author: Mr. Chief Justice TANEY

text:
    The United States, Plaintiffs, v. Thomas Reid and Edward Clements.
    Where two persons were jointly indicted for an offence committed against the United States, viz., a murder committed upon the high seas, and were tried separately, it was not competent for the persoii first tried to call the other as a witness in his behalf.
    The trial took place in Virginia, and the evidence would have been competent under a law of Virginia passed in 1849.
    But the 34th section of the Judiciary Act of 1789, declaring that the laws of the several States shall be regarded as rules of- decision in trials at common law in the courts of the United States, meant only to include civil cases at common law, and not criminal offences against the United States.
    The law by which the admissibility of testimony in criminal cases must be determined, is the law of the State, as it was when the courts of the United States were established by the Judiciary Act of 1789. _ _
    _ _ Without laying down any general rule, how far the affidavits of jurors impeaching their verdict ought to bo received, it is decided that the affidavits of two jurors, stating that, whilst impanelled, they read a newspaper report of the preceding evidence, but which had no influence upon their verdict, were not sufficient ground for a new trial.
    This case carpe up from the Circuit Court of the United States for the Eastern District of Virginia, upon a certificate of division in opinion between the judges thereof.
    The facts are all stated in the opinion of the court.

    It was argued by Mr. Joynes and Mr. Crittenden, (Attorney-General,) for the United States, and by Mr. Crane and Mr. Scott, for the'defendants.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case comes before the court upon a certificate of division between the judges of the Circuit Court'for the District of Virginia.

Thomas Reid and Edward Clements-were jointly indicted for murder, committed by them on the high- seas, on board the American ship J. B. Lindsey.

They were, by the permission of the court, separately tried, and, upon the trial of Reid, he proposed to call Clements as a witness on his behalf. The court rejected the testimony, being of opinion that, as he was jointly indicted with the prisoner on the trial, he was not a competent witness.. Reid was found guilty by the jury.

At a subsequent day he moved for a new trial upon two grounds: 1st. Because the testimony of Clements was improperly rejected; and, 2d. For misbehavior in two of the jury who tried the cause. In support of the second objection, he offered in evidence the voluntary affidavits of the two jurors, one of whom deposed “ that, While the case was on trial, and the jury were impanelled, a newspaper was sent to him by some of his family from his counting-room. It was a newspaper for which he was a subscriber, which was regularly left at his counting-house, and which he was accustomed to read. He looked slightly over it, and saw that it contained a report of the evidence which had been given in the case under trial, a part of which he read and put the paper in his pocket; that, while the jury were in their room deliberating on their verdict, he read over the report of the evidence in the newspaper; he read it from curiosity, and thought it correct, and that it refreshed his memory ; but it had no influence on his verdict, and that he had made up his mind before he read it. There was no conversation about the newspaper report in the jury-room, nor did he speak of it there to any one, nor does he know that the other jurors knew that the report of the evidence was in the newspaper they saw him reading.”

The other juror deposed “ that he saw this newspaper while the jury was impanelled in the court-room, and, upon looking at it, saw that it contained a report of the evidence that had been given in the case under trial. He looked over a few sentences and put the paper aside, and did not see it afterwards. He did not think the report accurate; it had not the slightest influence on his judgment.”

Upon the argument of the' motion above mentioned the following questions arose:

1st. Ought the court to have received the evidence of Clements in behalf of the prisoner; and does the refusal of the court to admit his testimony entitle the prisbner to a new trial?

2d. Ought the affidavits of the two jurors to be received; and do the facts stated in them entitle the prisoner to a new trial ?

And upon each of these points the judges of the Circuit Court were opposed in opinion, and ordered that the questions be certified to the Supreme Court for its decision.

The difficulty in the first question arose upon the construction of the 34th section of the act of Congress of 1789.

By a statute of Virginia, adopted in 1849, it is provided “that no person who is not jointly tried with the defendant shall be incompetent to testify in any prosecution by reason of interest in th'e subject-matter thereof.” And if the section in the Judiciary Act above referred to extends to the testimony in criminal cases in the courts of the United States, then the testimony of Clements was improperly rejected.

The section in question declares that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision, in trials at common law, in the courts of the United States, in cases where they apply.

