge and deliver this present' conveyance.” This oath was administered by the Lord Provost, and chief magistrate of' Glasgow, and which he duly certified, under his seal of office.

The objection did not go to the execution of the deed, but to the want of proof of the delivery.

In the conclusion of the deed, it is stated to have been signed, sealed; and delivered in presence of the subscribing witnesses, and they swear that it was delivered. But, independently of these facts, the possession of the deed by the lessor of the plaintiff, who offers it ip proof, is prima facie evidence of its delivery. Under ordinary circumstances, no' other evidence of the delivery of a deed, than the possession of it by the person claiming under it, is required.

The defendant also objected to this deed, that it did not. appear that the grantor, David Carrick Buchanan, was the same person named as grantee in .the patent, who is called David Buchanan.

In the déed, the grantor declares, that I, David Carrick Bucharnan, formerly David Buchanan,” &c.

And in connection with this objection the Court were asked to charge the jury, " that it is necessary for the plaintiff to convince them by proofs in Court, that David Carrick Buchanan is the same person as David Buchanan, named as grantee in the patent. That his statement of the fact in the deed is no proof tending to establish that fact.”

The Court instructed the jury that they must be satisfied from the evidence given to them, to wit, by the deed and other documents in evidence, and the circumstances of the case, that the grantor in the deed to Sterling is the same person to whom the patent was issued; and they declared their opinions that such was the fact.

The principle is well established, that a Court may give their opinion on the evidence to the jury, being careful to distinguish between matters of law and matters of opinion in regard to the facts. When a matter of law is given by the Court to the jury, it should be considered as conclusive; but a mere matter of opinion as to the facts, will only have such influence on the jury as they, may think it is entitled to.

The law knows of but one Christian name, and the omission or insertion of the -middle name, or of the initial letter of that name, is immaterial; and it is competent for the party to show that he is known as well without as with the middle name. 5 Johns. Rep. 84. 12 Peters, 456.

We think there was no error in the Circuit Court, either in admitting the deed, or in their instruction to the jury on the point stated.

A deed from Sterling to Walter Dunn, the lessor of the plaintiff, for the premises in controversy, was objected to on the ground “ that the delivery thereof was not proved nor acknowledged in the acknowledgment and proof thereof thereon endorsed.”

This deed is not in the record, and it cannot therefore be inspected ; nor can it indeed be considered in reference to thé objection. But the same question is raised, it seems, on this deed as was made on the deed from Buchanan to Sterling, and the remarks of the Court on that exception would be equally applicable to this, if the deed to Dunn were in the record.

The evidence of the lessor of the plaintiff being closed, the defendants offered in evidence a certified copy of a paper purporting to be a deed from the auditor of Brown county, to John S. Wills, dated the 22d April, 1824, for two hundred acres of land in the tract claimed by. the. lessor of the plaintiff; which the Court overruled, on the ground that it could riot be received without proof that'the requisites of the law, which subjected the land to taxation and sale, had been complied with,

’ The defendants then offered the same, deed or copy of a deed, accompanied by a duly certified copy of the record of the proceedings, at and before the sale of said land, for taxes, dated 9th May, 1838, certified by Hezekiah Lindsey, county auditor of said county of Brown, which the Court overruled.

The laws of Ohio, imposing a tax on lands, and regulating its collection, like similar laws in, perhaps, almost all the other states, are peculiar in their provisions, having been framed under the influence of a local policy. And this policy has, to some extent, influenced the construction of those law’s. There can be no class of laws more strictly local in their character, and which more directly concern real property, than these. They not only constitute a rule of property, but their construction by the. Courts of, the state should be followed by the Courts of the United States, with equal if not greater strictness than the construction of any other class of laws.

It will be found from' the Ohio reports, that the Supreme-Court has required a claimant under a tax title to show, before his title cán be available, a substantial compliance with the requisites of the law.. In 2 Ohio Rep. 233, the Court say, “ the requisitions of the law are substantial and useful, and cannot be dispensed with. Tax sales are attended with greater sacrifices to the owners of land than any others. Purchasers at those sales seem to have but little conscience. They calculate on obtaining acres for cents, and it stands theiri in hánd to see that the proceedings have been strictly regular.^

^ In the'case of the Lessee of Holt’s Heirs vs. Hemphill’s Heirs, 3 Ohio Rep. 232, the Court decided that a deed from a collector of taxes is not available to transfer the title, without proof that the land, was listed, taxed, and advertised,” &c.

The act of the 2d February, 1821, provides, that all deeds of land sold for taxes, shall, convey to the purchaser all the right, title, and interest of the former proprietor, in and to the land so soFd; and shall be received in all Courts as good and sufficient evidence of title in such purchaser.”

Under this and similar provisions, which are found in the various tax laws up to 1824’, the Courts of Ohio seem’ never to.have held, that the deed on a tax sale is admissible as evidence of title, unaccompanied by proof that the substantial requisites of the law, in the previous steps, had been complied, with. The collector, or person making the sale, was considered as acting under a special authority, and that his acts must be strictly conformable to law, to divest the title of real property, without the consent of the owner. And the purchaser at such sales is held bound to see that the requirements of the law, which, subjected the land to sale for taxes, had been strictly observed. These principles have been repeatedly sanctioned by this Court.

