author: Mr. Chief Justice Taney

text:
    Zenas Fulton and others, Plaintiffs in error, v. Morgan M'Affee, Defendant in error.
    The High Court of Errors and Appeals of the state of Mississippi, on a writ of error to the Circuit Court of Washington County, Mississippi, confirmed a judgment of the Circuit Court, by which a title to land set up on an act of Congress of the United States, was held valid; thus construing the act of Congress in favour of the party claiming a right to the land, under the act. The party against whom the decision of the Court of Appeals was given, prosecuted a writ of error to the Supreme Court of the United States. The writ of error was dismissed, the Court having no jurisdiction.
    In order to give the Supreme Court of the United States jurisdiction in such cases, it is not sufficient that the construction of the act of Congress on the validity of the act on which the claim was founded, was drawn in question. It niust appear, also, that the decision Was against the right claimed. The.nower of the Supreme Court is carefully defined and restricted by the judiciary act of 1789; and it is the duty of this Court not to transcend the limits of the jurisdiction conferred upon it.
    IN error to.the High Court of Errors and Appeals, of the state of Mississippi.
    The case is fully stated in the opinion of the Court.
    Mr. Coxe, for the defendant, moved to dismiss the writ of error, op the ground that the Court had no jurisdiction .of the case. The motion was opposed by Mr. Crittenden, for the plaintiffs in error.
   Mr. Chief Justice Taney

delivered the opinion of the Court.

This case is brought, up by-writ of error from the High Court of Appeals of the state of Mississippi. A motion was made at the last term to dismiss the case, upon the ground that this Court has not jurisdiction under the twenty-fifth section of the act of 1789; hut the argument upon the- motion was not heard until about the elose of the session, when many other cases were pressing upon the attention of the Court; and it was therefore held under advisement until the present term.

It appears that an action of ejectment was brought for certain .lands in the state of Mississippi, by Morgan M‘Affee, to which the presept plaintiffs in. error appeared as' defendants; and upon the trial, the verdict and 'judgment were in favour of M'Affee The defendant in that suit thereupon appealed to the High Court of Appeals, where the judgment of the inferior Court was affirmed.

A brief statement will show the points that arose in the State Court, so far as .they Eire material upon the .question of jurisdiction.

By the act of Congress of'April 20, 1832, entitled “an act for the relief of Jefferson' College, in the state' of Mississippi,” the trustees of the college were authorized to relinquish certain lands Which had been, reserved for the use of the college, and to locate or enter other lands in lieu of them. The. fourth section of this law authorized the college to transfer ■ the right of location or entry conferred, by the act; and declared that the assignee should be entitled to receive a certificate from the register of the proper dand office, which should be “accounted and held as valid and complete as if a patent had issued therefor.”

At the trial of the ejectment, M£ Affee, the lessor of the plaintiff, madp title under a certificate dated August 18, 1834, issued'to him as assignee of Jefferson College, by virtue of this act of Congress. The certificate was read in evidence, subject to all legal exceptions; the defendants in the case giving notice at the time, that, in the progress of the trial, they would offer evidence that the sáid certificate was purchased fraudulently by the said M£ Affee. The defendants then, for the purpose of showing that' no patent had ever issued, by virtue of the said certificate, offered in evidence six patents, which had been issued on pre-emption certificates; and which it was admitted covered the- land embracéd by the certificate of M£Affee. These patents were granted in 1837 and-1838 to different .persons, under whom the defendants claimed the possession. And in order to show that the said cer'ficafe of M£Affee was fraudulently obtained, they offered to prove that the parties to whom the patents above mentioned issued, were entitled to the benefit of pre-emption in the said land, under the acts of Congress then in force, before the lessor of the plaintiff obtained his certificate: that they were present at the land office, with money to enter and pay for the same; and offered to pay, in the presence of M£Affee, on the day he obtained his certificate, and before he obtained it; and that the. defendants had acquired possession of the lands afterwards, when these pre-emption claims had been allowed. This testimony was objected to on me part, of the lessor of the plaintiff, and the Court refused to permit it to go to the jury, upon the ground that the certificate could not be impeached at law for .fraud.

The defendants then offered to prove by the register of the land office, that the pre-emption, claims before mentioned were finally allowed and paid for, and "that the patents produced by the defendants, issued upon them; and that the commissioner of the general land office had refected M'Affee’s certificate, and refused to issue a patent upon it. This evidence was also rejected.

The defendants then moved the Court to exclude the said certificate, as evidence of legal title in the lessor of the plaintiff; but the motion was overruled.

Exceptions were taken'to these opinions, and the case was carried to the High Court of. Errors and Appeals; where the judgment of the inferior Court was affirmed as' herein before mentioned.

From this statement of the case, it will appear, that the only right drawn in question was that claimed by M'Affee under his certificate.' Tf that certificate was a good legal title, it was elder and therefore superior to the legal title derived under the patents produced by the defendants.

The testimony offered to show that the certificate was fraudulently obtained, was intended to impeach the. title M'Affee claimed under if; and the objection to its'legal effect was made for the same purpose. The patents given in evidence by the defendants were not offered for the purpose of showing the'legal title out of the lessor of -the plaintiff '; nor for the purpose of deriving a.legal title under them older than the plaintiff’s certificate, by virtue of the acb of -June 19, 1834, mentioned in the exception, or any other law. of the United States; for it is stated in express terms that they were offered in order to show that no patent had ever been issued on M'Affee’s' certificate. They were intended, therefore, with the other evidence, to prove that this certificate was fraudulently and improperly obtained; that its authority had been denied by the commissioner of the general land office; and consequently, that it did not confer on the lessor of the plaintiff a valid legal title, upon which he. could recover in ejectment.

These being the only questions raised in the State Court, and being there decided in favour of the right claimed by M'Affee, tinder the act of 1832, we have no authority to revise the judgment. In order to give this Court jurisdiction under the twenty-fifth section of the act of 1789, it is not sufficient that the construction of the act of Congress, Or the validity of the right claimed by M'Affee, was drawn in question, and .decided by the State Court. It must' also appear that the decision was against the right'claimed.'

We do not mean to express-any opinion as to the rights in contest between the parties. The question before us concerns merely the jurisdiction of this Court, upon the case as it is now presented; and it is, therefore, not material to the present inquiry whether the parol evidence offered by the defendants was or was not properly rejected. For the decision on that point, as well as on the question as to the legal effect of the certificate having been in favour of the right claimed; this. Court is hot authorized to examine into the correctness of the judgment given by the State Court. The power of the Supreme Court, in this respect, is carefully defined and restricted by the act of 1789; and it is our duty not to transcend the limits of the jurisdiction conferred upon it. The writ of error must, therefore, be dismissed, for want of jurisdiction.


