author: Mr. Justice Thompson

text:
    Mathew Hobson, Appellant, v. The Heirs of Duncan M'Arthur, deceased, Appellee.
    It was agreed between M‘A. and H. that M‘A. should withdraw the entries of ten thousand acres, part of eleven thousand six hundred and sixty-six acres, which had been located for the use of H., and should relocate the same elsewhere; and that the ten thousand acres, the entries of which had been withdrawn, and the ten thousand acres relocated elsewhere by M‘A., should be valued by two .disinterested persons, one to be chosen by each parly, and if the two could not agréó on-the valué of the land or any part thereof, they should choose a third person, who should agree'on the value of the land, and that H. should have so much of the land relocated as should amount to the value of the land for which the locations had been renewed; and also to the valué of two thousand dollars in addition to the value of the ten thousand acres. The two persons appointed could not agree as-to the value of part of the land, and they nominated a third person. Of the three persons thus appointed, two only agreed as to the value’, of part of the land. By the Court': It is an unreasonable construction óf this agreement, that it was .so .framed as that it not only might fail to accomplish the very object intended; but, that in all probability it must fail, and become entirely negatory, as the third man was not,to be called in until the two had disagreed. It is, a more reasonable construction to consider the third man as an umpire to decide between the two that should disagree. This would insure the accomplishment of the object the parties had in view. The valuation by the two appraisers was within the submission.
    Where. there is an original delegation of power to three persons, for a mere private purpose, all must agree; or the authority has not been pursued.
    The Court under the prayer in a bill in Chancery for general relief, will' grant such relief onlf.as the case stated in the bill and sustained by the proof will justify.
    ON appeal from the Circuit Court of the United States, for the district of Ohio.
    In the Circuit-Court of Ohio, a bill was, filed by Duncan M‘Arthur, asking for a specific performance of a contract,, dated the 10th of November, 1810. The complainant and thé defendant, with John Hobson, entered into, certain-articles of agreement relative to the withdrawal of the entries of land- in the state of Ohio, and the re-entry thereof on other, lands, out of which, by the contract between the parties, compensation was to be made in the lands included in the relocation of the lands, of which the entries had been withdrawn. The value of the lands,the entries of which' were, by the agreement, to he withdrawn, and of the land on which the entries were to be relocated, were to be determined by persons mutually chosen and agreed upon; who, if .they could not agree, were to nominate a third person.
    Out of this agreement, and.proceedings under it, the questions., in this case arose, and were'argued by Mr. Stanbery, for the appellant, and by Mr. Mason, for the appellees, the heirs of Duncan M'Arthur, who became parties to the proceedings on the decease of Duncan M'Arthur. In the Circuit Court a decree^was given in favour of the complainant, Duncan M‘Arthur; and the defendant, Mathew Hobson, prosecuted this appeal.
    The case- is fully stated in the opinion of the Court.
    The question decided by the Court was as to the construction of the agreement of the parties, to submit the value of the land to the determination of persons ■ mutually, chosen and agreed upon, and if-they could not agree that they should appoint a third person..
    Mr. Stanbery, for the appellant,
    contended that the decree of the Circuit Courtis erroneous, in setting aside the appraisement of M‘Arthur’s surveys. .
    The contract of November 10, 1810, provides for an appraisal of the lands-entered by Langham, and the lands entered by -M'Arthfir, “ by two disinterested men, one to be chosen by each of the contracting parties; and if the said two men cannot agree on the price of the said lands, or any part thereof, the said two men are to choose a third man, who, together with the other two, shall agree on the price of said land.”'
    It appears that the two appraisers first viewed the Langham entries, and disagreeing as to their value, called in Lyne Starling as a third man ; and the three concurred in an appraisement of these, lands; but differing in the value of the M'Arthur entries, an "award as to their value was madé by Starling and one of the appraisers, without the concurrence' of the other appraiser.
    Mr. Stanbety argued that the intention- of the parties to the .contract, was, that the third man was to act as an umpire, not ás a third-arbitrator.
    He-admitted that the rule is well settled that all the.arbitrators mushconcur, unless the submission protides for an award by a majority.

      But this was not a submission to three arbitrators. The submission is to two, and it is only in the event of their inability to agree, that the third man is to intervene. For what purpose ? Not, certainly, to add to the difficulty by a new and discordant opinion, but to settle it by his decision.
    It was not necessary to the validity of the award that the two arbitrators should concur with the umpire, or that either of them should concuir with him; and the circumstance that the award is signed by one of the arbitrators as well as by the umpire, does not vitiate. Watson on ‘Arbit. 64.
    2.- But if the appraisement of the M‘Arthur surveys cannot be sustained, the whole award is void; and the decree of the Circuit Court is erroneous in sustaining the appraisement of the Langham entries.
    The express language of the contract is, that “ the land from which the ten thousand acres is to be withdrawn as located by Elias' Langham, and also the land to be re-entered by M‘Arthur, is to be valued by two disinterested men,” &c:
    Besides this specific enumeration of the matters submitted, it is obvious that nothing short of an appraisement of both sets of entries would avail; for. the object was to fix the relative values, and that could only be accomplished by a valuation of both.'
    The arbitrators must respond to 'all matters specifically submitted, especially where' there is a dependency and' necessary connexion in the matters submitted.
    Mr. Mason, for the appellees.
    1. The mode ofascertaining the value of the lands is provided for m the contract.
    Each party is to choose one man; and if the men thus chose.n cannot agree, they “ are. to choose a third man, who, together with the Other two, shall agree on the price of the land.”
    It was doubtless competent for the parties to agree that the concurrence of the whole number of appraisers should be requisite to constitute a valid appraisement of the land. There is no ambiguity in the terms of the contract. They do expressly require that the three men should “agree on the price.” And they all did agree as' to the price of the lands located by Lang-ham. But only two agreed in appraising the lands entered by M‘Arthur.
    The question is, whether the appraisement made by two is valid in law •?
    There is á difference in this respect between a private authority, and a public trust and duty; in the former case, all must join; in the latter,-the power to several is well executed by-the majority: “unless it be expressly provided in the submission, that a less number than all the arbitrators named may make the award, the concurrence of all is necessary.” Kid on Awards, p. 106; Watson on the Law of Arbitration, p. 85, ed. 1836; Grindley v. Barker, 1 Bos. & Pul. 229; Cortes v. Kent Waterworks Company, 7 Barn. & Cres. 314; Rex v. Whitaker, 9 Barn. & Cres. 648; Dalling v. Mitchell, Barnes, 57, Willes, 215, S. C.; Green v. Miller, 6 Johns. 40; Berry v. Penning, Cro. Jac. 100, 399; Fellowes v. Girling, Cro. Jac. 277; 5 Dane’s Ab. 562.
    " 2. The appraisement was also invalid because the agent transcended his authority in two particulars, viz.: 1st, In having more land appraised than was required to pay the debt,: and 2d, In having other lands appraised than those described in the power of attorney, tinder which he derived his authority. The. power of attorney was in conformity with the terms of the contract.
    3. It was void for uncertainty in this, to wit: That the contract required, the appraisement to be made in such a manner that Hobson could have released his title to the residue of the land not appraised; whereas the appraisers proceeded to value moré than thirty-six thousand dollars’ worth of land to pay a debt of nine . thousand two hundred and fifty dollars.
    The - appraisement, therefore, was made in such a manner as to render it impossible for Hobson to comply with that essential part of the contract, which required him to convey to M‘ Arthur all the land that would remain after deducting the quantity required to pay the debt due to himself.
    But Hobson was npt content to have as much land, and no more, set off and appraised as was necessary to pay the debt; nor did he have all the lands efitered by M'Arthur appraised. Without having all appraised, he would have nearly four times as much appraised as was required to discharge his claim.

