author: Mr. Justice-Catron

text:
    Meriwether L. Clark, Executor, and William P. Clark, George R. H. Clark, and Jefferson Kennerly Clark, an Infant under the age of twenty-one years, by his Guardian ad litem and next Friend, the said George R. H. Clark, Heirs at Law of William Clark deceased, Appellants, vs. Andrew Smith, Appellee.
    The colonial charters, a great portion of the individual grants by the proprietary and royal ' governments, and a still, greater portion by the states of the Union after the Revolution, were made for lands within the Indian hunting grounds. North Carolina and Virginia, to a great extent, paid their officers and soldiers of the revolutionary war by such grants, and extinguished the arrears due the army by similar means. It was one of the great resources which sustained the war, not only by those states, but by other states. The .ultimate fee,'encumbered with the right of Indian occupancy, was in the crown previous to the Revolution, and in the states of the Union afterwards, aiid subject to grant. This right of occupancy was protected by the political power, and respected by the Courts, until extinguished, when the patentee took the unencumbered fee. So this Court and the state Courts have uniformly held.
    The state of Kentucky has an undoubted power to regulate and protect individual rights to her soil, and to declare what shall form a' cloud on titles; and having so declared, the Courts of the United States, by removing such cloud, are only applying an old practice to a new equity created by the legislature, having its origin in the peculiar condition of the country. The unappropriated lands of the state 8f Kentucky have been opened to entry and grant, at a very cheap rate, which policy has let in abuses. The clouds upon old titles by the issuance of new patents for the same lands were the consequence; and the citizens of other states aré entitled to come into the Courts of the United States, to have their rights secured to them by the statute of Kentucky of 1796.
    The state of Kentucky may prescribe any policy for the protection of the agriculture of the country, that she may deem wise and proper. She has, in effect, declared that junior patents issued for previously granted lands, shall be delivered up and cancelled; with the addition, that a release of title shall be executed ; and it is the duty of the Courts to execute the policy.
    Where the legislature declares certain instruments illegal and void, there is inherent in the Courts of equity a jurisdiction to order them to be delivered up, and thereby give effect to the policy of the legislature.
    The state legislatures have, certainly, no authority tp prescribe the forms or modes of proceeding in the Courts of the .United States; but having created a right, and at the same time prescribed the remedy to enforce it, if the remedy prescribed is substantially' consistent with the ordinary modes of proceeding on the chancery side of the Federal Courts, no reason exists why it should not be pursued in the same form as in the State Courts. On the contrary, proprety and convenience suggest that the practice should not materially differ when titles to land are the subjects of investigation.
    In the state of Tennessee the legislature has ¡provided that the Courts of equity may divest a title, and vest it in another'party to a suit; and that the decree shall operate.as a legal conveyance. In Kentucky the legislature has declared that Courts may appoint a commissioner to convey, as' attorney in fact of litigant parties, and such shall pass the title; in both instances binding infants and femes coverts if necessary. The Federal Courts of the United States, in the instances referred to, have adopted the same practice, for many years, without a doubt having been entertained of its propriety. It may be said, with truth, that it is a mode of conveyance, and of passing title, which the states have the exclusive right to regulate.
    The undoubted truth is, that when investigating and decreeing on titles in this country, the Court must deal with them in practice as it finds them, and accommodate our modes of proceeding in a considerable degree to the nature of the case, and to the character of the equities involved in the controversy, so as to give effect to state legislation, and state policy; not departing however from what legitimately belongs to the practice of a'Court pf Chancery.