source: Caselaw Access Project

author: Mr. Justice Wayne

license: Public Domain

text:
    The United States, Appellants, v. Pedro Miranda and others, Appellees.
    A Florida land claim. On a petition from Pedro Miranda, stating services'performed by ¿dm for Spain, Governor White, the Governor of East Florida, on the 26th, November, 1810, made a grant to him of eight leagues square, or three hundred qnd sixty-eight . thousand six hundred and forty acres of land on the waters of Hillsborough and Tampa' bays, in the eastern district of Florida. No survey was made under this grant while Florida remained a province of Spain; nor was any attempt made to occupy or survey the land, until after the cession of Florida to the United States. In 1821, it was alleged that a survey was made by a surveyor of East Florida. Held, that trie-grant was void; no land having been severed from the public domain previous to the 24th January, 1818, and because the calls of thergrant aro too indefinite for locality to be given to them.
    Cited, Percheman’s Case, 7 Peters, 51; Kingsley’s Case, 12 Peters, 476 ; Arredondo’s .Case, 6 Peters, 741; Forbes’s Case, 15 Peters, 182; Buyck’s Case, 15 Peters, 215; O’Harra’s Case, 15 Peters, 275 ; Délespine’s Case,15 Peters, 319.
    The settled doctrine of the Supreme Court, in respect to Florida grants, is, that grants embracing a wide extent of country, or with a large area of natural or artificial boundaries, and which granted lands were riot surveyed before the 24th of January, 1818, and which are without such designation as will give a place of beginning for a survey, are not viands withdrawn from the mass of vacant lands ceded to the United . States in Florida, end are void; as well on that account as for being so uncertain that locality cannot be given to them.
    ON appeal from the Superior. Court of East Florida.
    Pedro Miranda and others, on the 9th of May, 1829,preseñted a petition, to the Superior Court of East Florida, asking for thé confirmation of a grant from the Spanish government of Florida, for eight leagues square, equal to three hundred and sixt.y-eight thousand six hundred and forty acres of land, situate on the waters of Hillsborough and Tampa bays, in the eastern district of the territory of Florida.
    The petition of Pedro Miranda and the grant, are as follow:
    TRANSLATION.
    His Excellency the Governor:
    Don Pedro Miranda, second pilot of the launch of the bar of this port, with the most profound respect represents to your excellency :
    That he has the honour to serve his Catholic majesty [whom may God preserve] from the year 1798, when he was employed as rower of the said launch, in which capacity he remained until he was promoted to his present post, on account of. his known merits and experience. Moreover, your- excellency well knows the veracity of his good conduct, fidelity, and devotion to the service of his' majesty; of which he has given proofs in various expeditions, which by order of his government your petitioner undertook along the water courses of this province, when it was overrun by rebels; and as for so distinguishéd services and others rendered to the satisfaction of your excellency, your petitioner has not received any compensation whatever; and as he finds himself in a penurious condition, and without any other expectations but from the protection of your excellency; therefore he supplicates your excellency to be pleased, in remuneration of all which he has represented, and in consideration of his present destitute situation, to grant to him in absolute property, a square of eight leagues in the royal lands which are found on the waters of Hillsborough and Tampa bays, in this province, in'virtue of royal orders on the subject of granting lands gratuitously to Spanish subjects; which favour your petitioner hopes to receive from the. justice of your excellency. St. Augustine of Florida, 19 th November, 1810.
    DECREE.

      St, Augustine of Florida, 2Qth November, 1810.
    The merits and services alleged by this party being well known to this government, I grant to him in the terms which he solicits, the said quantity of land in the places which he indicates, without prejudice to a third party; and as a proof. of this grant to be shown at all times, let a certified copy of this proceeding be issued'to him from the secretary’s office -for his security.
    White.
    The petition to the Court stated that said tract or parcel of land has been divided and laid off into townships of twenty-three thousand and forty acres each; that the said division of the said land into townships, as aforesaid, was made hy one Charles Vignoles, in the year one thousand eight hundred and 'twenty-one; the said Charles Vignoles then being a surveyor of East Florida.
    After hearing testimony and.arguments of counsel, the Superior Court of East Florida-gave a pro forma decree in favour of the petitioners, for eight leagues square, being forty-six thousand -and eighty acres; and the United Statés, and the claimants, prosecuted this appeal.
    The case, on the appeal of the United States,, wás argued .on the part' of the United States, by Mr. Duvall, and Mr. Legaré, the attorney-general of the United States’; and was submitted on printed arguments by„Mr. Garr and Mr. Ogden,for the appellees.
    The arguments of the counsel; on numerous points, submitted for the appellants and the áppellees, are omitted; as the decrée of the-Court was made exclüsively, on the question of the validity of the grant, under the cession of Florida to the United States, by the treaty with Spain.
    For the appellants, it was contended, that'as rib survey, possession, or cultivation,of the land had beenproVedyas was necessary according to the laws, usages, , and ordinances of the Spanish government, to vest a valid title to the land in the claimant; the decree of the Superior. Court of East Florida should be reversed.
   Mr. Justice Wayne

delivered-the opinion of the Court.

Appeal from the Superior Court of East Florida.

The defendants in error' claim title to a tract of land, under-a grant made by Governor White, on the 26th November, 1810, to Don Pedro Miranda, containing eight leagues square; or three hundred and sixty-eight-thousand six hundred and forty acres, on the waters of Hillsborough-'and Tanipa bays,.in the eastern district of the territory of Florida.

Miranda’s petition for the grant, and the grant, are ini pages 153, 154.

After a recital of services, he asks as a remuneration, and in consideration of his destitute condition, that there may be granted to him in absolute property, a square of eight leagues in the royal lands which are found- on the waters óf Hillsborough and Tampa bays, in virtue of royal orders on the subject, of,'granting lands gratuitously to Spanish subjects. The governor, m reply, acknowledges his services, and grants to him “in the terms as he solicits, the quantity of land in the places which he indicates, without prejudice to a third party;” and directs, “a certified, copy of the proceeding to be issued to him from the secretary’s office for his security. It does not appear that such certified copy was given to him; but Aguilar, who was secretary when the grant was made, deposes that h.e- remembers that the grant was made to Miranda for his deserts and services on the shores of Hillsborough and Tampa bays; “that it was a part of eight leagues square, or thereabouts;” and he further says, the handwriting to the grant is the legitimate signature of Governor White. The district attorney admits that he has seen in the office of the archives of Florida, a document, of which that introduced by the complainants is a copy.

No survey, however; of the land was made whilst Florida was a province of Spain. Nor was any attempt made by the grantee, or by any agent or person. claiming under him, to occupy any land under this grant, or to make a survey of it, until after the Floridas had been ceded to the United States. The complainants allege that one was made in 1821, by Charles Vignolles, a surveyor of East Florida; and this survey is the first assertion of right in the premises by the grantee. After this survey was made, the grantee conveyed portions of the land, between the years 1822 and 1S28; to the claimants associated with him in this suit. They allege that a claim for the whole of the lands was submitted to the examination of the commissioners appointed under the act of Congress of 3d March, 1823. 3 Story, 1907, entitled an act for ascertaining clairns and titles to lands in the territory of Florida. The survey made by Vignolles, however, is not in the record; nor does it seem to have been in evidence on the trial of the cause in the Court below.

By agreement between the solicitors and counsel of the parties, a pro forma decree was given for forty-six thousand and eighty acres, of land, in favour of tha. complainants, situated on the waters of the' bays of. Hiilsborough and Tampa; and from this decree the cause has been brought to this Court by appeal by the United States.

We do not think it necessary to discuss, in detail, the" points urged in argument for and against the confirmation of this grant.

Two considerations are decisive of it's invalidity.

The grant is void, no land having been severed from the public domain previous to the 24th January, 1818; and because the calls of the grant are too indefinite forlocality to be given to-them.

The petitioner asks for “a square of eight leagues, in the royal lands which are found on the waters of Hillsborough and Tampa bays.” The grant is, “ I grant to him, in the terms which he solicits, the said quantity of land in the places which he indicates.”