      Certainly the Court cannot find in such acts of capricio.usness, a compliance with the. letter or spirit of-the contract.
    A question naturally arises on this branch of the case, who. had.the right to' select the land for appraisement? Was.the right vested in the appraisers ? or in the parties jointly ? or in one of them, and which ? It is answered, in the debtor. M'Arthur claimed this right, and asserted it in the letter of attorney to his son.
    The privilege of choice is not in the creditor in such cases.
    The contract provided, in case of a deficiency of land to pay the debt,' that M'Arthur should give other lands, &c.' These other lands he undoubtedly had a right to select.
    But, supposing the appraisement of the M'Arthur entfies to be void, what effect will that have on the appraisement.of the Lang-ham entries ?
    " If a thing be awarded to be done, which' is bad foi uncertainty, or as being beyond the ' submission, or for any other objection; and this part of the award does not form a consideration for the performance of the matter awarded on the other part, and is distinct and independent thereof; then the award is only void for so much.”
    Though formerly.otherwise, “ nothing now is more clear, than that an award may be -bad in. one part, and ye.t good and binding in another part.” Watson on the'Law of Arbitration, pp. 190, 191.
    Assuming, therefore, that the appraisement, so far as it respected the M'Arthur entries,, was void for any one or all the reasons assigned, and valid as to the residue ; I proceed to inquire what decree the complainants are entitled to ask for.
    M'Arthur had a right, by the contract, to pay in land or money, at his option; and on payment being made or tendered, in either mode, he, had a right to require Hobson to release.
    ’ Every stipulation to pay a debt in specific property is pre- ■ suined to be made in favour of the debtor; and therefore, he may, in all cases, pay the debt in money in- lieu of the property which, for the ease of the debtor, the creditor had agreed to receive. Chipman on Cont., pp. 31, 32, 34, 44; 2 Kent’s Com. 400.
    The contract, in its legal effect, was a purchase of the warrants for a sufn of money thereafter to be ascertained in the mode prescribed' by the contract, and to be paid in land Or money, at the option of M'Arthur. It was. the same in substance as a contract to pay so much money: for instance, One hundred dollars in wheat or cattle.
    This argument is not. weakened by the fact that the warrants were to be:re-éntered in the name of Hobson; because the only object the parties could have had in the. provision, requiring the entries to be made in the name of Hobson, was to afford him security for the performance of the contract on the part of McArthur.
    But if M‘Arthur had. not the right of election,, which is contended for, but on the contrary could have been compelled in a Court of Equity to pay in land; then it is maintained that the eon-duct of Hobson has released him from that obligation; and deprived himself of the right, if he ever had a right, to demand payment in property.
    M'Arthur offered to pay in money, or to. appoint another appraiser on his part, which Hobson refused. This appears in the record.
    The principle is, that án offer to do a thing is so far equivalent to performance, that it -will entitle the person making it to demand whatever he was to have upon the performance. 2 Lord Raym. 961 ; Hotham v. East India Company, 1 Term Rep. 645; Parker v. Parkenhorne, 2 Wash. C. G. Rep. 142; 15 Petersdorff, Marg. p. 24; Daug. Marg. pp. 259, 659.
    The interpretation of the contract which is. contended for, was not fully sustained by the Court below:
    ThatCourt set aside the appraisement of M£Arthur is entries, and directed the parties to re-appoint other appraisers. Buff if Hobson should neglect or refuse to appoint, he was ordered to release his interest in the lands on receiving the sum of nine thousand two hundred and fifty dollars, to be paid by M£Arthúr. He did refuse to appoint another appraiser. . And he had before received a larger sum in money than he was entitled to have, as was shown by the confidential contract.
    ' If the appraisement was properly set aside, and Hobson would not appoint another appraiser, and he had twice refused to do iff he was bound to release on payment or tender of the money.
    What other decree could have been made ?
   Mr. Justice Thompson

delivered the opinion of the Court.

This case comes up from the Circuit Court of the United States for the district of Ohio. The bill filed in the Court below is founded upon, and seeks a specific execution of the following agreement, bearing date the 10th of November, 1810.

“Tt is hereby agreed upon between Duncan MeArthur, of Ross county, and state of Ohio, of the one part, and John Hobson, of Jackson county, and state of Georgia, and Mathew Hobson, of Oglethorpe county, and state of Georgia, aforesaid, on the'other part, witnesseth, that, whereas, eleven thousand six hundred and sixty-six and two-third'acres were sent to Col. Richard C. Anderson’s office, on or about the first instant, by Col. Elias Langham, in the name and for the use of said John and Mathew Hobson, with entries for the same. Now be it known, that it -is hereby understood' and agreed upon by the contracting parties, that said M‘Arthur is to withdraw ten thousand acres of the eleven thousand six hundred and sixty-six and two-third acres, and to relocate the said ten thousand acres elsewhere, in the name of the said John and Mathew; and it is further agreed upon by the contracting parties, that the land from which the said ten thousand acres is to be withdrawn, as located by Elias Langham, and also the land to be re-entered by said McArthur, is to be valued by two disinterested men, one to be . chosen by each of the contracting parties, and if the said two men cannot agree on the price of said lands, or any part thereof, the said two men are to choose a third man, who, together with the other two, shall agree on the price of said land, and the said Hobsons are to. have so' much of said land, so to be relocated by said MeArthur, as1 will amount to the value of the land from which said warrants shall have been removed, and also land to the amount and value of two thousand dollars, in addition to the value of the ten thousand, and where the same was entered by Elias Langham; and the said John and Mathew Hobson doth hereby obligate themselves, their heirs, executors, and administrators, separately and jointly, to convey unto the said M‘Arthur, his heirs, &c., all and singular the balance of said ten thousand acres, after deducting therefrom such quantity as by valuation as aforesaid will amount to the value of the said ten thousand acres, where the same was first located by said Langham, and also land to the value of two thousand dollars, as aforesaid; and it is further understood and agreed upon, that if the lands located by the said M£ Arthur, should not be valued to the amount of the lands so located by said Langham, and also two thousand dollars, then, and h. that case, said M£Arthur is to convey unto the said John and Mathew, their heirs, &c., other lands to the amount of said valuation, with jthe value of two thousand dollars in land as aforesaid, said Hobson to pay all office fees and. surveying expenses. Said valuation to take place on or before the expiration of three and a, half years from the date hereof; said Hobson to pay the taxes on said lands until divided; and then the said M£Arthur to pay to the said Hobson his proportionable part of said taxes.

In witness whereof, we, the contracting parties, do hereunto set our hands and seals,'this 10th day of November, A. D. 1810.

Be it remembered before signing, that the division of said lands shall take place forthwith, after the titles are considered secure, and that the lands located by Langham, are to be picked as he upon his honour intended.

Signed ' Duncan M'Arthur, [l. s.]

John & M. Hobson, [l. s.]

Witness:

E. Langham,

Edward Baskerville.

The bill, after having set out substantially this contract; states, that John Hobson, on the 24th of November, 1818, sold and assigned to the complainant all his right and title to one-half (five thousand acres) of the land warrants located by him. That in pursuance of said agreement, he withdrew ten thousand acres of Langham’s entries, and located them elsewhere. That on the 30th of July, 1830, he appointed his son, Thomas J. M‘Arthur, his attorney, to transact the business under the said contract; who, in pursuance of said power, appointed, on his part, William Vance, to proceed in the valuation of the said lands. And that, for the same purpose Mathew Hobson appointed Mathew Bonner, who proceeded to view the land; and finding that they could not agree on the value, they selecteu Lyne Starling, as a third man, to make the appraisement, pursuant tqL the terms of the agreement, who, together with Vance and Bonner, agreed upon the valuation of the lands located by Langham. The complainant further states, that, afterwards, his agent proposed to the said Mathew Hobson, to select. and . point out ■ to. the appraisers for valuation, such parts of the entri.es made by 'M‘Arthur as would amount to a sufficient quantity to satisfy the said’Hobson, which proposition he declined, and insisted that it was his right to have the whole of the lands entered by the complainant valued. That he Was entitled to an interest in the whqle of .the entries made by the complainant, proportional to the valuation of the Langham entries. The bill states that afterwards the three appraisers proceeded to examine the lands relocated By MfArthur, and that two only Of the appraisers; Bonnér and Starling,.Agreed .on the valuation. And the'bill then .charges that the said valuation has not b,een made in conformity to the said agreement; in this, that the,said three, appraisers have mot all agreed as to the -value of the lands relocated by the complainant, but that only two agreed thereto. Several other charges are made against the validity-bf this appraisement, which it is unnecessary to notice. The bill then sets out several proposals made by the complainánt for the settlement of the controversy,’ which he declined accepting, and refused making any conveyance or assignment of his- interest in the land located by the complainant. The bill, then, for the -purpose of obtaining an injunction, refers to an act of Congress, of the 26th of May, 1830, for the settlement of the conflicting claims of the complainant and the United States, to the land in question; and charges that the defendant Hobson threatens to apply .to the government for the appraised value and interest of five thousand acres of the land, entered in the name of the said Mathew Hob-son; and prays that he maybe enjoined from claiming and receiving from the treasury of the United States any part of the money appropriated by the act of Congress, until the same is heard and adjudicated upon by the Court. And further/ praying that the said Hobgon may be decreed to accept some one Of the terms proposedJby him, in fulfilment of the contract, according to its true intent and understanding.. And that he may. be compelled to perform the said agreement specifically, on his part, as the complainant has proposed and tendered to do on his part; and such other and further relief as may seem meet and just.