      ON appeal from the Circuit Court of the United States for the district of Kentucky.
    William Clark, the father of the appellants, filed a bill in the Circuit .Court of the district of Kentucky, praying the Court to compel the defendant to release his pretended title to certain lands in the state of Kentucky, claimed by him under certain patents obtained from the state of Kentucky, more than thirty years after the registration of the survey of the ancestor of the complainants, George Rogers Clark. The possession of the land had continued in the ancestor of the complainant, and in himself, up to the time of the filing of the bill. The conveyance asked by the bill was sought to be in conformity with the provisions of the' act of the assembly of Kentucky giving jurisdiction to Courts of Equity in such cases.
    The Circuit Court was unanimously of opinion that the complainants had established the legal title to the land mentioned in the bill, under a valid grant from the commonwealth of Kentucky, to George Rogers- Clark, his ancestor,- and that he was in possession of the same at-the commencement of this suit; and that the defendant had not shown that he had any right or title, either in law or equity, to the land or any part of it: but the judges of the Circuit Court being divided in opinion on the question of the jurisdiction of the Circuit Court-'-to compel the defendant to execute the conveyance prayed .for in the bill, it was not the opinion of the Court (the defendant having set up and exhibited junior patents from the commonwealth of Kentucky for the land, to himself) that on any other ground apparent in the cause, the Circuit Court had jurisdiction, on the general principles which determine the equity jurisdiction of the Courts of the United States, to grant to the complainants' any other relief. The bill of the complainants was dismissed; and they- prosecuted this appeal
    A printed argument was submitted to the Court by Mr. Crittenden for the appellants. No counsel appeared for the defendant.
    The argument of Mr. Crittenden stated:—
    This' is a suit in chancery, under thé 29th sec~on of the act of 1796, (Ken. Stat. Law, 293,) to compel the defendant to release his pretended claim to the land in question. The complainant derives title as follows, to wit: Patent to George Rogers Clark, dated 15th September, 1795, founded on an entry on treasury warrants, made 26th October, 1780, “to begin on the Ohio, at the mouth of the Tennessee river, running down the Ohio,” &c, &c., surveyed June 7th, -1784, and registered June 4th, 1785;.the survey and patent being for 36,962 acres. The patented George Rogers Clark, afterwards conveyed to William Clark, by deed dated 28th July, 1803, proved and recorded in the Court of Appeals in November, 1803.
    At the suit of a creditor of. he said patentee, the same tract of land, after the deed to William Clark, was subjected to sale, for satisfaction of the creditor’s demand, and was then again purchased by George Woclfolk, to whom the. commissioner of the Court (Samuel Dickinson) conveyed it by deed, of the 14th June, 1827; and Woolfolk, by.deed of the 13th October, 1827, conveyed to the said William Clark.
    William Clark, thus doubly invested with, assurance of title, and alleging possession of the land, filed his bill to compel a release of the defendant’s pretended claims.
    The defendant, by his answer, contests Clark’s title on various grounds, and asserts his own claims, which are nothing more than ninepenny claims, originating within a few years past, by entries and purchases- made with and of the public receiver, under the laws of Kentucky for the disposal of the lands of the state below the Tennessee river.
    The documentary evidence establishes, beyond quéstion, the legal . title of the complainant. His possession is not denied by the answer,' is fully proved by the depositions, and is incontestable..
    The origin of the defendant’s pretended claims was between thirty and forty years after the date of Clark’s patent; and about half a century after Clark’s survey was registered in the proper office of the state of Virginia, from whose laws his title originally emanated.
    Here the case ends. It is necessary to look no further to embrace its whole merits as a legal controversy;. and the conclusion is clear and Obvious in .favour of the complainant, both on'general principles, and on the terms of the act of Assembly under which the bill is filed. In accordance with this are the cases of Starling, &c. vs. Hardin, 2 Bibb. 522; and Loftus vs. Cates, 1 Monroe, 98; in the first of which, it is expressly said that, in' a contest with those who have no title originating anterior to the patent, no other evidence of title than the patent need be produced.
    But the defendant has gone altogether beyond those limits, and proposes to litigate questions that, in our opinion, do not, belong to or arise in the case. He contends that the land was not subject to appropriation by Clark’s warrants at the date of his entry, and that, therefore, his claim is null and void..
    It will not be denied that the land in question was within'the territorial limits of- the state, of Virginia, until the separation of'Kentucky placed it under the .jurisdiction of the latter state. . Virginia, had, then, the right to dispose of it according to her policy or plea-. sure. ,
    By the act of 1779 (1-Litt. 408) her whole unappropriated territory was thrown open for individual appropriation by treasury warrants, with these only excéptions: that “ no entry or location shall be admitted within the country and limits of the Cherokee Indians, or on the north-west side of the Ohio river, or on the lands reserved by act of Assembly for-any particular nation or tribe of - Indians, or on the lands granted by. law to Richard Henderson and Co., or in that tract of country reserved by resolution of the General Assembly for the benefit of the troops serving in the present war, and bounded by the Green river, and south-east coast, from the head thereof to the Cumberland mountains, with said mountains to the Carolina line, with the Carolina line to the Cherokee or Tennessee rivér, with the said river to the Ohio river, and with the Ohio to the said Green river,, until the further order of the General. Assembly.”
    This was the only restriction upon Clark’s right to locate his warrants anywhere within the territorial limits of Virginia. His entries were made below the Tennessee river, and in the year 1780. They did not include any part of the excepted territories. Most clearly they did not interfere with the military reserve. It is true, that after Clark’s entries at the November session, 1781, (1 Litt. 432,) the Virginia Legislature enlarged the military reserve, by adding to it the country below the Tennessee, including the land now in suit. But it will scarcely be contended that this act could affect, or was intended to affect, the previously acquired and vested rights of Clark; while it clearly shows that the legislature considered itself as having full power to dispose of this additional reserve; and that Avithout this reservation the land would have been, and before it was, subject to individual appropriation. The only purpose of the reservation was to exempt it from such appropriation, to which it was then liable.
    The decision in the case of the .Superintending Officers vs. Clark, Hughes’s Repts. 39, is a direct adjudication that the land was subject to appropriation by Clark’s entries.
    Neither in 1779, nor at.any time' since, has either the government of the United States, or Virginia, or ‘Kentucky, ever recognised the land now in suit as embraced either by the limits of the Cherokee Indians, or within the limits of any reservation made by any act of Assembly, for any nation or fribe of Indians. At least, we know of no such recognition. Let the defendant show it. The treaties with the Cherokee Indians show that they were never considered as .owning the country where this land lies. .(See those treaties, 1 vol. Laws of. the' United States, 322, et seq.) On the contrary, the Indian title to the country below the Tennessee river Avas supposed ■to be extinguished by the treaty of'1818, made with the Chickasaw Indians, by Shelby and Jackson, as commissioners.
    And, in several'acts of the Kentucky legislature, Stat. Law, 1040 a,nd 915, the country below the Tennessee is recognised as land that was within the “ Chickasaw Indian boundary.” The land in question certainly, does not lie within Henderson’s, grant, which is at the mouth of Green river.
    Upon the whole, we conclude that Clark’s claims, at the daté of their location,.in 1780, were not within any of the limits or territories exempted and excepted from appropriation by the act of 1779; and, consequently, that the land in question was legally subject to appropriation, and was legally appropriated by Clark’s entries.
    But suppose those entries, and survey or surveys, were made without sanction of law, and upon lands excepted or reservéd from appropriation by them, was it not competent for Virginia add Kenucky, the successive sovereign owners of the country, to waive any objection to such irregularities? And when afterwards the title, however irregular in its inception and progress, was consummated, by patent from the state; is not that, at least, prima facie evidence of such waiver-on the part of the state, 'and is it not conclusive upon all persons subsequently acquiring title from the state ? To us it seems that all these questions must be answered in the .affirmative.
    There are numerous decisions by the Court of Appeals of Kentucky, that certificates for land, granted by commissioners or by county Courts, are conclusive, upon the state, and upon all parties subsequently acquiring a claim from the state; and that such subsequent claimants cannot impeach or'inquire into the prior certificates. These decisions seem to have a decided bearing upon the present case; and the principle of them must equally exclude the defendant from questioning or impeaching the patent under which the complainant claims. The decisions alluded tti are so numerous and well known that it would be idlé parade to cite them: it is a well settled doctrine, too, that one claiming under an entry, &e. originating subsequent to a patent on the same land, cannot' avail himself of any defect or irregularity in the entry or survey of the prior patentee. Ward and Kenton, vs. Lee and Orr, 1 Bibb, 33; Fitchews devisees vs. Bullock, 1 B,ibb, 229 ; and in Hardin’s Reports, Greenup vs. Kenton, 15; Patterson vs. Bradford, 105;' and Jasper vs. Quarles, 469, &c.
    But if all these analogies, principles, and precedents should fail us, we contend that the législative authority has sanctioned and made good the survey of Clark, whatever defect or objection previously existed in or to it, or the entry on which it was founded.
    It will be seen, by the register’s certificate, that the survey was registered “ in the register’s office of Virginia,” at the time of, and before, the separation of Kentucky from that state. By the. act of 1794, it was enacted by the legislature of Kentucky, “that the -register of this state shall receive and issue grants on all certificates of survey which were in the register’s office of Virginia at the time the separation teok place, and on which grants have not issued.” Stat. Law, 910.
    Acting in the same spirit of sound policy and good faith towards. Virginia claimants, this state, in the year 1811, enacted that all claims, founded on the laws of this commonwealth, which interfered'with “ any survey or grant, surveyed or granted under or by virtue of any law of Virginia, &c., shall be void,” &c. Stat. Law, 915. See, also, the act of 1792, 1 Litt. 75. 159.
    Clark’s survey, comes completely within- the protection and ratification conferred by these statutes.
    If a distinction, be attempted between the claim of the defendant and claims on Virginia treasury warrants, on the ground that the latter were expressly confined to “unappropriated, land,” it is answered, first, that these words are mere .expletives, used out. of abundant caution, and that the construction must have been the same* if these words had not been used; second, that the ground of the distinction doeg not, in fact, exist; the act of 1825, sec. 2, p. 1054, Stat. Law, authorizing the receiver to expose to sale only the “unappro-r priated sections,” &c. It is inferred, therefore, that it could not have been intended that purchases by private entries should have been made of any butunappropriated sections.” The whole country had been secti'onized, and it was well known to, and recognised by the legislature that much of it had been appropriated; and it is but common respect to its justice to suppose that it designed this as an express and abundantly cautious saving of all individual rights and claims.
    Upon the hearing of the cause in the Court below, the Court, both judges concurring, were of opinion that the complainant, Clark, had the legal title to the land in question, and was in the actual possession thereof at the commencement of this suit; and yet the Court refused to decree the defendant to relinquish his pretended claim, because of a division of opinion with the judges, as to the jurisdiction of the Court. One of the judges was of opinion th it, although the case came completely within the provisions of the act of Assembly of Kentucky, giving jurisdiction to' Courts of equity in such cases, still that the federal Court could not exercise that jurisdiction; that its jurisdiction was limited by the “general principles” of the equity jurisdiction of the Courts of the United .States; and that the case not being embraced by those .general principles, the Court could not exercise a jurisdiction created by an act of Assembly of Kentucky. In consequence of this division of opinion,"the complainant’s bill was dismissed; and he has'appealed to this Court, and will insist that the Circuit Court had' jurisdiction-of the case, and ought to have exercised it by decreeing in favour of the complainant, and that it erred in dismissing his bill. 7 Peters, 542.
   Mr. Justice-Catron

delivered the' opinion of the Court.

. By patent of the 15th September, 1795, there was granted to George Rogers Clark, by the commonwealth of Kentucky, 36,962 acres of land, beginning on the Ohio river, at. the mouth of the Tennessee; running south 16°, east 1280 poles, north 74°, west 3840-poles, north 16°, east 1800 poles, to the-bank of the Ohio, about three miles' below'Fort- Massac; thence running up the Ohio, with. its-, several meanders 4480 poles to the beginning.

The patent is .in. conformity to a survey of 7th June, 1784, returned' to the land office of Virginia; founded on an entry, and an amendment .thereof, dated 17th May, and 26th of October, 1780; made by virtue of various treasury' warrants. The entry having been for 71,962 acrps, with liberty to return one or more surveys.

The identity of the- land, ás entered, surveyed, and patented, is= established beyond doubt, as the survey made by order, of the Court below, represents it. .

Wjilliam Clark, ffie complainant, by various rpesne conveyances, became the. owner in fee. of the same;, and, by his tenant* haá been ig possession from 1819, up to the time of filing the bill: the claim of the Chickasaw Indians, having been extinguished to the country where the land lies, by the treaty of the 19th of October, 1818; to which time the right of possession was necessarily suspended.

The first exception taken by .the answer is, that the patent was made for lands lying within a country claimed by Indiansand, therefore, void.

To which it may be answered, that the colonial charters, a great portion of the individual grants by the proprietary and royal governments, and a still greater portion by the states of this Union after the Revolution, were made for lands within the Indian hunting grounds. North Carolina, and Virginia, to a great extent, paid their officers and soldiers of the revolutionary war, by such grants; and extinguished the arrears due the army by similar means. It was one of the great resources that sustained the war, not only by these states but others. The ultimate fee. (encumbered with the Indian right of occupancy) was in the crown previous to the Revolution, and in the states of the Union afterwards, and súbject to grant. This right' of occupancy was protected by the political power, and respected by the Courts until extinguished; when the patentee took the unencumbered fee. So this Court,, and the state Courts, have uniformly, and, often, holden. 6 Cranch, 87. 9 Cranch, 11.