Támpa or Espirita Santa, as it was known or called before Florida was ceded to the. United States, is the largest on the Gulf of Mexico. It is at least forty miles long, and in one or more places, from thirty to forty miles broad. Hillsberough river empties into it from the north. To the southeast of Hillsborough river are the’Indian and Alafia rivers. Lower down the bay, on the same side, is Manali river, from sixteen to twenty miles wide at its mouth; and Oyster river is twenty miles below the Manali. The eastern part of this bay was by the British called Hills-borough ; and the little bay attached to the north side, Tampa. The little Tampa is an elliptical basin, about ten miles in diameter. There are many.islands in the bay, especially on the western part and at its mouth; and Tampa extends to Sarragossa bay. Williams’s Territory of Florida, page 24.

Where, in this extensive area, shall this grant be located? Shall it be o.n either of the rivers emptying into the bay ? On the eastern or western side of the bay ? - At its head, or at its mouth ? Shall it be a contiguous body of land on Hillsborough bay, or on littlé Tampa; or shall it be divided in equal parts on both ? If the grantee claims a right to survey on Hillsborough and little Tampa as the places indicated in his petition, then it cannot be taken in a single body “ of a square of eight leagues;” for the former being on the east part of the bay, and the latter on the north side; neither the dimension nor form of the grant could be surveyed touching on both. And this, whether it is to be taken in a square of four equal sides, or in a rectangular parallelogram with a part of one third of the bay: which last is the mode prescribed by the Spanish authorities for surveys on navigable waters.

Shall it be left to the grantee to choose, or shall the Court arbitrarily fix upon a point for the beginning of a survey ? If there was a starting point, the claimants might, putting aside the other questions in the case against the confirmation of the grants be entitled to a survey. But there is none. No survey was made under the grant whilst Flqrida belonged to Spain. Indeed, it appears from'the record, that neither the,governor making the grant, nor any other Governor of Florida after him, ever gave an order for a survey of this grant. ' The grantee, though all the time in'Florida,from the time when the grant was given until the. treaty with Spain was made, á period of nine years, did not apply, or if he did, did not' receive from the authorities of Spain an order for a survey. The case shows that in other grants of land made to him, subsequently to the date of that now under consideration; and there are nine or ten of them in the record; pages 81' to 9Í, inclusive; that Miranda uniformly had them consummated’by a royal title. And it is also worthy of remark, that he states in his petition to Governor Coppinger, on the 16th óf September, 1817, after reciting his services from 1794 to 1812, in the defence of the province, apd that he had had in his charge divers extraordinary commissions, he states, " for which he had never had any compensation whatever.” What, then, had become of his grant for a square of eight leagues in the royal .lands which are found on the waters of Hillsborough and Tampa bays?

The locality then, of the premises, was not acknowledged b / the authorities of Spain. No effort was made to give identity to the grant before th'e treaty was ratified.

Is such a grant protected by the treaty ? We think not. The eighth article of the treaty is: "All the grants of land made before the 24th of January, 1818, by 'his Catholic Majesty, or by his lawful authorities in the said territories, ceded by his majesty to die United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic Majesty. But the owners in possession of such lands, who by reason of the recent circumstances of the Spanish nation, and the revolutions in Europe, have been prevented from fulfilling all the conditions of their grants, shall complete them within the times limited in the same, respectively, from the date of this treaty, in default of which the said grants shall be null and void. All grants made since the 24th of January, 1818, when the first'proposal, on the part of his Catholic Majesty for the, cession of the Floridas was made, are hereby declared and agreed to be null and void.” The words in the foregoing extract shall be ratified and confirmed to the persons in possession of the land, have been decided by this Court, in Percheman’s Case, 7 Peters, 51; to mean, “ the grants shall remain ratified and confirmed to the persons in possession of them, to the same extent, &c., &c.;” or, as this Court, said in Kingsley’s Case, 12 Peters, 476, “stand ratified and confirmed to the same extent that the same grants would be yalid, if Florida had remained under, the dominion of Spain.’.’ And the words “in. possession of them,” have by this Court, in Arredondo’s Case, 6 Peters, 741, and in all other cases upon Florida grants, after it, been determined not to imply occupation or residence only, but a legal seisin. The Court said in that case, “ By grants of land we do not mean the mere'grant itself, but the right, title, legal possession, and estate, property, and ownership, legally resulting upon.a grant of land to the owner.” But, in the case before us, from'the- want of survey, or some' point for the beginning of one, there can neither be a seisin in-fact nor in law; for identity of premises is as essential for a seisin in law, as it is necessarily implied in a seisin in fact. The grantee, then, can only claim validity for this grant to the same extent that it would have been valid, if the territories had remained under the dominion of his Catholic Majesty. And this brings up the questions, how far this grant was valid when the Floridas were ceded to the United States; or whether, in. the situation in which this grantee stood when the treaty was made, he had more than a permission to ask for the means of having the lands identified, that he might have a right of possession.

The grant was made in 1810. No order of survey was made; nothing was done to .withdraw the land from the general mass of property, or to show what it was, which was to be withdrawn. It therefore remained in the King of Spain, with the power to. consummate that which had been done on Miranda’s petition, into a complete title; according as it might be his pleasure to do or not to do so. And when he ceded the Floridas to the United States, the latter were placed in respect to this grantee, exactly in the situation in which his Catholic Majesty had stood. This, being, so, the eighth article of the treaty, on the most liberal interpretation of the intentions which actuated the high contracting parties, imposes upon the United States no obligation to make a title to lands of which the grantee had neither- an actual seisin, nor a-seisin'in law. Identity is essential for the latter,'ánd has uniformly been, in the contemplation of- this Court, whén it has-confirmed Florida grants, inchoate or complete. This Court said in Forbes’s Case, 15 Peters; 182, “the Courts of justice can only adjudge what has been grantéd, and declare that the lands granted by the lawful authorities of Spain, are separated from the public domain.” The grant now sought tó be confirmed, was not so separated' by survey, or: by any such distinctive call as will admit of a survey. In Forbes’s Case, just mentioned, the grant was for land “ in' the district or bahk of the river Nassau and the Court say, after noticing the uncertainty of the description for the location of the land, “ No survey of the land granted was ever made; the duty imposed upon the grantee to produce the plat and demarcations in proper time, was never performed. This was a condition he'assumed upon himself; the execution and return of the survey to the proper .office, in -such case, could only sever the. land granted from the public domain.” No particular land having been severed from the public domain by John Forbes, his. was the familiar case of one having .a claim on a large section of country, unlocated,” &c. &c. “ In such a case, the government has ever been deemed to hold the fee unaffected by ¿ vested, equitable interest, until the locatioh was made, according to the laws of the particular country.” And though, in the decree granting the land to Forbes, the governor says, «It. will belthe duty of the party to produce the plat, and demarcations in the proper time;” it does not vary the principle, but rather serves to establish it; that “ in grants of land with uncertain designations, to be made bn a large district of country, they must have been severed from the. public domain by survey, or be void for want of identity.” Upon mature deliberation, the same doctrine was held in Buyck’s Case, 15 Peters, 215, which was a grant for lands “ at Musquito,” south and north of skid plaqe.”' Also in O’Harra’s Cage, 15 Peters, 275; again in Delespine’s Case, 15 Peters, 319.