The answer of Hobson admits the contract Of the 10th of November, 1810, set out in the bill; and that he is filling to abide by the same, according to the just interpretation thereof. He admits the appointment of appraiser's, and their proceeding to the valuation of the land, as stated in the bill;, and that thereupon .he informed the complainant of his willingness to settle all matters under the contract; and that after taking and retaining such proportion of. the lands entered, by the complainant, and valued ás set. out in the bill and answer, as would cover, and include the claims of him> the defendant, under the contract and agreeable to such valuation, he was willing, and then offered to assign and relinquish to thq complainant, the rest and residue of the lands so valued, and .also all the other entries and surveys 'made by the complainant; which he wholly refused to do. The defendant admits that he rejected all the demands and requisitions of the complainant made at the time alluded to, aiidr all the demands, which had for their object and design a disregard in part or in whole of the doings of the appraisers. ’ The defendant admits the passage of an act of Congress mentioned in the bill, and that he means to avail himself of its provisions, if he can obtain a settlement of the matter with the complainant; but he is prevented by the complainant from relinquishing his interest in the lands to the United States. And he denies the right of the complainant to confine him to any particular part of either of the surveys, valued by the appraisers; but that when it is ascertained what number of acres he is entitled to under the contract and valuation, then he will hold the same undivided and in common with the complainant, 'until by partition it shall be divided. And he denies the right of the complainant to pay off and settle with him in a given sum of money. That he is perfectly willing to abide by the valuation made by the appraisers, and relinquish his claim as before offered.

An interlocutory decree was thereupon entered, declaring that the appraisement made by only two of the appraisers of the relocated entries and surveys made by MiArthur was void, and ordered the same to be set aside and annulled; and then proceeds to give directions for another appraisement, which the defendant Hobson refused to comply with; and thereupon a final decree was entered, declaring that .the complainant, McArthur, had complied on 'his part with the interlocutory decree, and that the respondent Hobson had altogether neglected to comply with the same on his part; and alleging that the sum of nine thousand two hundred and fifty dollars had been paid by M£Arthur to Hobson, as appeared by his receipt annexed to the agreement of the 25th of, September, 1830. It was thereupon ordered, adjudged, and decreed, that the. said Hobson should within sixty days after the rising of the Court, by a good and sufficient deed, transfer and assign to Duncan M£Arthur, his heirs and assigns, all his right, title, and interest in the ten thousand acres of land relocated and surveyed by the said Duncan M£Arthur; and that in case he should fail to comply with this decree, within the time thereby limited, then that the decree should operate as such conveyance. And from this decree the present appeal is taken.

The first' and principal question in the case is, whether the appraisement or valuation of the land was made pursuant to the provisions of the contract of the 10th of November, 1810. If it was, then the decree in this respect is erroneous. And it was the fault of the complainant that the contract was not carried into execution; and he cannot come now to ask for a specific execution of it.

The agreement was, that the land located by Langham, from which the ten thousand acres were to be withdrawn, and also the land to be.re-entered by M'Arthur, should be valued by two disinterested men, one to be chosen by each of the contracting parties; and in case the two men thus chosen could not agree on the price of said lands, then they were to choose a third man, who, together with the other two, shall agree on the price of the said lands. The parties in pursuance of the agreement, each chose a man to make the valuation, and upon their disagreement with respect to the same, they chose a third man, and the whole three thereupon agreed as to the valuation of, the Langham location, but disagreed in the valuation of the M'Arthur location; and the valuation was made by Starling and Bonner, two of the appraisers : and it is contended that this valuation was void, because made by two only.

It has been argued, that this being a delegation of power to the three, for a mere private purpose, all must agree, or the authority has not been pursued. This may be admitted to be the rule, where the original delegation of the power is to the three, without any other provision on the subject. But in construing this-agreement, we must look at what was the obvious intention of the parties. The parties clearly intended, that the valuation should at all evepts be made. A third man was not to be called in unless the two 'disagreed; and it is an unreasonable construction of this agreement that it was so framed that it not only might fail to accomplish the very object intended, but that in all probability it must fail and become entirely nugatory, as the third man was not to be called until the two had disagreed. Upon the construction of the' agreement, that the three must unite in the valuation, the office to be .performed by the third man was to persuade the other two to agree with him. This could never have been the understanding of the parties. It is a more reasonable construction to consider the third man in the character of an umpire, to decide between the two that should disagree. This would insure the accomplishment of the object the parties had in view. But' a contrary construction would most likely defeat that object.

Upon this view of the agreement, the valuation by two of the appraisers was within the submission.

It has also been made a question whether the whole of the land re-entered by M£ Arthur was to be valued, or only so much as was to be retained by Hobson. The terms of the submission would seem to settle this question. It expressly provides that the land from which the ten thousand acres, located by Langham, was to be withdrawn, and also the land to be re-entered by M£Arthur, were to be valued, &c., and this must have been the understanding of the parties in order to make a just partition between them.

There is no provision made for the selection of any particular part to be appraised. By whom, then, was such part to be' designated ? But when the whole of each tract is valued, the proportion which Hobson is to .have in the M'Arthur location is easily ascertained; and they would become tenants in common, subject to partition, according to their respective rights. Such is the clear construction of this agreement.- It does not contemplate the sale of the land or the division of any proceeds therefrom. A reference in the bill to the act of Congress of the 26 th of May, 1830, .(4 Story’s Laws, 2197,) appears to be for the purpose of obtaining an injunction to restrain Hobson from receiving any money from the treasury of the United States, appropriated b that act. But the bill, is not framed with a view to enforcing any rights growing out of that act, but prays that Hobson may be compelled to perform the agreement of the loth of November, 1810, twenty years before that act was passed. It is true, that there appears upon the record, an agreement entered into between these parties, bearing date the 25th of September, 1830, relative .to a. division of the money to be paid by the government under this act. But this was an agreement’made after the commencement of this suit, and which we cannot notice for. several reasons.. If any relief is. to be given on the basis of that agreement, it should have been brought before the Court below, by a supplemental bill. But another insuperable objection is, that by an express stipulation in the agreement, it is not to be made use of in this case. ' This stipulation is. as follows: “ The said parties mutually agree and covenant, that, this contract and agreement shall not be used by either of them, nor at any time held or interpreted in the suit aforesaid, or in any other suit, or in any.other Court, or in any proceedings, whether in Court or out of Court, under the aforesaid contract, (the contract of the 10th of November, 1810,) as affecting, changing,'Or in anywise disturbing the rights' of either in the matters aforesaid; but ■ the suit aforesaid shall be conducted, and any other suit which either of them may think proper to bring, founded on the contract aforesaid, may and shall be conducted, in all-respects, as though this contract had not been entered into.”

In addition to. this, the counsel on both sides declined, upon the argument, making any use whatever of this agreement. It must, therefore, be dismissed, as having no bearing upon the case. And if so, there is no proof whatever that Hobson had received any money, on account of his land. The defendant, Hobson, was under no obligations to accept either of the propositions of the complainant, as stated in the bill. There is nothing in the contract of 1810 that called upon him’to do this; and especially after he had, on his part, complied with the provisions of that contract. And if the agreement of 1830 is laid out of view, there is no proof to show that Hobson had received nine thousand two hundred and fifty dollars, as is assumed in the décree, and made the ground upon which he is ordered to transfer and assign to- M'Arthur, all his right, title, and interest in. the whole ten thousand acres of land, relocated and surveyed by M'Arthur. This could not have been done under the prayer for general relief. The Court, under this prajier, Will grant such relief only as the case stated in the bill, and sustained by. the proofs will justify. The frame and structure of the bill in this case is for a specific execution of the contract-of the 10th of November, 1810, which provides only for the valuation of the lands, and makes no provision for the sale of the land or the payment of any mohey. And if the facts would justify a prayer for any such relief, the bill should have been framed with- a double aspect; so that if the Court should decide against the complainant in-one view of the case, it might afford him relief in another. But this bill, is not so framed.

The decree of the Circuit Court, must, therefore, be reversed. But, as the rights of the heirs of M'Arthur may depend, in some measure, upon the contract of the 10th of November, 1810, connected with what has since taken place, under the act of Congress, we think the bill ought to be dismissed, without prejudice.

