text:
    Thomas J. Coffee, Plaintiff in Error, v. The Planters Bank of Tennessee.
    By the eleventh section of the. Judiciary Act, 1 Stat. at Barge, 78, no action can be brought in the Bederal courts upon a promissory note or other chose in.action, by an assignee, unless the action could have been maintained, if there had been no assignment. But an indorsee may. sue his own immediate indorser.
    Hence, where an action was brought by an indorsee upon checks which had been indorsed from one person to another in the same State, and some of the counts of the declaration traced the title through these indorsements, no recovery could have hcen had upon those counts.
    But the declaration also contained the common money counts; and, upon the trial, these were the only counts which remained, all the rest having been stricken out. The suit against the maker, and also against all the indorsers, except one, had been discontinued.
    The statute of. the State where'the trial took place authorized a suit upon such an instrument as if it were a joint and several contract.
    The dismissal of the suit against all the indorsers except one, and the striking out of all the counts against him except the common money counts, freed the judgment against him from all objection; and, therefore, when brought up for review upon a ■ writ of error, it must be affirmed. ■
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.

      The facts are stated in the opinion of the court.
    It was argued by Mr. Coxe, for the plaintiff in error, and Mr. Badger, for. the defendants in error.
    • Mr. Coxe.

    This was an action in the Circuit Court of the United States by the Planters Bank against plaintiff in error and six others, as the drawers and indorsers of several checks, bills, promissory notes, &c. The plaintiff is averred to be a corporation, created by the laws of Tennessee, &c.; and each and every of the defendants is averred to be a citizen of the State of Mississippi, and these averments were necessary to give jurisdiction to the court. The declaration contains numerous special counts, in all of which, however, the iiistrument which is the subject of it is averred to have been made in the State of Mississippi, between parties, citizens of that state, and which, after several indorsements, finally came to the hands of jplaintiff. -In ntt- one instance, however, was the defendant the immediate indorser to plaintiff. It is supposed that in such a case the Circuit Court had no jurisdiction. Young v. Bryan,, 6 Wheat. 146; Sullivan v. Fulton Steamboat Compauy, 6 Wheat. 450; Molían v. Torrance, 9 Wheat. 537; Evans v. Gee, 11 Peters,'80.
    . The only ground upon which jurisdiction in this case can be sustained is supposed to' be presented in the last count in the declaration. This is the common money count.
    This action is, as has been stated, brought'originally against seven defendants. Every count in the declaration was a joint contract.' Three of the defendants were served with the first process; five upon the second or alias summons. It does not appear ever to have been served on the Mississippi and Alabama Railroad Company. Moss, Packett, Coffee, and Sheldon plead non- assmipsit jointly; Crozier pleads separately. The death of Washington and Shelton' is suggested, and the suit abated as regards them. This is the proper course when defendants are jointly responsible, but not when their'liabilities are several and distinct. The plaintiffs then discontinued the action as to' all the defendants, except Coffee, plaintiff in error, and forthwith proceeded to have a jury impanelled to try the issue, joined. Verdict and judgment for plaintiffs against Coffee.
    The record then presents this case: All the defendants are averred to be jointly responsible on a joint contract. Plaintiff in error, with two of his associates, pleads a joint plea. Upon this issue is joined; It is insisted that under these circumstances a discontinuance of the action against one is a discontinuance as against alL

      The issue being upon a joint plea, averring that the parties did not, as is alleged in the declaration, jointly promise, the verdict and judgment against Coffee singly, as having.made a several promise, is a departure from the issue, and void.
    When the narr. consisted of two.counts against two individuals, and demurrer because one of the- defendants was not named in the last count, plaintiff cannot enter a nol, pros. on that count, and. proceed on the other. So if one pleads infancy, plaintiff cannot enter a nol. pros, as to him, and proceed against the other. Tidd’s Pr.' 630. In' assumpsit or other action upon contract, plaintiff cannot enter a nol. pros'."as to one, unless it be for some matter operating in his personal discharge, without releasing the others. Tidd, 632.
    In the case at bar, the declaration avers a joint contract between the plaintiffs and seven defendants. Three of the defendants being served with process-, appear and plead jointly that 'they did riot promise as-is alleged against them. The death of some1 of -the defendants is suggested, an(d consequently all the others are to be considered as living. At this stage of the cáse the plaintiff discontinued his action against all the defendants except one, and proceeds-to take a verdict arid judgment against him. . . -
    It is admitted .upon authority that if one alone is sued upon a joint contract, he must avail himself of the ndn-joirider of his co-contractor by á plea in abatement. If, however, the plaintiff in his declaration shows, the contract to’be joint,'no plea in abatement is required, if it also appear that the party who ought to have been joined is living. 1 Chitty, PI. 29 ; 1 Wms! Saunders, 291. This doctrine is distinctly laid down in Scott v. Godwin, 1 Bos. & Pull. 73; -2- Saund. 422, Wms. Note; United States v. Linn, l'How. 104; United States v. Gerault, 11 How. 22. - - .
    Such omission, apparent-on plaintiffs’ pleadings, may either be' moved in arrest of judgment or in error.

      Mr. Badger; for defendants in error.
    It is contended, for the defendants in error, that there is no error in the judgment.. The jurisdiction of the’ court below is evident upon the undisputed averments of the declaration;
    .There was nothing irregular;' nothing erroneous in permitting the discontinuance' as to the other parties: on the contrary, the regularity and legality of the proceeding have been sanctioned by cases in this court.
    In the case of McAfee v. Doremus, 5 Plow. R. 53, McAfee had been.sued in the Circuit Court of Mississippi as indorser of a bill of exchange, jointly, with four persons'as the drawers of. the bill. McAfee appeared, and pleaded severally the general issue, and three of the. four drawers having been served 'frith process, the action was d continued as to the four, carried on against McAfee alone, and upon a judgment rendered against him, a writ of error was brought in this court. Here the judgment was unanimously affirmed, the court saying that there was “ no objection, in principle or in practice, to the discontinuance of the writ against the drawers of the bill.”
    In the Bank of the United States v. Moss, 6 How. 32, there was, on appearance by all the defendants, a joint plea, and after-wards the action was discontinued as to one of the parties, and a verdict and judgment taken against the others. To this, there was no objection taken below or here, and no writ of error was brought upon the judgment.
   Mr. Justice DANIEL

delivered the opinion of the court.

The questions of law to be decided in this cause, arise upon the following facts: The defendant in error, (the plaintiff in the court .below,) described in the pleadings to be a corporation ere? ated by the laws of the State, of Tennessee, the stockholders of which are citizens of Tennessee, declared in assumpsit, in the court below against the Mississippi and Alabama Railroad Company, averred to be a corporation created by the laws of Mississippi, and also-against William H.-Shelton, - Robert G. Crozier, Henry K. Moss, Samuel M. Puckett, Thomas G. Coffee, (the plaintiff in error,) and William H. Washington, averring the said individuals to be all citizens of the State of Mississippi. The declaration contained twenty-four counts; twenty-three of which set out respectively checks drawn by the Mississippi and Alabama Railroad Company, for different sums of money, payable to some of the individual defendants in the court below,.and indorsed by the payee and successively by the other defendants, so as at last to become payable to the plaintiff below, the defendant in error- as the last indorsee.

The last or twenty-fourth count in the declaration, was upon an indebitatus assumpsit, for one hundred and fifty thousand dollars, for money lent and advanced, for the like sum for money laid out and expended, and for the like sum for money had and received, laying the damages at three hundred thousand dollars.

The defendants below, Moss, Puckett, Shelton, and Coffee the plaintiff in error, appeared to the suit and pleaded jointly the general issue. Crózier also appeared and pleaded non assumpsit. The Mississippi and Alabama Railroad Company did not appear. Afterwards, upon a suggestion of the death of Washington and Shelton, the suit was abated as to these parties, and upon the motion of the plaintiff below, the defendant in error, the suit was ordered to be discontinued as to all the defendants below except the plaintiff in error; and a jury being impanelled upon the issue joined as to him, found a verdict against him in damages for the sum of $149,924.97 for which sum together with' costs of suit, a judgment was entered by the Circuit Court. No exception appears to have been taken to the forms of proceeding, nor to any ruling by the court upon the trial, and the questions for consideration here are raised upon facts as above set forth.

On behalf of the plaintiff in error it is insisted, that upon none of the twenty-three counts, each of which sets forth a deduction of title by intermediate indorsements from the payees, can this action be maintained, because it appears, on the face of thosé counts, that the drafts or checks constituting the claim were drawn by a corporation situated within the State of Mississippi, and the members of which corporation were citizens and inhabitants of that State, in favor of payees who being also citizens of that State, could not sue upon those drafts in the courts of the United States, and could not, by indorsement, confer upon others a right denied by the law to themselves.