The language of this section cannot, upon any fair construction, be extended beyond civil cases at common law, as contra-distinguished from suits’in equity. So far as concerns rights of property, it is the- only rule that could be adopted by the courts of the United States, and the only one that Congress had the power to establish. And the section above quoted was merely intended to confer on the courts of the United States the jurisdiction necessary to enable them to administer the laws of the States. But it could not be supposed, without very plain words to show it, that Congress inteiided to give to the States the power of prescribing the rules of evidence in trials for offences against the United States. For this construction would in effect place the criminal jurisprudence of one sovereignty under the control of another. It is evident that such could not be the design of this act of Congress, and that the statute of Virginia was not the law by which the admissibility of Clements as a witness ought to have been decided.

Neither could the court look altogether to the rules of the English common law, as it existed at the time of the settlement of this country, for reasons that will presently be stated. Nor is there any act of Congress prescribing in express words the rule by which the courts of the. United States are to be governed, in the admission of testimony in criminal cases. But we think it may be found with sufficient certainty, not indeed in direct terms, but by necessary implication, in the acts of 1789 and 1790, establishing the courts of the United States, and providing for the punishment of certain offences. And the law by which, in the opinion, of thi§ court, the admissibility of testimony in criminal cases must be determined, is the law of the State, a,N¡t was when the courts of the United States were established by the Judiciary Act of 1789. The subject is a grave one, and it is "therefore proper that the court should state fully the grounds óf its decision.

The colonists who established the English colonies in this country, undoubtedly brought with them the common and statute laws of England, as they stood at the time of their emigration, so far as', they were applicable to the situation and local circumstances of the colony. And among' the most cherished and familiar- principles of the common law. was the trial by jury in civil, and still more especially in criminal cases. And, however the, colonies may have .varied in other respects in the modifications with which the common or statute law was adopted, the trial by jury in all of them of English origin was regarded as a right of inestimable value, and the best and only security for life, liberty, and property.

But as the law formerly stood, the value of this right was' much impaired by the mode of proceeding in criminal cases. For when a person was accused of a capital crime, and his life depended upon the issue of the trial, he was denied compulsory process for his witnesses; and when they voluntarily appeared in his behalf, he was not permitted to examine them on oath, nor to have the aid of counsel in his defence, except only as regarded the questions of law.

It is true that Lord Coke, in his 3 Inst, part 3, 79, declares in strong terms that the rule which prohibited the witnesses for the accused from being examined on oath, was not founded in law. Yet the rule, at the period we speak of, was daily sanctioned and acted on in the English Courts. 2 H. PL of the Crown, 283, 4 Bl. Com. 355, 358, 359, and was in full force when the English colonies were planted in this country.

This oppressive mode of proceeding had been abolished in England • and the Colonies also by different statutes before the declaration of independence. But the memory of the abuses which had been practised under it had not passed away. And the thirteen Colonies who united in the declaration of independence, as soon as they became States, placed in their respective constitutions or fundamental laws, safeguards against the restoration of proceedings which were so oppressive and odious while they remained in force. It was the people of these thirteen States which formed the Constitution of the United States, and ingrafted on it the provision which secures the trial by jury, and abolishes the old common-law proceeding which had so often been used for the purposes of oppression. And the provisions in the Constitution of the United States in this respect are substantially the same with those which had been previously adopted in the several States. They were overlooked in the Constitution of the United States as originally framed. But as soon as the public attention was called to the fact, that the securities for a fair and impartial trial by jury in criminal cases had' not been inserted among the cardinal principles of the new government, they hastened to amend it, and to secure to a party accused of an offence against the United States, the same mode of trial, and the same mode of proceeding, that had been previously established and practised in the courts of the several States.

It was for this- purpose that the 5th and 6th amendments were added to the Constitution.' The 6th amendment provides that, in all criminal prosecutions, the party accused shall be entitled to a trial by jury, to be confronted with the witnesses against him, to have compulsory process for the witnesses in his favor, and to have the aid of counsel in his defence.

The Judiciary Act of 1789, sect. 20, provides for the manner of summoning jurors, and directs that in all cases (of course including criminal as well as civil cases) they shall be designated by lot or otherwise in each State, according to the mode of forming juries therein as then practised, so far as the law of the State shall render such designation practicable by the courts or marshals of the- United States; and that the jurors shall have the same qualifications as were-requisite for jurors by the law of the State of which they are citizens, in the highest court of law in the State. Both of these provisions are confined by plain language to the State laws as they then were.