It is accordingly adjudged and ordered, that the decree of the Court below be reversed; and the cause remanded to the Circuit Court,' with directions to dismiss' the bill, without prejudice.


source: Caselaw Access Project

author: Mr. Justice Catron

license: Public Domain

text:
    The United States, Appellants, v. John M. Hanson and others, Appellees.
    A. Florida land claim. • A grant of five mile's square, or sixteen thousand acres of land, was made by the Spanish Governos of East Florida, at the mouth of the river Santa Lucia. The petition for the grant stated various merits and losses of the petitioner, and asked the grant of five miles square, for the construction of a water saw-mill. The gAmt was given for the purposes mentioned, and “ also paying attention to the 'Services and other matters set forth in the petition.” No survey under the grant was made by the surveyor-general, of Florida; but a survey Was made by a private surveyor. The survey did not follow the calls of the grant, and no proof was given that it was made at the place mentioned in the grant. The survey and plat were . not made according to the established rules relative to surveys to be made by the surveyor-general, under such grants. Nor was the plat made with the proportion'of land on the river, required, by the regulations. The Superior Coqrt of Florida held that the grant having been made in consideration of services rendered by the grantee, as well as for a water saw-mill, it was valid, without the erection of the mill; but the survey was altogether void, and of no effect. The decree of the Superior Court of Florida, by which'the grant and survey were confirmed, was remanded to the Superior Court .of Florida; that Court to order the sixteen thousand acres granted, to be surveyed according to the principles stated in the opinion of the Supreme Court.
    It has often been held that the authorities of Spain had the power to grant the public domain, in. accordance with their own'ideas of the merits and . considerations presented by the grantee; and that the powers of the Supreme Court of the United States extend only to the inquiry, whether, in-fact, the grant had been made, and its legal effect when made, in cases where the law by implication introduced a condition, or it was peculiar in its provisions. No special ordinance of Spain introduces conditions into mill grants.'
    Cited, Mrs. Wiggins's Case, 14 Peters p'Sibbald’s Case, 10 Pefers.
    The,certificate of a private surveyor, that he had permission from the governor of the territory to make, a survey of the land granted, is no evidence of the fact. There is a marked and wide difference in the effect of the certificate of the surveyoj-general and of a private individual, who assumes to certify without authority.
    Instruction's of 1811, as to the duties of the surveyor-general, in making surveys under grants, by the governors of the public lands of Spain.'
    A grant by a Spanish Governor of Florida, meant not, as in the states -of the United States, a perfect title; but an incipient jight, which, when surveyed, required confirmation by 'the governor. The -duty of confirmation by the acts of Congress, is deputed to the Courts of justice of the United States, in execution of the treaty with Spain.
    The samé credence that was accorded to the return of the surveyor-general, by the Spanish government, is-due to it by the Courts of the United States. Plats and certificates, because of the official character of the surveyor-general, have accorded„to them the force and character of a deposition.
    ON appeal from the Superior Court of East Florida.

      Samuel Miles, a new settler, admitted under the protection of the King of Spain, on the 18th of July, 1813, presented a petition to Governor Kindelan, the Spanish Governor of East Florida, setting forth great services performed by him for the supply of the troops of Spain, in the. province, and severe sufferings and losses sustained by him in the service of the crown; and considering himself entitled to some ’favóur, asked for a grant of five miles square of land, for the construction of a water sawmill, at a place fit for the purpose, and which is vacant, situated at the mouth of the river Santa Lucia.
    The governor gave, the following decree on the petition:

      St. Jhigusiine, Florida, 19th July, 1813.
    Taking into consideration the benefit and utility that will redound to the province, from a machine for sawing lumber, which the party proposes to. construct in the place which he points out, and also paying attention to the services and other matters which he sets forth, let there be granted to him the five miles square of land which he solicits, without injury to a better right; and in order to prove this grant, let there be delivered to him from the secretary’s office, the necessary certified copy. Kindelan.
    On the 7th of May, 1815, a survey and plat of the land, was returned, with the following certificate:
    I, Don Roberto M'Hardy, an inhabitant of this province, and private surveyor, do certify: That in consequence of a permission from this government, I have surveyed and delineated a square of five' miles, containing sixteen thousand acres of land, which this government has granted to Don Samuel Miles, on the nineteenth of July, one thousand eight hundred and thirteen, which plat is represented iii the preceding plot. . St. Augustine,, of Florida, on the seventh May, one thousand eight hundred and fifteen. Rob. M'Hardy.
    On the 23d day of May, 1829, John M. Hanson, and others, the grantees of Samuel Miles, brought their petition before the ' Superior Court of East Florida, setting forth the grant to Samuel Miles, and their title under the same; and praying that the land, as surveyed by Robert M'Hardy, might be confirmed to them.
    After Various proceedings in the Court, at July term, 1840, a decree was made by the Honourable Isaac H, Brónson, judge of the Superior Court, in favour of'the claim, in conformity with the survey of Robert M‘Hardy. . From this decree, the United States proSecutedan appeal.
    The case was argued by Mr. Legaré, attorney-general for the . United States. No counsel appeared for the appellees.
    The attorney-general contended:
    1. That there never was any legal survey, of the land, under the alleged, grant: and that the survey of Rtibert M‘Hardy, who was a private surveyor, was void for want of authority, even if proved to have been m,ade; and could not sever the lands surveyed from tlíé public domain.
    2. That even if the said, survey weré made by legal authority, the land surveyed- do not conform to the description in the said pretended grant, and-the said survey is therefore void.
   Mr. Justice Catron

delivered the opinion of the Court.

This was a grant to Samuel Miles, dated 18th July, 18.13, for five miles square of land, or sixteen thousand acres, at the mouth of the river Santa Lucia.

The first question’ is, was the grant made in property and dominion, or .was _it made on condition that a water saw-mill should bd erected? The petitioner sets forthvariqüs merits and losses, aqd asks the governor to be pleased .to grant to him in virtue of these, the possession of five miles square for the construction of a water saw-mill, fit for the purpose, at a place that is vacant, at the mouth of the river Santa Lucia. The grant to be in lawful property and dominion.

The grant was made to the petitioner for the purpose of constructing the mill in the place pointed out: and also (says the governor) paying, attention to the services and other maters which he sets forth, that there be granted to him the five miles square of land which he solicits, without injury to a better right.”

We have often held, that the authorities of Spain were authorized to grant the public domain, in accordance with,their own ideas of the merits and considerations presented by the grantee: and that our powers extended only to the inquiry, whether in fact the grant' had been made; and its legal effect when made, in cases where the law by implication introduced a condition, or it was peculiar in its'provisions. Mrs. Wiggins’s Case, 14 Peters. As no special ordinance introduces conditions into mill grants, we must construe the one before us by its own terms.

The party desired the grant for the purpose of building a sawmill ; so he represents, and we must take his statement to be t^ue, as the concession in effect adopts it; and to this end sixteén thousand acres were granted, it being the usual quantity in such cases. • The grant, however, is not founded on that consideration, although intended for that purpose-. Meritorious services and losses are relied on; and the land was asked and granted, in lawful property and dominion, without any condition annexed to build the mill.

2. The second objection is to the survey. Its validity is put in issue by the ¿nswer; and its introduction was objected to whén offered to. be read on the hearing, because it had been made by a mere private surveyorand because it did not follow the calls of the grant. The Court received the survey, and decreed the. land laid off.

There was no proof that it was at the place granted, further than appears by the face of the plat and certificate: and we must inquire what credit ought to have been accorded to them by the Court. Mr. M'Hardy certifies that he was a private surveyor; and that he had permission from the'.government, whether general or special does not appear. His own statement is no evidence of the fact. And so it is in regard to his description of the land surveyed, which he certifies as lying at the place granted. There is a marked and wide difference in the effect of the certificate of the surveyor-general and a private individual, who assumes to certify without authority. What the duties of the former are is well known from the proofs in many cases presented to this Court. They, however, are set forth by the instructions of 1811. Land Laws, 1003, 1004. First, the grant must be presented; then the persons having adjoining lands to the place designated must be notified, that they may be present at the making of the survey, with their titles, so that there be no interference; the lands must be bounded by rectangular parallelograms; and fronts on rivers, navigable creeks, and public roads, shall not exceed one third of the depth back: to each person, whose lands have been measured, a plat will be given, with the lines drawn .in black ink; and when bounded by a river, creek, or swamp, (which is permitted,) a quantity will be added, or be deducted, maintaining the rectangular form on the other lines; the number of acres will be on the centre of the plot; and the scale one inch to four chains. The plat will be delivered to the grantee with the following inscription: “ Plat of the number of acres of land, of A. B., in such a place, measured and bounded by the public surveyor of this province, Don George Clarke, East Florida; the day of the year and month, on the same tracts. George Clarke.” “ The surveyor will keep a book of large paper, and copy therein the plats he gives out;, these plats will be numbered; the book will be indexed. At the end of the book he will have. a sheet of sufficient size for a general plan, containing the surveys for individuals, with the number of each.

“The book will serve to show government what lands are vacant, or not measured; and he shall keep a journal to satisfy the persons having lands adjoining. The comers are to be marked with stakes, three inches diameter at the head; and the owners shall encircle them with oyster shells, two feet deep, and two feet diameter.”

A grant delivered out for survey, meant not, as with us, a perfect title, but an incipient right; which, when surveyed, required confirmation by the governor.. The duty of confirmation, by the acts of Congress, is deputed to the Courts of justice of the United States, in execution of the treaty with. Spain;

The same credence, it follows, that was accorded to the return of. the surveyor-general by the Spanish governor, before the cession, is due to it by the Courts of this country. The acts of the officer and the governor were both on behalf of the government; each by his duty was bound to protect the public domain, and to guard the law from violation: if the surveyor, therefore, by his plat and certificate returned that he had surveyed the land at the place, granted, not by the assertion only that it was at the place, but t)ya description in legal form, that it was so; then the return was prima facie competent evidence, without further proof, on which the governor could found the confirmation. Plats and certificates, because of the official character of the surveyor-general, have accorded to them thé force and character of a deposition: the same as Aguilar’s certificate to a copy of the grant; as we held in the case of Wiggins, 14 Peters, 346.