Indeed, the settled doctrine of this Court, in respect to these Florida grants, is, that grants for lands embracing a wide extent of country,, or witbiin a large area, of natural or artificial boundaries, and which granted lands-were - not • surveyed before. the 24th of January, 1818, and which'are without' such'designations as will give a place of beginning ibr a, survey, are, nbt lands withdrawn from the mass of vacant lands, ceded to thb United' States ‘in the Floridas; and are void, as well on.that account, as for being so uncertain that locality cannot be given to them. The decree of the Court below iá reversed, and the grant declared to be invalid.


author: Mr. Justice Catron

text:
    The United States, Appellants, v. John W. Low et al., Appellees.
    A Florida land claim. On the 6th of April, 1818, a grant was made by the Governor of Florida of five miles square, or sixteen thousand acres of land, on condition that a mill should be built.
    The grant of six thousand acres was for land on doctor’s Branch, where the mill was intended to be erected. The ten'thousand acres Were granted on the north-east side, . on the lagoon of Indian river. The six thousand acres were surveyed in 1809, on Doctor’s Branch, and the mill was built. The survey under this grant, was confirmed.
    The survey of ten thousand acres wasmade in February, 1820, by the surveyor-general of Florida, “northwestwardly .of the head of Indian river, and west of the prairies of the .traam called North Creek, which empties itself at the head or pond of said river.” official-return of the surveyor-genel-al has acceded to it the force of a deposition, land granted could only be surveyed at the piare granted; if elsewhere, it would nave Been a new appropriation, and therefore void', and contrary to the eighth article of the treaty with Spain.
    According to the strict ideas of conforming a survey to a location, in the United States, the survey cff ten thousand acres should - be located adjoining the natnral object called for, there being no other to aid and control'the general call; and therefore the head of the lagoon would necessarily have formed one boundary. But it is obvious; more latitude was allowed in the province of Florida, under thé government of Spain!
    The'surveyor-general having returned that the survey was made according to the grant, and in the absence of other.contradictory proof, the claim was confirmed.
    ON appeal from the Superior Court of East Florida.
    The heirs of John Low claimed sixteen thousand acres of land in. East Florida, under a grant by'Governor. Coppinger, founded •on a petition alleged to have been presented by- their ancestor, dated 20th March, 1816, and a decree of. Governor Coppinger thereon, dated April 6th, 1816. '¡¡he petition states, that, “bounding with the petitioner’s land, on Bell river, there was a creek known by the name of Doctor’s Branch, which was suitable for the establishment of a water saw-mill, and, as he could construct, and was desirous of constructing immediately, a saw-mill on said place, if he could obtain the' permission of government, and a grant of the accustomed quantity of land for the supply of lumber, and the assurance, in his favour, that the great expenses that were indispensable to its construction, and the risks to which he would bé liable, would be compensated;,he therefore prayed that the governor would grant him five miles square of' land, or its equivalent, permitting him to take' six thousand^, acres in the vacant.lands in.the neighbourhood, of Doctor’s Branch, and ten thousand acres on the north-west side of the head or lagoon of Indian river.”.
    The governor’s,decree on this petition states, that, “in consideration of the benefit and utility that would result to the province, should it be executed as the petitioner proposed, he grants him the permission he asked, likewise the lands at the places he mentioned; with the express condition, that, until he erected the said machine, he should not have an absolute right in them,” &c.
    ■ The originals of the petition and decree were not produced in evidence, neither are they to be -found in the archives at St. Augustine. A certified copy, dated April 6th, 1816, under the hand of Thomas de Aguilar, secretary of the government, (whose handwriting was.proved,) stated to be, faithfully .drawn from the original in his office, was alone offered; and was objected to on the part of the appellants.
    There Were also, produced two plats and certificates of survey, made by George J. F. Clark, the surveyor-general, for John Low. The first is dated December, 23d, 1819, for “six thousand acres of land in the place called Doctor’s Branch, on Bell river.” The second is dated February 7th, 1820, for “ten thousand acres of land north-westwardly of the head of Indian river, and west of the prairies of the stream called North Creek, which empties itself at the head or pond of said river.”
    Among the witnesses examined to prove ;the- building of the mill, was George J. F. Clark; who was objected to by the district attorney. The objection to the testimony of George J. F. Clark, taken in the Superior Court, was made on the ground that he was interested in the case. It appeared'from the record, that after he had been examined on interrogatories to prove the surveys made by him, the following was attached, at his request, to the examination of the commissioner.
    . “I further state, that in February j 1821, I purchased of the said John Low a tract of land embraced by this- grant; this I mention in support of my confidence in the integrity thereof; while I exercise the candour due to the honourable Court in this case, and to myself ás a witness. Perhaps it may be necessary to add, that before February, 1821,1 was entirely uninterested in this: grant.
    George. J. F. Cláree.
    Before me; K. B. Gibbs, Commissioner.?’
    After hearing the testimony, the. Court made a decree in favour of the claimants for both tracts of land, from which the present appeal is taken.
    ’The case was argued by Mr. Legare, the attorney-general, for the United States; .and by Mr. Berrien, and Mr. Wilde, for the appellees.
    For the United Stáíes it was .contended:
    •1. That the testimonyof Clarke» was improperly admitted.

      2; .Tha,t there was not. sufficient evidence that- the said alleged grant or concession was ever made: by Governor Coppinger.
    3. That the alleged concession, if ever made, Was ón a condition precedent, which was never fulfilled.
    4.'That the description of ,thé six thousand acres in the neighbourhood of Doctor’s Branch', is too vague to bé the foundation óf a valid- survey.-

      5: That,the plat and'certificate .of surveyTor the. tract of ten thousand acres, dó not answer to the description contained in the pretended grant, and so cannot -be thé. origin of title.
    The attorney-general said, ■ that, as the representative of the United States, it was his duty,-in all the cases of land claims sent up from Florida, to examine them .with a judicial eye.
    The act of Congress requires that all the cases of this description brought before the Courts of Florida, in which the decision shall foe against the United States, should be brought by appeal to this Court. If the law officer of the government see any thing in the-case, it is his duty to.present it to the Court for its decision; and, in doing this, he is not restrained by any thing .which may have been done or omitted by the district attorney of the United States, before the Courts of Florida. The whole subject is open; and under this view the whole of the matters before the Court below may be fully examined, and exceptions taken here, which had been omitted upon the first hearing of the case.
    That this grant is null and void, has been already decided on the principles settled by this Court in the case, of the United States v. Sibbald, 10 Peters, 313; and in other cases. This was a grant on a precedent condition, the establishment of a mill. The con-•>n was not performed. The evidence is insufficient to establish the improvement. The description of the. land in the grant is too vague and indefinite.
    The evidence of Clark should have been rejected by the Court; and this Court will exercise the power to strike it out, although it was allowed to be read by the district attorney of the United States. The memorandum made by the commissioner, t iter taking the examination, shows his interest in the case. He had purchased a part of the very grant his testimony was to sustain.
    As to the regulations of Spain relative to grants of lands by the governors of their territories, and-which this Court had declared to be in force, the attorney-general cited 2 White’s New Recopilación, 278.
    Mr. Berrien and Mr. Wilde, for the appellees.
    No question can be presented to the Court, on this record, which has not already been decided in the many Florida cases Which have been, frequently- examiner) and dprirfprl hy it. The grants are sufficiently descriptive. The lands were found by the surveyor-general, under the Spanish government; and surveys, and plats were made of them. Whether the survey of the ten thousand acres was near to or distant from the six thousand acre tract, ismf no consequence. The power of the Spanish governor to make the grant where he thought proper, was complete.
    The construction of Spanish grants is not determined by the principles of the common law, but by the laws and ordinances of Spain, by treaties, and by the orders of the king. This has often been so held by this Court. Cited, Delespine’s Case, 15 Peters, 341.
    The evidence to establish the performance of the condition, is sufficient without the testimony of Clarke. But still Clarke’s evidence is insisted upon. A party is not to be taken by surprise by a new exception in' this Court, and to be called upon to support the legality of evidence which was allowed by the Court below. / Cases from Florida are not exceptions to the principles which govern other’ appeals brought here.
    But the testimony of Clarke was legal. The statement made by the commissioner is no part of his evidence; and if it is, it does not show that he was interested at the time of his examination. He had been interested, but that interest might have ceased. He; does riot assert a present interest.
   Mr. Justice Catron

delivered the opinion of the Court.