By the act of November, 1781, Virginia opened the whole coun- „ try south of the Tennessee river, for the satisfaction of military, claims, and excluded the location of treasury warrants; and the officers and soldiers, through their superintendents, Thomas Marshall and others, caveated George Rogers Clark’s claim, praying no grant might issue to him for the 36,932 acres. The caveat was filed in the Supreme Court of the district of Kentucky; but because the judges were interested in the event, the suit was transferred, pursuant to an act of Assembly, to the Court of Appeals of Virginia, where it was pending- from 1786 to 1791; when that Court, amongst other things, held, “that the dormant title of the Indian tribes remained to be extinguished by the government, either by purchase or conquest; and when that was done, it enured to the benefit of the citizens who had previously acquired a title from the crown, and did not authorize a hew grant of the lands, as waste and unappropriated.” And the state having succeeded to the royal rights, could'appropriate the waste lands within her chartered limits in the same manner.

2. That by the act of 1779, the. lands south of Tennessee river, were subject, to be located by treasury warrants; and that the act of 1781, for the. benefit of the Officers and soldiers, could not have a retrospective operation so as to defeat General Clark’s prior entry, made according to the existing laws.

The opinion having been returned to the Court of Appeal of Kentucky, at the October term thereof, 1793, the caveat was dismissed; and'in September, 1795, General Clark obtained his patent. Hughes’ Kentucky Reports, 39.

The validity of the title of the. complainant, is, therefore, not now open to controversy on these grounds; and such was the opinion of the Circuit Court.' But that Court being divided ip opinion on the question of jurisdiction, no decree could be made, in conformity to the prayer of the bill, and which was dismissed for this reason.

It seeks to enforce the act of Kentucky of 1796, which provides, that “ any person having both legal title to and possession of land, may institute a suit against any other person setting up a claim thereto; and if the complainant shall be able to establish his title to such land, the. defendant shall be decreed to release his claim thereto, and pay the complainant his costs, Unless the defendant shall by answer disclaim all title to such lands, and offer to. give such release to the complainant: in which case, the complainant shall pay to the defendant his coste, except for special reasons appearing, the Court should otherwise decree.”

The foregoing extract is the twenty-ninth section óf an act professedly regulating proceedings in the Courts' Chancery..

Conflicts of title were unfortunately so numerous that no one knew from whom' to buy or'take lands -with safety; nor could improvements be made without great hazard, by those in possession, who had conflicting claims hanging over them; and which might thus continue for half a century — the writ of right being limited .to fifty years in some cases; that is, where it wa!s brought upon, the seisin of an ancestor, or predecessor, and to thirty years, if on the demandant’s own seisin. Act of January 1-796. During all which time, the party in possession had no power to litigate, miich less-to settle the title at law; for he might be harrassed by many actions of -ejectment, and his peace and property destroyed, although always successful; by no means an uncommon occurrence. ■ This evil, it was the object and policy of the legislature .to cure; not so much by prescribing a mode of proceeding, as by conferring a right on him who had the better title, and the possession, to draw to him the outstanding inferior claims. It is, in effect, declared that the junior claimant shall be deemed to hold a .trustee for him in possession, and be compelled to release his inferior title by a. conveyance, so that the junior patent, for instance, could not be perfected by possession, and the lapse of time into the better right; (by force of the acts of limitation;) now reduced in Kentucky, in such cases, to a seven years’ adverse holding. The junior patent, as between the state and the grantee is a valid title; and if'in this instance, Smith were to hold adverse possession of any one of His thirty-two tracts, for seven years, he would have the better legal title: and if the grants of Smith are released to Clark, a holding by him in virtue of the release, would have the same effect.

The legislature having declared that he who has the legal and equitable title, and the possession, may treat the adverse claimant as a trustee, and coerce a. release to himself of the ihfefeof, claim; of course the statute secures a highly valuable right ;• which it is the duty of the Courts to enforce, and which can only be enforced, in a Court of Equity..

Kentucky has the undoubted power to regulate and protect individual rights to her soil, and to declare what shall form a cloud on titles; and having so declared, the Courts of the United States, by removing such clouds, are only applying an old practice to a new equity created by the legislature, having its origin in the peculiar condition of. the country. The unappropriated lands of that state have been opened to entry and grant at a very cheap rate, as this record shows ; which policy has let in the abuse, sought to be remedied by the bill. That clouds upon old titles, by the issuance of new patents for the same lands, would be the consequence, was manifest; and that citizens of other states are entitled to come into the Courts of the United States, to have the rights secured to them by the statute of 1796, enforced, we cannot doubt.

• But we apprehend, jurisdiction may be assumed by the federal, equally with the state Courts, upon another ground. Kentucky may prescribe any policy for the protection of the agriculture of the country that she may deem wise and proper; she has in effect declared, that junior patents, issued for previously granted lands, shall be delivered up and cancelled; with the addition, that a release of title shall be executed: and it is the duty of the Courts to execute the policy.

Where the legislature declares, certain instruments illegal and void, as the British annuity act does; or as the gaming acts do; there is inherent in the Courts of Equity a jurisdiction to order them to be delivered up, and thereby give effect to the policy of the legislature. 10 Ves. 218. 5 Ves. 604. 2 Yerger’s Rep. 524. 1 Maddock’s Ch. Pra. 185, and authorities cited.

The state legislatures certainly have no authority to prescribe the forms and modes of proceeding in the Courts of the United States; but, having created a right, and at the same time prescribed the remedy to enforce it, if the remedy’ prescribed is substantially consistent with the ordinary modes of proceeding on the Chancery side of the federal Courts, no reason exists Why it should not be pursued in the same form as it is in the state Courts; on the contrary, propriety and convenience suggest, that the practice should not materially differ, where titles to lands are the subjects .of investigation. And such is the constant course of the federal Courts, For instance, in Tennessee, the legislature has provided that the Courts of Equity may -divest a title, and vest it in another party to the suit; and that the decree shall operate as a legal conveyance. So in Kentucky, the legislature has declared that the'Courts may appoint,a commissioner to convey as the attorney in fact of a litigant party; and that such deed shall pass-the title r in both instances binding infants and femes covert, if necessary. The federal Courts, in the states referred to, have adopted the same practice for many years, without a doubt having been entertained of its propriety. It may be said with truth, that this is-a mode of conveyance and of passing title, which the states have the exclusive right to regulate; still the same statute that conferred the power thus to decree a conveyance, prescribed the mode of proceeding; and had. the form of the remedy been rejected' by the Courts of the United States, the right to have such record conveyance would have fallen with it, as they could not be separated.

The undoubted truth is, that wnen investigating and decreeing on titles in this country, we must deal' with them, -in practice, as we find them, and accommodate our modes of proceeding in a considerable degree, to the nature of the case, and the character of -the equities involved in the controversy; so as to give effect to state legislation and state policy: not departing, however, from what legitimately belongs to the practice of a Court of Chancery.

The complainant’s case being one coming clearly within the rules alluded to; we order that the decree of the Court below be reversed, and the cause remanded to be proceeded in according to the rights of the parties.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the District of Kentucky, and was argued by counsel. On consideration whereof,, it is adjudged and decreed by this Court, that the decree of the said Circuit Court, in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court-, for further proceedings to be had therein, in conformity to the opinion of this Court.