In contrast to the official survey and return, how does this private one of Mr. M' Hardy stand ? No proof was made that it was on the land granted; the certificate does not even so assert, and there is no plat in the record: did it, however, appear in the clearest manner on the face of the paper, it wiould be of no value. The private.surveyor acted not for and with the interests, of the government, but at. the instance of the grantee; and for his interest, and against the government. The survey was a private act: the plat and certificate private papers, delivered to the grantee, of which no record was made in the surveyor-general’s office; and of which the governor could take no notice, unless it was presented to him, and extrinsic proof made that it was for the land granted; and that it had been lawfully made in regard to navigable Avaters, roads, adjoining granted lands, and line marks. Then he could have ordered a perfect title to issue founded on the survey; as he did do in many instances on surveys of Mr. M'Hardy, and as this Court has done and would dp on similar proof.

The decree of the Superior Court gives the lines and description of the survey, to Avit: “ five miles square of land situated at the mouth of the river Santa Lucia: the lines of the said survey thereof are as folloAvs, to Avit, the first line commences at a cedar tree marked M, on the bank of Indian river, and runs south sixty degrees, west four hundred chains to a pine marked M; the second line commences at said pine, and runs north thirty degrees West, four hundred chains to another pine marked M; the third line funs from said pine north sixty degrees east four hundred chains to a live-oak marked M, on the banks of Indian river; and the fourth line is formed and bounded by said river.”

It is laid down in a square, with one side of four hundred chains on the Indian river. By the fourth instruction to the surveyor-general, (declaratory of the standing, law of the province,) the front on the river could not exceed one-third of the longitudinal extension back. Land Laws, 1004. Nor does the description in the concession, of five miles square,” alter the rule prescribed by the general law. It had reference more to quantity than form of survey; Sibbald’s Case, 10 Peters: and was made on the assumption that no controling objects, such as rivers, would be either included or bounded upon; and if they were, that the general' law would govern the survey.

The grant is for five.miles square at the mouth of the river Santa Lucia; this is represented to be a fit place for a saw-mill, to supply timber for which the grant was made. We take it the place is on the side of the Indian river, to which the. Santa Lucia-is a tributary; and that the Santa Lucia is not navigable, or a mill would not have been permitted to obstruct it, .of this, however, the governor had the right to judge; but'we cannot suppose •.the survey was intended to include the Indian river; or to front on it one-third part. We, therefore, hold the concession carried with it the condition imposed by law, in regard .to the form of the survey. ...

The decree is reversed, and the cause remanded to the. Court below to be further proceeded in. That Court will o :der the sixteen thousand acres to be properly surveyed, according to the principles above stated; and found its decree of confirmation on the new survey.


author: Mr. Justice Story

text:
    The United States, v. William Murphy, and William Morgan.
    The owner of property, alleged to have been, stolen on board an American vessel, on the high seas, is a competent witness to prove the ownership of the property stolen, on an indictment ¿gainst the person charged with the offence, under the “ act for the ’ punishment of certain crimes against the United States," passed 30th April, 1790.
    The fine imposed on the person who shall be convicted of the offence of stealing 01» the high seas, on board.a vessel of the United States, is part of the punishment in furtherance of public justice; rather than an indemnity or compensation to the owner. From the nature of an indictment, and the sentence thereon, the government alone has the right to control the whole proceedings, and execution'of, the sentence. Even after verdict, the government may not choose to bring the party up ibr sentence; and if sentence is pronounced, and the fine is imposed, the owner has no authority to interfere in the collection of it, any more than the inrormer or -prosecutor ; and the fine, therefore, must be deemed receivable by the'govemmeut, and the government alone.
    In cases of necessity, where a statute can receive no execution, unless~~the party interested be a witness, there :he must be allowed to testify, for the statute must not be rendered ineffectual by the impossibility of proof.
    In cases where, although the statute giving the party or the, informer ,a part of the - penalty or forfeiture, contains no direct affirmation that he . shall, nevertheless, be á competent witness, yet the Court will infer it, by implication, from, the language of the'statute, or its professed objects.
    ON a certificate of division from the Circuit Court of the United. States for the southern district of New York.
    On indictment for stealing sovereigns* while on board the ship Carroll of Carrolton, on the high seas.
    The defendants, William Murphy and William Morgan, were indicted under the sixteenth section of the act entitled, “ an act for the punishment of certain crimes against the United States,” approved chi the 30th of April, 1790, for taking artd carrying away with an intent to steal and purloin, on hoard of an American vessel on the high seas, one hundred and two gold coins called sovereigns, each of the value of five-dollars, of the personal goods of Francis M'Mahon.
    The defendants having pleaded not guilty, and the case being brought to trial, Francis M‘Mahon, the owner, of tUe property described in the indictment, was called as a witness on the part of the United States, to prove the ownership of the said property, and that it had been stolen from him in June, 1840, in his passage on board the ship'Carroll of Carrolton, from Liverpool to the city of New York; and also, to prove facts and circumstances tending to show that ■ the defendants were guilty of the said offence; to the competency of which witness, as to either of the said matters, the counsel for the defendants objected, on the ground that he was interested in the event of the suit; and so interested that he would not be rendered competent by any release to be executed by him.
    And hereupon the judges were divided in. opinion upon the following questions which were presented for their decision.
    1. Whether the said Francis M‘Mahon, the owner of the property alleged to have been stolen, was a competent witness tó be examined on the part of the United States, as to all the matters above mentioned ?
    2. If not competent to testify as to the guilt of the defendants, whether he was competent to prove the ownership of the property' described in the indictment, and that it had been taken and carried away with intent to.steal and purloin ?
    3. If not competent for both or either of the above purposes, without having .released his interest in the fine to be imposed on the defendants in case of their conviction, whether, by releasing to the United States all his right to and interest in such fine, his competency would be restored ?
    Which said points, upon which the disagreement hasdiappened, were stated above under the direction of the said Court, at the request of the counsel for the parties in the cause; and were ordered to be certified unto the Supreme Court of the United States at the next .session, pursuant to the act in such case made and provided.
    The case was submitted to the Court, without argument, on the part of the. United States, by Mr. Legaré, attorney-general of the Uiiited States.
    The counsel for the defendant, Mr. Nash, presented a printed argument.
    First point. — The witness, Francis M‘Mahon, the owner of the property'charged to have been stolen, was not .a competent witness to be examined on the part of the United States, in this cause.
    The indictment is founded upon the sixteenth section of the act approved April 30th, 1790, being the act for the punishment of certain crimes against the United States. (1 Story’s edition of the acts of Congress, page 83.)
    The section upon which the indictment is founded, among other things, declares that “ if any person upon the high seas shall take and carry away, with an intent to steal or purloin, the personal goods of another, the person or persons so offending, their counsellors, aiders, and abettors, knowing of, and privy to the offence, shall, on conviction, be fined not exceeding fourfold the value of the property so stolen or purloined; the one moiety to be paid to the owner of the goods, and the other moiety to the informer and prosecutor.”
    - In this case, the witness is both the owner of the goods and the informer and prosecutor; upon the conviction of the defendants, the whole fine against them must be paid to the witness direct, without any suit or further proceedings; the Court have no power to dispose of the fine in any other manner, and nothing can be inflicted upon the defendants on conviction, by way of sentence, but the fine; as whippb is abolished by the act of Congress.
    The witness is directly interested in the sentence, the temptation to false swearing is great; immense; and increases just in proportion to the difficulties' that surround the case to detect perjury.
    Suppose the witness should swear that fifty eagles were stolen from his trunk, then the sentence might award him two hundred; should he swear that one hundred were stolen, the sentence might-award him four hundred; and so on in an arithmetical ratio;' while his testimony could be confined within the bounds of probability or possibility, no one could detect the falsity in regard to the number of pieces stolen; -the starting point is in the dark, concealed in his own bosom; perjury could not be detected; he might safely allege his trunk, to be full of gold, and no one be able to testify to the contrary.
    Informers are generally incompetent witnesses, where they are to receive any portion of the decree, sentence, or judgment, without the necessity of. a second suit. The United States v. The schooner Thomas and Henry, Fletcher and Parker, claimants; 1 Brock. Rep. 374; Tilley’s Case, 1 Strange’s Rep. 316; Rex v. Stone, 2 Lord Raymond’s Rep. 1545.
    -By-the common law, informers who are entitled- under the statute to part of a.penalty are not competent witnesses. 1 Phillipps’s Evidence, 125; 2 Phillipps’s Evidence, 166.
    In, the present case, thé act of Congress does not intimate, that the ififormer is a competent Witness • without the aid of the-statrite the'informer is not a competent witness; 'the statute can receive execution without the, party seeking to recover the penalty being admitted as a Witness. Salisbury v. The state of Connecticut, 6 Conn. Rep. 101.
    Second -point. — The witness, Francis M‘Mahon, was not competent to testily or prove tne ownership of the property described in the indictment, and-that it had- been taken.and carried away with intent to. steal or purloin.
    The witness, if sworn dn the cause for otte purpose, in chief, becomes a general witness for all purposes; he is not moré inte-, rested in any one part of the controversy than in another; he does not come Within the rule in Chancery, that a witness may be examined as to that part to which he has no interest. The 'witness onee. sworn in chief becomes a witness generally. Varick v. Jackson, and authorities there cited, 2 Wend. Rep. 166.
    ■ A person who has had his name forged upon an instrument is. not a-competent witness even to prove any .fact besides the forgery which may'contribute to-the general conclusion of guilt; and in case- of a person whose goods have been stolen, he was a competent witness at the common law, only upon the ground that the civil' remedy was merged in the- felony, and the party could not obtain restitution of stolen goods upon conviction': this was only to be obtained upon‘an appeal of felony. The statute of 21 Hen. 8, ch. '2, gave full restitution of the property taken, after the conviction of an offender of robbery. The writ of restitution was to-be granted by the justices of the assize, and at the present day it seems that if the, prosecutor has been guilty of any gross neglect in his-duty to the public, in bringing the offender to justice, he will' not be entitled to the. benefit of the writ of restitution. 4 ‘Chitty?s Criminal Law], 7, 817.
    The reason that a person is a competent witnessatthe common law to prove that his goods have been' stolen by the defendant, and on such testimony to convict hita, was, that the. prosecutor could obtain nothing by the conviction of the defendant. The prosecutor whose goods have been stolen has been made a competent witness in a prosecution against the offender, upon whose conviction' he obtains restitution of the goods, by force of the statutes; the statutes have made the prosecutor a competent witness ; he is riot such witness without the aid of the statutés, since he..is to obtain restitution of his goods upon conviction.- The difficulty in the present case in regard to M‘Mahori is, that no statute of the United States has made him a competent witness.; and without the aid of such a statute he cannot be a witness by the common law, as he is directly interested' in.the sentence.'
    Third point. — The witness, M‘Mahon, ■ cannot release to the United.States his right to, and interest'in, the fine to be imposed upon, the defendants incase of conviction; and therefore.h-is competency cannot be restored or created.
    The United States are not authorized by law-to take such a release; the right to asshare of a penalty, or the -whole of suplí penalty, cannot be released or assigned. Commonwealth v. Hergesheimer, 1 Ashmead’s Rep. 415.
    ' 'Nothing would exist to release or assign at the time of making the same; the right has not then accrued; an estate-cahnot be granted by deed to commence in futufo; such deed is void. See Coke on Littleton, 265.
    The party may release a possibility coupled with an interest; but a-naked possibility is not subject ,to a release. See Jackson v. Waldron, 13 Wend. Rep. 178.
   Mr. Justice Story