We will now examine the statutes under which' the sale in question was made, with the view -of ascertaining whether the Circuit Court erred in overruling the record of the auditor, offered in evidence to-suppo.rt the tax deed.

The act of the Sth February, 1820, and the act to amend the same, of the 2d February, 1821, are the laws under which the title in question was obtained.

The county auditor is required to make out from the" books or lists in his office, every year, a complete duplicate of all the lands listed in his office', subject to taxation, with the táxes charged thereon. In which duplicate he shall state the proprietor’s .name, the numbér of entry, for whom originally entered, the quantity of land contained in the original entry, the county, water course, number of acres, whether first, second, or third rate land, and the amount of taxes charged, thereon. These matters of description are required to be entered in' separate columns, opposite the name of the proprietor. And the auditor is required to keep a book "for that purpose, and to record in the form above specified, the lands entered in his county for taxation.

If the tax be not paid in the county by the 20th November, or to the state treasurer by the 31st December, in each year, the lands are to remain charged with all arrearages of taxes, and the lawful interest thereon, until the same shall be paid; to which there shall be added a penalty of twenty-five' per- cent, on the amount of tax' charged for each year the- same may have been delinquent.

, The auditor of the state is required to compare the list of defalcations transmitted from each county auditor with thé duplicates sent to, .his office from said County, for the same year • and to record in a book kept fór that purpose, the delinquent lands,- and charge the same with penalties- and interest. And the county auditor is required, in making out the duplicate for his county, to .charge each tract, in addition to the tax, for the current year, with the tax, interest, and penaltjfof the preceding year, which shall be entered in.a separate column, to be' designated for that purpose-on said duplicate. ‘ And when lands are returned delinquent for two years, the penalty and interest are to be charged for each year by the state auditor, who .is required to transmit the same to the county auditor; and he is forbidden to enter lands a. second time delinquent on the duplicate for the current year. .

On receiving this list of lands, a second time delinquent, the auditor. is required to advertise the same six weeks successively in a newspaper printed in the county, which advertisement shall state the amount of the tax, interest, and penalties due on each'tract, and the time of sale, &c.- All sales' are to be made, by the county auditor; and on such salé being made, he is required <‘to maké'a fair’ entry descriptive thereof, in-a book to be provided by him for that purpose,” and shall also' “record in said book all the proceedings relative "to the advertising, selling, and conveying said delinquent lands; which record shall be good evidence in all Courts holden within this state/’

The record offered in evidence is -stated to be a “ record of the proceedings relative to the advertising, selling, and conveying the lands delinquent for tax, for the years 1821, 1822, and 1823, within the county of Brown, and state of Ohio.”

“ Be it remembered, that the following lands, as herein set forth, advertised for sale, in the names of the person to each tract annexed, were regularly entered on the duplicates for taxation, by the auditor of Brown county, for'the year 1821; the tax whereon not being paid for said year, the collector of said county returned the same as delinquent therefor; whereupon the said county auditor made out and transmitted-to the auditor of state, a list of said lands so returned as delinquent; and afterwards a list of said lands, with the amount of taxes, penalty, and interest charged thereon, was transmitted by the auditor- of state to the county auditor of said county; whereupon a copy thereof was published three weeks in succession in a newspaper printed at Georgetown, Brown county, Ohio, in general circulation in said county; and afterwards the county auditor, in making out the duplicate for said county the succeeding year, to wit, for the year 1822, charged each tract in addition to the tax for said year 1822, with the tax, interest, and penalty of the preceding, and sent the same out a second time for collection; the tax on said land not being paid for the year 1S22, they were a second time returned delinquent for the non-payment of the tax, penalty, and interest charged thereon; a list of which was again transmitted to the auditor of the state; that afterwards the said auditor of the state did transmit,” &c.

This, together with the advertisement published six months before the sale of the land, is the-record and only evidence offered to show that the legal requisites of the law had been complied with, previous to the sale of the land.

The first objection which arises to this paper is, that it is a mere historical-statement of the facts as they occurred, and not a copy from the record.

The first important step is to show that the land was listed for taxation.' On this depends the validity of the subsequent proceedings. And bow is this shown by this record? It states that “the land was regularly entered on the duplicates for taxation, and sent out for collection for the year 1821,” &c. Now this is a mere statement of the fact, and not an exemplification of the record.

The record of the auditor shows in what manner the land was listed for taxation, the amount of tax charged, the description of the land required by the law, and the rate at which it was entered. But tire auditor in the record before us has stated that the entry or list was regularly made, without copying the same from his records, which copy would enable the Court to determine whether the entry for taxation had been made legally. Now this is- the foundation of the whole proceeding; and unless the Court will substitute the judgment of the auditor for their own, it is impossible for them, to say the land was entered for taxation according to law.