source: Caselaw Access Project

author: Mr. Justice Story

license: Public Domain

text:
    Downes and Company vs. Edward B. Church.
    The plaintiffs in an action on the second set of a foreign hill of exchange, which was pro-' tested for non-acceptance, with the protests thereto attached, can'recover, without producing tire first of the same sfet, or accounting for its non-production.
    ON a certificate of division from the Circuit Court of the United States for the district of Mississippi.
    This was an action of assumpsit founded on the second of a foreign bill of. exchange, by the endorsee against the endorser, for non-acceptance. The plaintiffs declared, upon the “second’? of the set of exchange, which “ second of the set” was protested for nonacceptance; and the same, with the protest thereto attached, was read in evidence to the jury. Whereupon a question arose, whether the plaintiffs could recover upon the said second of exchange, without producing the first of the • same set, or accounting, for its non-production; upon which the judges were opposed' in opinion. Whereupon the same was ordered to be certified to the Supreme Court of the United States.
    The case was submitted:-to the Court, on a. printed argument, by Mr. O. Hoffman,, for the plaintiff. No. .counsel appeared for the defendant. .
    Mr. Hoffman stated:—
    The only question that arises is; whether the plaintiff can recover upon the second of exchange, without producing the first of the same set, or accounting for its non-production.
    These bills are so many securities for the same • debt, and so. draAvn for convenience, and to avoid accident. Where one is paid, the one so paid has discharged the duty of the Avhole, and the others cease to have legal existence. They contain this very condition on their face; and show that each has a full operatipn, dependent only upon the rest not having discharged their office.
    If one is sufficient to present, so as to authorize the holder to demand payment, it would seem to foiknv, as a matter of course, that that which gave the right to demand payment or acceptance would be sufficient to support an action for non-payment or non-acceptance. If the presentation of one is sufficient to create a liability, that one must be sufficient tp support an action founded on such liability. Whatever gives the right, must be enough to sustain the remedy.
    Not a single case has been found Avhere the objection has been taken or decided by the Courts, although the books abound with cases where the objection would have applied. The only exception to the general rule that either one of the set can perform the offjcé of all the set is, that the particular bill protested must be the one declared upon and given in evidence, in order to save the drawer or endorser from liability to the person who may ha interfered, ’ supra protest, for his honour. Chancellor Kent says.: “ If several parts, as- is usual, of a bill of exchange be .drawn, they all contain a condition, to be paid, provided the others remain unpaid, and they collectively amount to one bill, and a payment to the holder of either, is good, and a payment of one of a set is payment of the whole.
    “ The drawer or endorser to be charged on non-acceptance or non-payment is entitled to call fox the identical bill Or No. of the set protested, before he is • bound to - pay, and it would be sufficient to produce it at the trial or account for its absence; as, without it, he might be exposed to claims from some bona Me holder or person, who had paid it, supra protest, for his honour.” 3 Kent’s Com. 109.
    The same doctrine was still more strongly recognised by the Court in Kenworthy vs. Hopkins, 1 Johnson’s Cases, 107; which case the. Court will find cited and commented upon in Wiles vs. Whitehead, 15 Wendall, 527.
    In this latter cáse, the Court decided that the set actually protested must be produced in a suit brought by endorsee against endorser, to guard against' a subsequent claim by an acceptor, supra protest.' The Court say “ that the identical bill protested must be presented.
    “It is true, as a general rule, that payment of one of the set.is payment of-the whole; but if the drawer or endorser is entitled to call for the identical bill dishonoured, before he is obliged to pajr it; the omission to do so would subject him to the charge of negligence, and make .him accountable to any person who had accepted it for his honour.
    “ His security, therefore,- requires that, he should be allowed to call for the bill protested, before a recovery is permitted' to be had against him.”
    There is a dictum in Starkie, that “ in case of foreign bills drawn in sets, both the sets should be produced.” 2 Starkie on Evidence, 142. But no authorities are cited to support this, and it is in hostility to the reasoning of the authorities to. which I have referred.
   Mr. Justice Story

delivered the opinion of.the Court:—

This is the case of a certificate of division of the judges of the Circuit Court, for the district.of Mississippi. ' The action was assumpsit, founded on the second part of a foreign bill of exchange, by the endorsee against the endorser for non-acceptarice. The. plaintiffs declared upon the second of the set of exchange, which second of the set was protested for non-acceptance-, and the same, with the protest attached thereto, was read to the jury. Wheíéupon a question arose, whether the plaintiffs could recovér' upon the said second of exchange without producing the first of the same set, or accounting for its non-production; upon which question the judges were opposed in opinion. And the same has been accordingly certified to this Court under the act of Congress.

We are of opinion that the plaintiffs are entitled to- recover upon the second of the set without producing the first, or accounting for its non-production. No authority has been referred to which is exactly in point, nor are we aware that the question has ever been-judicially decided. Mr. Starkie, in his work on Evidence, (part iv. p. 228, 1st edit, has said, “In the case of a foreign bill drawn in sets, both the sets should be produced.” But for this proposition he has cited no authority. The question, must, then, be decided upon principle. ' The object of drawing a foreign bill in sets is for the convenience of the payee, or other holder, to enable him to forward the same for acceptance by different conveyances, and thus to guard against any loss, by accident or otherwise, which might occur if there were but a single bill. But from the very frame of the set, if cne is paid or discharged by the acceptor, or other party liable on it, he is ordinarily discharged from the others; since each part contains a condition, that it shall be payable .only when the others remain unpaid. Now, when one of the set is protested for non-acceptance, and due notice is given to an endorser, and on the trial df an action brought against him by the endorsee, the same bill of the set On which ‘ the protest is made is produced, that is prima . facie proof of his being responsible thereon. Either of the set may; be presented for acceptance, and, if not accepted, a right of action, presently arises upon due notice against all the antecedent parties to the bill,, without any others of the set being presented; for it' is by no means necessary that all the parts should be presented for acceptance before a right of action accrues to the holder. Under 'such circumstances, it is properly a matter of defence on the other side, to show either that some other bill of the set has. been presented and accepted, or'paid; or that it has been presented at ah earlier time and dishonoured, and due notice has not been given; or that another person is the proper holder, and has given notice of his title to the party sued; or that some other ground of defence exists which displaces the prima facie title made out by the plaintiff. ( The law will hot presume that the other bills of the set have been negotiated to other persons, merely because they are not produced. And the endorser is not put to any hazard or peril by the non-production of them; since, like the acceptor, if he once pay the bill, without notice of any superior adverse claim, by a negotiation of another of the set to another party, he will be completely exonerated. On the other hand, great inconveniences might arise from compelling the plaintiff to produce the other parts of the set, or to account for their non-production; as he might not be able satisfactorily to prove that they had not been negotiated, or that - they had been lost; In short, if the plaintiff, before he could recover, were required to pro- ■ duce or to account for- all the parts of the set, he would be obliged, in every case where the bills had been transmitted by different conveyances abroad, to arm himself with proofs of every stage of their route and progress, until they should come back again into his hands, as preliminaries to his right to recover upon their being dishonoured. Such a requirement would create most serious embarrassments in -all commercial transactions of this sort; and instead of bills drawn -in sets being a public convenience, they would be greatly obstructed in their negotiability, since the rights and the remedies of the holder might be materially impaired thereby. We are therefore of opinion,, that the question upon which tire judges of the Circuit Court were opposed, ought to be answered in the affirmative; and we shall send a certificate to the Court accordifigly.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Mississippi, and on the point and question on which the judges of the said Circuit were opposed in opinion, and which was certified to ..this Court for its opinion, agreeably to the acts of Congress' in such case made, and provided; and was argued by counsel. On consideration whereof, it is the opinion of- this. Court, that the plaintiffs in this case could' recover upon the second of a foreign bill, of exchange, which was protested for non-acceptance with the protest thereto, attached, without producing the first of the, same set, or accounting for its non-production; Whereupon it is. ordered. and adjudged by this Court, that it be so certified to the said Circuit Court accordingly.


author: Mr. Justice M‘Lean

text:
    John F. Stein, Plaintiff in error, vs. William Bowman and others, Defendants in Error.
    Certain German documents were offered in evidence by the plaintiff in the District Court of Louisiana, for the purpose of using such parts of, them as contained depositions which related to the pedigree of the plaintiff, which were overruled by the District Court, on the ground that they were not duly authenticated. By the Court :'In the case of Church vs. Hubbart, 2 Cranch, 187, this Court held, that the certificate of a consul, under his consular seal, is not a sufficient authentication of a foreign law to make it evidence; it not being one of his consular fimctiens to grant such certificates. And also, that the proceedings of a foreign Court, under the seal of a person who styles himself the Secretary of Foreign Affairs in Portugal, is not evidence. On the principles of this case, tjie Circuit Court very properly rejected the depositions offered. The certificate and seal of the minister resident for-Great Britain, from Hanover, is not a proper authentication of the proceedings of a foreign Cour t, or of the proceedings of an officer authorized to take depositions. It is not connected in any way-with the functions of the minister. His certificate and seal could only authenicate those acts which are appropriate to his office.
    The only mode in which depositions can be taken in a foreign country, is under a commission.
    No rule is better established than that a party cannot be a witness in his own case..
    The objection to the competency of a party to a suit as a witness, does not arise so much from the small pecuniary liability to the payment of the costs, as from that strong bias which every party to a suit must naturally feel; and this influence is not the less dangerous, if the party be unconscious of its existence. Every individual who prosecutes or defends a suit, is, in the nature of things, disposed to view most- favourably his own side" of the controversy, surd, with'no small prejudice, the side of his adversary. To admit a party on the record, under any circumstances, to be sworn as a witness in chief, would be attended with great danger. ■ It would lead to nerjuries, and the most injurious consequences, in the administration of justice.
    From necessity, in cases of pedigree, hearsay evidence is admissible. But this rule is limited to the members of the family, who may be 'supposed to have known the relationship which existed in the different branches. The declaration of these individuals, they being dead, may- be given in .evidence to prove pedigree. And so is réputation ; which is the hearsay of those who may be supposed to have known the fact, handed ■ down from one to another; evidence. As evidence of this description must vary with the circumstances of each case, it is difficult, if not impracticable, to deduce from the ' books any precise and definite rule on the subject.
    It is not every statement or tradition in a family that can -be admitted as evidence. The tradition must be from persons having such a connexion with the party to whom it relates, that it is natural and likely, from their domestic habits and connexions, they are speaking the truth, and that they could not be mistaken.
    The declarations offered as evidence were made subsequent to the commencement of the controversy, and, in fact, after the suit was commenced. It would be extremely dangerous to receive hearsay declarations in eyidencé respecting any .matter, after the controversy has commenced. This would enable a party, by ingenious contrivances, to manufacture evidence to sustain his cause. It is therefore, essential, when declarations are offered as evidence, that they should have been, made before the controversy originated; . and at a time and under circumstances when the person' making them could have no motive to misrepresent the faets. .
    It is a general rule, that neither husband nor wife can be a witness for or against each other. This rulé is subject to some exceptions, as when the husband commits an offenct. against the person of his wife.
    The husband and wife may be called as witnesses in the same case, and if in their statement "of facts they should contradict each other, that would not destroy the competency of either. It would not follow from such contradiction, that either was guilty of peijury. And in some cases, the wife may be a witness under peculiar circumstances, where the husband may be interested in the question,- and, to some extent, in the event of the cause.