delivered the opinion-of the Court.

This case comes before us upon a certificate of division of opinion of the judges of the CircuiúCourt of the southern district of New York,-under the following circumstances

The'defendants, William Murphy and William Morgan, were indicted under the sixteenth section of the act entitled, "an act for the punishment .of certain crimes against the United States,” approved on the 30th of April, 1790, for taking and -carrying away with an intent to steal and purloin, on board of an American. vessel on the high seas, one hundred and' two gold coins,, called sovereigns, each of the value of five dollars, of the personal goods of Francis M'Mahon.

The defendants having pleaded not guilty, and the case being brought to trial, Francis M'Mahon, the owner of the- property described in the indictment, was called as'a witness on the part of the United States, to prove the ownership of the said property, ana tnat it had been stolen from him in June, 1840, in his passage on board the ship Carroll of Carrolton, from Liverpool to the city of New York; and also to prove facts and circumstances tending to show that the defendants were guilty of the said offence; to the competency of which witness, as to either of the said matters, the counsel- for the defendants objected, on the ground that he was interested in the event of the suit; and so interested that ne would not be rendered competent by any release to be executed by him.

And hereupon the judges were divided in opinion upon the following questions, which were presented for their decision.

1. Whether the said Francis M'Mahon, the owner of the property alleged to have been stolen, was a competent .witness to be examined on the part of the United States, as to all the matters above mentioned ?

2. ' If not competent to testify as to the guilt of the defendants, whether he was competent to prove the ownership of the property described in the indictment; and that it had been taken and carried away with intent to steal, ana purloin ?

3. If not competent for both or either of the above purposes, without having released his interest in the fine to be imposed on the defendants, in case of their conviction ; wnetber by releasing to the United States all his right to and interest m such fine, his competency would be restored ?

,-We have considered these questions: and I am now directed to deliver the opinion of this Court upon them. The first question presents, in its most general form, the consideration of the competency of M'Mahon, the owner of the goods alleged to have been stolen;, and it must be admitted to involve no small difficulty, whether viewed in relation, to principle or authority. The act of Congress (act of 30th of April, 1790, ch. 36, sec. 16) upon which this prosecution is founded,, provides, “that if any person within any of the places under the sole and exclusive jurisdiction of the United States, or upon the high seas, shall take and carry away, with an intent to steal or purloin, the personal goods of another; or if any person or persons having at any time hereafter the charge or custody of any arms, ordnance, munitions, &c., &e., belonging to the United States, shall, for any lucre or gain, or wittingly, advisedly, and of purpose to hinder or impede the service of the United States, embezzle, purloin, or convey away any of the said arms, ordnance, munitions, &c., &c., the person or persons so offending, their counsellors, &c., &c., shall, on conviction, be fined not exceeding the fourfold value of the property so stolen, embezzled, or purloined; the one mo.iety to be paid to the owner of the goods or the United States, as the case may be, and the other moiety to the informer and prosecutor; and be publicly whipped not exceeding thirty-nine stripes.”

It is not unimportant to observe, in the construction of this section of the act, that the fine is, as to its amount, purely in the discretion of the Court; that,' whatever it may be, it rests on a mere contingency;-even after conviction, whether it will ever be paid or not, depending upon the ability of the' convict: and that if the fine is to be awarded as a part, of the sentence of the Court upon the indictment, (as it seems properly to be,) then it must be taken to be a part of the punishment in furtherance of public justice, rather than an. indemnity or compensation to the owner, since'it may bear no proportion to. his loss 'or injury. Besides,, from the very nature of an indictment and. the sentence thereen, the government alone has the right to control the whole proceedings and execution of the sentence. Even after verdict, the government may not choose to bring the ■ party up. for sentence; and if sentence is pronounced, and the fine is imposed,the owner has no authority to interfere in the collection of it, any'more than the.informer or prosecutor; and the fine therefore must be deemed receivable solely by the government; and then it is distributable by the government, and by the government only. It would indeed require strong language in any statute, where the proceedings were by indictment, to construe that indictment, or the sentence thereon, to be controllable by other parties Who might have an interest in or under the sentence. In this respect there is a great difference between an information or action qui tarn, where a part of the penalty or forfeiture belongs to the informer or prosecutor, and an-indictment, the conviction upon which may entitle the informer or prosecutor to a part of the penalty or forfeiture. In the former case, the informer or prosecutor may not. be . a good witness; at least not unless under special circumstances; in the latter case he may be: for notwithstanding a conviction upon tiie indictment, he must still sue for the penalty or forfeiture •by action or information, and cannot receive it under the sentence upon the indictment. This distinction was adverted to by Mr. Justice' Bayley, in delivering the opinion of the Court in The King v. Williams, (9 Barn. and Cress. 549,) upon which we shall have occasion to comment more at large hereafter:

The rules as to the competency of witnesses in criminal'cases are not exactly and .throughout the same in America as in England, although in most casés they concur. Thus, for example, in cases of forgery, the .party whose name is supposed to have been forged is not a competent witness in England. But a different course has generally, although perhaps- not universally, prevailed in America. So the owner of stolen goods, has been universally admitted asa competent witness, in America, at least to prove the identity of his property and the fact of the theft,, if not to prove all other facts, although, independently of the statute of 21 Hen. 8, ch. 11, his competency seems to have been a matter of doubt in England.