The Crimes Act, as it is usually called, of 1790, sect. 29, makes some further regulations, which it is not necessary here to specify, in relation to the proceedings and right of peremptory challenge in criminal cases before the jury are impanelled.

But neither of these acts make any express provision concerning the mode of conducting the trial after the jury are sworn. They do not prescribe any rule by which it is to be conducted, nor the testimony by which the guilt or innocence of the party is to be determined. Yet, as the courts of the United States were then organized, and clothed with jurisdiction in criminal cases, it is obvious that some certain- and established rule upon this subject was necessary to enable the courts to administer the criminal jurisprudence of the United States. And it is equally obvious that it must have been the intention of Congress to-refer them to some known and established rule, which was supposed to be so familiar and well understood in the trial by jury that legislation upon the subject would be deemed superfluous. This is necessarily to be impliéd from what these acts of Congress -omit, as well as from what they contain.

But this could not be the common law as it existed at the time of the emigration of the colonists, for the constitution had carefully abrogated .one of its most important provisions in relation to testimony which - the accused might offer. It could not be the rule which at that time prevailed in England, for England was then a foreign country, and her laws foreign laws. And the only known rule upon the subject which can be. supposed to have been in the minds of the men who framed these acts of Congress, was. that which was then in force in the respective States, and which they were accustomed to see in daily and familiar practice in the State courts. And this view of the subject is confirmed' by the provisions in the act of 1789, which refers its courts and officers to the laws’ of the respective States for the qualifications of jurors and the mode of selecting them. And as the courts of the United States were in these respects to be governed by the laws of the several States, it would seem necessarily to follow that the same principles were to prevail throughout the trial: and that they were to be governed in like manner, in the ulterior proceedings after the jury was sworn, where there was no law of Congress to the contrary.

The courts of the United States have uniformly acted upon this construction of these acts of Congress, and it has thus been sanctioned by a practice of sixty years. They refer undoubtedly to English works and English decisions. For the law of evidence in this country, like our other laws, being founded upon the ancient common law of England, the decisions of its courts show what is our own law upon the subject where it has not been changed by statute or usage. But the rules of evidence in criminal cases, are the rules which were in force in the respective States when the Judiciary Act of 1789 was passed. Congress may certainly change it whenever they think proper, within the limits prescribed by the Constitution. But no law of a State made since 1789, can affect -the mode of proceeding or the rules of evidence in criminal cases: and the testimony of Clements was therefore properly rejected, and furnishes no ground for a new trial..

The first branch of the second point presents the question, whether the affidavits of jurors impeaching their verdict ought to be received.

It would perhaps hardly be safe to lay down any general rule upon this subject. Unquestionably such evidence ought always to be received with great caution. BuL cases might arise in which it would be impossible to refuse them without violating the plainest principles of justice. It is however unnecessary to lay down a ny rule in this case, or examine the decisions referred to in the argument. Because we are of opinion that the facts proved by the jurors, if proved by unquestioned testimony, would be no ground for a new trial. There was nothing in the newspapers calculated to influence their decision, and both of them swear that these papers had not the slightest influence on their verdict.

"We shall therefore answer the first question in the negative : and to the second, that the facts stated in the affidavits of the jurors do not entitle the prisoner to a new trial; and 'certify accordingly to the Circuit Court.

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 Virginia, and on the points or questions on which the judges of said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court — 1st. That the said Circuit Court ought not to have received the evidence of Clements in behalf of the prisoner; and that the refusal of the court to adroit his testimony does not entitle the prisoner to a new trial; and 2dly. That the facts stated in the affidavits of the jurors do not entitle the prisoner to a new trial. Whereupon it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court.


source: Caselaw Access Project

author: Mr. Justice McLEAN

license: Public Domain

text:
    John H. Bennett and E. P. Hunt, Administrators of John D. Amis, deceased, Appellants, v. Samuel F. Butterworth, and Mary Emily, his wife.
    Where slaves are in the possession of a mortgagee, who renders an account of the profits of their labor and the expenses which he has incurred on their behalf, he must be held bound to exercise a reasonable diligence in keeping them engaged in useful employments.
    It is not a sufficient excuse for allowing them to remain idle, to say that he managed them as they had been managed by their former master, the mortgagor.
    If the mortgagee-is charged with their hire from a period commencing three months after the death of the mortgagor, he is not charged too much.
    Where the account of the master chargócl the mortgagee with a certain sum for their hire, exclusive of clothing, medical treatment, or other expenses, it was a correct mode of stating the account.
    This was an appeal from the District Court of the United States for the District of Texas.
    The facts are fully stated in the opinion of the court.
    It was argued by 'Mr. Harris and Mr. Crittenden, for the appellants, and by Mr. Howard, for the appellees.
   Mr. Justice McLEAN

delivered the opinion of the court.