This was a mill grant of five miles square of land, or sixteeri thousand acres: that is, at Doctor’s Branch, where the mill was intended to be erected, six thousand acres; and ten thousand acres “on the north-west' side' of the head or lagoon of Indian river.”

The concession was made (6th of April, 1816,) on the condition that the mill was built. The mill was erected.

The first survey was made at Doctor’s Branch, in 1819, and is free from objection.

. The second, for ten thousand acres, was made February, 1820, by the surveyor-general of East Florida, “ north-westwardly of the head of Indian river, and west of the prairies of. the stream called North Creek; which empties itself at the head or pond of said river.” Such, is the description in the certificate of the surveyor-general. The survey had been objected to, but the objection was withdrawn at the hearing below; and it is insisted that a waiver of its legality must be inferred. The objection extended to the competency of the paper as evidence, and not to its "effect when heard; so the Court held in Breward’s Case, at this term.

The official return to the surveyor-general has accorded to it the force of .a deposition. So we held in the cases of Breward and Hanson; to which we refer.

The land could oply be surveyed at the place granted; if elsewhere, it would have been a new appropriation, when the survey bears date in 181‘9, contrary to the eighth article of the treaty with Spain: and the question is, was it at the proper place.

It was granted “on the north-west side of the head of Indian river, or lagoon.”

According to the strict ideas of conforming a survey to a location, in the United States, the survey would be located -adjoining the natural object called for, there being no other to aid and control the general call; and therefore the head of the lagoon would necessarily have formed one boundary. But it is obvious more latitude was allowed in the province of Florida. The object of the grant was timbered land, fit for the supply of lumber; and if the nearest vacant timbered land to the head of the lagoon was surveyed, the intentions of the government and of the grantee were complied with. This was the construction given by the surveyor-general to the words “north-west side.” He permitted the' general call to vary so far, and no farther, as to secure timbered land, excluding the prairies next the head of the lagoon. The legality of the survey depends on the fact. The description given in the certificate above recited, and that set- forth by the decree must be taken together; the lines and boundaries on other lands are given in the decree. The complaint is, that the land was surveyed too far west. On the north, it is bounded by the lands of Charles Sibbald; on the south, by those of John M‘In-tosh; on the west, by royal, or vacant lands; and on the east, by the prairies of .North Creek, which empties itself at the head of ■Indian lagoon. There is no evidence that North Creek is navigable. If there was such. evidence, as the survey includes the creek, we would reverse the decree, and order the survey only to front one-third part on the creek. The surveyor-general certifies that this ten thousand acres is the tract of land granted to the petitioner, on the 6th of April, 1816 : and, although no reliance would be placed on the assertion in the certificate, standing alone; still, taking the return that the survey was on the land granted, in connection, with all the facts and circumstances appearing in the record, and it tends to confirm the conclusion that the land was laid off on the next land to the head of the lagoon, covered with timber. One other consideration has weight. If it be untrue that the survey is at the proper place, the United States could have proved the fact to a certainty, with the slightest diligence ; and ought to have proved it. This consideration- is strengthened by the pleadings and evidence. The petition filed in 1829, alleges that the surveys were made for lands granted; and sets out the descriptions, courses, and distances, to which the attorney of the United States niade no answer: the fact was not admitted for this reason, and necessary to be proved by the complainant, 6 Cranch, 51; yet it/ shows that the claim was not resisted on this ground; and such was clearly the case throughout, as George F. Clarke, the surveyor-general, was twice examined as a witness, on many interrogatories, without having been requested to state the locality of the ten, thousand acres survey. Upon all these facts and circumstances taken together, we. order the decree to be affirmed.


author: Mr. Justice Story

text:
    Hyde and Gleises, and H. Locket, Plaintiffs in error, v. Booraem and Company, Defendants in error.
    Louisiana. The-defendants in error, merchants' in New York, agreed with the plain-' tiffs, in error, H. and G., merchants in Néw Orleans, that endorsed notes should be given by H. and G., for a certain sum, being the amount due by"H. and G. to B. and Co., and other notes or drafts of H. and G., payable in New York, which endorsed notes were to be deposited in the hands of L., to be delivered to B. and Co., on ' their performing their agreement with H. and G.; part of which was to take up certain drafts and notes given by H. and G., and payable in New York. The notes, endorsed according, to the agreement, were drawn and delivered to -L. B. and Co. performed all their contract, excepting the payment of a draft for two thousand dollars, and a note for one thousand five hundred and sixty-eigjjt dollars and seventy-four cents, which, from inability, they did not pay; and the same were returned to New Orleans, and were there paid, with damages and interest, by H. and G., at great loss and inconvenience. The' notes deposited with L. amounted to upward of seven thousand dollars beyond the draft for two thousand dollars, and the notes ■ for one thousand five hupdred and sixty-eight dollars and seventy-four cents. . B. and Co. filed a petition according to the Louisiana practice, praying for a decree by which the endorsed notes in the hands of L. should be delivered to them, equal to the balance due to them. The district judge gave a decree in favour of B. arid Co., in conformity' with the petition. Held, that the decree was erroneous : and the Court reversed the same," and ordered the case to be reirianded, and the petition to be dismissed with costs, by the Circuit Court of Louisiana.
    The Supreme Court has no authority, as an appellant Court, upon a writ of error, to revise the evidence in the Court below, in order to ascertain whether the judge rightly interpreted .the evidence, or drew right conclusions from it. That is'the proper pro- • vince of the jury; or of - the judge himself, if the trial by jury is waived, and-it is submitted to his personal decision. The Court can only re-examine the law, so far as, he has pronounced it, upon a state of facts; and not merely upon the evidence of facts found in the record in the making of a special verdict, or an agreed case. If either party in the Court below-is dissatisfied with the' ruling of the judge in a matter of law, that ruling should be brought before the Supreme Court, by an appropriate exception,in the nature of-a bill of exceptions; and should not be mixed up.with the supposed conclusions in matters of fact.
    The contract between B. apd Co. and H. anü G. was, what the French law, the basis ■ of that of Louisiana, calls a commutative contract, involving mutual and reciprocal obligations; where the acts to be done on one side form the consideration for. those to be done on the other.
    Upon principles of, general justice, if the acts are to be done at the same time, neither party to such a contract could claim a fulfilment thereof; unless he had first performed, or was ready to perform, all the acts required, on his own part.
    When the entire fulfilment of the contract is contemplated as the basis of the arrangement, the contract, under the laws of Louisiana, is treated as indivisible; and neither party can compel the other to a specific performance, unless he complies with it in toto.
    IN error to the District Court of the United States for East Louisiana. -
    Booraem and Company, merchants of New York, agreed with Hyde and Gleises, merchants of New Orleans, who were indebted to them, to give them an extension of time for the payment of the amount due by them, if they would give their notes, payable at subsequent periods, for a certain sum, the notes to be endorsed, and deposited with H.. Locket, and to be delivered to them on their having paid certain engagements, due in New York; and the amount of which was included in the amount of the notes deposited in the hands of H. Locket. The notes were given and-deposited in pursuance of this agreement; and Booraem and Company performed all the matters contained in the agreement, excepting that they did not pay a draft for two thousand dollars, and a note for one thousaind seven hundred and sixty-eight dollars and seventy-four cents, due and payable in New York; being unable to pay the same. The draft and note were returned to New Orleans, and- Hyde and Gleises, at great inconvenience and loss, paid for the same.
    Booraem and Company, proceeding according to the practice in Louisiana, filed a petition in the District Court, then exercising the powers of a Circuit Court of the United States, asking that the notes of Hyde and Gleises, in the hands of H. Locket, tpking from the same a sufficient amount to repay to them, Hyde and Gleises, the amount of the two thousand dollars’draft, and the note for one thousand five hundred and sixty-eight dollars and seventy-four cents, should, by a decree of the Court, be ordered to be delivered to them.
    After a full hearing of the case, on the petition, the answer: and the testimony, the District Court gave a decree in favour of the 'petitioners; and the defendants prosecuted this writ of error.
    The case is fully stated in the opinion of the Court.
    Mr. Key and Mr. Henderson argued the cause for the plaintiffs in error; and Mr. Coxe appeared and argued the cause for the defendants.

