author: Mr. Justice M'Lean Mr. Justice Catron,

text:
    The Mayor and Aldermen of the City of Mobile, Plaintiffs in error, v. William E. Hallett, Executor of Joshua Kennedy, deceased, Dependant in error.
    A grant by the Spanish government, confirmed by the United States, was made of a lot of ground in the city of Mobile running from a certain. boundary eastwardly to the river Mobile. The land adjacent to this lot, and extending from high-water mark to the channel of the river, in frt nt of the lot, was held by the grantee as appurtenant to the fast land above high-water mark. The city of Mobile instituted an action to recover the same, asserting a title to it under the act of Congress of 26th May, 1824, granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals in the said city. Held, that this lot was within the exceptions’ ofithe act of 1824; and no right to the same was vested in the city of Mobile by the act.
    IN error to the Supreme Court of the state of Alabama.
    The ease was argued by Mr. Test, for the - plaintiffs in error; and by Mr. Key and Mr. Sergeant, for the defendant in error.
   Mr. Justice M'Lean

delivered the opinion of the Court.

This case is brought here by a writ of error from the Supreme Court of Alabama. ' The plaintiffs claim title under an act of Congress, and the decision of the State Court was agamst the title; whiebf under the twenty-fifth section of the judiciary act, gives jurisdiction to this Court.'

■ The -plaintiffs brought their action of trespass to try the title to a lot of ground in the city of Mobile, bounded as follows— commencing at a point on St. Louis street, in said city, sixty-six feet west of the corner of St. Louis and Water streets, thence north twenty-five degrees west fo the line dividing the Price claim from the Orange Grove claim, thence parallel with St. Louis street eastwardly to the channel of the river, thence along the channel of the river to a point meeting the line formed by the extension of. the northern boundary of St. Louis street, thence along the north boundary of St. Louis street to the place of beginning; with-certain specified exceptions.

On the trial, the following bill of exceptions was taken: “This cause was tried at the Mobile Circuit Court, of April term, &c., and it was, among other things, proved that the premises which were claimed under an act of Congress, entitled ‘An act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city,’ passed 26th May, 1824, were situated north of St. Louis street, and were bounded on the west by high-water mark, and east by the channel of the river: and that the defendant was claimant, in possession of the land lying immediately west, and which extended from some certain bound- . ary eastwardly to the river, and which he held by a Spanish grant, confirmed by the United States. It was proved further that in the year 1824, and at the time of passing the act, Water" street terminated below St. Louis street; and that in front of the lands which it' was proved the defendant possessed in the direction, Water street was not extended or established, nor was its future course of direction known, or in any way determined on. .Whereupon the Court charged the jury, that by the true construction of the act of Congress, the corporation of Mobile are not entitled to the premises in question, because the defendant possessed by grant originating from the Spanish government the adjacent land extending to the river Mobile, and the claim of the corporation was for land immediately west of it,'extending from high-water mark to the channel of the river, to which charge the plaintiffs excepted.”

The first section of "the adt of 1S24, vests in the mayor and aldermen of the city of Mobile, for the time being, and their successors in office, for the sole use and benefit of the city, forever, all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by that or any former act, and to. which no equitable title existed in favour of an individual, under that or any othér act, between high-water mark and the channel of the river, and between Church street and North Boundary street in front of the city.

And the second section of the act, which relinquishes the claim of the United States to the proprietors of front lots certain water lots which they had improved; excepts from the operation of the law, cases “where the Spanish government had made a new grant, or order of survey for the same, during the time at which they had the power to grant the same; in wmc'n case, the right and claim of the United States shall be, and is hereby vested in the person to whom such alienation, grant, or order of survey, was made, or in his legal representative. Provided, tnat nothing in the' act contained shall be construed to affect the claim or claims, if any such there be, of any individual,” &c.

From both sections of the above act, it will be perceived, that Congress carefully guarded against any interference with existing rights. In the first section, lots sold or confirmed to individuals, either by that or any former act to which an equitable title existed in favour of any individual, were excepted from the operation of the act; and the proviso to the second section declares that the act shall not be so construed as to affect the claims of any individual.

From the bill of exceptions, it appears, that the defendant was in possession of the land in controversy' under a Spanish grant, which was confirmed by the United States; and that the land extended to the Mobile river. It was then within the exception in the act of 1824, and no right vested in the plaintiffs. We think, therefore, that the instruction of the Circuit Court to this effect, was right. The judgment of the Circuit Court was affirmed by the Supreme Court of Alabama, and we affirm the judgment of the latter Court.

Mr. Justice Catron,

dissenting.

I dissent from the principal opinion on several grounds. It is impossible for me to ascertain from the ,few facts stated in the record, whether the land'in controversy lies in front of the city of Mobile, as' it existed, in 1824. It is quite probable it lies north ■of any established street running west from the bay, at date of the act of Congres? under which the corporation claims; and it is clear that such street is the limit of grant on the north, as it calls for “ North Boundary streetand it is an admitted fact that no street bearing this name existed in 1824. It was incumbent on the corporation, as plaintiffs, to prove that their grant included the premises sued for to authorize a recovery on the strength of their own title; as they could not rely upon the weakness of that of their adversary. Until this was done, the validity of the statute of the United States could not be drawn in question in the State Court. It must appear upon the face of the record, 1. That such a question might have arisen; and 2. that it was actually made; and 3. that it was decided. For the rule, I refer to the case of. Armstrong v. The. Treasurer of Athens County, decided at this term. Suppose it appeared by the record that the land lay miles^bove the city as it existed in 1824, and yet the State Court had seen proper to declare that the act of Congress was void: could this Court. take jurisdiction to examine and reverse the state decision ? I think not. No. question on the validity of the act could in.such case have been properly raised or decided; because the act of Congress had no application to • the'premises sued for. It .rested on the plaintiffs in error'to show in the bill of exceptions the facts that could give rise to the question: we cannot infer the facts, to give this Court jurisdiction under the twenty-fifth section of the act of 1789. If it be true, that the making such a question at the bar, and its decision by the State Court, gives jurisdiction to this Court, then the validity of this act of Congress may be drawn in question in any case when the State Court sees proper to give an abstract opinion in regard to it.

It i« supposed the description of the premises in the declaration can be referred to in this case, to aid the bill of exceptions; which in itself is not pretended to be sufficient to raise the ques.tion on the validity of the act of Congress. The declaration is allegation, not proof. It is not referred to by the exceptions; no fact stated in it is recognised as proved by the Court. The bill of exceptions states, that the plaintiffs claimed under the act of 1824; that the premises claimed by plaintiffs were north of St. Louis street, were bounded on the west by high-water mark, and east by the channel of the river; and that the defendant was claimant in possession of the land lying immediately west, and which extended eastwardly to the river; and which he held’ under a Spanish grant; and that Water street, in 1824, did not extend so far north as the front of the land claimed by defendant ; and this is all it states. I deem it wholly inadmissible in this Court to assume jurisdiction under the twenty-fifth section, by inference. But if it could, I should infer, rather, that the land in dispute lay north of the front of the city, when the grant w.as made, than the reverse, because Water street did. not extend so far north at that time.

Secondly, If the premises are "Situate south of North Boundary street, as it existed in 1824, then, I have no doubt, the corporation took title by virtue-of the act of that year; notwithstanding that the land of the defendant’s testator, Kennedy, fronted on the shore of the river, and was bounded by the -high-water mark. The Mobile bay is an arm of the sea, where the tide flows and reflows, and is part of the ocean ; and is navigable in the sense of the term as applicable to such waters. The. shores bétween the high and low water marks belonged to the King of. Spain/ and passed to the United States by our treaty with France, in 18Ó3, as the King of Spain held them; unless they had been granted by the king before the,cession to France, or at least ’before they were ceded to the United States, in 1803. In regard to title, no difference. exists.between the high lands, and those flowed by the tide. The act of 1824 granted the lands between ordinary high-water mark and the channel of the river to the' corporation of, Mobile. The bill of exceptions in effect states, “ That the. defendant was claimant in possession of-land lying immediately west of the land sued for; that his claim,extended to the river, and lay west of it; and that the lands of the plaintiffs were bounded on the west by the high-water mark, and éxtended east to the channel of the river.” So that the, high-water mark is the common boundary between.the grants.'

I concur with my brethren of the majority, that if the defendant was in possession of the land in, controversy under a confirmed Spanish grant, that then such Spanish grant is excepted from the act of 1824; and that this is the true construction of the act, as this Court held in' Pollard’s heirs v. Ki-b'bé: and it matters not when the Spanish grant was made, so that it was before Spain surrendered the .country to the United States, for although such grant was void, still the act of 1824 intended to except it. This is the settled doctrine of the Court on the construction of the act.

But my brethren and myself differ as to the fact; we cannot go out of the record; and this explicitly states that the eastern boundary of the defendant’s land was the western boundary of that sued for by the plaintiffs; and it is almost the only explicit statement in the biU of exceptions. The case did not turn in the Courts below on a conflict of boundary; but, obviously, on the grounds assumed in the case of the same plaintiffs against Es-lava, as will be'seen hereafter.

As no right to the soil below high-water mark was claimed for the defendant, further discussion on this point might-be dispensed with : yet, as the New Jersey case of Martin v. Waddel has just been argued for the third time in this Court, and the doctrine of riparian rights was very fully presented, and as the authorities are-at hand, a slight reference to them will be made.