By the 11th section of the act of Congress establishing the Judical Courts of the United States, it is declared, that no District or Circuit Court of the United States shall have cognizance of any suit to recover the contents of any promissory note or other chose-in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no - assignment had been made, except in cases of foreign bills of exchange. This provision has been expounded by this court as early as 1779 in the case of Turner’s Administrator v. The Bank of North America, 4 Dall. 8. It has received a farther interpretation in the case of Montalet v. Murray, 4 Cranch, 46; of Young v. Bryan, 6 Wheat. 146; of Mollan v. Torrance, 9 Wheat. 537; and of Evans v. Gee, 11 Pet. 80. These several decisions have settled the construction of the 11th section of the Judiciary Act, and the principle they have affirmed is unquestionably fatal to a right of recovery under the twenty-three first counts, for they deny jurisdiction in the courts of the United States over cases of intermediate deduction of title from the payee, where such payée and the maker of the instrument are citizens of the same State, with the-exception of foreign bills of exchange; and in the case before us every special count is framed -upon a title thus deduced; and is not within the exception made by the statute. But whilst the authorities cited have laid down the above doctrine with reference to intermediate deductions of title from the payee of a note or check, they have ruled with equal clearness that as between the immediate indorsee and indorser, being citizens and inhabitants of different States, the jurisdiction of the Federal- courts attaches, as upon a distinct contract between these parties, independently of the residence of the original and remote parties to the- instrument. Upon the doctrine thus ruled, the following question recurs for our decision upon this record, viz., whether the plaintiff below, the defendant in error, as a corporation created by and situated within the State of Tennessee, and the members of which corporation were citizens of that State, as immediate indorsee of the plaintiff in error, a citizen and inhabitant of -the State of Mississippi, had the right to a recovery against him, as the immediate indorser of the notes or checks on which the action was founded. As to the general principle relative to the jurisdiction of the Federal courts, and as to the right of recovery or of action as between the immediate indorsee and indorser, we have already stated that principle as having- been conclusively settled; if then there can be an objection to its application or controlling effect in the case before us, it must exist as to. the manner of that application in the proceedings in this cause, and not to the rule itself. Such objection, it has been attempted, on the part of the plaintiff in error, to maintain. Thus it is disclosed upon the record, that after the general issue pleaded by all the defendants except the Mississippi and Alabama Railroad, who were m default, the action was by order of the-Circuit Court, on the motion of the plaintiff, discontinued as to all the defendants except the now plaintiff in error, the last indorser, and as to him also, upon all the counts except the general indebitatus fissumpsit, upon which the case was tried and verdict and judgment obtained. It has been insisted, that the proceeding just mentioned, under the order of the Circuit Court, was erroneous; that the liability of the defendants was a joint liability, as set forth in thé declaration, and could not .be severed upon motion, and that the discontinuance as to one of the defendants was a discontinuance as to them. „a]I. It may here be remarked, .in the first place, that however the liability of the defendants below may- have been presented by the -declaration, it is certain that the responsibility of the indorser to his immediate indorsee, is strictly a several responsibility, and that so far. as the jurisdiction of the Federal ■ court is concerned, there is no right in the indorsee to look beyond that, responsibility into transactions between citizens of the same State. The courts of the United States, therefore, could n„ot, upon the face of the pleadings, take cognizance of questions beyond the several responsibility arising out .of the transaction between the indorsee and his immediate indorser. We deem it unnecessary, however, to examine critically, in connection with the proceedings had in this cause, the doctrine of joint and several obligations as settled by the common law and the rules of • pleading founded thereon, and are the less disposed to listen to objections drawn from-that source at this stage of the case, as not an exception has been taken upon the record to any of the proceedings in the Circuit Court, which are therefore entitled to every presumption in their favor, whether of fact or law, which is not excluded by absolute authority.' But the proceedings in. this case should not be tested ;by the rules of the common law in relation to joint and several obligations ; but should.be judged of by the regulations of a local polity which has been adopted by the courts' of the United States, and in conformity with, which the pleadings in this case have been controlled and modelled. . ' --

By the statute of Mississippi, vide Howard & Hutchinson’s edition, c. 44, p. 578; s. 9, it is declared that, “ Every joint bond, covenant, bill,- or promissory note, shall bte deemed and construed to have the same effect ini law as a joint and several bond, covenant, bill, or promissory note, and it shall be lawful. to sue out process and proceed to judgment against any one of the obligors, covenantors, or drawers, of such bond, covenant, bill, or promissory note, in the same manner as if the same were joint and several.” In the same collection, e. 45, p. 594, s. 28, it is laid down, that “ it shall hereafter be lawful for .the holder or holders of any covenant, bond, bill, or promissory note, signed by two or more persons, to sue any number of the covenantors, obligors, or drawers thereof in one and the same action.”

By .these statutory provisions the rules prescribed under the common law with respect to suits upon joint and several promises have been essentially changed, and the same license which concedes to a party the power of instituting his suit against one or more, or all the parties, to an. undertaking, carries with it by necessary implication the right to prosecute or discontinue it in the same sense and to the same extent and degree. In accordance with this conclusion is. the interpretation given to the statutes of Mississippi by the Supreme Court of that State, as will be seen in the cases of Peyton & Halliday v. Scott, 2 How. (Miss.) Rep. 870; Lynch et al. v. Commissioners of the Sinking Fund, 4 Id. 377; Dennison v. Lewis, 6 Id. 517: Prewet v. Caruthers et al., 7 Id. 304; and that interpretation, by the State court, of these statutes, has been repeatedly sanctioned as a rule of proceeding (in the Circuit Court' of the United States for the District of Mississippi,- by the decisions of this court, -as will be seen by the cases of McAfee v. Doremus, 5 How. 53; of The Bank of the United States v. Moss et al. 6 How. 31; and of The United States v. Girault et al. 11 How. 22. It follows, then, from the foregoing authorities, as an inevitable conclusion, that whether the undertakings set out in the special counts or in the general indebitatus assumpsit be taken as joint or as joint and several, it would have constituted no valid objection to the proceedings in the Circuit Court by which the cause was discontinued, as to all the defendants save the last or immediate indorser, even had such an objection been-directly and expressly presented and reserved by the pleadings. That discontinuance deprived him of no right, imposed upon him no burden or responsibility he was not already bound to sustain — it merely left him in the exact position in which his undertaking with the plaintiff below could-be regularly and properly adjudicated. Upon full consideration, therefore, wm think that thp judgment-of the Circuit Court should be, and the same is hereby affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered, and adjudged, by this court, that the judgment of said Circuit Court in this cause, be, and the same is hereby affirmed with costs and damages, at the rate of six -per centum per annum.


source: Caselaw Access Project

author: Mr. Justice GB.ÍEB.’

license: Public Domain

text:
    Alexander H. Weems, Plaintiff in Error, v. Ann George, Conelly George, Rose Ann George, wife of John Steen, Mary Ann George, wife of Thomas Conn, Nancy George, wife of James Gilmour, Margaret George, wife of William Miller, John Steen, Thomas Conn, James Gilmour, and William Miller.
    Where there was a sale of an undivided moiety of a tract" of land, and the purchaser undertook to extinguish certain liens upon it, which he failed to do; and in consequence of such failure the liens were enforced, and had to be paid by the heirs of the origina owner, a suit by these heirs against the purchaser to recover damages for the non-fulfilment of his contract to extinguish the liens, was not within the prohibition of the 11th section of the Judiciary Act, 1 Stat. at Large, 78. The heirs, being aliens, had á right to sue in the Circuit Court.
    In a trial in Louisiana, where tire judge tried the whole case without the intervention of a jury, a bill of exceptions to the admission of testimony by the judge, cannot be sustained in this court.
    The extinguishment of the liens by the heirs of the original owner, was effected by process of law and attended with costs. It was proper that these costs also, as well as the amount of the liens, should be recovered by the heirs from the defaulting party who had failed to fulfil his'contract. The article, 1929 of the code of Louisiana, does not include this case, hut it is included within article 1924.
    This .case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.
    . The plaintiff in error, and Alexander George, being joint owners of certain real property, made a- partition of it between them on the 14th of January, 1847, by a written act of partition, and the plaintiff in error undertook, and promised to pay, certain promissory notes, made by Alexander George in favor of John McClain Durand, and which were secured by mortgage on the property described in the act of partition, among which were two notes, one for the sum of $1,305.38, payable orí the 1st of January, 1848, with interest at six per cent, per annum from maturity; and one for the sum of $1,250.22, payable on the 1st of January, 1849, with interest at six per cent, per annum from maturity. When the note for $1,305.38 fell due the plaintiff in error paid $600 on account upon it, leaving the remainder unpaid ; and, when the other note fell due, he failed to pay it, also. After default was made in the payment of the last note, the holder of the two notes instituted suit' against the defendants in error, the heirs and legal representatives of Alexander Geprge, who was then dead, and recovered the amount due on them, viz.: $1,955.60, and costs of protest, with interest- at six per cent.- per annum on $705.38, from 4th January, 1848, and on the remainder from 4th January, 1849, by judgment, and issued an' execution or fi. fa., under which certain slaves were seized, in the parish of St. Tammany, and) brought over to the city of New Orleans, where they were sold on the 13th of June, 1849, and the sum of $2,435.88, out of the proceeds of the sale, were applied to the payment pf the debt and of the costs made.
    On the 1st of December, 1849, Ann George, &c., the defendants in error, filed their petition against Weems in the Circuit Court of the United States for the Eastern District of Louisiana, claiming to be reimbursed this sum of $2,435.88, with interest and costs. (Another claim was made for the value of a negro slave who died, but as a remittitur was entered before final judgment, it is not necessary to notice this further.)
    •• The defendant put in two pleas to the jurisdiction: 1st, that the plaintiffs were not aliens, and 2d, that they derived their right from George; .and as he and Weems were both citizens of Louisiana, the plaintiffs were-’ prohibited, by the 11th section of the Judiciary Act, from bringing suit in the United States court. These pleas were,overruled.
    After sundry other proceedings, the defendant filed the for* lowing answer.