      Mr. Key and Mr. Henderson contended that- the record shows, beyond cavil, that the special contract sued bn was executory, and dependent in its terms of execution on .both sides. Booraem knd Company agreed to cancel, and extinguish- certain-liabilities and evidences of'debt then due them by Hyde and Gleises, and to take up and extinguish others tb become dfie,.and part of which Booraem and Company had passed from their hands. On this consideration,. Hyde and Gleises undertook to furnish Booraem. and Company with new evidences of debt, payable at a more remote day than that to which" any of the former liabilities extended, and to give approved endorsers, on most of the new paper. Now, the obvious understanding of the parties to this agreement was, that, sd soon as the first set of securities was taken up and delivered to Hyde and Gleises, that the second set of securities, prepared and placed in the hands of a mutual depositary, should then be delivered over. So understood Mr. Locket, the depositary. So did Booraem and Company, as shown by their subsequent letter, of daté 26th May, 1837and- so it is averred by Hyde and Gleises. This is just; knd Courts favour the principle of dependent contracts because most just. T Peters, 465.
    It will be observed, also, that this, suit is not to recover money due by contract. Nor is it to recover damages for breach of contraer. Nor is it an action of detinue and trover. But it is an attempt to have decreed a partial, specific performance of a contract, for delivery of chattels or choses in action. Now, the rule is universal, that he who asks a specific performance, must himself have performed or be in a condition to perform his part; 1 Wheat. R. 178; 2 Wheat. 290.
    But this record admits the agreement^ and acknowledges the default of the plaintiff; and thereupon the Court proceeds to reform and remodel the contract, "to correspond with the delinquency of the plaintiff. This the defendant, insisting on the terms of his kgreement, objects to.
    The Court below has made in its direction a new contract, different from what the plaintiff set forth; adverse to the proof in the case, and to the will of the defendants. This is equally unauthorized by legislative or judicial power. 2 Sumner’s C. C. R. 278; 1 Peters, 14; 4 Wheat. 316; 8 Wheat. 1.
    We submit, too, that, though T. R. Hyde and Brothers, and W T. Hepp, the endorsers, are not parties to the action, yet they must be noticed as parties to the contract, and parties whose interests are affected- by this judgment. It is not sufficient that they may defend themselves when sued on the paper. . The Court should not expose them to the jeopardy of a suit, by decreeing a delivery of their paper to Booraem and Company; unless it is found, in the terms of the contract, that .the conditions and contingencies have happened on which it should be so delivered. If the decree is to affect their interests at all, as it manifestly does; will not the Court look to see what these interests and their agreement are ? It is perceived, then, that these persons are the sureties of Hyde and Gleises, on the terms of their contract. And if Hyde and. Gleises had consented to change the contract without consent of the sureties, they would not have been bound, even though beneficial to their interests. There is no equity against a surety; but such have a right to stand on the exact terms of their contract. 9 Wheat. 680; 12 Wheat. 511; Paine’s C. C. R. 305; 3 Wash.C. C. R. 70.
    Mr. Coxe, for the defendants in error,
    cited 4 Louisiana Rep. 465; 3 Louisiana Rep. 1; Code of Practice in Louisiana, 517, 487, 488, 489 ; 7 Martin’s Rep. 21; 1 New Series, 187; 4 New Series, 21; 8 New Series, 379; 1 Peters, 620; Louisiana Code, article 602, 2040, 2042 ; 3 New Series, Louisiana Rep. 606, 607.
   Mr. Justice Story

delivered the opinion of the Court.

This is the case of a writ of error to the Circuit Court of the eastern district of Louisiana. The original suit was brought conformably to‘the Louisiana practice by petition, in which Booraem and Company, the original petitioners, state, that two of the original defendants, Hyde and Gleises, merchants of New Orleans, being indebted to the petitioners in a considerable sum; did, in April, 1837, deliver to the petitioners certain promissory notes, to wit, three notes drawn by Hyde and Gleises to the order of, and endorsed by, T. R. Hyde and Brothers, dated the 6 th of April, 1837, at six, twelve, and eighteen months; amounting to fi.ve thousand dollars; and three notes drawn by the same drawers to the order of, and endorsed by William T. Hepp, dated on the 6th of April, 1837, at seven, eleven, and fifteen months, amounting to five thousand dollars; and three notes drawn by the same drawers, to the order of Booraem and Company, dated the 6th of April, 1837, at nine, thirteen-, and seventeen months, amounting to two thousand seven hundred and fifty dollars and sixty-four cents. The petitioners then state that on receipt of the notes, they, .the petitioners, agreed to extinguish any and all demands which they had against Hyde and Gleises, or for which the petitioners .had become responsible by account, note, or acceptance, previous to the 6th of April, 1837; and which, including interest and' exchange, amounted to eleven thousand seven hundred and ninety-eight dollars and sixty-four cents. The petitioners then aver that they did pay and extinguish the said demands, with the exception of a draft for two thousand dollars, and a note for one thousand five hundred and sixty-eight dollars and seventy-four cents, which they were unable to provide the means of taking up, and which have since been taken up by Hyde and Gleises. The petition then go.es on to state that these notes were left in the hands of H. Locket, Esq., the other defendant, at New Orleans, who had been notified not to dispose of them to the prejudice of the rights of the petitioners; that they had demanded the delivery of five of the notes, to wit, three endorsed by Hepp, (the others drawn to the order of, and endorsed by Hyde and Brothers, being omitted in this part of the petition by mistake,) arid a balance in cash of four hundred and sixty-nine dollars and twelve cents, according to the account annexed; that they had also demanded a delivery of the same five notes from .Locket; but he had refused to deliver the same. The petitioners therefore prayed, that they might have a judgment of the Court decreeing a delivery to them by Locket of the three notes drawn by Hyde and Gleises to the order of T. R. Hyde and Brothers, and two of the three notes drawn to the order of William T. Hepp, one at eleven months for fifteen hundred dollars, and the other for two thousand dollars at fifteen months; and decreeing Hyde and Gleises to .pay the said balance .of four hundred and- sixty-nine dollars and twelve cents; and they also prayed for further relief.