This is an appeal in chancery from the decree of the District Court for the District of Texas.

Butterworth and wife filed their bill against Bennett, and also against Hunt, who is administrator of Amis, representing that Amis, the father of Mrs. Butterworth, conveyed to her by deed, or bill of sale under seal, in consideration of natural love and affection, certain negroes named, on the 8th of April, 1846. That, a short time afterward, Amis died, and that Hunt, the defendant, administered upon his estate. That, on application to the administrator for the slaves, it was found they were in possession of Bennett, the other defendant, who claimed to hold them by an absolute bill of sale, executed in June, 1845, by the said Amis, and that the- slaves were, and had been, from the date of the bill of sale or shortly afterward, in the possession and under the control of Bennett, who received the profits of their hire. That the negroes were transferred to him to secure an iúdebtment, and also to secure future advances. The negroes were demanded of Bennett, but he refused to surrender them, on the ground that his debt had not been paid.

In his answer, the defendant, Bennett, says, the negroes were in his possession at the death of Amis; that he is unwilling to surrender the possession of them until his. claim shall be fully satisfied; he denies that the proceeds of the labor of the slaves were sufficient to discharge his debt, &c.

The defendant, Hunt, in his answer, states that, on the 1st April, 1846, in the lifetime of Amis, matters of difference -between him and'Butterworth were submitted to the arbitrament of James H. Smith and W. W. Humphries, who awarded that Butterworth should deliver to John’ D. Amis two negro men named, or pay $2,500; that other negroes should be delivered and eertain moneys paid by Butterworth, and that he should do certain other things, &c.; ■ and that Amis, on his part, should transfer all the interest he might have to any portion of the estate formerly owned by him, to Mary E. Butterworth, wife of the complainant. And he alleges that Butterworth did not comply with the award on his part; and the defendant asks that he may be compelled to perform it; and that the bill of sale by Amis to Mrs. Butterworth, of the negroes, was given in pursuance of this award.

It appears that John D. Amis and William D. Amis, on the 15th of December, 1839, by an indenture, conveyed to Andrew Harris and others, their creditors, to whom they owed debts amounting to $73,269.88, a large' amount of real and personal property, to secure the payment of that sum. A large number of negroes were included in this transfer.

Bennett also pleaded in bar the recovery of a, judgment by Butterwor ;h against defendant in the District Court, for the negroes named in the amended bill, or, if the same could not be had, it was adjudged that he should recover twelve hundred dollars, the value of the negroes.

The court made an interlocutory decree, that the bill of sale was a mortgage, and that the complainants had a right to redeem, &c.; and James Love was appointed to take an account of the amount due Bennett on the mortgage, and also to take an account of the hire of the negro slaves in the possession and under the control of Bennett; and the master was directed to •credit him with any extraordinary expenditures which were necessary on account of the health of the ne •• • and also for rearing the children, &c.; and that the mas Tiould report, &c.

' A report was made by the master, as directed, which showed that the mortgage-money and interest had. been paid by the hire of the negroes, &c., and that a balance was due to the complainant of $318.90.

Exceptions were 'taken to this report, which were overruled by the court, and a decree was entered confirming the report, and ordering the sum found due to the complainants to be paid, and that the negroes in controversy, in the hands of a receiver, should be delivered to the complainants.

On this appeal, the rulings of the court, on the exceptions taken, are the points to be considered.

The first exception is that, in his report, the master states: “ The defendant has filed and proved an account marked No. 1, of the receipts and expenditures under the mode of management in said report stated, which he did not investigate,” as he assumed a different mpde of management to have been necessary to exempt the defendant, by the'terms of the decree, from “wilful default.”

In his report, the master says: “ It appears in evidence that Bennett treated the slaves with unusual indulgence and humanity, and in the manner that was pursued by Amis in his lifetime. He rented houses for them, furnished ‘them food and clothing with great liberality, and proper medical attendance when necessary. That he sometimes hired them by the day, and sometimes by the month. It is also in proof, that the negroes frequently hired themselves to others, and were paid by their employers.”