The general rule undoubtedly is, in criminal cases as well as in civil cases, that a person -interested in the event of the suit or-prosecution is not a competent witness.^ But there are many exceptions which aré as old as the rule itself. ■ Thus, it is stated by Lord Chief Baron Gilbert as a clear exception, that where, a statute can receive no execution unless a party interested be a witness, there he must be allowed; for- the statute must not be rendered' ineffectual by the impossibility of proof.- Gilb. on Evid. 114; 1 Phillipps on Evid. ch. 8, sec. 7, p. 125, edit. 1839 by Cowen. So cases of necessity, where no other evidence can be reasonably expected, have been from the earliest period admitted as another exception. Thus, for .example, upon indictments for robbery, the . person robbed is constantly admitted as a competent witness, although he' will be entitled to a restitution of his goods upon conviction, of the offender. 1 Phillipps on Evid. ch. 5, sec. 6, p. 120, edit. 1839, by Cowen. So in an action against the hundred by the party robbed brought Under . thé statute of Winton. he is.admitted as a competent witness to prove the robbery and the amount of the loss; upon the acknowledged ground that it is from necessity in default of other proof. 2 Rolle Abr. 686; 1 Phillipps on Evid. ch. 5, sec. 2, p. 70, edit. 1839, by Cowen. Another exception, quite- as remarkable, and- standing upon a ground applicable to the 'present case, is that of a person who is to- receive a reward for or upon the conviction of the offender; for he is universally", recognised as a competent witness, whether the reward be offered by the public or by private persons. The ground of this exception is'forcibly stated by Mr. Justice Bayley, in The King v. Williams, 9 Barn. and Cress. 549, 556, where he says: “ The case of reward is clear on the grounds' of -public policy, with a view- to the public interest; and because of the principle upon which suclvrewards are given. . The public'-has an interest in the suppression of crime and the conviction of guilty criminals. It is with a.view to stir up greater vigilañce in apprehending, that rewards are given"; and, it would defeat the obieet of the legislature by means of those rewards, to narrow the means of conviction and to e'xclude testimony, which would otherwise be admissible. Another exception is, in cases where; although the statute giving the party or the informer a part of the penalty or forfeiture, contains no direct affirmation, that he shall, nevertheless be a .competent witness; yét the. Court will infer it by implication from the language of the statute or its professed objects.

Several cases of this sort are collected and commented upon, by Mr. Justice'Bayley, in the case of The King v. Williams, and they fully support the exception. Mr. Phillipps also, in his work on Evidence, has given a summary of the leading decisions, (1 Phillipps on Evid. ch. 3, sec. 7, p. 125, edit. 1839, by Cowen.) Indeed, Mr. Justice Báyley puts the exception, founded upon statute provisions, upon a very broad and comprehensive ground, which is fully in point in the present case. He says; “Where it is plain -that the detection and conviction of the offender, are the objects of the legislature, the case will be within the ■ exception; and the person benefited by the conviction,. will, notwithstanding his interest, be competent.” And in the very case then in judgment, whiGh was a case for a forcible entry into a dwelling-house, on the statute of 21 Jac. ch. 15, where the prosecutor would, upon conviction, be entitled to judgment of restitution of the premises, he was held incompetent, solely because (to use' the- language of the learned judge) “the public interest will still have-the protection of a' common law indictment; and there' is nothing from winch an inference' can be drawn, that it was with a' view to the public interest, and not for the sake of the benefit of the party grieved, that the provision for restitution was introduced into the statute.” Now, every word of this passage shows, that in the case now before us, the party ought to be held competent. No common law indictment will lie for the offence, but only the statute remedy, and the statute - is obviously drawn with a view to the public interest, and the suppression of public crimes; and not for the interest of the party aggrieved, since the fine is in the discretion of the Court, and may be purely nominal.

Looking to the objects of the present section, the promotion of public justice, and the suppression of public,crimes, in which the government have a deep interest; and looking to the ordinary means by which the ends can be accomplished; it,is difiicult not to perceive, that if the owner of the stolen goods be incompetent, it will be found utterly impracticable, in most cáses falling within the purview of the section, to procure any conviction, however frequent, or however flagrant may be the offence. The places on land where the offence may be committed are such, as being within the. exclusive jurisdiction of the United States, contain but few inhabitants, or few whose residence is not transitory and changing. Take the case of a, lighthouse establishment, where Scarcely any other inhabitants are found but the keeper and his family; if he and his wife are excluded as witnesses from incompetency, how will it be practicable to establish the identity of the property stolen,, or of the person of the thief, however atrocious and premeditated may - be the circumstances under which the offence is committed ? It may be' in the night time; it may- be in the broad day, even by a company of conspirators. " But take the very case now in judgment, that of a theft committed on the high' seas, where money is stolen from a passenger or an dfficer of the ship, or from one of the crew; who else besides himself can be expected to establish the identity of the property, or the circumstances of the theft;? It is scarcely povssible that it could be done in one case in one hundred. Can Congress reasonably be supposed, in cases of offences committed upon the high seas, thus to have intended to shut out all the ordinary means and ordinary proofs of the offence; and thus to have given new encouragement, and new motives to theft, and embezzlement, ancbplunderage ? • We think not. Upon all the grounds of exception already stated; upon the ground of necessity, and. of public policy, and of attaining the manifest objects of the statute, and the ends of justice; we think that the witness was admissible for all the purposes stated in the first question.

This decision is not new in America. On the contrary, the doctrine has been recognised, at least to an equal extent, in Connecticut and Massachussetts. In the case of Salisbury v. The state of Connecticut, (6 Conn. R. 101,) the judges of the Supreme Court of that state, held, that the owner of goods stolen, was a comper tent witness for all the matters in issue, upon an indictment for the theft; although the statute declaredihat the thief, upon being convicted, should forfeit and pay treble the value of. the property stolen to the owner thereof. It is true, that one main ground of this decision, by a majority of the judges, was, that there must be another action, qui tam, by the owner to enforce the forfeiture. But the same judges held, that in such an action qui tam, brought by the orvner, he would be a competent witnéss to prove the loss and identity of his property, for the like reasons as, under the statute of Winton, the party robbed is admitted. In The Commonwealth v. Moulton, 9 Mass. R. 29, upon an indictment for theft, it was held, that the owner of the goods was a competent witness as to all the facts in the case; notwithstanding the witness would, by the statute, upon the conviction of the offender, be entitled to restitution of his goods; and, if they were not restored, to satisfaction out of the future earnings of the convict, and to recompense out of the county treasury for his labour arid expense in the prosecution. Upon that occasion the Court said, that when (under a former statute) the party from whom goods were stolen, was by law entitled to treble the value, he -was always received as a competent witness as to all pertinent facts.

As to the second and third questions, they do not require any . particular examination, after what has been already stated. We have only to say, that if we had not been- of opinion, upon the first question, that the witness was a general witness, we should have entertained no doubt that he was a competent witness for the purposes stated in the second question, upon the ground of necessity, and the analogy to the case of the party robbed under the statute of Winton. And as to the third question, we should have no doubt, that if, the witness had such an interest in the fine as would have rendered him incompetent, his competency might have been restored by a release. If, as the argument for the defendant seems to assume, the release is of a mere possibility, no release would be necessary; for a possibility of interest is no objection to the competency of a witness. If it is, on the other hand, a fixed interest in the event of the prosecution, then it is clearly releasable.,

Upon the whole, we are of opinion,,that all the questions ought to be answered in the affirmative. But, at the same time, we desire to say, that although a competent witness, the credibility -of his testimony is a matter for the consideration of the jury, under all the; weight of circumstances connected with the case, and his interest in the result.

We shall direct a certificate to be sent to the Circuit Court of the southern district of New York, accordingly.