Such is the substance of the petition, which does not seem to be drawn with entire accuracy and precision. Annexed to the petition is a receipt, signed by Booraem and Company, acknowledging the receipt of the nine notes described in the petition, and that they are given for the purpose of extinguishing the demands against Hyde and jGleises,before the 6th of April, 1837, as stated in the petition; and then adding the following clause: Should Joshua B. Hyde, of the firm of Hyde and Gleises, now in New York, have settled for the draft of two thousand dollars, paid by Booraem and Company, on the 15th of March, 1837, or for the sum of two thousand one hundred and twenty-eight dollars and thirty-six cents,. by notes or Otherwise, the said Booraem and Company are bound to take them up at maturity, and are .included in .said arrangement herein first specified.’’

Hyde and Gleises in their answer admit the drawing and endorsing of the notes, and aver that they were prepared for. delivery to the petitioners according to the receipt, which contains stipulations binding upon the petitioners, and forming conditions precedent to the delivery of the notes; that to secure a compliance with the agreement, it was mutually agreed that the notes and receipts should be deposited in the hands of Locket, to be delivered to the petitioners when the several conditions mentioned in the receipt were performed, and only in that event were to be delivered;.that the petitioners totally neglected and refused .to perform the conditions; and in consequence of such omission and neglect the defendants, Hyde and Gleises, were forced to pay and did pay a note of one thousand five hundred and sixty-four dollars and seventy-four cents, and an accepta jce of two thousand • dollars, with costs and damages, both of which the petitioners had assumed to pay. That the friends of the defendants, Hyde and Gleises, were induced to endorse the notes by the reasonable expectation that the defendants would be enabled to meet the notes from- the profits of their business, and save their endorsers from loss, if the extensions stipulated in the receipt were granted upon all the demands of the petitioners: that by reason of the failure of the petitioners to. comply with the agreement, and'the pay ments they were .forced to make, they exhausted their resources and credit, and their business was destroyed, and their ability to protect their endorsers was utterly at an end; and they conclude by denying their indebtment in the manner stated in the petition, and pray that the petitioners may be cited to answer in reconvention, and be condemned to pay the amount of five thousand dollars to the defendants as damages.

The defendant, Locket, by his answer, asserted that the notes were deposited in his hands by the joint consent of the petitioners and Hyde and Gleises, to be delivered to the petitioners by him when all the conditions in the receipt were fulfilled by the petitioners; and he avers that the agreement never was fulfilled on the part of the petitioners, and that they are not entitled to the hotes.

The endorsers also filed a petition of intervention in the cause; which, however, was afterwards withdrawn. The petitioners replied to the plea of reconvention, denying their indebtment.

Upon this state of the pleadings, the cause came before the Circuit Court for decision, without the intervention of a jury, by the consent of the -parties, and the final decision was made by the district judge, upon an examination of the evidence offered by the parties. The decree was, in effect, that the defendants ought to pay to the petitioners out of .the notes the balance of eleven thousand seven hundred and eighty-nine dollars and. sixty-four cents, after deducting the amount of the note of 'one thousand five hundred and sixty-seven dollars and seventy-four cents, and of the acceptance of two thousand dollars paid by the .defendants, and the interest thereon ; and that for this purpose four of the notes in the possession of Locket, to wit: two drawn by Hyde and Gleises to the order of T. R. Hyde and Brothers, of the 6th of April, 1837, one for two thousand dollars, payable in eighteen months, and the other for one thousand'five hundred dollars, payable in twelve months, and two other notes drawn by Hyde and Gleises to the order of W. T. Hepp, dated 6th of April, 1S37, one for two thousand dollars, payable in eighteen months, and the other for oné thousand five hundred dollars, payable in eleven months, amounting in all to seven thousand dollars, to be delivered by Locket to the petitioners or their attorney; and that the remaining five notes be delivered to Hyde and Gleises; and that judgment be for the petitioners against Hyde and Gleises for the remaining unsatisfied sum due to the petitioners, of seven hundred and seventy-six dollars and ninety cents, with interest irom the decree.

It is from this judgihent that the present writ of error is brought; the district judge having, at the request of the defendants’ co nisei, made a statement of the facts on which he relied; and the record. containing, at large, the whole evidence at the hearing.

One of- the embarrassments attendant upon the examination of this cause, in this Court, is from the manner in which the proceedings were had in the Court below; We have no authority, as an appellate Court, upon a writ of error, to revise the ■ evidence in the Court below, in order to ascértain whether the judge rightly interpreted the evidence or drew right conclusions from it. That is the proper province of the jury; or of the judge .himself, if the trial by jury is waived, and it is submitted to his personal decision. We can only re-examine the law, so far as he has pronounced it, upon a statement of facts, and not merely a statement of the evidence of facts, found in. the record in the nature of a special verdict on an agreed case. If either party in the Court below is dissatisfied with the ruling of the judge in a matter of law, that ruling should be brought before this Court, by an appropriate exception in the nature of a bill of exceptions, and should not be mixed up with his supposed conclusions in matters of fact; unless this is done, it will be found extremely difficult for this Court to maintain any appellate jurisdiction in mixed cases of the nature of the present. The same embarrassment occurred in the case of Parsons v. Armor, 3 Peters, 413; and was there rather avoided by the pressure of the circumstances; than overcome by the decision of the Court. Taking this case, then, as that was taken, to be one where there is no conflict of evidence, and all the facts are admitted to sta d on the record, without any controversy as to their force arid bearing in the nature of a statement of facts, and looking to the allegations ánd prayer of the petition, and the facts stated by the judge, the question which we are to dispose of is, whether, in poifit of law, upon these facts, the judgment can be maintained. We are of opinion that it cannot be, atid shall now proceed to assign our reasons..

In the first place, it is a material circumstance, that the petition is not to recover pecuniary compensation or damages for any supposed benefit conferred upon Hyde and Gleises under the agreement; but it is in the nature of a bill- for a specific performance Of that agreement by a delivery up of a part - of the notes deposited in the hands of Locket, not upon the ground of an entire performance of the agreement on the part of the petitioners; but confessedly upon the admission, that they have not performed it, except in part; and therefore seeking a part performance only, pro tanto, from the .other side, 'Now, the present being that in the French law, which constitutes the basis of that of Louisiana, (Code'of Louisiana, art. 1760 to art. 1763,) is called a commutative contract, involving mutual and reciprocal obligations, where the acts to be done on one side form the consideration for those to be done on the other; it would seem to follow, upon principles of general justice, that if. they are to be done at the' same time, neither party could claim a fulfilment thereof unless he had first performed or was ready to perform all the acts required on his own part. And this accordingly will be. found to be the rule of" the Civil Code of Louisiana, (art. 1907,) where it. is declared that, in commutative contracts, where the reciprocal obligations are to be performed at the. same time, or the one immediately after the other; the party who wishes to put the other in default, must, at the time and place expressed in or implied in the agreement, offer, or perform as the contract requires that which on his part was to be performed, or the opposite party will not be legally put in default. And again, (art. 1920 and art. 2041,) on the breach of any obligatibn to do or not to do, the other party in whose favour the obligation is contracted, is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option; or he may require the dissolution of the contract. But it is nowhere provided, that the party who has omitted to perform the acts which he has contracted to perform, can entitle himself, if the other party has been in no default, either to a specific performance, or to damages, or to a dissolution of the contract ; that would be to enable the party committing the default to avail himself of his own wrong, to get-rid of the contract.