      Now comes the defendant in the above entitled suit, and denies all and singular the allegations in the plaintiffs’ petition. contained; he denies specially that the plaintiffs are the heirs of said Alexander George, or that they have, or ever had any interest in the succession of said Alexander George. He denies that plaintiffs ever authorized the institution of this suit, and avers that they have no interest in the pretended causes of action set forth in said petition. He avers, also, that he is in- no manner liable to plaintiffs herein. Your respondent further says, that if at any time he has refused or failed to pay any of the notes mentioned in said petition, it was because one Rickerman had brought suit against the succession of said Alexander George, claiming a lien and privilege upon said island for work, labor, &e., in constructing a levee thereon, which lien and privilege neither said Durand nor the curator of said succession would discharge, and your respondent is in no way liable for the consequences of such refusal. Wherefore defendant prays to be hence dismissed with his costs, and for general relief &e. Chas. M. Emerson,
    J. S. Whittaker,

      Defendant's attorneys.

    On the 4th of April, 1850, the cause came on for trial before the judge, without a jury, when the following final judgment was given, viz.
    This cause this day came on to be heard; Halsey and Bonford, Esqs., appearing for the plaintiffs, and Emerson, Esq., for defendant. When, after argument of counsel, the court being satisfied that the law and the evidence are in favor of the plaintiffs, Ann George et ah, doth order, adjudge, and decree, that the said plaintiffs do have add recover judgment against the defendant, Alexander W. Weems, for the sum of two thousand four hundred and thirty-five dollars and eighty-eight cents, with interest on nineteen hundred and fifty-five dollars and sixty cents of said sum, from 13th June, 1849, at the rate of six per centum per annum, until paid, and costs of suit to be taxed.
    Judgment rendered 4th April, 1850.
    Judgment signed 22d April, 1850.
    Theodore H. 'McCaleb, [seal.]

      United States Judge.

    In the course of the trial, the following bill of exceptions was taken. _
    _ Be it remembered, that on the trial of this cause, the plaintiffs offered in evidence a certificate marked D, of one N. B. Harmer, clerk of the eighth Judicial District Court for the parish of St. Tammany, for the purpose of proving that certain claims against the succession. of Alexander George were satisfied arid paid by the heirs of said George. To the introduction of this document the defendant objected, on the ground that-it was not competent nor within the official duties and acts of the clerk to certify to, the existence of facts from the inspection of,' and from documents and papers on file in the suit; and that the facts and the papers showing them should have been copied, and the certificate given as to the verity of the copy. ■ The court overruled the objection and admitted the evidence.
    Be it remembered, also, that on the trial of said cause the plaintiffs offered one'J. M. Durand as a witness to prove that he had brought suit against the defendant in this suit, the said Alexander W. Weems, to recover the amount of the notes set forth in this suit, and that said Weems had taken a suspensive appeal from an order of seizure and sale, to the Supreme Court of the State of Louisiana. The defendant objected to these facts being stated by the witness, on the ground that it was not competent to prove the contents, or any part of the contents, of written documents, or of judicial records by parol, without first proving the destruction of the said documents or records. But the court overruled the objection and permitted the witness to testify to the facts above mentioned.
    Theodore' H. Me Caleb,

      United States Judge.

    The defendants brought the case úp to this court by writ of error.
    It was argued by Mr. Miles Taylor, for the plaintiff in error, and Mr. Lawrence, for the defendants in error.

      Mr. Taylor, for the plaintiff in error.
    Upon the trial of the cause, the defendants in error, in the court below, offered in evidence a certificate of the clerk of the eighth Judicial District Court for the parish of St. Tammany, for the purpose of proving that certain claims against the succession of Alexander George were satisfied and paid by the the heirs of the said Georger To the introduction of this certificate the plaintiff in error objected, on the ground that it was not competent for, nor within the official duties or power of the clerk, to certify to the existence of facts from the inspection of documents and papers on file an a suit, and that such facts, if they existed, could only be shown by duly certified copies -of the documents and .papers on file, showing such facts; and the objection was overruled by the court, and- the certificate admitted. And the defendants in error further offered one J. M. Durand as a witness to prove that he had brought suit against the plaintiff in error, to recoyer the amount of the notes sued on in this case, and that he, the plaintiff in error, had taken a suspensive appeal therein to the Supreme Court of Louisiana. To the introduction of this testimony the plaintiff in error objected, on the ground that one could not be permitted to prove the contents, or any part of the contents, of judicial records by parol, without first proving the destruction of the said records; and the objection was overruled, and the testimony admitted. To the decisions of .the court overruling these objections, and admitting the certificate of the clerk, and the testimony of the witness Durand, the plaintiff excepted ;■ and his bill of exceptions was duly allowed and signed by the court, as will be seen at p. 8 of the transcript.
    And this ruling of the court was erroneous, and an error apparent on the face of the record.
    As to the certificate of the clerk:
    1st. If it relates to facts shown by papers or documents on file in his office, he cannot certify the substance of such papers; he must give a transcript of .them. Smoot v. Russell, 1 Mart. La. Rep. n. s. 522 ; 1 Phill. Evi. 317.
    2d. If it related to facts within his knowledge, it was inadmissible ; because the statement was not made under oath, &c. Ellicott v. Pearl, 10 Pet. 412.
    As to the testimony of the witness Durand .
    1st. It was not the best evidence the nature of the case admitted of.
    2d. Judicial records can only be proved by copies duly certified to be true copies from the originals. 1 Phillips, Evidence, 383; Hagan v. Lucas, 10 Pet. 400.

      Mr. Lawrence, for defendants in error.
    The plaintiff in error pleaded to the jurisdiction, (p. 3,) on the ground that the petitioners are not-aliens, as alleged; and, especially, that the said Alexander. George was,- in his lifetime, and at the date of the notes, &c. a citizen of Louisiana; and that D.urand and wife .(the vendors-to George) were also citizens of Louisiana.
    The first bill of exceptions states, that the plaintiffs below offered in evidence a certificate of the clerk of the parish court, for the purpose of proving that certain claims against the succession of Alexander George were paid by the heirs of said •George, which was objected to on the ground that the' clerk was not authorized to certify as to facts, from inspection of records.
    The second bill of exceptions states, that' .the plaintiffs below offered Durand as a witness, to prove that he had brought, suit against Wepms on the notes set forth in the petition. The defendant objected, on the ground that it was not competent to prove ..the contents of judicial records by parol, without first proving their loss or destruction.

      1st. The plea to the jurisdiction.
    The plaintiffs below were aliens. The action was not brought upon the promissory notes, but upon the agreement in the act of partition. They were not assignees of a chose in action', in the sense of the 11th section of the Judiciary Act. The plaintiffs below were the heirs of George, and not his assignees. Chappedelaine v. Dechenaux, 4 Cranch, 306.; Sere et al. v. Pitot, 6 Cranch, 332.
    2d. As to the 1st bill of exceptions. The evidence offered is not shown to be material. The object of it was to prove that the plaintiffs beiow had paid claims against the estate of Alexander George, in order to show that they had taken possession of the succession of Alexander George, and were discharging their duties in that capacity.
    3d. As to the 2d bill of exceptions. The evidence of Durand was offered, not for the- purpose of proving the contents of a judicial record, but simply to establish the fact that a suit was brought; that fact being only used as proof of a demand from Weems before the commencement of an action against the defendants in error. A demand by suit was not necessary.
    4th. The objection, that the judgment for principal, interest, costs of protest on.the notes, and for the further sum of $389.08, was erroneous, is not well taken ;• and the art. 1929 of the Civil Code, which is cited, is not applicable. The previous articles, from 1924, are applicable to this case. See, also, The United States v. King,'7 How. 854; Field v. The United States, 9 Pet. 202.
   Mr. Justice GB.ÍEB.’

delivered the opinion of the court.

The defendants in error brought this suit in the Circuit Court of the United States for the Eastern District of Louisiana, against Weems, the plaintiff in error, by petition, according to the practice' in the courts’ of that State. They aver, in their petition, that they are aliens, and subjects of the Queen of Great Britain,’ with the exception of two, who were citizens of the State of Illinois; and. that they are the heirs of Alexander George, deceased. That said George, in his lifetime, was owner of a certain island, the undivided moiety of .which he had sold to Weems. That, in the act of partition between them, Weems agreed to pay two certain notes, given by George for the purchase-money, and which were secured by mortgage on the land, — ozie.for $1,305.82, payable on the 1st of January, 1848, azid the other for $1,250.22, on 1st of January, 1849. That Weems paid the sum of $600 on the notes, but neglected or refused to pay the balance. That Alexander George liaving died, and the defendazzts in error having been admitted to the succession as his heirs, an execution was. issued on the mortgage for the balance of- the notes, on which certain slaves held by them, as such heirs, were seized and sold; and the ,sum of $2,435.88 raised in satisfaction of the balance of said notes, with interest. and costs of suit. . ---•

The defendant below filed two pleas to the jurisdiction : 1st, That the plaintiffs were not aliens, as sel^forth in their bill; and,' secondly, that- the claim- of the plaintiffs is .under Alexander George, who was- a citizen of Louisiana.'

These pleas were overruled, — the first, it is to be presumed, because it was not true in fact; and the second, because it was -not good in law. For the-plaintiffs’ petition does not set forth' a claim as assignees-of the negotiable paper or notes mentioned thérein, but .for damage and loss incurred by them, " from - the neglect and refusal of Weems to pay certain liens which he had contracted to pay in the'-act of partition between himself and. George.