      Tlic wife bannot be a witness to criminate her husband, or to state that which she has learned from him in their confidential intercourse. The rule which protects the domestic relations from exposure, rests upon considerations connected with the peace of families; and it is considered that this principle does not afford protection to the husband and wife, while they are at liberty to invoke it or not, at their discretion, when the question is propounded; but it renders them incompetent to disclose facts in evidence in violation of the rule. The husband being dead, does not weaken the principle. It would seem rather to inciease than lessen the force of the rule.
    To sustain a claim to the admission of the deposition of a witness in evidence, the affidavit of a person who represented himself to be the agent of the plaintiff, stated that the witness had left Louisiana before the commencement of the suit, and ascended the Mississippi, with the intention of going to Ohio; and that since then, the person who made the affidavit had not heard from him, although he had made inquiries. By the Court-: This does not amount to that degree of diligence which the law requires to introduce secondary evidence. v
    IN error to the District Court of the United States for' the eastern district of Louisiana.
    In' the District Court of the eastern district of Louisiana, on the eighth day of April, 183'6, Johann Frederick Stein, an alien and a subject of the King of Hanover, presented a petition, stating that he was the sole and lawful heir of Nicholas Stein, or sometimes called Nicholas Stone, who had died some time-before, in the' parish of St. Tammany, in the state of Louisiana. The petition prayed that William Bowman, who had been appointed curator of the estate of the deceased Stein, by the proper tribunal, should be decreed to account for the estate and effects received by him, and to deliver to the petitioner the property of the succession which had not been sold, and to pay to him the amount in his hands.
    The answer of William- Bowman, the curator, denied that the petitioner, Johann Frederick Stein, was the., heir or related to the deceased Nicholas Stein, or Stone; and averred that the claim was interposed to vex and harass the respondent, and the true heirs of Nicholas Stein.
    Afterwards, Andreas Stein, residing in the kingdom of Hanover, presented a petition to the District Court, stating.that in April, 1834, he had applied to the Court of Probate, of New Orleans, claiming the succession to Nicholas Stein, as the heir of the deceased, and that by the unjust interference of Johann Frederick Stein, he had been prevented recovering the same.
    Subsequently, Johann Stein, Anna Sophie. Stein, wife of Mathias Ahreus, and Luer Stein, a minor, assisted by his curator or trustee, and by his guardian, all of the kingdom of Hanover, filed their petition in the Circuit Court, stating that they are the only heirs of Nicholas Stein, and that in 1835 they had instituted a suit against William Bowman, which suit is still pending. They aver that the claim of Johann Frederick Stein is fraudulent, and that.he is not the heir of Nicholas. Stein, as he alleges. They pray leave to introduce in the suit, and state that William Bowman is a mere stakeholder. William Bowman afterwards filed a petition in the District Court, setting forth that individuals belonging to three different families, the petitioners, pretend to be the nearest relations of the late Nicholas Stein, and to be entitled to his. estate;-and he asks, as he is-only a stakeholder, that the parties contesting the- claims of each other may be called in to take cognizance of this .suit, and defend him against it
    The petitioner, Johann Frederick Stein, put in a general replication to each of the petitions of intervention.
    The case was, on the application of William Bowman, referred to a jury, and on the 3d of March, .1837, it came on for trial ; and. the jury found a verdict for the defendant.
    On the trial of the cause, bills of exceptions were signed by the Court to the decisions of the Court, on points arising during the trial of the cause.
    The affidavit of John Rist was laid before the Court,,stating'that, he had made diligent inquiry for Francis Stuffle, whose deposition was taken in the cause in the parish Court, between the plaintiff hnd Bowman; “ that he was unable to find him, and had been informed, and truly believed he was dead; this information had been derived from those who knew him.”
    The • deposition also, stated, that Nicholas Mouzat, whose testimony was taken in the same cause, left Louisiana before the commencement of this suit, and ascended the- Mississippi with the intention of going to the state of Ohio ; that he had- not since heard from- him, although he had made inquiries for him.
    The deposition of Francis Stuffle was then offered in evidence by tfie plaintiff, and was. admitted by the Court; to which the defendant excepted.
    The defendant called the wife, of Francis Stuffle, he being dead, to prove that her. husband had been bribed by.John Rist to. give evidence in the ease; and also to prove he had frequently told her he knew nothing of the plaintiff, or of Nicholas .Stein. The plaintiff objected to the admission of the witness; but the Court allowed her to be'sworn, and she gave her testimony. The plaintiff excepted. • .
    The plaintiff then offered in evidence certain German documents, to prove the pedigree of the petitioner,- which were rejected by.the Court, as not being sufficiently authenticated; and to this rejection the plaintiff excepted.
    The depositions which were taken, and which, were -in the Ger-; man language, were not signed by the deponents; and at the end of each deposition; if is stated that each of the witnesses assented to the- same, A magistrate of the place certifies to this fact,'and this is attested under his seal by the. “Royal British Hanoverian Landrostey;” and his signature is attested under his seal, by the “ Royal British Hanoverian,Minister Residentis.”, .
    The defendant, William Bowman, ivas, during the trial, admitted as a witness by the Court, to testify as to the merits of the controversy; • The plaintiff excepted to his. admission.
    The Court refused to admit Stultz as a witness for the plaintiff, to prove that he had been in Hanover the preceding summer, and there heard from many old persons of whom he inquired, that the plaintiff was the brother of Nicholas Stein. The witness stated that he had gone to Germany for the purpose of taking a deposit tion: the Court were of opinion, that the depositions of those persons should have been taken.
    The plaintiff prosecuted this writ of error.
    The case was submitted to the Court, in printed arguments, by Mr. Crittenden, for the plaintiff in error; and by Mr. Garland for the defendant.
    Mr. Crittenden, for the plaintiff in error,
    stated that:
    '. The plaintiff, J. F. Stem, insists- that the Court erred in all the .opinions and decisions excepted on his part, and has prosecuted a writ of error, to reverse the judgment rendered against him.
    - A decision by this Court, on all the questions presented by these bills of exceptions, will probably be necessary to the proper final disposition of the case in the Court below, and, therefore, they are all insisted upon, and submitted to this Court. If the single object was merely a reversal of the judgment, it is supposed that errors obvious and sufficient for the purpose are made manifest by the bills of exceptions.
    From the first exception, it appears-that the Court permitted Bowman, the defendant, to become a witness in his own case; and,.in the second, that a woman was permitted to violate the sacred confidence and intimacy of married life, by giving testimony, to betray and criminate 'her deceased husband. The law' condemns it. Starkie ón Evidence, vol. ii; part 4, page 70.5, &c., and 709, &c.
    >JVIr. Garland, for the defendant in error.
    Nicholas Stein, generally called and known as Nicholas Stone, died in the parish of St. Tammany,. Louisiana, in the year 1833, leaving an estate estimated tó be worth about twenty-five thousand dollars. In October 1833, Bowman, one of the present defendants, was appointed by the proper tribunal, curator of the estáte, and took upon himself the administration.
    The plaintiff alleges that Nicholas Stein died without leaving either legal ascendants, descendants, or collaterals, except himself; and that he is the only brother and sole heir. That the term allowed by. law to Bowman to administer the estate has expired, and he is entitled to the whole of it He therefore asks for an account and payment of the amount that has been received.
    Bowman denies- positively that the plaintiff is the brother or ally relation of Nicholas- Stein, deceased; and says that his claim to the estate is unfounded and fraudulent, and intended to defraud, vex, and harass him and the real heirs.
    Andrew Stein intervenes in -the suit, and alleges he is the nearest &{ kin, and sale heir of Nicholas Stein, and claims 'the estate; and that he has instituted a suit iii one of the state tribunals, to wit,, the Probate Court of-the parish of St. Tammany, to recover it; which suit was then, and is now pending.
    Johann Stein, Anna Sóphiá Stein, wife of Mathias Ahreus, and Luer Stein, a minor, also intervene in the suit; and say they are the only heirs of Nicholas Stein, and claim the estate.
    In answer to all these petitions, Bowman, the defendant, an- : swers, that he is merely a stakeholder; that he has three suits pend-. ing against him to recover the same property, to wit, the case now on trial, and two suits in St. Tammany.
    The plaintiff and appellant answers the two petitions of intervention, and take issue with the parties named in them, as to their claims to be recognised as. heirs.
    . Nicholas Stein, it appears from the testimony, came to.the United ■ States about thirty years previous to his death, from the kingdom of Hanover. • After his arrival, he never heard from any of his relations, or did he ever have any intercourse'with them, except, writing one letter, which is ip the possession of ohe of the inter-pleaders, addressed to him as a brother.
    The record shows that a man named Rist .(who is a' gambler in Louisiana) is the person who is prosecuting this claim in the name of the plaintiff and appellant. We allege it is fraudulent, and is attempted to be sustained by perjury; and .that Rist is the party really interested.
    It also very satisfactorily appears that a suit was instituted in 1834, by the appellant, er rather by Rist, in his name, in the Probate Court of the parish.of St. Tammany, against the appellees, to recover this same property. This was in the parish where Nicholas Stein had resided many years previous to his death, and where all the circumstances relating to his affairs were known. That suit was decided against the plaintiff on. the merits. He took an appeal to the Supreme Court of the state, where every point taken in the inferior'Court, and decided.upon in the course of the trial, was affirmed; but that tribunal set aside the final judgment on the merits, without, giving any reason for so doing, and entered up a judgment of nonsuit. The cause was tried by a jury, and after an investigation of three days a general verdict was rendered in favour of the defendant, on the 4th of March, 1837.
    On the 11th oí March, 1837, the plaintiff, in ah informal manner, moved the Court for a new trial, oh various grounds; which motion was rejected, because not’ asked for within the delay prescribed by law and the rules of the Court. It will hot be denied, that so far as all questions of practice, are involved, that the laws of the state of Louisiana, and the decisions of its Courts, are to goverri' in the Courts, of the United States. 7 Laws United States, p. 315.
    In this case a new trial cannot be awarded, and the cause remanded, even if the Court should be of opinion there was error in the decision of any of the points made in the District Court; because the appellant has abandoned or lost the right he may have had to have his case revised or examined in that way. A new trial being one ,of the modes prescribed by law of having a judgment revised or re-examined, if the party does not avail himself of it in the manner and within the time directed, he can no more have that benefit than ’he could that of an appeal, if he had not taken it within the time and in the manner directed by law. Louisiana Code of Practice, articles 556, 557. 4 .Martin’s Reports, N. S. 532.
    The manner of applying for a new trial, and the time within which the application must be made, is specially and particularly described; and the.appellant has not complied with the law in a single particular. ■ Louisiana Code of Practice, articles 55S, 559, 560, 561.
    Taking it for granted that, the Court will not remand the cause, it'must be examined.on its merits; and it is submitted whether there are sufficient grounds to set aside the verdict of the jury, and reverse the judgment. The law of the case is very plain, if the plaintiff has sustained his allegations by proof. Is he the sole relative in the ascending, descending, or collateral line to Nicholas Stein, deceased ? .If he is, there is an end of the question. Is there enough on the record to satisfy the Court that he is, even admitting all the evidence rejected in the Court below ? It is not sufficient the plaintiff should show he is a brqther; but before he can claim the whole estate he must show the father and mother of Nicholas Stein are dead. If both or either of them are alive, the brother cannot inherit the whole estate; because in Louisiana ascendants inherit as well as brothers and .sisters. Ascendants are what are called forced heirs, and like descendants, cannot be disinherited, even by testament, but for cause. Fathers or mothers do not entirely exclude brothers or sisters, Or their, descendants; but, before these last can inherit solely, they must show no forced heirs are living. ' Louisiana Code, articles 883. 899. 907, 908. 14§1, 1482. 12 Martin’s Reports, 390.
    As to the plaintiff’s first bill of exception, it is not necessary to say .any thing. It is taken to the admission of Bowman’s affidavit, offered for the purpose of affecting the jurisdiction of the Court; and as the Court afterwards decide that the exception to the jurisdiction was made too late, there is'ho necessity for it, unless the Court shall consider it in connexion with the defendant’s third bill of exception.
    The second bill of the plaintiff is taken fo the rejection of certain documents in the German language. These are the same papers that were offered in evidence in the first suit of the.Probate Court, rejected by it, and that decision affirmed by the Supreme Court of the state of Louisiana. It is, sufficient to refer to that decision. Louisiana Reports, vol. — , page — ,.and the decisions therein referred to..