A primary rule of construction, according to the English common law as applicable to grants of land made by the government to individuals, when they front on the shores of tide-waters, is, that they go no further than ordinary high-water mark; and if the grant, extends over the tide-water, taking the high land on both sides, the land under watpr does not pass by the ordinary terms of grant, applicable to high lands; because the soil under tide-waters is a public sovereign right, and an estate to itself, in the sovereign, held in trust 'for the public use, separate from the highland. This is the settled doctrine in England, as will be seen by the case of the Royal Fishery of the Baune, 8 James 1, reported .by Sir John.Dory, 149; and by Angel, in his Treatise on Tide-waters, App. 35, ed. of 1836.

The case was recognised as sound law by the Court of King’s Bench, in Carter v. Muscot, Burr. Rep. 2162, it which it 'is said, “ That navigable rivers, or arms of the sea, belong to the crown, and not like private rivers to the landowners on each side: and therefore the presumption lies the contrary way in the one case from what it does in the other. Here, indeed, it lies prima facie, on the side of the king and the public.” “ The case of the Royal Salmon Fishery in the river Baune, in Sir John Dory’s" Reports, is agreeable to this; and it is a very good case.”

The same doctrine has been maintained in Massachusetts, as will be seen by the case of Storer v. Freeman, 6 Mass. Rep. 435. in that state, a local peculiarity exists which is explained by the Court.

So in New York. Palmer v. Hicks, 6 Johns. 133; Mayor, &c., of New York v. Scott, 1 Caines’ Rep. 355. And in many subsequent caáes this rule of construction is recognised.

I understand the same rule to apply by force of the laws oi Spain, to the Spanish grant under which the defendant Hailett claims. So the Supreme Court of Alabama held in Hogan v. Campbell, 8 Porter’s Ala. Rep. 1, 24. And see Mayor, &c. of Mobile v. Eslava; opinion of Supreme Court of Alabama. And I feel disinclined on this point to look beyond the decisions of the State Court of Alabama; if power to look beyond it exists in this Court, on this particular point; which I doubt.

The defendant having no right of soil to the premises sued for, the next inquiry is, could Congress grant the land below high-water mark ? That the United States acquired the right of soil from France, by the treaty of 1803, is not .open to question; and that a mud-flat flowed by tide-water is the subject of grant by the government to an individual, I think, cannot well be doubted by any one acquainted with the southern country; where such valuable portions of it are mud-flats, in the constant course of reclamation.

That the King of England could so grant in the American colonies, and that the states of this Union, where the rights of soil are governed by the common law, can thus grant, is not an open question. . The city of New York, by the king’s charter of 1730, and by legislative acts of the state, holds a large body of land in and about the city that was formerly entirely below high-water mark, and that is but slightly reclaimed at this day; as will be seen' by 1 Kent’s Com. 7, 85.

And I understand it to be the settled doctrine in Alabama that the United States has power to grant the lands fro,m high-water mark to the channel of the rivet Mobile, previous to the formation of the state constitution. So the Supreme Court of that state held, in Hogan v. Campbell,above cited. But the ground assumed by that Court, amongst-others, is, that by the adoption of the state constitution, and its acceptance by Congress, the right of soil to all lands flowed by tides passed to the state government by implication, as an incident to the state sovereignty. And on the same principle was the present cause decided by that Court; for they certify in the record before Us, “ That the opinion delivered in the case of the Mayor, &c., of Mobile v. Eslava, at this term, is decisive of the present. The consequence' is, that the judgment of the Circuit Court is free from error, and must be affirmed.”

The case of the Mayor, &c. v. Eslava has been before us this term, and I refer to my opinion in it for the reasons why I supposed the Supreme Court of Alabama mistaken when they declared the act of Congress void.

Assuming that the act of 1824 covered the land in controversy, then, I am of opinion that the- Supreme Court of Alabama erred by declaring it invalid; and that the judgment ought to be reversed. -


source: Caselaw Access Project

author: Mr. Chief Justice Taney

license: Public Domain

text:
    Charles Kelsey, and Charles M'Intyre, Appellants, v. Alfred M. Hobby, and Thomas P. Bond, Complainants.
    On the dissolution of a partnership in 1822, it was agreed with the out-going partners, H. and B., that the debts due to the partnership should be collected by the remaining partners, K. and M‘I., and the debts due by the partnership should be paid by them, and a fixed'sum should be paid to H. and B., when a sufficient sum was collected for that purpose, beyond the amount of the debts due by the firm. In 1829, K. and M‘I, having gone on under this agreement to collect the debts due to, and pay the debts due by the partnership, H. and B. filed a bill in the Circuit Court of the South Carolina district against K. and M‘I., charging that there was a surplus of the partnership effects, after paying all the debts, sufficient to pay them the sum which, by the agreement made on the dissolution of the partnership was to be paid to them, and claiming certain Bridge bills, which were to be delivered to them; and praying for ap account. The Circuit Court, after proceeding in the case, the accounts having been frequently before a master, and after evidence had been taken, made a decree in. favour of H. and B., for a certain sum of money, &c.,‘ and the defendants appealed to the Supreme Court. It was contended by the appellants, that the Circuit Court, sitting in Chancery, had no jurisdiction beyond that of compelling a discovery of the amount which K. and M‘I. had received under the agreement; and that if any thing was found due to H. and B., they were bound to resort to .their action at- law on the covenant entered into at the dissolution of the partnership, to recover it. By the Court, this is a clear case for relief as well as for discovery in Chancery. H. and B, were entitled to an account; and if, upon that account, any thing was found to be due to them, they were, upon well-settled Chancery principles, entitled to relief also.
    According to the ordinary proceedings of a Court of Chancery; the Court should pass upon each item of an account reported by a master, when the amount actually received by a party is in controversy. This is necessary to enable the appellate Court to pass its judgment on the items allowed, or disallowed in the inferior Court. But in a case where the remaining partners had received the sum claimed from them, beyond the debts they had agreed to pay, it mattered not how much more they had received; and such a case does not require a statement of the exact amount. The evidence, and accounts, and exceptions being all in the record'brought into the anpellafa Court, the Court can determine whether the sum mentioned is proved to ' have been collected or not.
    During the pendency of the suit in the Chancery in the Circuit Court of Sbuth Carolina, one of the complainants, H., being in New York where he had gone on other matters than those connected with the suit, was arrested by the defendant, in a suit at ■common law, for a claim which was in controversy in the suit in Chancery; and which could have been adjusted in the Chancery suit; and was'inquired to give' special bail tor his appearance to the suit before a Court in New York. Much difficulty arose in procuring special bail; and having called at the counting-house of K., one of the . plaintiffs in the suit, on the subject of the suit, he there executed a release of all claims in the Chancery suit, and acknowledged accounts presented to him to be correct by which the claims in the Chancery suit in South Carolina were admitted to be adjusted. The suit at common law was then discontinued. The defendants in the Circuit Court of South Carolina afterwards filed the release, and moved to dismiss the bill; which motion was opposed on the ground that the release was obtained by duress. The parties went on to take testimony as to the circumstances under which the release was given. Held, that there could be no objection taken to the introduction of the release in this form, under the circumstances of the case. The release having been admitted without exception, no objection could afterwards be made to the manner in which it was introduced. It had the same effect that it would have had upon á cross-bill, or supplemental answer; and the complainant had the same opportunity of impeaching it.
    There is no propriety in requiring technical and formal proceedings when they tend to embarrass and delay the administration of justice; unless they are required by some fixed principles of equity law or practice, which the Court would not be at liberty to disregard.
    If the accounts between the parties are impeached, and a release has been obtained, executed by one of the parties in a case depending before a Court of Chancery, the release will not prevent the Court from looking into the settlements; and the release in such a case is entitled to no greater force in a Court of Equity than the settlement of the account on which it was given.
    If á release is executed, and a settlement is made of a particular item in an account for which suit has been brought, and in which the party has been arrested, the settlement having been confined to the claim for the damages for which the suit was brought, the mere circumstances of the defendant being detained by the process issued to recover the amount claimed would be no objection to the validity of the agreement and release. But if, while under detention for want of special bail, a release was obtained of other matters than those embraced in the suit, and much more important in amount, and which had been insisted on for years in the suit previously instituted, then in the course of proceeding; neither the circumstances-under which the release was taken, and the account connected with it settled, nor the contents of the papers, entitle them-to any consideration in á Court of Equity.
    APPEAL from the Circuit Court of the UnHed States for the district of South Carolina.
    This case was argued- by Mr. Coxe, and Mr. Wood, for the appellants; and by Mr. Legaré, for thé appellees.
   Mr. Chief Justice Taney

delivered the opinion of the Court.

This is ah appeal from the decree of the Circuit Court for the district of South Carolina. -

It appears from the record that Kelsey, MTntyre, and Hobby, for some time previous to the 9th of February, 1822, carried ou business in Georgia, as merchants, under the firm of C. Kelsey and Company; and it- having been agreed among the partners that Hobby should withdraw from the firm, they, on the day above-mentioned, entered into the following agreement:

“Articles of agreement entered into, at the dissolution of the firm of C. Kelsey and Company, between Alfred M. Hobby, of the first part, and Charles Kelsey and Charles MTntyre, of the second part, witnesseth, That the said Alfred M. Hobby doth agree to withdraw from the said firm upon the following conditions, viz.: that the said parties of the second part, are to take upon themselves the entire settlement of the business of the said firm, and are to pay to the said A. M. Hobby, after the debts of the said firm are all paid and discharged, and a sufficient sum collected out of the debts now due to the said firm, five-thousand five hundred dollars, and in Bridge bills whenever he shall demand them, one thousand one hundred and thirty dollars. And the said A. M. Hobby, for said consideration of the above sums of moñey to be paid, and the further sum of one dollar to him in hand paid, the receipt whereof is hereby acknowledged, hath relinquished and by these presents doth transfer to the said parties of the second part, all his interest or claims of whatever nature he has, or may have, as partner in the said firm. It is also stipulated and agreed, that the said A. M. Hobby of the first part, in consideration as above specified, is to protect the said parties of the second part, from a certain judgment obtained against said firm by the branch of the United States Bank, in this city, and to hold them harmless from any balance, should there be any due, after the conclusion of the settlement between John M'Kinnie and Thomas Gardner, respecting the said judgment. And for the faithful discharge of this agreement, we bind oursélves, our •heirs,.executors, administrators, or assigns.”