As the argument submitted by the counsel for plaintiff in error does not insist that there was error in overruling thése pleas to the jurisdiction, they need not be further noticed.

' The case was afterwards heard on the merits before the court, without the intervention of a jury '; and a- paper, called a bill of exceptions' to.-the admission- of certain-' testimony, is found on the record,' on which’the- plaintiff in error seems mainly .td rely for the reversal 'of judgment.' It might be thought, perhaps, hypercritical to object to the form of this paper, as it comes from a State .where common-láw forms aré little known in practice ; but it may be remarked, 'that this document certifies, only that certain testimony-was offered and. received by the court after objection by the’defendant’s counsel, and does not . state 'that any exception was takén to such ruling of the court, or that the judge who signed it was asked to seal, or did seal a bill of .ex-. ceptions. But, waiving'this objection, the first exception is to receiving in evidence a certain paper, marked D. • That paper is not copied in, or annexed to, the bill. It is said to be a certificate from the clerk of the eighth Judicial District for the parish of St. Tammany, offered to'prove.that certain claims against the successipn of Alexander George were' paid by his heirs.,- The objection to it was undoubtedly a good and valid objection, if- the contents of the paper wefé-what the -objection assumes them to be. But as the paper itself is not set "forth in the'bill, this court cannot know whether the objection was overruled because the paper was not what it was assumed to be, or because the objection was not well taken, if it was.

The second exception was to the admission of parol testimony, that a suit had been brought against the defendant, Weems. The objection, that the contents of'a record cannot be proved by parol, is certainly a good and legal one, if such were the offer or such the evidence given by the witness.

But the' bill does not state any of the preceding evidence in the case, nor the purpose or bearing of the testimony offered. It may have been merely offered to show demand of the payment of a note ; a fact in pais, which may be proved in parol, like any other mode of demand, notwithstanding it was made, by presenting a writ.

But there remains an'objection to these bills of exception which is conclusive against them, even if they had been drawn in all proper and legal form. It has been frequently decided by this court that, notwithstanding there is no distinction between suits at law and equity in the courts of Louisiana, in those of the United States this distinction must be preserved. When the case is submitted to the judge, to find the facts without the, intervention of a jury, he acts as a referee, by consent of the parties, ánd no bill of exceptions will lie to his reception or rejection of testimony, nor to his judgment on the law. . In such cases, when a party feels aggrieved by the decision of the court, a case should. be made up, stating the facts as found .by the court, in the nature of a special verdict, and the judgment of the court thereon. If testimony has been received after, objection, or overruled, as incompetent or irrelevant, it should be stated, so that this court may judge.whether it was competent, relevant, or material, in a just decision of the case. See Craig v. Missouri, 4 Pet. 427.

In Field v. The United States, 9 Pet. 202, Marshall, C. X, in delivering the opinion of the court, says : “As the case was not tried by a jury, the exception to the admission of evidence was not properly the subject of a bill of exceptions. But if the District Court improperly admitted the evidence, the oqly effect would be, that this court would reject that evidence, and proceed to decide the cause as if it were not on the record. It would not, however, of itself, constitute any ground for the reversal of the judgment.”- And, again, in The United States v. King, 7 How. 853, 854, it is decided, that “ no exception can be taken where there is no jury, and where the question of law is decided in delivering the final decision of the court.” And, “ when the court decides the fact without the intervention of a jury,'the admission of illegal testimony, even if material, is not of itself a ground for reversing the judgment, nor is it properly the subject of a bill of exceptions.”

It is alleged, also, that there is error on the face of this record, because the court allowed the whole amount levied from the property of the plaintiffs below, being the amount of the notes and costs; because, by art. 1929 of the Code of Louisiana, “ the damages due for delay in the performance of . an obligation are called' interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more.” But we are of opinion that this objection is founded on 'a mistake of the nature of the action, which is not brought on the notes mentioned in the petition, but for damages suffered by the plaintiffs below, on account of the non-performanee by the defendant of his stipulations contained in his act of partition. This case, therefore, comes "within the art. 1924 of the code, which says: “The obligations of contracts extending to whatsoever is incident to such contracts, the party who violates them is liable, as one of the incidents of his- obligations, to the payment of the damages which the other party has sustained by his default.”

■The judgment of the Circuit Court is affirmed with costs.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisinia, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs and damages, at the rate of six per centum per annum.


author: Mr. Justice CÁTRON

text:
    Sampson B. Lord and George W. Jenness, Plaintiffs in Error, v. John Goddard.
    Where an action was brought against certain persons for giving a commercial letter . of recommendation with intention to defraud and deceive, whereby the party to whom the letter was addressed gave credit and sustained a loss, the question for the jury ought to have been whether or not there was fraud and an intention to deeeive, in giving the letter.
    If there was no such, intention, if the parties honestly stated their own opinion, believing at the time that they stated the truth, they are not liable in this form of action, although the representation turned out to bo entirely untrue.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the District of New Hampshire.
    -Goddard was the plaintiff below, and Lord and Jenness the defendants.
    The .declaration in two counts alleged that the plaintiffs in error, October 28,1847, intending to deceive and defraud the defendant in error, wrongfully and deceitfully' made and signed a letter of recommendation in favor of E. K. "West and A. W. Daby, addressed to tbe defendant in error, in which they represented -they had full confidence in. West & Daby, dealers" in coal, lumber, &c., that they were men well worthy of credit, and good for .what they wished to purchase, and that West was visiting Bangor for the purpose of purchasing lumber for the New York market, and did thereby falsely, fraudulently, and deceitfully cause and procure the defendant in error to sell, and that-he, confiding in the statements, on the 9th of November, ■1847, did sell to West & Daby certain timber on credit, &c. Whereas, in fact, West & Daby were not worthy of credit, and that the plaintiffs in error well knew the same, and that West & Daby have not paid, &c.
    The plaintiffs in error pleaded severally, not guilty, on which issue was joined.
    The defendant in error offered, in support of his declaration, the letter addressed to him, as follows, viz.:
    “ To John Goddard, Esq., Bangor, Me.

      “ Sir, — We the undersigned have full confidence in Messrs. E. K. West and A. W. Daby, dealers in coal, lumber, lime, &c. They are men well worthy of credit, and good for what they wish to purchase. The bearer of this, Mr. E. K. West, is visiting your city for the express purpose of purchasing lumber for the New York market. Yours respectfully,
    S. B. Lord,
    George W. Jenness.
    “Portsmouth, N. H., October, 28th, 1847.”
    In July, 1850, the cause came on for trial, when the jury, under the instructions of the court, found a verdict for the plaintiff for $2,300.
    The bill of exceptions was very comprehensive. It began with reciting the writ, the declaration, and other pleadings, then recapitulated the evidence of two persons with all the interrogatories and cross-interrogatories, and also the evidence of seven persons taken upon the standi It is not necessary to recite any of this, as the point stated- in the instructions of the court was the only matter brought into discussion.
    The evidence being closed, the counsel for the defendants then prayed the honorable court to instruct the jury, that, in order to maintain the plaintiff’s declaration, it must be proved that the representations made were false, and that the defendants made them knowing they were false, and intending .to defraud the plaintiff; and that, if the defendants made the representations on such information as they believed to be true, whether that information was true pr-false, this action cannot be maintained..- The defendants further requested the honorable court to charge the jury, that if the plaintiff had not proved, to the satisfaction of the jury, either that the defendants gave the recommendation in this case knowing that it was false, and intending to defraud the plaintiff, or that they gave it without any information of the credit or means of West & Daby; or if the jury believe that the defendants gave such' information respecting said West & Daby as said defendants believed to be true and sufficient, whether that information was true or false, and whether it was sufficient or not, the defendants were entitled to a verdict.
    But the honorable court declined to do this, and did not charge the jury in the terms and manner, and to the extent prayed; but the honorable court did instruct • the jury upon the -subject-matter so prayed for as follows : that, as a general rule, one ground upon which to maintain the plaintiff’s declaration is, it must be proved that the .representations made were false, and that the defendants made them knowing they were false, end intending to defraud the plaintiff; and that if the defendants made the representations on such information as they beneved to be true, Whether that information was true.or false, the action cannot be maintained; but a party,"if stating positively that a person is entitled to credit, should do it from his own knowledge, or from full and proper inquiries; and .then he is not liable if the debtor is insolvent, unless'the jury see circumstances in the case, of real fraud. But if a party state this positively as to the credit of an individual, and does it ignorantly, not knowing' the credit of the person recommended, and without making full and proper inquiries, and the statements turn out to be false, the jury may infer that those so recommending did wrong, and-deceived, because they must know that third persons áre likely to rely on their stating what they personally know, or had duly inquired about, or what they had good reason to suppose their information as to it was sufficient and true. If the defendants in this case did not make the recommendation upon such authority or information as you may think, under the instructions, they ought to have acted upon, you will charge them.
    Whereupon the counsel for the defendants did then and there except to the aforesaid refusal, and the instructions arid charge of'the honorable court. ■>
    Upon this exception the case came up to this court.
    It was argued by"Mr. Norris, for the plaintiffs in error, and Mr. Washburn, for the 'defendant in error.