The defendant having possession of the slaves, and an entire control over’them, was bound to exercise a reasonable diligence in keeping them engaged in useful employments, so as not only to pay their necessary expenses, but also to obtain a reasonable compensation for their labor. That he treated them with humanity, provided for their wants, and made them comfortable, is not sufficient. Nor is it a sufficient excuse for him to say that he managed the slaves as they had been managed by Amis, their master. Bennett held them as a pledge, and he was not at liberty to indulge them in idleness, as their master may have done. In his peculiar relation, as trustee, he had active duties to perform; and we think the master did right in rejecting the account rendered, under a management which showed,. on his part, gross negligence, or in'the language -of the interlocutory decree, “ wilful default.”

It appears that • Amis died on the 1st of August, 1847, at which time the slaves were in the possession of Bennett, and continued to be in his possession at the time the account was taken. Three months were allowed by the master, after the death of Amis, before the account commences; and as there was considerable sickness at Galveston, where the slaves were situated, “ he allowed one hundred dollars as extraordinary expenditures for medical attendance, food, house-rent, and nursing.” And he says he allowed nothing for medicine or medical bills, except during the prevalence of the yellow fever, because the allowance for hire was made on a basis which covered all deductions for loss of time or óther contingencies.

The second exception is, that the master in- an account, No. 2, filed by him, stated the charge for hire of the slaves as commencing on the 1st of November, 1847, when he was restricted from making such charge prior to the 20th of March, 1849.

No such restriction is perceived in the answer of Bennett, nor in any othc r part of the proceeding. It seems that Bennett was in possession of the slaves before the death of Amis, and as is alleged in the answer, at least a part of the hire was paid to Amis during his life. But the account for the hire is made to commence three months after his death, at which time it is admitted the estate of Amis was indebted to Bennett $1,433.72.

The third and last exception to the report is, “ that the master, in account No. 2, filed, states a balance due complainants on the 1st of June, 1850, of $318.90, which is contrary to the evidence of complainants and defendant now filed with said report marked No. 3 and No. 4; and hath not, in his said report, allowed and credited the. defendant the expenses proved-to have been incurred in the management of the slaves.

As this exception refers to the evidence before the master, we have examined it, and although there s a discrepancy between some of the witnesses as to the hire of the slaves, yet the weight of evidence seems to be in favor of the report of the master. He made no special allowance for expenses', medical or otherwise, as he stated the allowance for the service of the slaves, at a sum which such services were proved to be worth, clear of all deductions for clothing, loss of time, or medical treatment.

It is probable that the sum. allowed by the master exceeded, considerably, the actual money received for the hire of the slaves. But the negligence or want of attention by- Bennett, in giving indulgence to the slaves, or in failing to have them suitably employed, should not excuse him from an equitable charge of what they could have earned. On this basis the master acted in making out the account, and we think it was properly assumed by him. And in this view there appears to be no error or mistake in the account stated, which should have prevented the District Court from sanctioning it.

The charges by Bennett for the superintendence and management of the slaves, were not allowed by the master, nor the charge for commissions. These items, if the defendant were entitled to an equitable allowance for the services stated, would amount only to a small sum, and we think, under all the circumstances of the case, neither this omission, nor the other exceptions to the report of the master, are of a character to require the reversal of this decree.

There was no action on the plea in bar filed by Bennett, which is an irregularity, not important, however, to be noticed on the appeal. Nor does it appear that any notice was taken in the District Court of the award set up in his answer by Hunt, the administrator. As the consideration for the transfer of the slaves by Amis to his daughter was natural love and affection, as appears by the bill of sale, it could not have been considered as within the award stated.

The decree of the District Court is affirmed with costs.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the. United States for the District of Texas, 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 District Court in this cause be, and the same is hereby, affirmed with costs.