At the time this agreement was executed, an inventory was taken of the assets and debts of the firm, by which it appeared that the goods and property on hand, together with the debts due to the partnership, were estimated at thirty-eight .thousand one hundred and sixty-four dollars and ninety-six cents; and that the debts due from it amounted to twenty-six thousand fifty-seven dollars and ninety-one cents, and that this schedule formed the basis of the agreement.

In. November, 1829, Hobby filed his bill Kelsey and M'Intyre, charging that there was a surplus of partnership effects after paying all the debts sufficient to satisfy the five thousand five hundred dollars mentioned in the contract, as well as the Bridge bills, and praying an account.. These Bridge bills were notes issued by a company who had built a bridge, in the state of Georgia; and these notes circulated as money, but at a heavy discount.

On the 7th of February, 1830, M'Intyre put -in his separate answer, in which he dénies that the assets of the partnership produced the surplus charged by the complainant; and exhibited an account according to which the funds of the partnership realized only twenty-nine thousand five hundred and eighty dollars and eighty-three cénts, and the debts' paid amounted to twenty-eight thousand eight hundred and- seventy-four dollars, and sixty-six cents; and he insisted that large sums were also paid by them for interest on the debts of the firm, and heavy expenses incurred, which were not introduced into this account, but for which Kelsey and MTntyre ought to be allowed credit; arid that when these sums were -added, they would amount to considerably more than had been collected; and that in addition to this, they are entitled to an allowance of two and a half per cent, on all sums collected and paid by them. ■ He also averred that Hobby did not perform his part of the agreement, and that an execution was afterwards issued by the branch of the United States Bank, and the' goods of Kelsey and.M'Intyre seized for the'debt against which Hobby had covenanted to save them -harmless; ánd that by reason of that execution and seizure, they were put to great expense, and were seriously injured' in their credit and embarrassed in their business as merchants; arid insisted that they were absolved from their • agreement by the failure of Hobby to perform his-part. The answer further stated that although Kelsey and MTntyre denied the fight of the complainant to the Bridge bills he claimed, yet they were willing to give him an order for them on the attorney in whose hands they had been placed for suit, and who had prosecuted the claim to judgment. That the respondent had always been ready to account with the-complainant, Hobby, and to deliver him these bills, but that no demand was made until this suit was about to be instituted.

Kelsey* the other respondent, had removed to New York a short time before the bill was filed, and his answer.was not put in until January 10,1838. This answer is in substance the same with that of M'Intyre, to which it refers.

There was a general replication to these answers, and the ac counts referred to a master, by order of the Court; when his report came in, many exceptions were filed to it on both sides; and upon hearing, the Court set aside the report, and returned it again to the master, with directions as to the ■principles on which it was to be stated. A good deal of testimony was taken on both sides, and the master made a second report at April term, 1839, according to which the respondents had paid two thousand and thirty-one dollars and five cents, beyond the assets which came to their hands. Many exceptions were again filed on both sides to this report, and it was by order-of the Court again returned to the master with directions to take further proof as to one of the items in controversy.

■ In the latter end of August, 1839, while thé accounts were pending before the master, as hereinbefore mentioned, Hobby went to New York where Kelsey resided and was carrying on business; and a few days after he arrived there, he was arrested at the suit of Kelsey and M'Intyre, upon a claim for four thousand dollars as damages for not having saved them harmless against the debt due the Branch Bank of the United States, according to his covenant in the agreement hereinbefore mentioned. It seems that Kelsey was advised by his counsel, in New York, that this claim could not be allowed him in the Chancery suit, because the damages were unliquidated. Being a stranger in the city, he found difficulty in procuring special bail. But an acquaintance whom he had occasionally met in society, and to whom he applied, entered into' a bail-bond to the sheriff conditioned that he would appear to the suit and put in special bail within twenty days after the fourth of September then next ensuing; Hobby assuring him that he expected some of his southern friends to be in New York in á few days, and that he would then be able to relieve him. The party who thus became his security informed Hobby, in the presence of the officer in whose custody he was, that he could not justify as special bail; and he was not, therefore, accépted as security in the bond, until the officer consulted Kelsey’s counsel and received his consent.

The southern friends, of whom Hobby spoke, when they arrived offered to become his special bail, but not living in the state of New York they could not be taken without the consent of Kelsey, And Hobby remained in New York, unable to procure special bail until the sixth of September, when he signed an admission of the correctness of hn account concerning the whole controversy in the Circuit Court, which had been prepared some time before by one of Kelsey’s clerks. According to this account, Kelsey and MTntyre had paid fifteen thousand eight hundred and fifty-nine dollars seventy-three cents, under the agreement with Hobby, beyond the amount of the partnership funds that came to their hands. And at. the same time that he signed the account, he executed the following release:

Account of C. Kelsey and Company with the old concern of C. Kelsey and Company. United States, South Carolina District. Being Sixth District, United States.

A. M. Hobby and Thomas C. Bond, I Now pending before said Charles Kelsey and Charles MUntyre, ) Court.

In Chancery.-

In this case, the parties, Alfred M. Hobby and Charles Kelsey have come together, and examined the subject-matters in dispute,, and they find the within account correct, and it is hereby admitted to be correct, and every entry in it. And they do not deem it just or equitable that said suit should be further prosecuted. And in consideration of the premises, and one dollar paid, the’ parties in said suit hereby discharge each other from all demand in the same. And each party releases and discharges the other from all demand of every name and nature, and agree that the said suit should be discontinued. As witness our hands and seals, this sixth day of September, eighteen hundred and thirty-nine:

A. M. Hobby, [l. s.]

C. Kelsey. [l. s.].

Witness to the signatures and seals of A. M. Hobby and C. Kelsey.

Geo. H. Kelsey.

B. A. Hegemon.

This release was attached to the account settled at the same time; and a letter written by Hobby to his counsel, and shown to Kelsey, stating that they had come to a settlement, and directing the»suit in Chancery to be discontinued: and Hobby was thereupon discharged from the arrest, and shortly afterwards lett New 'York.

On the Sth of January, 1840, the release and settlement above-mentioned were produced in Court by the solicitors for tire respondents, and a motion thereupon made to dismiss the bill. This motion was resisted on the-part of the complainant, but the particular grounds upon which it was objected to are not set forth. The order of the Court merely states that the release was impeached by the complainant’s 'counsel, and authorizes both parties to take testimony in regard to the settlement and release. Under this order, sundry depositions were taken and returned on the part of the .complainant, to show that the settlement and release were without consideration, and that they wore extorted from him by the arrest under which he was detained in New York; his southern friends and acquaintances being refused as bail, because they did not reside in the state, and he being unable to leave the city until the temporary bail he had procured was discharged. And sundiy depositions were also taken and returned on the part of Kelsey, to show that there was no harshness or oppression on his part, and no undue advantage taken of Hobby; and that the settlement and release were freely ánd voluntarily made.

The case came on for final hearing on the 30th of May, 1840, upon the report of the master, and the exceptions filed to it on both sides. ' The report, which stated as before, a balance of two thousand and thirty-one dollars and ninety-five cents, in favour of Kelsey and MTntyre, for payments and allowances made to them, over and above the sums realized by them from the partnership effects, was set aside by the Court; and upon the testimony in the cause, the Court proceeded to pass a decree in favour of the complainant, for five thousand five hundred dollars with inierest, and for the Bridge bills mentioned in the agreement, and allowing to the respondents a set-off of three hundred dollars, for the damages, sustained by reason of the execution issued against them by the Branch Bank of the United States, as hereinbefore stated. From this decree the respondents appealed to this Court,

This statement of the facts in the case may appear to be tedious; but from "the nature of the proceedings it is necessary, in order to show how the points 'arose which were made in the argument in this Court.

• The appellants contend that the Court of Chancery had no jurisdiction beyond that of compelling a discovery of the amount which Kelsey and MTntyre had received under the agreement; and that if any thing was found due from them to Hobby, he wasbound to resort to his action at law on the covenant in order to recover it. But the Court think it was a very clear case for relief, as well as discovery in Chancery. It is true he had ceased to. be a partner, but the appellants had received the" assets Of the partnership upon a trust that they would collect them, and pay the debts, for which. Hobby was liable as well as themselves; and would pay over to^ him the sum before mentioned, as sooq as. they collected enough for that purpose after the payment of debts. He was, therefore, entitled to an account; and if upon that account any thing was found due to him, he was, upon well-settled Chancery principles, entitled to relief also.

. Neither can the objection be sustained as to the mode in which the amount due was ascertained. It is true, that according to the ordinary mode of proceeding in Courts of Equity, instead of setting aside the report of the master, the Corfrt should have passed its judgment upon each of the exceptions, or have remanded the account to the auditor with additional directions as to the principles upon which it was to be stated. And if it had been necessary to ascertain precisely the amount which the appellants had collected over and above the debts they had paid, the proceeding adopted by the Court would have been liable to the objections urged against it. For the decree could not in that case have been reviewed in th'e appellate Court, and the exact balance ascertained; unless the record showed what items were allowed and what disallowed in the inferior Court. But this is not a case of that description. If the appellants had received-the sum claimed by Hobby beyond the amount of debts paid, it mattered, not how much more they had received; and the case did not require a statement of the exact amount. And as the evidence, and accounts, and exceptions are all jn the record, this Court can determine whether'the sum mentioned is proved to have been collected or not. And if it .appears,to have been received, the decree must be affirmed; even although it may happen that items allowed by the Circuit Court -are disallowed here; or items dis.allowed by that Court are determined here to- be correct and properly chargeable. And, as all the testimony is before us, and the-exceptions show all of the disputed items, neither party can be taken by surprise.