But it. is supposed that where a party has performed his contract only in part, he may, nevertheless, be entitled to a performance, pro tanto, from the other side; although it has been by his. own default, that there has not been an entire performance. And certain cases in the Louisiana Reports have been relied on to establish this doctrine. But these cases, when examined, will not be found to justify any such broad and general conclusion. They establish no more than this: that where, in a commutative contract, there has been a part performance' on one side, from which a benefit has been derived- by the other side, the other party is compellable to make compensation in pecuniary damages to the extent of the benefit which he- has received, deducting therefrom all the damages which he has sustained by the want •of an entire performance thereof. There is nothing unreasonable in this doctrine; and although it may not be in many cases recognised and acted upon in the common law,.it is often enforced in equity. But this doctrine is not applicable to all cases of commutátive contracts, generally, but only to cases where the contract is susceptible,from its nature and objects, of divisibility;, and where, not a specific performance, but a mere pecuniary claim in the. nature of a quantum, meruit is sought to be enforced. Thus, in the case of Loxeau v. Declonat, (3 Louis. R. 1,) where A. agreed to build a sugar-house for B., for a certain price, and B. was to pay for it, when the work tvas completed, and to furnish materials ; it was held that if A. failed to complete the work in the manner stipulated, yet, if B. used the suggr-house, he was bound to pay for it in money,-.the value of the labour he had expended upon it; that is to- say ...the value of the benefit' he had derived from the labour; for the Civil Code of Louisiana (art. 2740) contemplates that B., in such a- case, is entitled to. damages for the losses sustained by him from the want of a due fulfilment of the contract. The same- decision was made under similar circumstances in the case of Eire v, Sparks, (4 Louis. R.-463.)

But, where the entire fulfilment of the contract is contemplated by the parties as the basis of the arrangement, the contract is treated as indivisible; and neither party can compel the other to a specific performance, unless he complies with it in toto. Thus, if A. should'agree to sell B. a snip for ten thousand dollars, or a horse for. five hundred dollars, and B. should pay a part only of .thé purchase money, as, for example, a fifth or tenth, part thereof; it would hardly be pretended that he would be entitled to. a specific performance, pro tanto, by a conveyance of a fifth .or tenth part,of-the ship or horse. And, on,the other hand, the vendor would Have no pretence to require that, if he had a good title only to an undivided fifth or tenth of-the-ship or horse, that the purchaser should be compellable to-take that part and pay Him, pro tanto — the purchase money'. In every such case it would be manifest that the contract of sale would be'indivisible; and that each party would have a right- to insist upon an entirety of performance. Now, that is precisely the ground applicable to the present, case. The contract between the parties, was, from its very character and object, entire and indivisible. Hyde and Gleises, and their endorsers, entered into the new agreement, and gave.the new notes upon the faith and confidence that the petitioners would punctiliously perform the whole of it on their side. The object was to procure a prolonged, credit and delay of payment to Hyde and Gleises for all - their debts contracted with the petitionersand thus to enable them to retrieve their affairs, rescue themselves from impending ruin, and to'make their endorsers safe. This could be, only, by the petitioners taking up all the notes and acceptances already given by Hyde and Gleises, according to the stipulations of the petitioners, and thus enabling them to carry on their operations in business: and it seems to' have been contemplated on all sides, that, by the omission,' Hyde and Gleises might be compelled to stop, and" their endorsers be brought into-peril; and, indeed, the record shows that the event actually occurred. If then Hyde and Gleises have failed to realize- the benefits contemplated by the arrangement, by the default of the petitioners, what ground is there to assert that they, or their endorsers, ought to be compelled to a specific performance of a contract pro tanto, when the consideration was a punctilious performance of the entirety ? The most that could, uijder such circumstances, be contended for, would be to say, not that Hyde and Gleises should be compelled to give up any part of the endorsed notes; but that they should be bound to repay to the petitioners, in -money, the amount paid by them for Hyde and' Gleises, deducting all damages sustained by the latter by reason of the nonperformance of the contract, as in the cases already cited. But that is not the object or the prayer of the allegations in the present petition.

In the next place, there is another view of, the case still more striking and conclusive. It is not true, as the petition supposes, that there was any actual delivery of the notes' to the petitioners; (which might have presented another question;') but in point of fact, as the evidence fully establishes, the notes were deposited in the hands of Locket, to be delivered over to' the petitioners, only.. upon their full performance of the stipulations on which they were to have effect. It is admitted that those stipulations have never been performed. Upon what ground, then, can the petitioners now demand a delivery of any of the notes, they not having fulfilled the conditions of the deposit ? It has been said that here, by the giving up of the new notes, the old debts due by Hyde and Gieises have been''extinguished by novation; and, therefore, their sole remedy lies upon the new contract and notes given in pursuance thereof. But that doctrine is by no means true, as it is attempted to be applied to the circumstances of the present case. A novation will, indeed, if it be absolute and unconditional, amount to a direct extinguishment of the original debt by substituting the new contract in its place. -This is sufficiently apparent from the language of the Civil Code of Louisiana, art. 3181 to 2194. But, no extinguishment is wrought if the arrangement is conditional, and the conditions are not fully complied with. Pothier (Pothier on Obligations, 550, 551) states this in the most clear and explicit terms. . “It follows,” says he, “that if the debt of which it is proposed to make a novation by another engagement is conditional, the novation cannot take effect, until the condition is accomplished:” 'therefore, if there is a failure in the accomplishment of the condition, there can be no novation, because there is no original debt to which the new one-can be substituted. Vice versa, if the first debt does not depend'on any condition but the second engagement, intended as a novation, is. conditional, the novation can only take effect by the accomplishment of the condition of the new engagement, before the first debt is .extinct.

Now, that the giving'of these new notes, by way of novation for the old debts, was conditional, is apparent from the fact that they were not delivered to the petitioners, but were deposited in the hands of Locket, “'subject to the provisions of the receipt,” and to be delivered over by him, only when these conditions were complied with by the petitioners. ' So all parties must have understood the transaction; and the deposit- in any other view would be as unaccountable as it would be unmeaning. The petitioners have never, as they admit by. their petition, complied with these conditions. How,'then, can they, consistently with all rules of law, insist upon the transactions being a complete and absolute novation, entitling them to the delivery of the substituted securities in lieu of the old debts ?

Nor is the consideration to be lost sight of, that the arrangement does not merely limit itself to the immediate interests of the debtors and the creditors. The endorsers have rights also, which must have been intended to be provided for and secured by the deposit; to which, in reason, they must be presumed to have been' parties, and given their assent. We have no right to presume that they would have endorsed these notes without the entire confidence that the new arrangement would be carried out and fulfilled with the most scrupulous punctuality. Their own recourse over against Hyde and Gleises might otherwise be most materially and injuriously affected. Their object must have been by securing to Hyde and Gleises the prolonged credit, to have enabled them to meet the new payments, and thereby exonerate themselves from ulterior responsibility. If, therefore, we were to give effect to the present suit, the conditions of the novation not having been fulfilled, we should either deprive the endorsers of all the benefits and securities contemplated in the arrangement; or, at all events', leave them exposed to a 'responsibility, as endorsers, from which by the very deposit they meant to guard themselves.

There are other embarrassing difficulties in the frame of the decree, as to the manner in which it disposes of the notes, and divides the responsibilities of the respective endorsers without their consent, and proceeding to adjudge money to the petitioners for the balance. But it is unnecessary to dwell on them, for, upon the grounds already stated, we are of opinion that the judgment ought to be reversed, and the cause remanded with directions to the Court below to dismiss the suit with costs for the original defendants.