      Mr. Norris, for the plaintiffs in error.
    I. Both counts in the declaration allege, not only that the plaintiffs in error, intending to deceive and defraud the defendant in error, wrongfully and deceitfully made the representations alleged, and did thereby falsely, fraudulently, and deceitfully cause him to sell the lumber to West & Daby on á credit; but they allege, also, that the plaintiffs in error well knew the representation to be false.* -
    In making these averments the pleader but complied with the ordinary rules of pleading.. It was necessary that the declaration should allege in some form, substantially, that they had knowledge of the falsity of their representations, or an actual intent to defraud under circumstances that made knowledge immaterial.
    It is essential, in order to support an action of this character, that such knowledge should be proved, and found by the jury, or at least that an actual intent to defraud should be shown.
    That knowledge of the falsity must be averred and proved, where the actual intent to defraud does not exist* is very clear. Pasley v. Freeman, 3 D. & E. 59', 60, 62, 63, &c.; Haycraft v. Creasey, 2 East, 92; Ashlin v. White, Holt, N. P. R. 387; Ames v. Milward, 8 Taunt. 637; Foster v. Charles, 6 Bing. 396; 7 Bing. 105; Freeman v. Baker, 5 Barn. & Adolph. 797; Moens v. Héyworth, 10 Mees: & Welsby, 147; Clifford v. Brooke, 13 Yesey, 133.
    The case of Collins v. Evans, in error, 5 Ad. & Ellis, n. s. 820, 827, although not upon a representation, fully sustains the principle.
    The American cases are equally explicit. Russell v. Clarke’s Executors, 4 Cranch, 92, 94; Tryon v. Whitmarsh, 1 Met. 1; Stone v. Denny, 4 Met. 159,161; Fooks v. Waples, 1 Harring. (Del.) Rep. 131; Young v. Hall, 4 Ga. R. 95; Boyd’s Executors v. Brown, 6 Barr’s (Penn.) R. 316.
    Perhaps this declaration might be supported by evidence of an actual intent to defraud, without proving knowledge of the ■falsity of the representations.
    But there must be fraud. Lord v. Colley, 6 N. H. Rep. 99, Í02 ; Taylor v. Ashton, 11 Mees. & Weis. 401; Stafford’s Administrator v. Newsom, 9 Ired. (N. Car.) Rep. 507; Munroe v. Gardner, 3 Brevard, (S. Car.) Rep. 31; Allen v. Addington, 7 Wend. 9; Addington v. Allen, 11 Wend. 374, 382, 388, 402, 408.
    All these cases are express to the point, that a mere false representation is insufficient.
    In case for a false warranty, the scienter need not be alleged and proved. 2 East, 446; 1 How."(Miss.) Rep. 288. But this is because the gravamén of the action is the undertaking of the defendant, and not his fraud. 2 East, 451, 452. In the present case the plaintiffs in error are not parties to a contract, and the gravamen is fraud.
    II. The evidence has no tendency to prove the scienter, or an intent to defraud any one.
    The representation by the plaintiffs in error, that they had full confidence in West & Daby, and that they were well worthy of credit, and good for what they wished to purchase, has no tendency to prove the fact to be otherwise. And the proof of the fact that it was otherwise, if proved, has no tendency to show such knowledge, or to show fraud.
    But this is all the evidence to charge them. There is nothing having eyen- a remote tendency to show that they had any suspicion that'the representation , was not strictly true.
    There is evidence to show that they made the representation fairly.
    Suppose they made it incautiously, without any such inquiry as would have been made by more careful and suspicious men ? It is clear that .this cannot charge them. Young v. Covell, 8 Johns. R. 23; 11 Mees. & Weis. 415.
    The case put by Pothier, and cited with approbation by Chief. Justice Kent, in Upton v. Vail, 6 Johns. R. 184, goes even beyond this case. “ If,” says Pothier, “ you had only recommended Peter to his creditor as honest and able to pay, this was but advice, and not any obligation;. and if Peter was at the time insolvent, you are .not. bound to indemnify the creditor for the sum which he loaned to Peter, by means of your advice, which he has lost, Nemo ex consilio obligatur. The rule is the same if the advice was given rashly and indiscreetly, without being duly informed of the circumstances of Peter, provided it was sincerely given. Liberum est cuique apud se explorare an expediat sibi consilium. But if the recommendation was made in bad faith, and with knowledge that Peter was insolvent, in this case you are bound to indemnify the creditor.”
    III. The representation in this case is, in its very nature, but the expression of an opinion, and for this reason the action cannot be. maintained without showing affirmatively knowledge of its falsity. If the plaintiffs in error had made a positive assertion, as of their own knowledge, it would have been but the assertion of a strong opinion, without evidence to show knowledge of its falsity.^ Hay craft v. Creasey, 2 East, 92, which is the leading case upon this point, is explicit. See also Page v. Bent, 2 Met. 374; 6 N. H. Rep. 102, 103.
    IV. There was nothing to leave to the jury, there being no evidence to prove knowledge or fraud;by the plaintiffs in error.

      V. The charge to the jury does not require them to. inquire whether the plaintiffs in error had any knowledge that the representation was false, or any fraudulent purpose. But it authorizes them to find a verdict for the plaintiff in that action, notwithstanding they had no such knowledge or suspicion, and acted in entire good faith.
    It leaves to the jury, in effect, the question, whether, in their opinion, the plaintiffs in error acted without sufficient caution; with directions, in that case, to charge them. Nothing, it is believed, having the character of authority, sustains such a position.
    If there had been evidence to be weighed by the jury, tending to show that the plaintiffs in error acted in bad faith, (which there was not,) the jury were not instructed to consider it, and did not consider it. The allegation in the original writ that they well knew the falsity of what they represented, was neither, proved nor found by the verdict.
    Nothing has been tried except the question whether the jury were of opiniqn that the plaintiffs in error were imprudent.
    VI. There are cases where a representation has been held to be fraudulent, although the party had no knowledge at the time of its falsity, and no actual intent to defraud was shown. Hazard i>. Irwin, 18 Pick. Rep. 96; Stone v. Denny, 4 Met. 151; Ilammatt’s Executors. Emerson, 27 Maine, 308; Snyderv. Findley, 1 Coxe, (N. J.) Rep. 48, 78; Barnett v. Stanton, 2 Alabama, 181; Buford v. Caldwell, 3 Mis. 477; Warner v. Daniels, 1 Woodb. & Minot, 91, 107; Mason v. Crosby, 1 Id. *343, 353; Smith v. Babcock, 2 Id. 246.
    It is understood that the defendant in error relies upon this class of cases.
    With the exception of the case in Coxe, (which raised a question respecting the payment of a note,) the cases just cited were founded upon representations by vendors of property, or by their agents.
    How far the principle of some of these cases may be regarded as brought in question-by Omrod v. Huth, 14 Mees. & ,Wels. 651, (in which, cotton being’sold by the sample, upon representation that the bulk corresponded with the sample, it was held, that an action on the case by the purchaser, for a false and fraudulent representation, was not maintainable without showing that such representation was false to the knowledge of the seller, or that he acted fraudulently or against good faith in making it,) we need not stop to inquire. See also Atwood v. Small, 6 Clark & Finnelly, 233, 338, 447; Early v. Garret, 9 Barn. & Cress. 928.
    It is sufficient that, taking the cases above cited as they stand, to the full extent, they do not apply to this case.

      1.. They aré cases where the party had some interest to make the representation.. Here the cause of action is not connected with any sale by the plaintiffs in error, or with any thing by which the assertion can have the character of a false warranty. The action has no foundation in a contract between the parties.
    In. Humphreys v. Pratt, 5 Bligh, Rep. n. s. 154, which might seem at first to have some tendency tó- sustain this action, the learned counsel for the defendants in error contended for no more than “ a principle of law that he who. affirms that which he does not know to be true, or that which he knows to be false; to another’s prejudice, and his own gain, is a wrongdoer,” and expressly admitted that, “ if the party making the representation has no interest, the action may not lie, unless it is done maliciously,” pp., 162, 163. The reasons of the judgment are not stated in the report, but the grounds upon which the case is to be sustained, as stated by Mr. Chief Justice Tindal, 5 Ad. &' Ellis, n. s. 829, are very far from- sustaining the reporter’s abstract; which has no support from the report of the same case, 2 Dow & Clark, 288; Adamson v. Jarvis, 4 Bing..66, may lead to the belief that the considerations, suggested by Chief Justice Tindal. were' in truth the grounds of Lord Windford’s opinion in Humphreys v. Pratt.
    In Taylor v. Ashton, 11 Mees. & Weis. 415, Mr. Baron Parke says, “ It is insisted that even that ” [gross negligence] “ accompanied with a damage to the plaintiff, in consequence of that gross negligence, would be sufficient to give him a right of action. ' From this proposition we entirely dissent, because we are of opinion that, independent of any contract between the parties, no one can be made responsible for a representation of this kind; unless it be fraudulently made.”'
    2. In those cases the party asserted' the fact as of his own knowledge, either in terms, or in a manner which implied that he had .such actual knowledge, and this is relied on as a ground for the opinion that he was liable. 4 Met. 151, 156. In the present case the representation begins by merely stating the confidence of the parties who made it, and it is hot stronger than that in Tryon v. Whitmarsh, 1 Met. 1.
    3. From the nature of most of those cases, the party might naturally have had actual knowledge of what he asserted, and he was bound to know it- before he made a positive assertion, from which he was to derive a benefit, and which entered into the contract constituting part of the res gestee. It was because he might well have had the knowledge that he professed to have, that the representation was held fraudulent. 3 Mis, 477. In this case, as the plaintiffs in error lived in Portsmouth, and West & Daby in New York, there whs no reason to suppose actual knowledge.