author: Mr. Justice DANIEL

text:
    Phineas O., Nabby, Jabez and Benjamin B. Sargeant, heirs of Samuel Sargeant, Plaintiffs in error, v. The State Bank of Indiana.
    By the strict rules of the common law, a bond of conveyance might be adduced in support of a possession of twenty years held in pursuance of the bond to corroborate such, possession against an action founded upon the mere right of entry in the obligor or his heirs.
    But when the bond was given to. carry out the policy of a State in establishing the seat of justice for.a new county, it was proper to allow it to be given to the jury ds competent evidence to be weighed by them in expounding the provisions of the statute.
    Where a court, acting under a State law, appointed a commissioner to convey the legal title, after the death of die obligor of the bond, and the record of that court gaid that proper and legal notices had been given, it was not competent to offer evidence in another court for the purpose of showing that légal notice had not been given.
    This case was brought up by writ of error, from the Circuit Court of the District of Indiana.
    It was an ejectment brought by the plaintiffs in error, citizens of Vermont, against the State Bank of Indiana, under the following circumstances.
    ' By a law passed on the 14th of January, 1824, the Legislature of Indiana provided that whenever any new county should be laid off, five commissioners should be appointed to locate the seat of justice therein, to receive donations in land, and take title-bonds for the conveyance of it to such persons as the county commissioners should direct.
    In 1826 the county of Tippeeanoe was about to. be laid off, and on the 20th of January, 1826, an act was passed creating the county of Tippecanoe, which so far altered the act of 1824 as to substitute a board of five justices of the peace in lieu of county commissioners. But these justices' of the peace were not to be appointed until June. The rest of the act was to go into operation on the first Monday in May.
    Accordingly, on the first Monday in May, a majority of the commissioners appointed to locate the seat of justice, met and designated Lafayette as the town. On the 4th of May they received two bonds, with the ■ name of Samuel Sargeant as an obligorin one of which he was the. sole obligor, and in the other a joint obligor with other persons. These bonds bound Sargeant to convey the land “to the board of justices of Tippecanoe county that may hereafter be organized, and their successors in office.”
    • On the 8th of July, 1826, the board of justices, having been elected, met and organized. Samuel Sargeant was county clerk and ex officio clerk of the board of justices. They received the report of the locating commissioners, and ordered a public sale of the lots for' which title-bonds had been given, to take place on the second Monday of the ensuing October. ••
    In the- latter part of July, 1826, Samuel Sargeant died. His co-obligors in the bond conveyed their title to the justices, according to the tenor of the bond.
    " By the act of 1826, it was provided that in case of the death of any person who had executed or might execute such a bond, the obligee might apply to the Circuit Court of the county to appoint a commissioner to convey the title, provided four weeks’ personal notice should be given to the heir of the obligor, or certain advertising if a non-resident.
    At the term of the Tippecanoe Circuit Court, which was held in November, 1827, -the board of justices prayed the court to appoint a commissioner to convey Sargeant’s title; whereupon the court passed , an order concluding in the following words, viz.: ■
    “And it appearing to-the satisfaction of the court now here, that proper and legal notices have been given of this motion, it is therefore, by the court now here, ordered, that Richard Johnson be appointed commissioner to convey by good and sufficient deed unto the board of justices of Tippecanoe county, or their successors in office, said lots and parcels of ground in pursuance of the aforesaid bonds, in fee-simple, for and on behalf of the heirs of the said Samuel Sargeant, deceased.”
    On the 5th’ of April, 1828, Richard Johnson executed the deed.
    On the 17th of November, 18.46, Phineas O. Sargeant, Nabby Sargeant, Jabez Sargeant, and Benjamin B. Sargeant, heirs at law of Samuel Sargeant, deceased, and resident citizens of Vermont, brought an action of ejectment in the Circuit Court of the United States, for a part of the property, against the State Bank of Indiana.
    In May, 1848, the cause came on for trial, when the jury, under certain instructions from the court, found a verdict for the defendant.
    The bill of exceptions extended over twenty-five pages of the printed record, and, therefore, cannot be inserted at length.
    The plaintiffs having proved a title in Sargeant and their heirship, rested their case.
    The defendant gave in evidence the record-book of the justices of' Tippecanoe county; the report of the commissioners appointed to locate the seat of justice;, the execution of the title-bond; and then offered in evidence the record of the Tippecanoe Circuit Court relative to the execution of the deed by Johnson.
    To the production of which aforesaid record in evidence by the said defendant the said plaintiffs then and there objected, upon the following grounds assumed by them, namely: The proceedings were coram nonjudice, and void; as the court had no jurisdiction of the person nor of the subject-matter; the bond being void, the court had no jurisdiction to entertain proceedings upon it; the proceedings were between no parties known at the time to the law in Indiana. There was no legal notice of the proceeding; the preliminary steps were not takén to confer jurisdiction, and jurisdiction never attached ; and at the time of making'said objection, and before the said defendant had closed its evidence, the said plaintiffs offered to produce in evidence to the court the following authenticated copy of a paper, to wit:

      (The paper was a notice published in the newspaper, which was for the heirs to appear at a different time and term from that at which the proceedings were held, and an affidavit of its publication, indorsed “ Filed 7th November, 1827,” Hoover, clerk.)
    To the production of this paper in evidence, the defendant objected.
    The defendant then offered in evidence a confirmatory deed, signed by Sargeant’s co-obligors in the bond, and by Johnson as representing Sargeant.
    To the production of which last-mentioned copy in evidence the said plaintiffs then and there bbjected, on the grounds assumed by them that the same was void, having been executed without any authority of law, and there being no vendors named in the deed; which said several objections, so made by said plaintiffs as aforesaid, the court then and there overruled, and permitted the said papers and copies, and each of them, so offered by said defendant as aforesaid, to be read in evidence, and they were read in evidence to the jury by the said defendant.
    This was all the material testimony on behalf of the defendant.
    After the evidence for the defendant had been closed, the plaintiffs proved that the first election for justices of the peace, for Tippecanoe county, was held on the third Monday in June, eighteen hundred and twenty-six, pursuant to the proclamation of the Governor of Indiana in that behalf, and that the commissions of said justices, as appears from the records of the Secretary of State of Indiana, bear date on ; and that said justices held their first session on the eighth day of July, eighteen hundred and twenty-six, (being Saturday,) as set forth in the foregoing record thereof; and that said justices did not hold any other session, or meet as a board at any other time, until after the death of said Samuel Sargeant.
    And after the evidence on both sides had been closed, the said plaintiffs moved the court to charge the jury as follows, to wit:
    1.. That the title-bond given in evidence by the defendant is void as against Samuel Sargeant and his heirs, for want of an obligee in being capable of being contracted with at the time of the delivery of said bond.
    2. That the said title-bond is a nullity as against said Sargeant arid his heirs.
    3. That'the record, and proceedings of the Tippecanoe Circuit Court, and the, commissioner’s deed in pursuance thereof, are wholly void, and did not divest the title of Samuel Sargeant’s heirs.

      4. That the certified copy of the notice, and proof of publication given in evidence by the plaintiffs, is a part of the record of the proceedings of the Tippecanoe Circuit Court, and as such may explain and qualify the statement in the record, that proof was made that “ due and legal notices had been given; ” which said several instructions and each of them the court refused to give to the jury; but charged the jury that the said record of the Tippecanoe Circuit Court is not void, and that the above proof, so produced and given in evidence by the said defendant, is competent evidence to prove a dedication to public use, and the title of the premises in controversy out of the lessors of the plaintiffs.
    To which said several opinions and decisions of the court in admitting said evidence, so as above offered by the defendant and objected to by the plaintiffs, and in refusing to charge the jury as moved by-the said plaintiffs, as above stated, and to the charge so as above given by the court to the jury, the said plaintiffs except, and pray that this their bill of exceptions may be signed, sealed, and made a part of the record in this cause, which is done, &c.; both parties agreeing in open court that in making up of the record, whenever the words “ here insert ” occur in this bill of exceptions, the clerk shall copy and insert the documents indicated. And that the printed statutes of Indiana, so far as applicable to this cause, shall be deemed and taken as part of the record in this cause, and so considered by the Supreme Court. John McLean, [seal.]
    Upon these exceptions, the case came up to this court, and was argued by Mr. Smith for the plaintiffs in error, and Mr. White for the defendant.