Suppose the auditor had, instead of copying the advertisement on which the land was sold, merely stated that the land had been Regularly advertised; could such a statement have been held sufficient ? Perhaps no one acquainted with the legal requisites on this point, could hesitate in deciding that such a statement would be radically defective. That the advertisment constituted an essential part of the .record, as the Court could only judge of its sufficiency by inspecting it. It would not do therefore for the auditor to withhold from his record and the Court, the advertisement, and merely say that it was regular.

Clear as this point is, it is not less so than the objection above stated. The listing of the land in conformity to law, is as essential as advertising it. for sale. But in this record we have no evidence that the land was entered according to law, except the mere statement of the fact by the auditor, that it was so entered.

Is this statement evidence ? The law makes the record evidence; but this statement is evidently made out, not by copying from the record, but by looking at the record, and giving in a short statement what the auditor supposed to be the fáct.

Suppose it should be important in' any other case to show that this land had been regularly entered for. taxation in' the year 1821. Would the certificate of the auditor, in general terms, that the land was regularly entered that year, be evidence ? Must not the record itself be produced, or an exemplification of it; which, would show how it had been entered'; and enable the Court to judge of the regularity of the entry ? That this would be required, seems too clear, for argument; and yet in no possible case could this evidence be so important, as in the case under consideration.

- If the Court are to receive the mere statement of the auditor, that the -land was regularly entered, which is the first step in the proceeding, and ¡as important as any other; to be consistent, they must receive his mere statement,, as proof that the subsequent steps were taken as to the charge of penalties, and interests, and delinquencies, and that it was advertised regularly and sold. This would be a short .mode of arriving at. the result, and might add somewhat to the validity of the titles, in disregard, however, to the rights of the nonresident land holder.

The law requires the auditor, on receiving the list of delinquent lands from the state auditor, to give public notice by advertisement, for three weeks in succession, in some newspaper in general circulation in his county, of the amount of taxes charged, &c. Now, if-this advertisement be not published, the land cannot be returned by the auditor a second, time as delinquent; and if not regularly returned as delinquent twice, it is not liable to be sold. And what evidence is there in the record that this notice was given. There is none,'but the mere statement of the fact that such notice was given three weeks in succession, in a hewspaper printed in Georgetown. Now, if the statement of the. auditor be sufficent as. to this notice, it must be held equally good as to the notice of the sale. This land was transmitted from the auditor of the state twice, charged with penalties, to the county auditor, who, by the thirty-sixth section of the act of 1820, was required to publish the same, when received, three weeks; but it seems from his record that this notice has been but once given.

And, again, there.is no evidence that the penalties were charged, and the interest added, but the mere statement of the auditor. What amount was charged as penalty, and the amount of interest added, nowhere appears.

In the list published in the notice of sale, if does not appear at what rate the land was entered for taxation; and the gross sum of fifty dollars is charged, without showing of what items it was composed. In the case of Lafferty’s Lessee vs. Byers, 5 Ham. 458, the plaiutiff offered in evidence an exemplified copy of the books of the county auditor, showing the listing for taxation, and the advertisement of the sale.

Upon the whole, we think that the Court did hot err,- in rejecting the paper certified by the auditor as a record. We think that this record contained no evidence that the land was regularly listed for taxation; and that it was defective.in not showing that other important requisites of the law had been complied with. That it is a mere historical account of the facts as they transpired, and not the record evidence of those facts, as they appear or should appear on the.record.'

Under the law of 1824, which makes, the tax deed prima facie evidence, the Ohio Courts have not required proof to the same extent in support of the deed, as before such law. But the present case does not comé under.this law.; and it is unnecessary to go into its construction by the Ohio Courts. 5 Ohio Rep. 370.

The defendants gave in evidence a duly authorized transcript of the'record, proceedings, and .decree, of the Supreme Cour$ of the state of Ohio, of a certain case, wherein White’s heirs and J. S. Wills’ heirs, and H. Brush, were complainants, and David Buchanan, deceased, in his lifetime, defendant; and his unknown heirs. defendants after his death, by bill of revivor; wherein the title to the premises in question, and other lands, were decreed to complainants. And here the defendants rested their case.

The Court were asked to instruct the jury, by the defendant, that it was necessary for the plaintiff to prove the calls of his patent for the ground, by establishing the different corners, &c. But the Court refused to give the instruction as requested, and informed the jury, that, by a rule of Court, the defendants having entered-into the consent rule, were bound to admit, at the trial, that they are in possession of the premises claimed by the lessor of the .plaintiff. And there can be no doubt that, under the rule, this decision of the Court was correct!

This was not a dispute about boundaries, but of title; and in such a case, the rule referred to is salutary, and supersedes th§ necessity of proving the possession of the defendant. Without this rule, it would have been incumbent on the plaintiff to. prove the possession; but this could have been done by any one who had a general knowledge 'of the land in controversy, and who could state that the defendant was in possession.

And the Court instructed the jury, that the pendency of the suit against Buchanan and his heirs, could in no sense be held constructive notice to Sterling, in receiving the deed from Buchanan, after the commencement of the suit, unless the process had been served, or publication made, before such deed was executed.

There can be no doubt that this instruction was proper; and, upon the whole, we affirm the judgment of the Circuit Court.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United.States for the District of Ohio, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.