      4. The difference between the case at bar and the cases referred to, is further shown by what has been already suggested.. Without evidence to show that the representation was known tp be false; actual knowledge of the matter stated is not to be inferred by the party to whom it is made. The representation is but the expression of an opinion, and is to be so understood.
    In Pasley v. Freeman, 3 D. & E. 56, Grose, J., held the representation to be matter of judgment and opinion. Buller, J., said, “ My brother Grose considers this assertion as mere matter of opinion only, but I differ from him in that respect.” We natur-. ally inquire why ? And the reason immediately follows : “ For it is stated in this record that the defendant knew that the fact was false.” 3 D. & E.. 57.
    ■ This distinction is adverted to and recognized in Hazard v, Irwin, 18 Pick. 95,105, and in numerous cases before cited.' In Kidney v. Stoddard, 7 Met. 252, the defendant had knowledge of the falsity, and was not entitled, therefore, to say that he had merely expressed an opinion. So in Clopton v. Cozart, 13 Smedes & Marshall, 363, the representation, which had the form of an assertion made as of personal knowledge, was held riot to have the character of opinion. But the decision is directly upon the ground that the defendants had knowledge of the falsity of the representation.
    VII. The plaintiffs in error had m fact information that led them to the belief of the truth of the representation which-they made. They had as much knowledge as they assumed to have — good ground for the confidence they expressed. This is shown by the letter to one of them from his son in New York. It is submitted that here is a -most perfect defence. The representation was not made “ under circumstances which manifested a recklessness .of truth,” but upon all' the information which the defendant in error could reasonably have supposed, to be in the possession of those who made it. Collins.^. Evaris, in error, 5 Ad. & Ellis, 820, 826, 827; Williams v. Wood. 14 Wend. 126, 130 ; 2 Alabama R. 187.
    VIII. If there was any ground iipon- which the case could rightfully be submitted to the jury, it was for them to inquire whether the plaintiffs in error did or did riot believe what they represented, or whether they made the assertion with the express intention of enabling West & Baby- to obtain credit; whether they were able to pay or not, the plaintiffs in error being parties to an actual fraudulent intent. (The preliminary question for the court, would be, whether there was any evidence whatever to support the action on either ground.) But the charge' submits no question of that character to the jury. If it had, the result must have been different.

      Unless the representation of a matter as true, which was in fact false, the assertion having been made in good faith, without knowledge of its falsity, and being one in which the party neither had,.nor appeared to have any interest, is sufficient to charge ■ him in damages, as for a fraud, the defendant in error has no cause of action. This ,is the extent of the proof. But it is believed that no authority can be found to sustain such a proposition. The case of .Evaiis v. Collins, 5 Ad. & Ellis, n. s. 804, which comes nearest to the enunciation of such a principle, is .followed immediately by its antidote, in the shape of a reversal- of -the judgment, by the unanimous opinion of the judges in the- Exchequer Chamber, on the very ground that knowledge of. i;he falsity of the representation was essential to the.maintenance of the-action, 5 A. & E. n. s. 620. And iii Barley v. -Walford, 9 Ad. .& .EHis, n.-s. 208, Lord Denman, who delivered the -opinion in Evans v. Collins, not only recognizes the reversal as settling the law, but admits the reasonableness of the doctrine. The ■ Court of Queen’s Bench had been misled by supposing that the case of Humphreys v. Pratt, in the House of Lords was. an authority for the principle laid down in Evans 'v._ Collins.
    It may be. said of the eases which distinctly assert, or distinctly- recognize the principles contended for by the plaintiffs in érror, that their name is legion, for they are many.
    To those already cited may be added, Eyre. v. Dunsford, 1 East, 327; Tapp v. Lee, 3 Bos. & Pul. 367, 371; Hamer v. Alexander, 5 Bos. & Pul.-241, 245 ; Wood v. Waine, 1 Esp.’R.. 442; Scott v. Lara, Peake’s R. 226; Hutchinson v. Ball, 1 Taunt. 558, 564; Corbett v. Brown, 8 Bing. 33; Polhill v. Walter, 3 Barn. & Adolph. 114;. Cornfoot v. Fowke, 6 Mees. & Weis. 358'; Rawlings v. .Bell, 2 Man. Gran. & Scott, 951, 960 ; Carr, ex parte, _ 3 Yes. & Bea; 110; McDonald v. Trafton, 15 Maine, 227; Holbrook v. Burt,'22 Pick. 554; Lobdell v. Baker, 1 Met. 93; 3 Met. 472; Benton v. Pratt, 2 Wend. 385; Gallager v. Brunell, 6 'Cowen, 346, 352 ;. Weeks v. Burton, 7 Yt. 67, 70 ; Ewins v. Calhoun, Id. 79; West v.. Emery, 17 Vt. 583, 586; Mc-Craken v. West, 17 Ohio; 24; Perkins v. Sterritt, Littell’s Sel. Cas. 218; Chisholm v. Gadsden, 1 Strobhart, 220; Foster v. Swasey, 2 Woodb.-& Minot, 217.'
    If the plaintiffs in error had given a guaranty, there is no evidence in the case, upon which they could have been held responsible. It. will be more than passing strange, if they are to. be held ex delicto,- for the'payment of the debt, in the shape of damages, without evidence of express fraud, intentional wrong, actual bad faith.

      Mr. Washburn, for defendant in error.
    I. The record shows:—
    l-. 'That the defendant in error lived in Bangor, Maine, and the plaintiffs in error, in Portsmouth, N. H. The distance between these places is about two hundred miles.
    2. That the defendant was, acquainted with the plaintiffs, and would be likely to ré;, -'se confidence in their representations; and that this was understood by the plaintiffs themselves. The letter from the latter, in which the representation complained of was made, was addressed to the defendant by name.
    3. That West & Daby, wishing to purchase lumber, were directed by plaintiffs- to defendant,- with the following positive and unqualified representation — “ They” (West & Daby) “are men well worthy of credit, and good for what they wish to purchase.”
    .4. That upon-this-representation, West & Daby were able to purchase, and did purchase, of the defendant, a quantity of lumber, amounting in value to about $2,000.

      5. That the representation was wholly untrue. That West & Daby were neither worthy of credit,. nor good for what they wished to purchase.
    6. That Lord had means to.know the facts. That if he did not know of the insolvency of West & Daby, he was probably entirely ignorant of their situation, unless he may be supposed to .have derived information respecting it from the letter of his son, who was, as the record says, proved to be unworthy of belief, and that Jenness’s position was no better than Lord’s.
    II. If the evidence shows, or the verdict necessarily implies, as I respectfully submit is the case, all that has been stated, the following propositions and deductions are fully warranted.
    The plaintiffs made an unequivocal and unqualified representation, which, the defendant .might well rely upon as true, and known to be true by the plaintiffs. Relying upon it he sold his lumber to West & Daby, and lost the value of it. The wrongful conduct of plaintiffs occasioned that loss, and they should be held responsible for it
    A positive declaration like this carries with it the other declaration, (implied,) that the party making it knew what the pecuniary circumstances and credit of the persons recommended ■Were; and", particularly, when he believes that another party will act upon the strength of it. 'It is as if the plaintiff- had said to defendant, “We know all about the pecuniary circumstances and credit of West & Daby; they.are well worthy of •credit, and good for what they wish to purchase.”
    The plaintiffs-did not undertake to assert a mere opinion, but they stated a fact as of their own knowledge. That statement-was grossly untrue.