author: Mr. Justice M‘Lean

text:
    Charles F. Hozey, Plaintiffs in error, v. William Buchanan, Defendant in error.
    An action was brought in the Circuit Court of Louisiana against the sheriff of New Orleans, to recover the value of a steamboat sold by the sheriff, under an execution as the property of Wilkinson, one of the defendants in the execution, Buchanan, the plaintiff, alleging that the steamboat was his property. The defendant in his answer alleged that the sale of the steamboat by Wilkinson to Buchanan was fraudulent; and that jt was made to defraud the creditors of Wilkinson. Before the jury was sworn, the Court; on the motion of the counsel for the pi? m tiff, struck out all that part of the defendant’s answer which alleged fraud in the sale from Wilkinson to Buchanan. Held, that there was error in this order of the Court.
    By the act of Congress, relating to the enrolment of ships and vessels, it is not required to make a bill of sale of a vessel valid,-that it shall be enrolled in the custom-house. The enrolment seems not to be necessary by the law to make the title valid, but to entitle the vessel to the character and privileges of a« American vessel.
    A bill of sale of a vessel, accompanied by possession, does not constitute a good title in law. Such an instrument, so accompanied, is prim'd, facie evidence of right; but in order to constitute a full right Under the bill of sale, the transfer should he bond fide, and for a valuable consideration.
    ÍN error to the District Court of the United States for the eastern district of Louisiana.
    This- Was a writ of error, brought by- C. F. Hozey to reverse a judgment obtained against him by William Buchanan in the Circuit Court of the United- States for the eastern district of Louisiana.
    • The 'original suit was brought by Buchanan'by petition filed in Court, in which he alleged, in substance, that he was the sole owner of the steamboat called the Nashville, of the value of twelve thousand dollars, when she was illegally and wrongfully seized and'sold as the property of William Wilkinson, by the defendant, Hozey, the sheriff-of the parish and city of New Orleans, He alleged that he had previously purchased all Wilkinson’s interest in the boat, which was small, namely, one-fifth part; that he had thereby become the sole owner, and that Wilkinson had no interest in the beat at the time of her seizure; and that he so notified said sheriff, who nevertheless proceeded to advertise and sell her at a great sacrifice, and to the damage of the petitioner twelve thousand dollars, for which he prays judgment.
    In his answer and defence to this petition, Hozey denied that Buchanan ever had any interest in said boat. He alleged that she belonged to William Wilkinson, and that he, in his official capacity as sheriff, having in his hands an execution of fieri facias from one of the Courts of Louisi..na, in favour of S. W. Oakey and Company v. C. M‘Cantle and Company, or Cullen M'Cantle and William Wilkinson, did seize and sell said, boat in virtue of said execution, as he whs bound to do, she being then at New Orleans, and belonging to said Wilkinson, one of the defendants in said execution.- He alleged that Buchanan was in New Orleans when the boat was advertised and sold, and took none of those steps allowed by law to establish his alleged right to her, or to prevent the sale; and insisted that he had, therefore, lost all claim on the respondent. He further alleged that if any sale had been made by Wilkinson to Buchanan, that it was not made with the formalities of law, but was fraudulent, and made with intent to hinder and defraud the creditors of Wilkinson.
    Both the petitioner and respondent united in the prayer that the case'may be tried by a jury. It was so tried; and a verdict was rendered in favour of the plaintiff for eight thousand and'five hundred dollars; and the Court thereupon gave judgment for the amount of the verdict and costs of suit.
    Before the cause came on fq>r trial, the' counsel for the plaintiff moved the Court to strike out all that part of the defendant’s answer which alleged fraud in the sale of the steamboat by Wilkinson to the plaintiff. This was opposed by the counsel for the defendant. It was ordered by the Court that the same should be stricken out, to which order the defendant excepted.
    On the trial of the cause, the counsel for the defendant moved the Court to instruct the jury that, by the act of Congress, bills of sale of ships and vessels, to be valid, must be enrolled in the custom-house.; and as the bill of.sale on which.the plaintiff relies, is admitted not to have been enrolled, the same cannot be considered as legal title: but the Court refused so to charge the jury, saying to the jury, that a bill of sale, accompanied by possession, constituted a good title, in law.
    The counsel for the defendant excepted to this opinion..

      Judgment having been rendered on the verdict, the defendant prosecuted this writ of error.
    The case was submitted to the Court, on printed arguments, by Mr. Coxe, for the plaintiff in error; and by Mr. Crittenden, for the defendant.
    . Mr. Coxe, for the plaintiff,
    contended that the ruling of the Court, as stated in the exceptions, was erroneous; and the defendant was thereby precluded from making a valid defence to the action.
    Mr. Crittenden urged for the defendant in error,
    that neither of the exceptions presented any sufficient ground for, the reversal of the judgment, which had been rendered in favour of the plaintiff in the Circuit Court.
   Mr. Justice M‘Lean

delivered the opinion of the Court.

This is a writ of error from the Circuit Court for the eastern district of Louisiana.

In the Circuit Court, Buchanan commenced an action against Hozey, for the recovery of the damages he had sustained by the seizure and sale of his steamboat Nashville, by Hozey, as sheriff of the parish of Orleans. The boat was alleged to be of the value -of twelve thousand dollars.

Hozey, in his answer, denied that Buchanan ever had any interest in the steamboat. That having received, as sheriff, a writ of fieri facias issued on a judgment in favour of-Oakey and Company v. Cullen M'Cantle and Wilkinson, the last of whom owned the said steamboat; and it being within the parish of Orleans; he levied upon and sold it at public auction, in conformity to hw as he was bound to do. That Buchanan knew of the levy and sale, being then in New Orleans, but took no steps to arrest the proceeding, whereby he has lost his right if he ever had any. And he. alleges, that' if any sale of the boat was made by Wilkinson to Buchanan, it was not done with the formalities required by law. And that the sale, if made, was fraudulent and void, as it was made to defraud the creditors of Wilkinson.

The cause was submitted to a jury, and they found for the plaintiff the sum of eight thousand five^hundred dollars. On this verdict a judgment was rendered.

Before the jury were sworn, the counsel for Buchanan moved the Court to strike out all that part of the defendant’s answer which alleged fraud in the sale from Wilkinson to the plaintiff, which the Court .directed to be done. And the counsel for the defendant moved the Court to instruct the jury, that by the act of Congress, bills of sale.of ships and vessels to be valid must be enrolled in the custom-house: but the Court refused so to instruct the jury; and charged them that a bill of sale accompanied by possession constituted a good title in law. Exceptions were taken to these rulings of the Court.

Evidence was given before the jury, written and parol, conducing to show the prior ownership of the boat, for'what she had been sold, her employment, the sale to Buchanan by Wilkinson, and the circumstances connected with it.

The plaintiff in error insists on a reversal of the judgment on two grounds.

. 1. The striking out of the answer the allegation of fraud.

2; The invalidity of the bill of sale, it not having been enrolled as required by the act of Congress.

The allegation of .fraud in the answer, in the sale from Wilkinson to the plaintiff below, was a most material allegation. If established, it constituted a good defence to the action. On what ground this was stricken from the answer, by the Court, is not perceived and cannot well be imagined. No authority has been shown in the Louisiana law for such a proceeding; and it is believed that none exists. It-would be as novel as it would seem to be unjust, to strike out of the answer, on the motion of the plaintiff, that which constitutes a good defence, and on which the defendant, may chiefly rely. And this was done too before the cause was submitted to the jury, and consequently before the evidence was heard.

If the answer were' defective in setting up incompatible grounds of defence, and on this account was liable to objection as a plea that is multifarious; still it would not seem to be the right of the plaintiff:' to suggest how the answer shall be. amended. The answer'xn this case", however, does not seem to have.been liable to this exception. By the 419th article, in the Code' of Practice, it is said, “After issue joined, the plaintiff may, with, leave of the Court, amend his petition; provided he does not alter the sub-, stance of his demand, by making it different from the one originally brought.” And in article' 420, “ The defendant may also amepd his answer, subject to the same rules, arid add to it new exceptions; provided that they be not of-the-, dilatory kind. After answering on the merits, dilatory'exceptions shall not be raised by way of amendment, unless with the consent of the plaintiff.” By article 421;“ When onepf the parties has amended, either his petition or his answer, the other party has the right of answering the amendment; but it must be dorie immediately, unless the amendment be of such nature as to induce the Court to grant further time for answeririg the same.”

The defendant may set up facts different from'’those alleged by the plaintiff; and these are considered as denied by the plaintiff without replication or rejoinder. Articles 328,' 329. '

By the 2597th article of the Louisiana Code, it is-declared that, “Whatever may be the vices of the thing sold on execution, they do not give rise to the redhibitory action; but the rule may be setaside in the case of fraud, and declared null in cases of nullity.” And in the following article,-that “ The sale on execution transfers the property of the thing to the purchaser as completely as if the owner had so]d .it himself; but it transfers only the rights of the debtor, such as they are.” . To this effect is the case of Thompson v. Rogers, 4 Louis. Rep. 9; 3 Mar. 39; 10 Mar. 222.

Independently of the above authorities, which are full and explicit, no doubt could exist as to the right of the defendant to set out in his answer his grounds of defence, and impeach the sale of the steamboat from-Wilkinson to. the plaintiff below for fraud, or on any other ground. But the allegation of fraud having been stricken from the answer, by the order of the Court, the defendant, of course, could not introduce evidence, to prove it. This was -an error of the Court which we feel ourselves called, upon-to correct.

The Circuit Court did not err in refusing the first part of the second instruction, “that by the act of Congress, bills of sale of ships and vessels, to be valid, must be enrolled in the customhouse ; and as .the bill of sale, on which the plaimiff relies, is admitted not to have been enrolled, the same cannot be considered as a legal title.” The enrolment seems not to be necessary by the acts of Congress to make the title valid, but to entitle the vessel to the character and privileges of an American vessel. 7 Johns. Rep. 308.

But the charge that “ a bill of sale, accompanied by possession, constituted a good title in law,” is liable to objection. That such an instrument connected with the possession is prima facie evidence of right, may be admitted. But in view of the evidence in the case, there should have been the qualification that the transfer was boná fide, and for a valuable consideration. Upon the whole, the judgment of the Circuit Court is reversed, and the cause is remanded to that Court for further proceedings.