It would extend this opinion to a most unreasonable length, if the Court were to enter upon a particular.and detailed examination of the various disputed items, and of the testimony and calculations relied on by the parties to support their respective claims. Fourteen exceptions were taken to the auditor’s report ^by the complainants, and six by the defendants; and the evidence upon which they depend is voluminous. Four of them require a particular examination and comparison of different accounts, in order to arrive at a just conclusion. We have looked into the whole testimony very carefully, and unless the release and settlement in New York is to be regarded as conclusive, we are satisfied that Kelsey'and Mdntyre have received from the partnership assets beyond the- amount paid for debts, a larger sum than that decreed against them by the Circuit Court. .

This brings us to examine the release, and the account stated at the time it was given.

Some objections have been made as to the manner in which the release was introduced into the proceedings. It was filed in the cause, and a motion thereupon made to dismiss the'bill; and it is said that being executed while the suit was pending, and after the answers were in, and the accounts before the master, it should have been brought before the Court by a crossbill or supplemental answer, and could not in that stage of the proceedings be noticed by the Court in any other way. It is a sufficient answer to this objection to say that it was admitted in evidence without exception, and both parties treated it as properly in the cause; and the complainant proceeded to take testimony to show tha.t it was obtained from him by duress, and the defendants to show that it was freely and voluntarily given. It had the same effect- that it would have had upon a crossbill or supplemental answer, and the complainant had the same opportunity of impeaching it. And there is no propriety .in requiring technical and formal proceedings, when they tend to embarrass and delay the administration of justice; unless they are required by some fixed principles of equity law or practice, which the Court would not be at liberty to disregard.

The release and account being therefore regularly before the Court, we proceed to inquire into their legal effect, and the degree of weight to which they' are^ entitled. The effect of a release, executed in consideration of the settlements of accounts between the parties is clearly stated in Story’s Equity Proceedings, p. 529, sec. 685, If the account is impeached, the release will not prevent the Court'from looking into the settlement; and the release in such a case is entitled to no greater torce; in a Co.urt of Equity than the .settlement of the account upon which it was given. In the case before us-, the settlement^f the account was the only consideration for the release. The complainant, who resides in Georgia, anu who had gone to New York upon business^ was unexpectedly arrested for a claim which was then pending between the same parties in the Circuit Court of the United States for the district of South Carolina. The suit was brought for damages alleged to have been sustained by the failure of Hobby to indemnify the appellants against the claims of the Branch Bank of. the United States hereinbefore mentioned. It is true, that the plaintiffs in the suit were advised by counsel that they could not be allowed for these damages in the proceeding in equity, because they were unliquidated; and they ought not therefore to be held accountable for that error. Yet it's very clear that the suit should not have been brought; because-these damages formed one of the items in controversy between the parties in’ the suit in Chancery, which had been so long pending between them. And that Court had not only jurisdiction over the subject, but it was bound to ascertain and allow them before it could adjust the account,- and grant the relief to which, the complainant was entitled. • The mode by which a Court of Chancery ascertains, the amount in casés -of that description, is either by a reference to the master, or by sending an issue of quantum damnificatus to be tried by a jury. • The ,'c.ases upon this subject are collected-qnd arranged in 2 Story’s Commentaries on Equity, ch. 19, p, 104. And the damages - in question were in fact ascertained by the Court and deducted from the amount due to Hobby in. the decree now undei: examination. But,, nevertheless, as Kelsey in this respect acted by the advise of his counsel, if the settlement which afterwards took place, had been confined to the claim he was seeking to enforce,-the agreement between the parties to fix the damages at any particular; amount,-would have bound Hobby, unless it-was evidently unreasonable and exorbitant; or he could prove it. was obtained by improper, means. The mere circumstance of his being- detained in New York by reason of the process issued to recover-the amount claimed, would be no objection to the validity of the agreement. But while Hobby was detained in the manner before stated, and unable to procure special bail, Kelsey'obtained-from-him a release of matters-not embraced in this'suit, and much more important in amount; .and which Hobby had been insisting on for years, and for which he'was prosecuting a suit in the Circuit Court. Neither 'the c rcumstances under which the release was taken,and the account cozmected with it settled, nor the contents of these papers, can entitle them to weight in á Court of Equity. There is no evidence of any negotiations between the parties respéeting this arrangement, previous to the .interview at which these papers were signed. Upon that occasion one of the-clerks of Kelsey was present. He. is one of the witnesses 4p the release. -He does not say who proposed a settlement, but he states that the account admitted by Hobby had-been prepared a long time before by one of Mr., Kelsey’s clerks; that.the examination of the account did not take more thaii ten minutes. And the interview, at which it was acknowledged and signed, and the release 'executed, and a letter, written by Hobby, to his counsel .in South Carolina to’ discontinue the suit against Kelsey ahd MTntyre, did-not last more'than an hour.

This'is the testimony of the witness. Nc hooks or papers appear to have been produced, or to have been in the pity of New York, at the time, in the possession of either-party, except the account produced by Kelsey, and signed by him .and Hobby. And yet the-release states, that the parties had come together and examined the subject-matters in dispute,” and found that accpunt correct; and thereby ■“ admitted it to. he correct,-and every entry in it.” And the account too which is thus admitted, contains items for “exchange paid,” “loss by discount oh money received in collection of the partnership debts,” “ rent, for counting room,” travelling expenses, postage, clerk hire, incidental expenses, and sundry others which would have required much time to examine, and. the production of many vouchers-befoie Hobby could have known whether they were correct or . not. The account in important particulars differs from the one. on which Kelsey and MTntyre had themselves relied in the Circuit Court of South Carolina; and is more unfavourable to Hobby, by about twenty thousand dollars, than the one which Hobby had been so long insisting on in his suit' Such'an account and release, executed under such circumstances, are not entitled to the consideration and weight.which belongs to instruments, freely executed, arid with opportunities of knowledge and examination. So far from strengthening the claims of the appellants, they, in the judgment of the. Court, are calculated rather to bring suspicion upon themi. They certainly cannot outweigh the testimony taken in the Chancery proceedings; and the decree of the Circuit Court is therefore affirmed.


author: Mr. Justice Catron

text:
    Thomas Armstrong and others, Plaintiffs in error, v. The Treasurer of Athens County, Defendant in error.
    An act was passed by thb legislature in 1840,' by which certain lands held under conveyances from :the President and Trustees of the Ohio University,' at Athens, were directed to'be assessed arid taxed for county and stgte purposes. A bill was filéd by the purchasers Of the. land agmnst. the.tax.collector, praying that he ahould be perpetually enjoined from enforcing the payment of the taxes, because the lands.had been exempted by a'stattite.of Ohio, of 1804; which the bilí alleged entered into the conditions of sale, under which the complainarits held the land. It was insisted that . the act of 1840. violates the'contract with the purchasers, and is. void,, being contrary to the clause, of the Constitution of. the United States which prohibits-the states from pássing any law violating the obligation of contracts'. The Supreme Court of Ohio dismissed the bill Of the complainants. The ordinance of 1787, by which , á large -section of country in Ohio-was' sold to' a-company, gave two complete townships -, of land for the purposes of a university. In 1804, an- act óf the legislature of Ohio established the pniveprity on the' foundation of the. fund, granted by Congress, and vested the land in the corporation of the university.. The hctdirected-the .manner - in which the land was to be leased, reserving rent to the corporation; and .the sevens teenth section directed that the. land appropriated and vested by the. act, should be exempted fromiall state taxes.' In 1826", the legislature authorized ali the university land' not encumbered with leases, or which had pot been reentered by tire trustees of the uriiversity, or. tor which:they-had regained their title,,to be sold'in .fee 'simple for tiie benefit of .the university. . The complainants purchased the land held by then.under this.statute, and took deedsinfee; no exemption''ftom taxes being-contained in thestatute, or in their deeds. Held, that tiro lands having been purchased under the act of'1826, and riot being held under the act of 1804, were subject to taxation.. Ah the purchasers held under the'act of 1826, and cannot' go behind it f and their laiids are subject like other persons’ to be taxed by the state.
    The case of The State of New Jersey n. Wilson, 7-Cranch, 164; cited and affirmed, In that case the land had for a sufficient consideration been given' by the state to a certain ’ Indian tribe,-and- was declared to be forever exempt from taxes. The Indiaris, with the consent of thestate,sold the landj -and the purchaser of the Indian title obtained the land, with the exemption from taxes granted by the state.
    In order to give this Court jurisdiction under the twenty-fifth section of the judiciary act of 1784, which authorizes the removal of a case by writ of error Or appeal from the highest Court of a slate to the Supreme Court of the United States, in certain" cases, it must appear on-the record itself to - be one. of cases enumerated in that sec- ■ tion, and nothing out'of- the record certified to this Court can be taken into consideration. This must be shown:
    First, Either by express averment, or by necessary intendment ,in the pleadings in the case; or"
    Secondly, By the -directions given by the Court, and stated'in the "exceptions; or: Thirdly, When the proceedings are according to the law of Louisiana; by the statement - of facts, and of the decision, as is usually made in such cases by the Court; or:

      Fourthly, It mjist be entered.on the record of the proceedings of the appellate Coürt, • in cases where the record shows that such a point may have arisen and been decided, that it was in' fact raised and decided; and this entry must appear to have been made by order of the Court, or by the presiding judge by order of the Court, and certified by'the clerk as part of .the record in the State Court; or:
    Fifthly, In proceedings in equity, it may be stated in the body of the final decree of the State Court, from which the appeal is taken to this Court; or:
    Sixthly, It must appear from the record, that the question wás necessarily involved in the decision, and that the State Court could not have given .the judgment or decree ■ which they passed, without deciding it.
    IN error to the Supreme Court of the state of Ohio.
    A bill was filed in the Court of Common Pleas of the county of. Athens, in the state of Ohio, by Thomas Armstrong and others, stating that they were seised in fee of certain lands purchased by them from the President and Trustees of the'Ohio University, in pursuance of the provisions of an act of the Assembly of the state of Ohio, entitled “ An act authorizing the Trustees of the Ohio University, to dispose of certain lands,” passed February 4th, 1826. The lands are situated withimthe two townships granted by Congress within the bounds of the Ohio Company’s purchase, for. the endowment of a university. By the seventeenth section of the act of the Assembly of Ohio, passed February, 1804, entitled, “An act establishing a University in'the town of Athens.,” it is declared “ that the lands in the two towiiships aforesaid, with the buildings which are or may he erected thereon,.shall be forever exempt from, all state taxes.”. The, bill asserted that the lands were purchased from the president and trustees of the .university, in the fall faith and confidence that ihe same would remain foreVer and exempt from all taxes for state purposes.
    The hill further represents that notwithstanding the declaration contained in the act of February 18th, 1804, m pursuance of the provisions of art act of the Assembly ox Ohio, passed on the 21st of March, 1840, entitled “An act to amend an act authorizug the. trustees of the Ohio University to dispose of certain lands, passed February 4th, 1826,” the several tracts of land belonging to the complainants.have been appraised by the assessor of Athens county, .and placed on the duplicate for taxation by the auditor of the county, and taxes for state and. county purposes have been assessed on the said lands. The tax duplicates have been placed in the hands of. a collector, and they have been called upon to .pay the same.
    The bill prays for an answer, and for a perpetual injunction from further proceedings to colléet the said taxes; and for further and other relief.
    By the ordinance of Congress, of .1787, under which a large body of land was sold to- a company,, two townships of land were-reserved for the purposes of a.university; and in 1804, the legislature of Ohio estáblished a university at Athens,, appropriating to it these 'two townships of land. By this act the land was to be leased -out for ninety-nine years, the rents to be paid to the university; .and the land was declared to be exempted from all state taxes. In 1826, the legislature of Ohio authorized all the land belonging to the university to be sold in fee-'simple ;■ and nothing was stated in this act exempting the land to' be sola from taxes. The appellants purchased the land from the university, sold Under the authority of this law.
    ■ The treasurer of Athens countyappeared and answered the bill, and admitted all the facts stated in it, and also that he intended to collect the taxes assessed on the land; asserting that he had a right to do' so by virtue of an act of the General Assembly of Ohio, passed 21st March, 1840, in connection with other, general laws of Ohio defining the duties of treasurer; which said act, and other further acts, he set up as a defence to the complainant’s bill.-
    At the October term of the Court of Common Pleas,'the injunction which had been granted on the filing of this bill, was. made perpetual.
    The defendant appealed to the Supreme Court, and the decree of the Court of Common Pleas' was, at the December term, 1-840, reversed; and the complainants were adjudged to pay costs.
    In the record of the proceedings of the Supreme .Court of Ohio, was the following certificate:
    “ I do hereby certify, that in the above-named case there was drawn in question the validity of the statute of the state of Ohio, passed on the 21st day of March, 1840, entitled ‘An act to amend the act, authorizing the trustees of the Ohio University to dispose of certain lands,, passed July 4, 1826/ on the ground that it was repugnant to the Constitution .of the United States, and that the decision of the Court was in favour of the validity of said statute. Eben. Lane,
    Chief Judge of the Supreme Court of Ohio.”
    From the decree of the Supreme Court of Ohio, the complainant’s appealed to the Supreme Court of the United States.
    . The'case was submitted to the Court, on a printed argument, 'by Mr. Ewing, for the appellants. No counsel appeared for the appellees.
    Mr. Ewing, in the. printed argument, stated that, the act of the 18th of February, 1804, expressly declares that these lands “shall forever be exempted from state taxes.” This exemption is not iimited to the duration of the particular tenure by which they were at first held, but the exemption, was of the land and the ‘ improvements upon it forever. The act of February 4th, 1826, authorizing the sale, does not directly or indirectly withdraw that exemption, or declare that it shall not attach to the land after sale. It was exempt-forever, when it was offered for sale ; and passed with this exemption into the hands of the purchaser.. It was~his, charged with the burdens and favoured with the privileges which attached to it, under the several laws and parts of laws then in force respecting it; and those laws formed part and parcel of his contract., The law of 1840, subsequently passed, changing those laws to his injury, was a violation of his contract, contrary to the Constitution of the United States, and therefore void.
    The case of the state of New Jersey v. Wilson, 7 Cranch, 164, is in point. There is nothing to distinguish the two cases from each other.
   Mr. Justice Catron

delivered the opinion of the Court.

This is a "writ of error from a State Court; and it has become the duty of this Court, before proceeding to examine' the merits of the controversy, to determine whether jurisdiction over it is conferred by the twenty-fifth section of the judiciary act of ] 789 It is true no question upon-that subject was raised in the argument presented for the appellant; (the respondent having no counsel.;) but it has -been the uniform practice of thisJCourt, in every case of this description, to ascertain, in the first instance, whether the record presented a case in which we'Were authorized by law to revise the judgment or decide of a. State Court. And this question has so often arisen; arid parties have been so frequently subjected to unnecessary expense in bringing causes here, in which a writ of error or appeal to this Court would not lie, that we have thought this a fit occasion to state the principles upon which the Court have constantly acted, and which may now be regarded as the law of the Court...

In order to give this Court jurisdiction under the twenty-fifth section of the act of 1780/ it must appear on the record itself, to be one of the cases enumerated in that section: and nothing out of the record certified to this Court can be taken into , consideration.

This must be shown: first, either by express averment, or by necessary intendment in the pleadings in the case.

Of, secondly, by the direction given by the Court, and stated in the exception. . ,

Or, thirdly, when the proceeding is according to' the law of Louisiana, by the statement.of facts, and of the decision, as usually made in such cases by the Court.

Or, fourthly, it must be entered on the reeord- of the proceedings in the Appellate Court, in cases where the record shows that such a point may have arisen and been decided, that it was in fact raised and decided; and this entry must appear to have been made by the order of the Court, or by the presiding judge by order óf the Court, and certified by the 'clerk, as a part of the record in the State Court.

■ Or, fifthly, in proceedings .in equity, it may be stated in the body of the final decree of the State Court from which the appeal is taken to this Court.

Or, sixthly, it must appear from the record that the question was necessarily involved in the decision; and that the State Court could not have given the judgment or. decree, which they .passed, without deciding it.

We are not aware of any other modes in which the judgment .or decree of a State Court can lawfully be brought before us; and we have stated them particularly, in order to prevent, in future, the difficulties and discrepancies which have so often arisen on this subject.

In the case now before -us, the presiding judge of the Supreme Court of Ohio has certified on the record that, the validity of a statute of the state was drawn in question, on the ground that it was repugnant to the Constitution of the United States, and that the decision was in favour of the validity of.said statute; and this certificate of the judge is certified by the clerk, as a part of the record. . 'We presume that the certificate of the presiding judge was made by the authority of the Court: and as. this bill and-answer show that such a point might háve arisen, and .this certificate on the record states that it did arise, and was decided; the .case comes within the fourth clause above mentioned, and this Court must take jurisdiction, and examine whether the point certified was rightfully decided.

An act of, the legislature of. Ohio, passed in .1840, ordered certain lands held by the complainants to be assessed and taxed. The defendant was. the- tax-collector. The bill-prays he be per-: petually enjoined from enforcing the, payment of the tax, because the lands had been exempted by a statute of Ohio, of 1804, which entered into the conditions of sale under which the complainants held. Therefore, it is insisted, the act- of 1840 violates the contract of purchase, and is void; being, contrary to that dause of the Constitution of.the United States,- which -prohibits the states from passing any law violating the obligation of contracts.

. This is the. only question presented by the repord that we cán examine; as the twenty-fifth section carefully restricts this Court to specified cases of jurisdiction, beyond which we have no'power to go into the cause.

There are six complainants, each setting up a distinct title; they s'uq jointly — and for the six only, and not for themselves and others, equally assessed; as in Attorney-General v. Helin, 2 Simon and Stuart, 67; and similar cases, referred to in Story’s Equity Pleadings, sec. 114, 123. The Supreme Court of Ohio, having entertained jurisdiction, this Court must ‘do so likewise. The question of misjoinder is not open to us for revision.

The immediate deeds .in fee from the trustees of the Ohio University to complainants,,are not set forth in the pleadings: we take it, however, that they contain no. condition ■ exempting .the lands from taxation, as the bill is founded on the assumption that the seventeenth section of the act of 1804 entered into the cantract-and imposed the exemption on the state. Whether such an inference arises in favour of .the complainants, depends on the construction of an ordinance of Congress and the several acts of the legislature of Ohio, passed,in.regard to these.university lands.

By the ordinance of 1787; 1 L. U. S. 573, a sale of a large section of country was authorized to be made to a company of individuals,.from which is reserved:

“Not more than two complete townships to be given perpetually; for the purposes of a university, to be laid Off by the purchasers as near the centre as'may be, so that the. same shall' be of good land; to be applied to the intended object by the. 'legislature of the state.”.