      It is as false and fraudulent to state positively as true, as a fact, what one knows nothing about, as what one knows to be false. The same injury would be done in the former case as in the latter.
    “ To state what is not known to be true is just as criminal, in the eye of the law, as to state what is known to be false,” under circumstances like those in this case. Buford v. Caldwell, 3 Mis. R. 477.
    “ It is perfectly immaterial, so far as regards the question of law, whether Findley ■ knew or did now know the falsity of the facts which he represented.” Snyder v. Findley, 1 Coxe, (N. J.) R. 48, 78; 1 Doug. R. 654. But were the plaintiffs ignorant 1 They were, or worse. ' They had no reason. for believing, what they asserted. The evidence throws the strongest suspi-' cion upon their act. Jenness stands with Lord. Lord had the means of knowing the condition of West & Daby. The letter from his' son, whose character he must have known, cannot relieve him. The son had “ failed in business, and was unworthy of belief.” Who would think to ask for a letter of recommendation from such a man as Lord, junior, but one of like ■character and condition ? What would speak more suggestively and suspiciously of West & Daby than the letter from young Lord ? Noscitur a sociis. It is submitted that the circumstances of the letter from the son, of the letter to the defendant, written by the daughter-in-law, who knew West in York, as she says, of the character of the son, have a tendency to raise thé presumption that the plaintiffs were not entirely ignorant or innocent; that they must have known or suspected enough to dissuade them from the use of the strong .language employed in the letter to defendant, if they had meant fairly by him. ■ Did the plaintiffs make “ full add proper inquiries ? ” or did they “ make the recommendation upon such information as they ought • to have acted upon ? ” Is the verdict of the jury negatively answering these questions, (unless they found positive knowledge on the part of the defendants,) unwarranted by the evidence ?
    But the plaintiffs' are concluded by the" terms of their letter; they cannot be permitted to say that they did not know of the .insolvency of West & Daby; or to allege that their representation was not false and fraudulent.
    When, to repeat, one makes a positive representation to another, who, he presumes, may act thereon, and who, he knows, has no other means of information, he cannot be permitted, after the injury is done, and done solely by reason of his act, to allege that he was ignorant, and knew nothing of what he had said, and affirmed in the most explicit language to be true, and true of his own knowledge; for if he does not know the truth of what he says, he has no right to use terms of positive affirmation ; the use of which, in such case, would be evidence of recklessness, tantamount to fraud.
    Nor can he be permitted to say that he believed what he affirmed; for if he had nothing but belief or opinion in reference to the matter, he should have so expressed himself, and not employed language, the import of which was so unequivocal and decisive, as to lead the party addressed to understand that he wrote from intimate acquaintance and actual knowledge. Herein this case differs from many of the cases cited by plaintiffs. Goddard could not have supposed that the language of the plaintiffs was adopted simply to express an opinion founded on such a miserable basis as they now allege. Are not men to be held responsible for such-reckless .and wanton disregard of the rights of others as is shown in this case, even when considered in the most favorable aspect for the plaintiffs ?
    Where the legitimate consequence of a positive assertion, false in fact, is to cause an injury to an innocent party, every principle of morality and every rule of law, forbids its being made with impunity. The form of the statement implies a falsehood. — implies knowledge, and belief founded on knowledge. The falsehood in such case is wilful, and wilful falsehood imports fraud. It would be a reproach to the law if it did not furnish a remedy in a case like this.
    The cases relied upon by the plaintiffs are dissimilar to this. It is believed that not one of them is applicable to the state of facts appearing upon this record. But it is believed that some of the cases cited, under the head VI., fully sustain the positions of the defendant.
    Under'the charge of the judge, the jury must have found, and were authorized by the evidence to find, all the facts as to knowledge, intent, belief, &c., necessary to support the action. The law, as applicable to the facts, was correctly given, to the jury.
    For the facts bearing upon the questions before the court, I would refer to the' record at large, rather than to the abstract made by the plaintiffs.
   Mr. Justice CÁTRON

delivered the opinion of the court.

Goddard sued Lord & Jenness in the Circuit Court of New Hampshire, alleging that the defendants by letter recommended West & Daby as men well worthy of credit, and good for what they wished to purchase; that they were dealers in' coal, lumber, lime, &c., and that West, one of the firm, was visiting Bangor,' Maine, for the purpose of purchasing lumber for the New York market.

The letter, set forth in the declaration, was dated at Portsmouth, New Hampshire, and directed to Goddard, at Bangor, Maine. West & Daby-resided in New York.

On.the faith of this letter Goddard credited West & Daby for a cargo of lumber worth nearly two .thousand dollars, -giving them four months time : for which lumber West & Daby never paid, having been insolvent when the letter of recommendation was given, and so continued afterwards. It is clear that they were.mere insolvent adventurers, without property, and entitled to no credit, or confidence.

.The declaration alleges that the letter was given by Lord & Jenness with an intention to deceive and defraud Goddard; and that they did procure credit for West & Daby falsely and fraudulently. On the plea of the general issue the parties went to trial, when it appeared that Lord had a son residing in New York, who, on the 28th of October, 1847, gave a letter of introduction to West, dated at New York, and directed to Lord, the father, at Portsmouth, N. H. - The letter recommended the firm of West & Daby, as fully worthy of credit, and requested that Lord, the defendant, should recommend West & Daby to others. West delivered this letter, and on the same day got the one on which the suit is founded. It was written by the wife of the younger Lord,, who was in Portsmouth, at the instance of West; he being known to her, but not known to Lord or Jenness the defendants. They seem to have acted on the information contained in the younger Lord’s letter and on the representations of his wife.

On this state of facts, the court charged the jury — 1. That, as a general rule, it must be’ proved that the representations made were false; and that the defendants made them, knowing they were false, and intended to defraud the plaintiff; and if the defendants made the representations, believing them'to be. true, they Were not liable. “ But'a party, if stating positively that a person is entitled to credit, should do it from his own knowledge, or from fall and proper inquiries ; arid then he is not liable if the debtor is insolvent, unless the jury see circumstances in the case of real fraud. But, if a party states this positively as to the credit of an individual, and does it ignorantly, not -knowing the credit of tfie person recommended, and without making full and proper 'inquiries, and the staterrients turn out to be false., the jury may infer that those so recommending did wrong, and deceived, because they must know that third persons are likely to rely on their stating what they personally know, or fiad duly inquired about, or what they had good reason to sup-' pose their information as to it was sufficient and true. If the defendants in' this case did not make the recommendation upon such authority or information as „you may think under the instructions they ought to have acted upon, you will charge them.”

The jury found for the plaintiff on this charge, and the only question is whether it was proper.

The gist of the action is fraud in the defendants', and damage to the plaintiff. Fraud .means .an intention to deceive. If there was no such intention ; if the party honestly stated his own opinion, believing at the time that he stated the truth, he is not liable in this form of action, although the representation turned out to be entirely untrue. Since the decision in Haycroft v. Creasy, 2 East, made in 1801, the question has been settled to this effect in England.

The Supreme Court of New York held likewise in Young v. Covell, 8 Johns. 23.

That court declared it to be well settled that this action could not be'sustained, without proving actual fraud in the defendant, or an intention to deceive the plaintiff by false representations. The simple fact of making representations, which turn out not to be true, unconnected with a fraudulent design, is not sufficient.

This decision was made forty years ago, and stands uncontradicted, so far as we know, in the American courts

.Taking the foregoing instruction together, we understand it to mean this: That if the jury believed due inquiry as to the credit of West & Daby had not been made by Lord & Jenness, and that they had signed the letter ignorantly, and regardless of the fact, whether the persons recommended were or were not entitled to credit, then the jury should charge the defendants : The real test of conduct, according to the charge, obviously being, whether Lord & Jenness ought to have accorded confidence to the younger Lord’s letter, and to its sanction by his wife ; and whether this information was of such a character as to justify them in writing the letter to Goddard, without, further inquiry.

That this instruction, taken in its proper sense, was evasive of the true rule, and calculated to mislead the jury, is manifest,' and therefore the' judgment must be reversed, and the cause sent down for another trial.

Order.

This cause came on to bo heard on the transcript of the record from the Circuit Court of the United States for the District of New Hampshire, and was argued by counsel, on consideration whereof, it is now here ordered and adjudged by this court that the judgment 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, with directions to award a venire fafias de novo.


author: Mr. Chief Justice- TANEY

text:
    James S. Morsell, Special Bail of William Smith, Plaintiff in error, v. Henry A. Hall.
    In Maryland, it is correct to take a recognizance of bail before two justices of the ieace.
    ere a scire facias was issued against special bail, who pleaded two pleas, to the first of which the plaintiff took issue, and demurred to the second; and the cause went to trial upon that state of the1 pleadings without a.joinder in demurrer; and the court gave a general judgment for the plaintiff, this was not error. ‘
    The refusal or omission to join in demurrer was a waiver of the plea demurred to.
    In this case, if the plea had been before the court, it was bad; because being a plea that the note was paid before the original judgment, it called upon the party to provea second time what had been once sett led, by a judgment. The omission of the court to render a judgment upon the plea could not be assigned as error.
    Á judgment of a court upon a motion to enter an exonerelttr of bail is not the proper subject of a writ of error.
    This.case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maryland.
    The facts were these,
    ■ In 1843, Henry A. Hall, a citizen of Maryland, brought a suit in the Circuit Court, of the United States for Maryland, against William' Smith, a citizen of the State of Mississippi.' James S. Morsell was onfe' of- two persons who became jointly and severally, special bail; and the recognizance of bail was taken before two justices of the peace for Calvert county.
    In April, 1847, Hall obtained a judgment, in consequence of an. opinion given by this court at the preceding term; which is reported in 5 How. 96.
    In May, 1847,'he sued,out a.writ of capias ad satisfaciendum against Smith, which was returned “ non est.”