      The plaintiff’s third bill is to the admission of Bowman as a witness The bill does not specify any particular objection, whioh it certainly ought to do, and the Court is left to conjecture the ground-of exception. No objection to the defects in the bill-are intended to be waived-; on the contrary, we insist on. all the legal exceptions to it. It is supposed the objection to Bowman is that he is a party on the record. But the Court will recollect he has no personal interest in the case. He is a mere stakeholder, ready to deliver any property or money .he has in possession to whoever is legally entitled to 'receive it. The plaintiff has never been recognised as an heir. If he had been, and'then Bowman refused to pay over, the case would be different.
    As to the..recognition of heirs and their' rights, before a.nd after, the Court is respectfully referred to Louisiana Code, articles —; Louisiana Code of Practice, articles Nos. 1000 — 1004, and the amendment at page 348.
    Bowman is not individually liable for costs, until the plaintiff shall be recognised as heir, and he has put him in delay;- until then he is the representative of all persons interested, and the costs are paid out. of; the estate. As a stakeholder, Bowman is a competent witness.'
    • The plaintiff’s fourth bill is to-the rejection of Stnltz as a witness. The- Court was certainly correct in rejecting his testimony. The cases in which hearsay testimony is admitted- are all specified. They are exceptions to a general rule, and the counsel for the appellant must show thaVthis is one of the exceptions. It -will.be difficult, it is believed, to convince the Court thaCthe authority referred to will authorize the reception of the evidence "of this witness. ■ The persons whose declarations are to-be stated are alive. It is, besides, shown to the Court that the plaintiff or appellant has alleged that he, had documentary evidence of his being the heir, and that he offered it-in evidence, but it was rejected, because not presented in a legal shape. Ancient boundaries and pedigree may sometimes be proved by tradition, and the common understanding of old persons ; but affinity and the relationship of collateral heirs do not come within the rule.
    The plaintiff’s fifth bill, is to the admission of Mrs. -Stupfel, or-. Stuffie, to testify as a witness. There is no known law, that, prohibits man and wife from giving testimony in, a cause between third persons, or prohibits the wife from contradicting the husband; or proving any .other facts she may know. -She cannot testify for or against him in a suit in which he is a party, or. interested.
    The plaintiff’s sixth bill of exception is to the rejection of-a deposition of a witness named Mouzat, which had been taken under a commission issued in the suit, in the probate Court, and which the plaintiff wished to read as evidence in this suit, on the pretext thatMouzat wás absent, and could not be found. The judge was not satisfied of his absence; it was not pretended he was dead. It does not appear any effort was made to procure his attendance, of have his-deposition taken.
    The' plaintiff’s seventh bill of exception, is to the refusal of the Court to award a new trial, or to permit a motion for it, and'-the grounds to be filed. The district judge'was certainly correct in his opinion. By the rules of the Court, the time had expired, £nd the motion was not made in the manner or the time prescribed by law. Louisiana Code of Practice, articles Nos. 557 — 561. .
    If in conformity with this opinion; that the Court cannot send the caúse back for a. new trial, and it shall proceed to investigate the merits, it will not perhaps be necessary to decide on any of the defendants’ bills of exceptions. But if the .Court should determine to send the cause back, contrary to expectation, or should it be considered necessary in the investigation, it is not intended to waive any legal ground taken in them.
    The' first exception' of the defendants is to the reception by-the district judge of - a document called a deposition de bene esse, of a person called Henry Munget. It is not taken by the authority of any Court, nor is any notice given-to the defendants.of its being-taken. As to the first ground taken in the bill, see Louisiana Code of Practice, articles 424 — 431, &c.; also, amendment, page 156. As to the second and .third grounds, it ií¡ not necessary to produce authorities. The fourth is settled by the decision given in the Supreme Gourt of Louisiana, in this pase, already referred to.
    ■ The defendant’s second exception is to the admission of the. deposition of Francis Stupfel, or Sfuffle. As to first and third grounds, it.is sufficient to refer again to the-case between these parties in the Supreme Court of Louisiana. As to the-second a reference is.' made to Code of Practice, articles 430-^-435, &c...
    . The verdict of the jury has negatived every allegation of the plaintiff that he is a brother or heir of Nicholas Stein, deceased; and it is presumed the Court will not disturb it.
    Mr. Garland also submitted an additional printed argument.
    Me stated, that as to the plaintiff’s third bill of exception, he would refer the Court to Martin’s Rep. N. S. vol. iv. p. 21; ahd.also to page 72 of the same volume, and 10 Martin, 637, as applicable to the point under consideration, and loseveral others in' the case. The Court are asked to attend particularly to what Bowman'states in his affidavit: it is, that Rist is the real party, having purchased all the rights of Stein, the plaintiff, and he could prove it by witnessés who are named in the affidavit, who were afterwards introduced, and actually did prove • it.. The facts stated by Bowman having-been proved by other legal testimony, the bill ought not" to be noticed. 5 Martin’s Rep. 2,13.
    BoWman is competent to testify as to the identity or relationship of Stein, the plaintiff, in a case where several are claiming the property in his possession. It is a matter of no concern to him who is recognised as the heir. He has to pay to whoever shall recover. The costs are paid out of the estate. His commissions, as curator, are neither increased nor diminished, nor'has he any interest in the event of the suit which will disqualify him. The case would be different were a stranger claiming something of the curator as a debt, or if he were claiming a debt, or the benefit Of a contract, The effect of his evidence then, would be to increase or diminish the amount of the succession, and, consequently, the compensation, of the curator. Bowman is the legal agent of all the heirs, or those claiming as such, until sóme one is recognised as heir according to law. To test the competency of Bowman, the Court have only, to examine whether he will directly gain or lose any thing by the event of this suit. -2 Martin’s Rep. N. S. 333; 4 N. S. 539; 3 N. S. 11 j also, 166.
    ■ The question raised by the plaintiff’s fifth bill of exception is, whether the widow of Francis Stufile can. testify to what her deceased husband told..her previous to his death;' which statement would go to discredit his evidence. She is certainly a competent witness to testify in the case, and the plaintiff must show such questions as are propounded ought not to be answered. Has he done so ? By answering the question, would she criminate, her husband, subject him to any penalty or action of any kind ? Clearly not, for hs is beyond the reach of any legal proceedings. No breach of confidence is involved, nor do the relations exist; in which it is the object of the law to preserve harmony, by preventing the husband or wife from testifying, as to what one tells the other. The authority cited by the. counsel does not go the length that is contended. It is hoped the Court will examine it particularly, and reference is made to the second English edition of Starkie on Evidence, vol. ii. 401,402, and the authorities there cited.
    In the case of the King vs. the inhabitants of All Saints, Worcester, .the Court evidently intended- to narrow very much, if not entirely contradict the positions previously taken, which Starkie says were certainly too extensive and indefinite. The only effect of the evidence of Mrs. Stuffie would be to cast a reflection upon the memory of her deceased husband. During his lifetime she might have been called to prove -what might have disgraced him, and he might have been compelled .to answer himself a question that would have had the same effect. 1 Starkie, second English edition, pages 167 to 172, inclusive.
    The Court were also referred to the opinion of the Supreme Court of Louisiana, in a suit between the same parties; decided on the 21st of March, 1836.
   Mr. Justice M‘Lean