Ohio came into the Union as a state, in 1802. In 1804, Ohio Land Laws, 226, an act .was passed establishing a'university on the foundation of the fund secured by Congress, to be'situated' on the reserved lands; being townships eight and nine. • The lands Were vested in the corporation, consisting of the president arid trastees, “for the sole use, benefit,and support of the university, forever.”

They, were authorized to rent out the iands in separate tracts, of not less than .eighty acres, or more thari two hundred and forty acres on a valuation of commissioners, at a yearly rent of six per centum per annum on the estimated value, for ninety years, renewable forever: and from time to time a re-valuation was to take, place, to which, the subsequent rents- were to correspond ; with this'addition, sec. 12, " That the said corporation shall have power to demand a further yearly-rent on said lands, and tenements, not exceeding the amount of tax imposed.on property of like description; by the state; which rents shall be paid at such time and place, to such person, and collected in such manner, as the corporation shall direct/’ The seventeenth section declares, “ That the lands in the two townships, appronriated and vested as aforesaid, with the buildings which are or may be erected thereon, shall fprever be exempted from all state taxes.”.

Thus the matter stood until 1826, when the-legislature authorized the board of trustees of the university"to sell and oonvey in fee simple, (1) all the lands situate in-the college townships, which were not encumbered with outstanding leases"; (2) such of said lands as had been re-entered by the board, for a breach of the conditions of the leases, or where this encumbrance had been or might be otherwise removed; (3) to convey in fee to the lessees, respectively, on the payment of such sum of money as would .yield at an interest of six per centum per-annum'on the sum which ^as yearly reserved in the lease.

Pursuant to this statute,, the- complainants purchased and took deeds in fee; .no exemption from state taxation being contained in the. statute under which -they- took title, or in their, déeds.

The object of the incorporating act of 1804, waa to regulate a public fund, intrusted to the management of the state-sovereignty, so as best to accomplish the intention -of the donor,- the' United States. It was a matter of course, in the then state of the college fund, to exempt it from taxes, in' the hands of the trustees. The lands brought no income, and could bear no tax in their unculti-. vated condition, until they passed into- the hands of private individuals. The tenants of the university-for ninety years made their own contracts, and were bound to pay the ordinary' taxes levied on the inhabitants'of. Ohio, not into the-state treasury but into that of the university. Every change in the' general laws in regard to the revenue bound them: as the value of real estale' increased, and taxes were imposed in addition to previous burdens* tp such an extent, the corporation of the university added to the. rate of its tenants.- The lands'not leased continued exempt from taxation,, on the fair supposition that they brought no ■ income, and could bear no burdens.

The policy of the act of 1804 is too plain to admit of comméñt; and its wisdom so manifest as to meet with instant sanction.

But what was the policy of the act of 1826?. An entire change of the fund frpm re;j.l estate to a capital in money vested by loan in the state treasury, was determined on by the corporation. Leave was asked and granted by the legislature to sell the lands, and convey them in fee simple to purchasers; giving the tenants a preference in cases where there were existing leases. As regarded the management and nature of the fund io sustain the university, the act of 1804 was to a great extent repealed; by that act, the lessees of the corporation were governed; their contracts were founded on it; but with it the purchasers in fee had no concern, their contracts originated in a different policy, and are sanctioned by a different statute; the -complainants actually claim, and could only claim by force of the act of 1826. This act secured the payments of no taxes to the university, as the substitute of the Statel It simply' authorized.the corporation to sell as an individual might sell; and the respective purchasers took title as'from an. individual.; they were strangers, tó the act of 1804, with the .exception of those provided for by the third section of the act of 1826, the value of .whose lands were to be governed by the assessment of their .rents under the former act, and who Were entitled to have deeds in fee on the payment of one hundred dollars for every six dollars of annual'rent assessed upon them, disregarding the taxes, they were bound by the act of Í804 to pay to the corporation. The mode of ascertaining the value makes no difference; all the purchasers hold tinder the act of 1826, and cannot go behind it; and aré subject like other persons holding lands in fee to be taxed by . the state.

Ihe case relied on by the complainants as ruling this is that of the State of New Jersey v. Wilson, 7 Cranch, 164. In 1758, thé Delaware tribe of Indians agreed with the colonial government of New Jersey, to release to the latter all their lands in that colony south of the river Rqritan: the government purchased a tract of land or which the Indians might reside, and stipulated by a legislative act, that this tract should not thereafter b& subject to any tax. The Delawares wished to emigrate, and join the Stock-bridge tribe in New York. In 1801, the state of New Jersey, by a statute, authorized them to sell théir lapds. This act of Assembly contained no exemption from the payment of taxes after the sale. In 1803, the Indian tribe sold to Wilson and others; and the commissioners appointed by ordér of thé- legislature conveyed^ for and on behalf of the Indians, .to the purchasers. On the foregoing state of facts, it- was held by this Court, that the purchasers being in under the first grant of 1758, to the Indian tribe, were equally entitled to its benefits; and that no taxes could be levied on the land.

The soundness of the decision we think undoubted. The compact with the Délaware tribe was for a cession to the government of a large body of land; the consideration for the cession, was a' smaller tract vested in trust for them in fee; and a further, and very material consideration was, that the latter tract should never be taxed by the government. The parties were competent thus to contract, as no •restriction was imposed on the colonial government, find the consideration was ample for the exemption.

The condition attached to the land5 so this Court held: “The act authorizing the Indians to sell was a mere enabling statute 5 the purchasers’ took from atfd under the Indian tribe, held by virtue of the grant to them, and were, of course, entitled to all the benefits of the contract. NeW Jersey had therefore no more power to repeal that part of 'the grant which exempted the lands from taxation' than’she had to repeal the entire'contract: and therefore her act of 1804, repealing the clause of exemptions, was vpid.”

We think the case in Cranch compared with the one presented by the record, is too. dissimilar to require a particular comparison, or further, comment.

We concur with the Supreme Court of Ohio, that the bill must be. dismissed: ánd so order.


author: Mr. Justice Daniels

text:
    The United States, Plaintiffs in error, v. Mary L. Eliason, Administratrix of William A. Eliason, Defendant in error.
    Ah action was brought by the United States against Captain Eliason, for a balance due by him as disbursing officer at Fortress Calhoun. The defendant claimed an allowance as commissions on the disbursement of large sums of money under the orders of the War Department in 1834, and thq years included up to 1838, under the regulations of the War Department contained in the Army Regulations printed in 1821, “at the rate of two dollars per diem, during the continuance of such disbursements, provided the whole amount of emoluments shall not exceed-two and a half per cent, on the sum expended.”
    By a subsequent regulation of the War Department of 14th March, 1835, adopted in consequence of the provisions of an act of Congress'of 3d March, 1835, all extra compensation of every kind, for which provision had not been made by law, was dis allowed. The defendant’s intestate claimed that the provisions of the act of Marcfy 3d, 1835, were applicable only to the disbursing of public money appropriated by law during the session of Congress in whiph that act was passed. Held: that the order of the War Department of 14th March, 1835, took away all right-to the extra allowances claimed under the prior army regulations.
    In the district of Columbia, a writ of error lies to the decision of the Circuit Court, upon an agreed case. The same principle has been applied in cases brought before the Su. preme Court from other parts- of the United States. Cited, Faw v. Robertson’s Executors, 3 Cranch, 173 ; Tucker v. Oxley, 5 Cranch, 34; Kennedy v. Brent, 6 Cranch, 187; Brent «.-Chapman, 5 Cranch, 358; Shankland v. The Corporation of Washington, 5 Peters, 390; Inglee v. Cooledge, 2 Wheat. 363; Miller v. Nichols, 4 Wheat. 311.
    The power of the executive to establish rules dnd regulations for the government of the army is undoubted. The power to establish, necessarily, implies the power to modify on to repeal, or to create anew. The Secretary at War is the regular constitutional organ of thé President for the administration of the military establishment of the nation; and rules and orders, publicly promulgated through him, must be received as the acts of he executive, and as such are binding upon all within the sphere of his legal and contitutional authority.
    IN error from the Circuit Court of the United States for the county of Washington, in the district of Columbia.
    In February, 1839, the United States instituted a suit against William A. Eliasotó, a captain in the United States corps of engineers, for the recovery of two thousand four hundred and ninety-two dollars and eighteen cents, a balance in his hands, of moneys paid to him for the purpose of disbursement at Fort. Calhoun, and of one hundred and eight dollars and-fifty-seven cents, beyónd the incidental expenses of fortification, making together two 'thousand six hundred dollars and seventy-five cents.. On the decease of Captain Eliason, the suit was proceeded in against his administratrix.
    In the Circuit Court, the counsel for the plaintiffs and the defendant agreed upon the following statement.
    “Oh the.trial of,the above cause, the plaintiffs, to maintain'the issue on their parts joined, offered in evidence the transcript.from the Treasury Department, (showing the balance claimed,) and the defendant then offered evidence to show that the said "intestate was •a captain, in the United States corps of engineers, and as’ such was ordered-to take charge and superintend the works on Fortress Calhoutí, and took charge of, and continued the said work from ■the ^tb Of November, 1834, to the 10th of September, 1838; and further offered in evidence the general regulations of the War Department, as follows. And, further, that the said intestate while' tnus employed,, disbursed two hundred and fourteen thousand threelmndred and ninéty-two dollars and sixty-one cents : that he was' also directed to take charge of, and.. superintend the removal of a light-house into Fortress Calhoun, in which service he disbursed one thousand one hundred and forty-three dollars and thirteen cents; and further, that he was charged with the disbursement óf, and did disburse the sum of one thousand eight hundred and ninety-one dollars and forty-three cents, for incidental expenses of fortifications, beginning in the year 1830; and that he purchased for the use of the Engineer Department, a set of instruments and case, and the department allowed him for the instruments, but refused to allow him for the case, amounting to ten dollars; and further, that the pay and emoluments of the said intestate, had been stopped by- the government of the United States, from the 31st of December, 1838, to the 15th day of June, 1839y amounting to one thousand and fourteen dollars and ninety-five cents;. and the defendant then claimed credit.”
    The account of Captain Eliason, which had been submitted to the accounting officers of the Treasury; and the appropriations in the Treasury, were made a part of the case.