      ■ Ih November, 1847, he issued a scire facias against Morsell.
    In April, 1848, Morsell appeared and''filed two pleas, viz., 1. Nul tiel record. This plea was based upon the fact that the recognizance of bail was taken before two justices- of the peace. In the argument before this court this objection was not urged; blit as the opinion of the Circuit Court wás thus established, it is proper that a record of it should be made. The opinion was short and may be inserted, viz.: „
    “ This mode of taking bail conforms to the' long-established practice of this court. An act of assembly of Maryland, passed in 1715, c. 28, s. 2, authorized this mode of taking bail in suits in the then Provincial Court, which, like this court, had jurisdiction coextensive with the State. This court adopted the practice, and has always since acted upon it.
    “ The written-rule, No. 62, adopted in 1802, was not intended to alter the previous practice of this court, and has never been so construed. It is merely intended to confer the power upon other State officers also, so as to increase the facilities of giving bail where the defendant resided at a distance from the place of holding the court; for, upon searching the records we find recognizances of bail taken soon after the adoption of the rule of 1802, before two justices of the peace of-the State, in the samé manner with the recognizance now before the court. A precedent has been produced as far back as 1812, and a more careful search would probably show precedents still earlier. -The same practice has continued without interruption ever since; and, indeed, any other rule would be oppressive to citizens of the State who reside at a distance from the place of holding the court, especially as they would most commonly be obliged to bring their bail with them. In the case before us the recognizance of bail having been taken and sanctioned according to the estalished rules and practice of this court, the judgment upon the plea of nul tiel record must be for the plaintiff.”
    2. That the promissory 'note filed as the cause of bail in the action against Smith, was paid before the judgment was obtained against Smith.
    To the first of these pleas Hall took issue, and the judgment of the court was as is above recorded.
    To the second plea he demurred; and instead of joining in demurrer, Morsell took no notice of it, but the judgment of the court was for the plaintiff generally; A motion was made to enter an exonerclur on the bail-piece, which was ovenuled.
    A writ of error brought the case up.to this court.-
    •It -was argued by Mr. Stewart and Mr. Johnson, for the plaintiffin error and Mr. Dulany, for the defendant in error.
    Tire counsel for the plaintiff in error did not press the objection founded upon the plea of nul tiel record, as before remarked; but contended that the -judgment below should be reversed because the court did not decide upon the demurrer. Harris v. Wall, 7 llow. 693; Wheelwright v. Jutting, 7 Taunt. 304; Thompson v. Macirone, 4 Howl. & By. 619.
    2. Thatrif it be assumed that the court did decide upon the demurrer in favor of the plaintiff below, that such decision was erroneous, because the debt, in reference to which the reeognizance of bail was entered into, is shown to have been discharged before the institution of the original suit. Jackson v. Hassel, Doug. 330; 6 D. & ■ E; 363; Tetherington v. Golding, 7 D. & E. 80; 2 Tidd’s Practice, 992, 993; Clark v. Bradshaw, 1 East, 86; 4 Halst. 97.

      Mr. 'Dulcmy.

    The ground taken by the plaintiff in error in his second,plea is, that, in the affidavit made by the defendant in error, in his original suit against William ■ Smith,, he filed, as cause of,bail in said suit, a promissory note for the sum of $2,678.90, which had been paid (he does not say by whom) before the judgment against Smith in that suit was obtained.
    In support of the demurrer to this plea, it would seem sufficient to remark, that the plea relies upon a matter of defence which, if it had been established, as it might have been if true, in the principal action by Hall against William Smith, would ha m been an effectual bar to the recovery of the verdict and judgment in that case.
    It is a maxim of law that there can be no averment in pleading against the validity of a record, therefore no matter of defence can be alleged which existed anterior to the recovery of the judgment. 1 Chitty’s Pleading, (Am. Edition,) 1844, p. 486, and margin; Cardesa v. Humes, 5 Serg. & Rawle, 65; McFarland v. Irwin, 8 Johns. Rep. 77; Moore v, Bowmaker, 2 Marsh. 392; 6 Taunt. 379.
    Now the payment of the note, which is the ground of defence apparently relied upon in the above plea, was anterior (as is expressly averred in, the plea itself,) to the rendition of the judgment against Smith, and upon that judgment the scire facias in this case was issued against the plaintiff in error as special bail of Smith. The plea must, therefore, be held bad, and the judgment.’of the court below sustained, else there is great error in the' above-stated legal maxim and in the authorities by which it is supported.
   Mr. Chief Justice- TANEY

delivered the opinion of the court.

This is a scire facias brought by Hall against Morsell, as the special bail of William Smith, in a suit in the Circuit Court of the United States for the District of Maryland, in which Hall recovered a judgment, and proceeded by proper process to charge ■tfie bail.

Morsell appeared to the scire facias, and pleaded: 1st. Nul iiel record; and 2dly. That the promissory note, filed as the cause of bail in. the action against Smith, was paid before the judgment was obtained against Smith. The plaintiff,' in the court bélow, took issue on the’first plea, and demurred to the-second; but the defendant did not join in the demurrer. The court gave judgment for the plaintiff, upon which this writ of error is brought.

The plaintiff in error alleges, that according to the record, the case was decided on the first plea only, and that the demurrer was not disposed of by the-judgment¡ — and they assign as error, 1st. That no judgment was .given on the second plea; and 2dly, if the court consider it to be overruled by the general-judgment for the plaintiff below, that then the judgment is erroneous, because the plea was a good defence.

As relates to the first objection, the refusal or .omission of the plaintiff in error to join in demurrer was a Avaiver of the plea, and there was no issue in law upon the second plea upon which the Circuit Court Avas required to give judgment. Townsend v. Jemison, 7 How. 719, 720.

And as concerns the second objection, if the plea was before the court and not Avaived, it was no defence. For the right of the defendant in error being established by the judgment in his favor, he Avas not bound to prove it over again in the scire facias against the bail. 1 Chit. Pl. (Am. Ed. of 1847) 469, 486, and margin.

Aid consequently the omission to enter a formal judgment upon it could not, under the act of Congress of 1789, c. 20, s. 32, be assigned as error. The omission would be a mere imperfection in form, not affecting the right of the cause or the matter in-law as they appear on the record. Roach v Hulings, 16 Pet. 319; 4 Hoav. 164; Stockton and others v. Bishop, and Parks v. Turner & Renshaw, decided at the present term.

The record, as transmitted to this court, shows that a motion was made, before the judgment on the scire facias to enter an exoneretur of the bail upon ground similar to that taken in the second plea; and that affidavits were filed in support of, and also in opposition to the motion. .And it has been urged, in the argument here, that the Circuit Court erred in not granting this motion.

A motion to enter an exoneretur of the bail is no defence to a scire facias even if sufficient grounds Avere shown to support the motion, (which we do not mean to say was the case in the present instance.). It is a collateral proceeding, not forming a legal defence to the scire facias, but addressing itself to the equitable; discretion of the court, and founded upon its rules and practice! Chit. Pl. (Am. Ed. 1847,) 469. No writ of error Avill therefore lie upon the decision of a motion of that kind ; because a Avrit of error can bring up nothing but questions of law. It does not bring up questions of equity arising out of the rules and practice of the courts. And the proceedings upon the motion to discharge the bail form no part of the legal record in the proceedings on the scire facias and ought hot have been inserted in the record transmitted to this court.

There is no foundation therefore for any of the errors assigned in this case, and the judgment of the Circuit Court must be affirmed with costs.

Order.

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 Maryland, and was argued by counsel. On consideration whereof, it is, now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed with cost and damages, at the rate of six per centum per annum.


author: Mr. Chief Justice TANEY

text:
    The United States, Appellants, v. William and Alexander McCullagh and James Cornahan, Trustees of the heirs of Alexander McCullagh and David McCaleb.
    'The, act of June 17, 1844, (5 Stat. at Large, 676,) reviving the act of 1844, gives jurisdiction to the District Courts in cases only where the title set up to'lands, under grants from former governments, is equitable and inchoate, and where there is nq grant purporting to convey a legal title.
    Grants from the British government, as well as those of France and Spain, are equally within this restriction.
    This was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana.
    The opinion of the court sets out the facts of thé casé so far as to raise the question of jurisdiction.
    It was argiied by Mr. Lawrence and Mr. Crittenden, (Attorney-General) for the United States, and by Messrs. Janin and Taylor, for the appellees.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case arises on a petition filed by the appellees in the District Court for the Eastern District of Louisiana, praying that their title to a certain tract of land containing one thousand acres, situated on the Mississippi River, to the westward of Baton Rouge, may be declared valid and confirmed. They claim title under Alexander- McCullagh, Sen., who obtained a grant from the British authorities while-they were in possession of the country ahd before it was ceded to Spain. The grant was made on certain conditions therein specified, which it is not necessary to state, as the court js of opinion that the District Court had no jurisdiction in the questions upon which the validity or invalidity of the title claimed by the appellees against the.United States, depends.

The proceeding is under the act of June 17th, 1844, and this court have always held that under that act the District Court has jurisdiction in those cases only wheré the title set up by the petitioner is equitable and inchoate ; and where there is no grant purporting to convey a legal title as contradistinguished firom an equitable one. It is true that the cases heretofore decided have arisen under titles derived from the. French or Spanish authorities while they respectively held the territory and exercised dominion over it. And this is the first case' that has come before the court in which the title sought; to. be confirmed is derived from the government of Great Britain. But as respects the jurisdiction of the District Court, claims of this description, are placed by the' act of 1844, on the same footing with those which are derived from France or Spain-. The jurisdiction conferred in either case is that of a court of'equity only; and the titles which the court is authorized to confirm, are inchoate and imperfect ones, which upon principles of equity, the government of the United States are bound to confirm and make perfect.

In this case, all of the questions upon which the title of the appellees depend, are strictly legal questions, to be decided in .a court of law, in a suit at law. They are not, therefore, within the equity jurisdiction given by the acts of 1824 and 1844. There are no equitable considerations involved in the controversy ; and the validity or invalidity of this claim, can- be tried and determined in any court having competent jurisdiction to try and decide a, disputed title to land between individual claimants. There was no necessity, therefore, for any special jurisdiction to try them, and on that account they were not embraced-in the acts of Congress above mentioned.

It appears, in this case, that the District Judge had an interest in the land in question, and the cause was certified to the Circuit Court for the Eastern District of Louisianá, under the act of' March 3, 1821, and the decree affirming this title was passed by the Circuit Court. This decree must be reversed; -and a mandate- issued to the Circuit Court to dismiss the petition without prejudice to the rights of the United States or the appellees.

Order.

This 'cause came on to be heard on the transcript of the récord from the Circuit Court of the United States, for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to dismiss the petition of the claimants without prejudice to the rights of either the United States or the appellees.