delivered the opinion of the' Court, — '

This case .was brought originally in the District Court of the Unitqd States for the eastern district of Louisiana; and on the trial certain exceptions, were taken to the ruling of the Court by the plaintiff, and which he now brings before, this Court on a writ of error.

The action was brought by petition, in the form peculiar, to the Courts of Louisiana, to compel the defendant to render an account as curator of the estate of Nicholas Stone, or Stein, deceased.

The plaintiff represents himself as an alien, and as the only heir at law of the deceased.

Some time after the defendant had answered the petition,-Johann Stein, and others, filed their petition of intervention, denying the statements in the plaintiff’s petition, and representing themselves to be the true heirs of the deceased.

The cause was submitted to a jury '; and on the trial, to sustain his case, the plaintiff offered in evidence certain German documents, for the purpose of using such parts of them as contained the depositions which related to the pedigree of the plaintiff; which were overruled by the Court, on the ground that they were not duly authenticated. And this constitutes the first exception.

Several depositions appear to have been taken,- but none of them were signed by the deponents. At the close of them it is stated: “ After the preceding depositions were read to the deponents, they gave their assent to them and approbation.

[Seal.] (Signed) R. Y. D. Busseke.

Seen, for attestation of the preceding signature, of the Royal Amtsvagtey Burgwedel.

Luneburg.

Royal British Hanoverian Landdrostey.

[Seal.] Ruemern.”

To which is added ; — •

“ The subjoined signature of the Royal Britannic Land Bailiwick at Luneburg is hereby attested.

Hamburg, Sept. 19th, 1834

Royal Britannic Hanoverian Minister Residentis.

Im Ausftrage by authority. G. W. Kern.”

[Seal.]

'

In the case of Churcn vs. Hubbárt, 2 Cranch, 187, this Court held that a certificate of a consul under his consular seal, is not a sufficient authentication of a foreign law to go in, evidence; it not being one of his consular functions to grant such certificates. And also that the proceedings of a foreign Court, under the seal of a person who styles himself the Secretary of Foreign Affairs in Portugal, is not evidence.

On the principle of this case, it would seem that the Court very properly rejected the depositions offered.

The certificate and seal of the minister resident from Great Britain in Hanover, is not a proper authentication for the proceedings of a foreign Court, or of the proceedings of an officer authorized to take depositions. It is not connected in any way with the functions of the minister. His certificate and seal could only authenticate those acts which are appropriate to his office.

The authority to take the depositions by the person before whom they vrere taken no where appears; and it is npt shown that the Royal Britannic Hanoverian Land Bailiwick, Ruemern, was authorized to attest, as he has done, the signature of R. Y. D. Busseke.

If the attestation of the signature, and right of the person who administered the oaths, were duly certified under the seal of a responsible officer, whose appropriate duty it was to give such certificate, it might be received, so far as the authentication goes, as prima facie evidence, though not under the great seal of the state. It may be proper, however, -to remark, (though the point was not raised in the Court below,) that if thé authentication had been sufficient, the depositions would have been inadmissible, they hot having been taken under a commission; which is the only mode by which depositions in a foreign coúntry can be taken.

In the course of the trial, Bowman, the defendant, was admitted as a witness by the Court; and, being sworn, gave-evidence to the jury respecting the merits of the case. And to this decision of the Court, overruling the objection made, the plaintiff-also excepted.

No rule is better established, than that a party, in an action at law, cannot be a witness in his ow'd case.

In the case of Scott vs. Lloyd, 12 Peters, 149, this Court said, “The decision in 1 Peters, C. C. R. 301, where the Court held a party named on the record might be released, so as to constitute him a competent witness, has been cited and relied on in the argument.” “ Such a rule,” the Court remarked, “ would hold out to parties a strong temptation to perjury; and w.e think it is not sustained either by principle or authority.”

, Bowman was a party on the record, was curator, as represented,’ and was prifna facie liable for the costs of suit.

But-if there -cóuld have been a release for the costs executed, or the motley to cover the costs had been paid into Court, his competency would not have been restored.

The objection to his competency does not arise so much from the small pecuniary liability to the payment of costs, as from that strong bias which every party to a suit must naturally feel. And this influence is not the less dangerous, if the party be unconscious of its existence. Every individual who prosecutes or defends a suit is, in the nature of things, disposed to view most favourably-his own side o'f the controversy, and, with no small degree of prejudice, the side of his adversary. We think, therefore, to admit a party on the record, under any circumstances, to be sworn as a witness in chief, would be attended with great danger. It would lead to perjuries, and the most injurious consequences, in the administration of justice. We think, therefore, the Court erred in admitting Bowman as . a witness. -

The next exception of the plaintiff arises from the rejection of -Stultz as a witness, who was introduced to prove that he had been in Hanover, in Germany, “ last summer;” and there heard, from many old .persons of. whom he inquired, that the plaintiff was the brother of Nicholas» Stone', deceased.

And this Court have no doubt that this evidence was properly overruled by the District Court.