      The regulations of the War Department of 13th March, 1835, were:
    “ The proviso in the act of Congress, passed March 3,1835, entitled £ Ah act making additional appropriations for the Delaware Breakwater, and for certain harbours, and removing obstructions in and at the mouths of certain rivers, for the year one thousand eight hundred-and thirty-fiveand which prohibits the allowance of extra compensation to .officers of the army, has been -submitted to the attorney-general. for his opinion, and that officer has decided that it extends to, and prohibits the allowance of. all extra compensation, of every kind whatsoever, for -which provision is not made by law. Hereafter, therefore, no such extra compensation will be allowed.”
    The.prohibition under this, order took effect from the passage of the law*.
    The instructions,' after enumerating particular offices held, to be -included in the proviso, by the Secretary at War, proceed to say: “The construction of the act will apply, so, as-to prevent the granting of any extra compensation of any nature whatever, unless expressly authorized by-law.
    “The attorney-general has decided that the general clause in the .above proviso will render illegal the allowance of any per cent-age or compensation for disbursing appropriations, made previous to, as well as during the last session of Congress.”
    Article 675 sec. 14, from the Army Regulations, printed, in 1821,' was also in evidence.
    “Where there is no agent for fortifications, the supenuieiiding officer shall perform the duties of agent, and while-performing such duties, the rules and regulations for the government of the, agents shall be applicable to him ; and, as compensation for the-performance of that extra duty, he will be allo wed for moneys expended by him in the construction of fortifications, at the rate, of two dollars per diem during- the continuance of such disbursements: provided the.whole amount of emolument shall not exceed two and a half per cent, on the sum expended..”
    In the Circuit Court the following judgment-was given: “The Court is of opinion that the proviso in the act of the 3d of March, 1835, ch. 303; is only applicable to the disbursing of public money appropriated by law during the session of Congress in which that act waa passed; and it appearing therein, to the satisfaction of the Court .that no part of the money so as aforesaid disbursed by the said defendant, was appropriated at the said session of. Congress, thé Court is also of opinion that the said intestate was entitled to the allowance claimed by him for the disbursements as above stated, and do thereupon order the judgment to be entered'for the said, defendant,”
    The United States prosecuted this, writ of error.
    The cas¿ was argued by Mr. Jugaré, the attorney-general, for the United States; and by Mr. Bradley, for the. defendant.
    "Mr. Legaré contended, that the regulations of the War Department,- of March 13th; 1835,. were .conclusivecon the claims' of all the officers of the army,, who came within their provisions.
    He was fully aware of the decision of this Court in General Gratiot’s Case, and in Minis’s Case, 15 Peters, 423, but the principle which.was'now claimed, was not affected by the rule laid down in those cases. The cases of the United States v. Ripley, 7 Peters, 18, and the other cases in the same volume, stand unaffected by the principle on which the United States now rely.
    These are.'special regtilations of the War Department, and the department had full authority to establish such rules, ff the true construction of the act of Congress of March 3d, 1835; is that it applied only to' appropriations made at that session; the régulatíons of the Wár Department, proprio vigore, had a full and valid application to all the cases subsequent to. them, to which they applied.
    The question submitted to the Court is, whether after the regulations of 13th March, 1835, atiy allowance can be claimed for .those extra services?-
    Mr. Bradley, for the-defendant,
    argued, that a^ the cause was adjudged in the Circuit Court' on a case stated, the writ of error should be dismissed.
    1. No writ of error'will lie on a special case stated, 3 Black. Com. 378; Tidd’s Pract. 808, 809; 1 Archibold’s Pract. pl. 192 ; Stephen’s Pleading, 93.
    2. Where a writ of error will not lie, there can be no bill of exceptions. 1 Archbold’s Pract. 187; Hard. 249, Bos. & P. 3, 16; Tidd’s Pract. 791 ; 1 Salk, 254; 1 Black. Rep. 679.

      3. On a special case stated, unless the judge expressly reserves the power of turning the special case into a special verdict, it cannot be done. 2 Dowl. Rep. 78; and the cases cited on the other points.
    As to the right of set-off, no doubt or controversy exists. The claim of Captain Eliason has, in fact, been allowed up to the passage of the act of 3d March, 1835. In the case of Minis v. The United States, 15 Peters, this Court decided that the act prohibited extra allowances only in the cases of the disbursement of public money, appropriated during the session of Congress of 1834, 1835. The claim now before the Court is for services in disbursing appropriations made before and since that act. The right of the defendant in error is not, therefore, affected by that act.
    . The claim is rested on the usage of the department, and upon the Army Regulations, and on numerous decisions of this Court, down to the case of Gratiot in 15 Peters; in which such claims were most distinctly recognised, and the previous decisions affirmed.
    It seems to be conceded, that the claim should have been allowed, but for the order of the War Department of 14th March, 1835, by which such claims are supposed to be prohibited.
    In Gratiot’s Case, 15 Peters, 371, the .Court, after having stated the right of the government thus to employ officers, and the right to compensation growing out of it, say, “ To sustain the refusal, of the. Court, in the present case, it is therefore indispensable'to show that there some law which positively prohibits, or by just implication denies any of the disputed items, or any part of them.”
    It is conceded that there is no shell law; but it is argued that the implied contract cannot exist iff the face of the order or regulation of the War Department of 14th of March, 1835.
    Could this order or regulation revoke the regulations of 1821, 1825? They were made in- obedience to a law of Congress. They ought to have the force of law. Did it intend to repeal those regulations ? Is it, on its face, anything more than the exposition of the. act of 3d March, 1835, as construed, by the attorney-general of the United States soon after it was passed ?
    If that-construction was erroneous; as has been decided by this Court; is not the detailed exposition in the orders of the War Department equally erroneous?- Although it professes to be prohibitory, is it anything more than an opinion — an erroneous opinion pf the Secretary 4t War ? He sayis the prohibition took effect from the passage pf the law.. Could, this do so ? It is not designed, and oúght not to be construed as a repealing regulation. It is not so on its face, pr upon a full examination of its language.
   Mr. Justice Daniels

delivered the . opinion of the Court.

Upon a .writ of error tp the Circuit Court of Washington county, in the'district of Columbia.

On the 16th day of February; 1839, the plaintiffs instituted an action of assumpsit in the Circuit Court of Washington county, against William A; Eliason, for the balance of two thousand six-hundred dollars and seventy-five cents, charged against him on the.-books of the Treasury as disbursing officer at. Fortress Calhoun, between the dates'of the 7th of November, 1834, and the 10th of September, 1838.

The defendant Eliason appeared to the suit and filed the plea of non-assumpsit, upon which issue was joined;. but having died before the cause came to trial, the defendant in error, as administratrix of tjie decedent, was made a party defendant, and the cause, regularly progressed' to trial, upon the issue made up between the original parties. Upon the trial before the Circuit Court, the following case was agreed between the parties by their attorneys; to be subject-torthe opinion of the Court, as to the law upon thesame, viz.: On the trial of the above cause, the plaintiffs, to "maintain .the issue on their part joined, offered in . evidence the transcripts, from the Treasury Department, (which are found in pages 12 to 16 of the Record}) and the said defendant then offered evidence to show that the said intestate was a captain in the United.States corps pf engineers, and as such was ordered to take charge and superintend the works on Fortress' ■Calhoun,-and took charge of, and continued . the said work from the 7th November, .1834, to-the 10th September, 1838 r and further offered in evidence, thp.general regulations of the W ar Department, as follow,art. 67, sec. 14 .•"Where there isno agent for fortifications, the superintending Officer, shall perform-the duties of agent; while performing such-duties, the rules and regulations for the. government of such agents shall he applicable to him; and as compensation for the.performance-of that extra-duty, he shall be allowed for moneys expended by him, in the construction of fortifications, at the rate of two dollars per diem, during, the continuance of such disbursements, provided the whole amount of emolument shall not exceed two ánd á half per centum on the sum expended.” And, farther, that the said intestate, while thus employed, disbursed two hundred and fourteen thousand three hundred and ninety-two dollars and sixty-one cents: that he was also'directed to take charge of, and supérintend the removal of a lighthouse into Fortress Calhoun, in which service he disbursed onp thousand one. hundred and forty-three dollars and thirteen cents: and further, that he was charged with the disbursement of, and did disburse, the sfim of one thousand eight hundred and ninety-one dollars and forty-three cents, for incidental expenses of fortifications beginning in the'year 1830; and thát he purchased for the use of the Engineer Department, a set of instruments find case, and the department allowed him for the instruments, but refused to allow him for the case amounting to ten dollars; and further, that the pay and emoluments of the said intestate had been stopped by the government of the United States, from the 31st December, 1838, tO' the 15th day of June, 1839, amounting to one thousand and fourteen dollars and ninety-five cents; and the defendant then claimed credit

For compensation for disbursing money on account of Fortress Calhoun from 7th November, 1834, to 10th September, 1838, up to which time he was in charge of said work, inclusive, at $2 per day - $2,816

Of which this amount only had been allowed - - 234 00

Balance - - - 2,582 00

For money disbursed on account for removing lighthouse, &c. -------- 21 64

For money disbursed for incidental expenses of fortifications - - -.- 46 95

For case of instruments...... 10 00

For pay and emoluments, (marked B.,) copied at page 29.....- - -' 1,014 95

S3,689 26

For balance of account rendered 29th March, 1839 - 74 79

S3,764 05

And further offered evidence that all the claims above stated, except that.for pay and emoluments, had been submitted to, and rejected by, the accounting officer of the Treasury Department; and further pro'duced and offered in evidence the following statement of the state of the appropriations under which the disbursements were made.