From necessity, in case's of pedigree, hearsay evidence is admissible. But this rule is limited to the members of the family, who may be supposed to have known the relationships which existed in its different branches. The declarations of these individuals, .they being dead, may be given in • evidence to prove pedigree; and so is reputation, which is the' hearsay of. those who may -be supposed to have known the fact, handed down from one to another, evidence. •As evidence of this description must vafy by the circumstances of each case, -it is difficult, if not impracticable, to deduce from the books any precise and definite rule on the subject.

“ It is not every statement or tradition in the family that can be admitted in evidence.” The tradition must be from persons having such a connexion with the party to whom it relates, that it is natural and likely, from their domestic habits and connexions, that they are speaking the truth, and that they could not be mistaken. 1 Philips, 174. 2 Dallas, 116.

The declarations proposed to be proved by the witness, do not appear to have been made by members of the. family, or by persons who had such connexions with the deceased as to have a personal knowledge of the facts' stated. And these persons, for aught that appears, are still living; and their depositions might be taken.

On both these grounds, the evidence was inadmissible. But there is another ground on which the opinion of the District Court can be sustáined, and it is proper to state it.

The declarations offered as evidence were made subsequent to the commencement of this controversy, and, in fact, after the suit was commenced.

It would be extremely dangerous to receive hearsay declarations in evidence respecting any matter, after the controversy has commenced. This would enable a party, by ingenious contrivances, to manufacture evidence to sustain his cause. By interrogatories propounded in a cautious manner to unsuspecting individuals, he might elicit the answers he most desired.

It is therefore essential, when declarations are offered, as evidence, that, they should have been made before the controversy originated, and at a time, and under circumstances, when the person making them could have no motive to misrepresent the facts. 4 Camp. 409. Case of the Berkley Peerage.

The plaintiff having read the deposition of Francis Stuffle, deceased, in evidence, the defendant called the wife of the deceased to prove, as stated in the bill of exceptions, that her husband had been bribed by John Rist to give évidence in that case, and also to prove that he had frequently told her he knew nothing of the plaintiff; or of Nicholas Stone deceased. The plaintiff objected to the swearing of the witness, but the Court overruled the objection, and permitted the witness to give evidence. To this opinion the plaintiff excepted.

It is a general rule that neither a husband nor wife can be a. witness for or against the other. Co. Lit. 6, b. Hawk, b. 2, ch. 46, s. 70. Gilb. Ev. 11. Bull. N. P. 286. Fitch vs. Hill et al. 11 Mass. 286.

This rule is subject to some exceptions; as where the husband' commits an offence against the person of his wife. 1 Hale, P. C. 301. Hawk. b. 2, c. 46, s. 77. Bull. N. P. 287. 1 Bl. Com. 413. The wife may exhibit articles of the peace against her husband. Bull. N. P. 287.

The husband and wife may be called as witnesses in the same case, and if in their statement of facts' they should contradict eaeh other, that would not destroy the competency of either. It would not follow, from such contradiction, that either was guilty of perjury.

And in some cases, the wife may be a witness, under peculiar circumstances, where the husband may be interested in the question, and, to some extent, in the event of the cause. 8 East, 203. Gilb. Ev. 139.

In the case of the King vs. Cliviger, 2 Term, 268, the Court held that a wife should not be called in any case to give evidence even tending to criminate her husband. Mr. Justice Grose, in that case, observed, “ In all the books which treat of evidence, there are certain technical rules laid down, which are highly beneficial to the public, and ought not t,o be departed from. Some of these relate to husband and wife; and we find the general rule as to them to be founded, not on ground of interest, but of policy, by which it is established that a wife shall not be called to give testimony in any degree to criminate her husband. And Lord Holt says, that she shall not be called, indirectly, to criminate him. And the rule seems to have governed all the decisions from that time to the present.”

In the case of the Executrixes of Stead vs. Pritchett, 6 Term R. 680, the Court said, “ Ratcliff is one of the plaintiffs on the record; he has, therefore, an interest in the cause, and that cannot be prejudiced by any act, or by the evidence of the wife.”

In the case of Aveson vs. Kinnaird, 6 East, 192, the counsel asserted in the argument, that the declarations of the wife could not be permitted as evidence to show that her husband had been guilty of fraud, or in any manner to criminate him. And he contended that the rule of law was general, and extended even to cases where the wife was afterwards divorced from her husband. Lord EUenborougb, assenting to the rule, observed, “ that goes on the ground, that the confidence which subsisted between them at the time, shall not be violated in consequence of any future separation.”

And his Lordship observes, in the same case, “ It is sound dootrine, that trust and confidence between man and wife shall not be betrayed.”

■ In this case, however, the Court permitted the-declarations of the wife to be .given in evidence, as to the bad state of her health about the time the policy of insurance on her life was executed, the action being founded on such policy.

The above case of the King vs. Cliviger has been somewhat considered in the Court of King’s Bench,'in the case of the King vs. Inhabitants of All Saints, in Worcester; and the Court seemed to think that the .rule laid down in that case was too large and general. .But, at the same time, they observed, that the rule in the case of the King vs. Cliviger, admitting it to its utmost extent, did not exclude the evidence in the case then -under discussion... Philips Ev. 69.

It has been said, that on the grounds of state policy, the wife is a competent witness against her husband in case of treason. Bull. N. P. 289. 1 Brownl. 47. Bac. Ab. Ev, A. 1. But it has since been settled that the wife is not bound to discover the treason of the husband. 1 Brownl. 47.

The law does not seem to be entirely settled how far, in a collateral case, a wife may be examined on matters in which her husband may be eventually interested. Nor whether in such a case, she may not be asked questions as to facts, that may, in some measure, tend to criminate her husband, but which ¿fford no foundation for a prosecution. The decisions which have been made oh these points, seem to have been influenced by the circumstances of each case, and they are somewhat contradictory. It is, however, admitted in all the cases, that the wife is not competent, except in cases of violence upon her person, fiirectly to criminate her husband; or to disclose that which she has learned, from him in their confidential intercourse.

Some colour is found in some of the elementary works for the suggestion that this rule, being founded on the confidential relations of the parties, will protect either from the necessity of a disclosure ; but will not prohibit either from voluntarily making any disclosure of matters received in confidence ; and the wife and the husband have been viewed, in this respect, as having a right to protection from a disclosure, on the same principle as an attorney is protected from a disclosure of the facts communicated to him by his client.

The rule which protects an attorney in such a case, is founded on public policy, and may be essential in the administration of justice. But this privilege is the privilege of the client, and not of the attorney. The rule which protects the domestic relations from exposure, rests upon considerations connected with the peace of families. And it is conceived that this principle does not merely afford protection to the husband and wife, which they are at liberty to invoke or not, at their discretion, when the question is propounded; but. it renders them incompetent to disclose facts in evidence in violation of the rule. And it is well that the principle does not rest on the discretion of the parties. If it. did,.in most instances it would afford no substantial protection to. persons .uninstructed in their rights, .and thrown off thejr guard and embarrassed by searching interrogatories.

In the. present case the witness was called to discredit her husband; to prove, in fact, that he.had committed perjury; and the establishment of the fact depended on his own confessions. Confessions which, if ever made, were made under all the confidence that subsists between husband and wife. It is true the husband was dead', but this does not weaken the principle. Indeed, it would seem rather to increase than lessen the force of the rule.

Can the wife, tinder such circumstances, either voluntarily, be permitted, or by force of authority be compelled to state facts in evidence, which render infamous the character of her husband. We think, most clearly, that she cannot be. Public policy and established principles forbid it.

This rule is founded upon the deepest and soundest principles of our nature. Principles which have grown out of those domestic relations, that constitute the basis of civil society; and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the 'nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence.

We think that the Court erred in overruling the objections to this witness.

The next exception by the plaintiff arises from the rejection' of the deposl 'on of Mouzat, which had been taken in the case of the parties in the parish Court.

To lay the foundation for reading this deposition, John Rist, who represents himself to be the agent of the plaintiff, swore that the witness left Louisiana before the commencement of this suit, and ascended the Mississippi, with the intention of going to Ohio; and that since then he has not heard from him, although he has made inquiries.

This does not amount to that degree of diligence which the law requires to introduce secondary evidence, and such was the deposition offered.

The plaintiff might have taken out a subpoena, the return of which, not served, would have been better evidence that the witness'was not within the judicial district. We think, therefore, that the Court did not err in rejecting the deposition.

For the errors above specified, the judgment of the District Court must be reversed; and the cause sent down for further proceedings.

Mr. Justice Baldwin dissented.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the eastern district of Louisiana, and was argued by counsel. On consideration whereof, it is ordered and adjudged, by this Court, that the judgment of the said District Court in ■ this cause be, and the same is hereby, reversed with costs; and that this cause be, and the same is, hereby, remanded to the' said District Court for- further -proceedings to be had therein, in conformity to law and justice, and the opinion of this Court. •