The plaintiffs offered in evidence the Regulations of the War Department of the 14th of March, 1835: “The proviso in the aCt of Congress passed March 3, 1835, entitled ' An act making additional appropriations for the Delaware Breakwater, and for certain harbours, and removing obstructions in and at the mouth of certain rivers, for the year one thousand eight hundred and thirty-five;’ and which prohibits the allowance of extra compensation to officers of the army, has been submitted to the attorney-general for his opinion-, and. tha officer has decided that it extends to, and prohibits the allowance of all extra compensation- of- any kind whatever, for which provision is not made by law. Hereafter, therefore, no extra compensation will be allowed.” And upon the aforegoing statements it is submitted to the Court to say 'whether the defendant’s intestate was entitled by law to the allowances claimed by-him for disbursements as above stated. If the Court is of opinion that he is so entitled, then the judgment to be for the defendant; if otherwise, for the plaintiffs, for the amount appearing due by the transcript.

F. S. Key, for the. United States,

Jos. H. Bradley, for defendant.

Upon the statement- of facts agreed, as above, mentioned, the Circuit Court pronounced the following opinion and judgment:— “And. thereupon, upon the full consideration of- the case stated. as aforesaid, the said Court is of opinion that the proviso in the act of the 3d March, -1835, ch. 303, is only applicable to the disbursing of public money, appropriated'by law during.the session of Congress in which that, act was passed; and it appearing therein, to the satisfaction of the Court, that no part of the money so as .aforesaid disbursed by the Said defendant; .was appropriated at the .said session of Congress; the Court is also of opinion that the said intestate was entitled to the allowance? claimed by him for, the disbursements ^as above stated, and do thereupon order the judgment to be entered for the said defendant.” To this opinion an exception was taken by the plaintiffs,- which was sealed by the Court-and made a part of the record.

Before considering the questions of law arising upon the agreed statement, and upon the exception taken to the opinion and judgment pronounced upon that statement, it is proper to advert to a point which has been made, in limine, by the counsel for the defendant in error, and which, if decided as he has contended it should be, would prove conclusive as tc he fate of this 'cause. It is insisted by the defendant’s counsel that-this Court cannot take cognisance of the present cause, for the reason that havingdreeri tried upon an agreed casé, a writ.of error will not lie to the .decision thereon. This position of the counsel is founded upon a remark of Mr. Justice Blackstone in his Commentaries; which, has been transferred to the work of Mr. Tidd, and to some other compilations upon the practice in the English Courts of'common law. The passage in Blackstone, which will be found in his chapter on the Trial by Jury, vol. 3, p. 377, Coleridge’s edition, is as follows: “ Another method of finding a species of special verdict, is, when the jury fjnd a verdict generally for thé plaintiff, but subject, nevertheless, to the opinion of the Court above on a special case stated by the counsel on both sides with regard to the matter of law: which has this advantage over a special verdict, that-it is attended with much less expense, and obtains a speedier decision; the postea being stayed in the hands of the officer of nisi prius, till the question is determined, and thé verdict is then entered for the plaintiff or defendant as the case may happen. But as nothing appears on' the record but the general verdict, the parties are precluded hereby from the benefit of-a writ of error, if dissatisfied with the judgment of the Court of judge upon the point of law; which makes ika thing to be wished, that a method could be devised -of either lessening the expense of-special verdicts, or else of entering the cause at length upon the postea.”

.It is manifest from this quotation, that the reason why, according to the practice in the English Courts, a writ of error will not be allowed after a case agreed, is this, and this only; that in those Courts, the agreed case never appears upon or is made a part of th«? record, and therefore there is no ground of error set forth, upon which an appellate or revising tribunal can act. In the language of Justice Blackstone, “nothing appears, upon the record, but the general.verdict; whereby the parti.es are precluded from the benefit of a writ of error,” &c., “which makes it,” says the same learned judge, “a thing to be wished, that a method could.be devised, either of lessening the expenses of special verdicts, or else of entering the cause at large upon the postea.” The same rule in the English Courts of law, and the same consequence as resulting solely from their practice, may be seen in the Treatise on Pleading, by Stephen, p. 92, where the author, in speaking of the practice of taking special verdicts, and general yerdicts subject to a special case, remarks, that a special case is not like- 9 special verdict entered on record, and consequently a firrit of .error cannot be brought on this decision. There has'beena recent statute enacted in England, which, although it is not brought sufficiently to the view of this Court to justify any direct inferences as to its terms or its bearing upon this particular question, may have beén designed to remedy the very evil pointed out by Justice Blackstone. By a note to page 92, of Mr. Stephen’s Treatise, it is' said to have been enacted by 3d and 4th William the 4th, cap. 42, that where the parties on issue joine'd can agree. on a statement óf facts, they may, by order, of a judge, draw up such statement in the form of a special case, for the judgment of the Court, without proceeding to trial. 'By the established practice anterior to this statutory provision, it was in the power of the parties to agree upon a statement of the casé; it would seem reasonable and probable, therefore, that the power given to the judge, (as.an exercise of his judicial functions,) to regulate the statement, was designed to impart a greater solemnity and permanency. to the preparation of the proceeding, and to place it in an attitude for the action of some revising power. But even should a want of familiarity with the detail of English practice induce the hazard of misapprehension of. its rules, or of the reasons in which they have their origin, the decisions of our own Courts,-and the long established practice of our own country, are regarded as having put the point under consideration entirely at rest-

•By the act of Congress of 1801, assuming the, government of the District of Columbia, in virtue of the cession from Maryland and Virginia, the laws of these states, and of course theproeeedings in their Courts as parts of these laws, were expressly recognised within such portions of the District, respectively, as originally were within the limits of the ceding states. See 3 Story’s Laws, 2089; The United States v. Simms, 1 Cranch, 255. At the period of the cession, the practice is believed to have been well settled both in Virginia and Maryland, that in trials at law where special or agreed cases have been made, they have been signed by the counsel as representing their clients, and. spread at large upon the record as a part thereof; and as constituting the only legitimate ground for the action of the Court, and as furnishing the regular 'and proper test to be applied by an appellate or revising tribunal to this action. The practice is believed to be the same at this day; it has been repeatedly recognised by the decisions of this Court; and, if ever heretofore seriously questioned, has never been overruled. See Faw v. Robertson’s Executor, 3 Cranch, 173; Tucker v. Oxley, 5 Cranch, 34; Kennedy v. Brent, 6 Cranch, 187; Brent v. Chapman, 5 Cranch, 358; and Shankland v. The Corporation of Washington, 5 Peters, 390. These are cases arising within the District of Columbia, but the same practice has been sanctioned in cases brought hither from without the District, as will be seen in the decisions of Ingle v. Cooledge, 2 Wheat. 363, and of Miller v. Nicholls, 4 Wheat. 311. This Court, therefore, have no hesitancy in declaring, that the point of practice raised by the defendant’s counsel presents no objection to .the regularity in the mode of bringing this case before them.

In considering the exception taken to the opinion of the Circuit Court,'in relation to the act 'of Congress of March 3d, 1835, the order of the War Department, of March 13th, of the same year, and the rights of .the plaintiffs, and of the defendant, as connected therewith, this Court have no difficulty in pronouncing the 'opinion and decision of the Circuit Court as altogether untenable. The power of the executive to establish rules and regulations for the government of the army, is undoubted. The very appeal made by the defendant to the-fourteenth section pf the sixty-seventh article of the Army Regulations, is a recognition of this right. The power to establish implies, necessarily, ,the power to. modify or repeal, or to create anew.

The Secretary of War is the regular constitutional organ of the President for the .administration of the military establishment of the nation ; and rules and orders publicly promulged through him must be received as' the acts of the executive, and as such, be binding upon all within the- sphere of his legal and constitutional authority.

Such regulations cannot be questioned or defied,- because they may be thought unwise or mistaken. The'right of so considering and treating the authority of the. executive, vested as it is with the command of the military and naval forces, could not be entrusted to officers of any grade inferior to the commander-in-chief; its consequences, if tolerated, would be a complete disorganization of both the army and navy. In the present instance, the order was adopted by the proper authority, and by the same authority promulged to every officer, through the regular official organ; and the question propounded to the Circuit Court was neither, more nor less than this, whether a subordinate officer of the army, insisting upon a prior regulation, which he thinks either is or ought to be in-.force, shall obtain from the government emoluments which a ■ subsequent. order from his superior had Warned him that it was not in his power to require ? This question can need no argument for its solution. ■ This Court are, there-, fore, of Opinion that the Circuit Court have erred in allowing to Captain Eliason, a per diem, as disbursing officer at Fortress Calhoun, subsequently to- the 3d day of March, 1835. Under the fourteenth section of the sixtyrseventh article of the Army Regulations, they do, therefore, reverse the decision of the Circuit Court; and direct that a judgment be entered for -the plaintiffs, for the sum of two thousand six hundred,dollars and seventy-five cents, as claimed by them, together with their costs;.