      Mr. Smith for the plaintiffs in error,
    contended, that the court euffered illegal evidence to go to the jury, as stated in the bill of exceptions, in admitting in evidence the title-bond set forth in the bill of exceptions, because it created at most but an equity, and could not be set up against the legal title in the case, even if valid, and could not legally be given in evidence in the action of ejectment. See 2 Blackford’s Rep. p. 309, where the court uses this, language: “A person claiming by virtue of a title-bond only, the premises for which an action of ejectment was brought, applied to be made a defendant in the cause. Held, that as the claim was merely of an equitable nature, the application could not be granted.”
    This ■ease sustains our position, that the title-bond was illegally admitted in evidence upon general principles. But we do not rest the question here. We insist that the title-bond was void for the want of parties in esse at the time of its execution, as appears upon its face. It was made payable thus, “ Held, and firmly bound unto the board of justices of Tippecanoe county that may hereafter be organized, and their successors in office.” There was no board of justices or county commissioners in existence at the time, and no delivery of the bond could then take place. . It was therefore void at common law. Shep. Touch. 235; 1 Cruise, 418; 9 Mass. 419; Bacon’s Abr. Obi. C; 4 Ohio R. 169. The latter case is precisely in point, the very question having been before the court and decided. The bond was also void as a statutory bond, as the commissioners appointed to locate the county seat were not authorized to take such a bond. The act conferring the powers on these commissioners provides that, “the commissioners shall take a bond to be made payable to the board of county commissioners, and their successors in office.” It is clear that the bond which they were authorized to receive was to be made payable to a corporation in existence and its successors, and not to a corporation thereafter to be created, or in other words, they were only authorized to receive a Valid common-law bond. It was therefore clearly void sis a statutory bond, as well as a common-law bond. This point was expressly decided, as we contend, in the case of John Sloane v. David McConahy, 4 Ohio, p. 169.
    2. That the proceedings of Tippecanoe Circuit Court were void, because in this particular it was a court of special and limited jurisdiction, and it had not brought itself within it.
    3. That the charge of the court was erroneous, because,
    1st. It decides the weight and co'nclusiveness of the proof, and leaves nothing for the jury to try, whose province it was to weigh the testimony and find the facts, under the charge of the court, as to the law of the case.
    2d. The court in effect charges, that the title-bond and other evidence, as given, prove a legal title in the defendant, which we maintain is not the law, and cite the authorities already referred to upon the same question.
    3d, The court charges in effect, that the proof in the bill of exceptions sustains this as a dedication to public use of the property in question. If this be so, then we yield the case, provided, a parol dedication can be given in evidence in ejectment to defeat the legal title; but we submit that this was no dedication, and if it was, that a dedication by paiol does not carry the fee under the laws of Indiana by which the. case must be decided, p.nd therefore a dedication cannot be given in evidence to bar the legal title in the action of ejectment, unless there is an adverse possession of twenty years, which is not pretended or set up in this case.

      (The counsel then argued that this was not a dedication.)

      Mr. White, for defendant in error,
    contended that as to the objection to the admissibility of the title-bond, because it proved only an equitable title, we say,
    It was also admissible, to relieve those proceedings from the imputation of fraud, by showing the bond to have been the act and deed of Samuel Sárgeant, and that the consideration for which it was given, was executed.
    The title-bond was a part of the transaction, being the form recognized by statute for making donations of land in such cases.
    party in possession under a title-bond,- may, when sued in ejectment, produce the title-bond to show that he was entitled to notice to quit. Taylor v. McCrackin, 2 Blackford’s Rep. 260.
    In Right ex dem. Lewis v. Beard, on a contract of purchase (part paid,). Lord. Ellenborough held notice to quit, necessary. 13 East. 210. See.l Johns. 322; 9 Id. 330.
    It was also allowable, to show an adverse possession of twenty years, the conditions of the purchase or grant having been complied with. In 2 Penn. Rep. 454, the court say: “ Whether E. went into possession under an equitable title or under no title at all, is immaterial, if he held as his own and denied the right of J.”
    In Weakley ex dem. Yea v. Bucknell, Cowp. 473, Lord Mansfield allowed the party in possession to show an unstamped contract for a lease under which he had held for eighteen years, although the lease had never been executed.
    In replying to the remaining objection of the plaintiffs in error against the title-bond, viz.: “ that it is void for want of an obligee in esse at the time it was made,” we would refer the court to the several statutes of Indiana.
    (The counsel then referred to several statutes of Indiana.)
    It is objected that the record of Tippecanoe Circuit Court cannot be given in evidence, but that the proceedings of that .court were void.
    The general proposition is so well settled, that the judgment of a court of general jurisdiction cannot be collaterally impeached before another tribunal, that we shall only quote authorities by way of illustrating the peculiarity of the points presented in each case.,
    2 Binney, 41; 1 Pet. C. C. R. 155; 18 Pick. 393; 15 Ohio Rep. 447; 17 Wend. 483; 2 How. 319; 4 Dana, 429; 10 Pet. 449; 7 Blackf. 547.
    As tc the paper offered by the plaintiffs, relative to the notice, it was but a loose office paper, and is not certified to be a paiji of the proceedinss.
   Mr. Justice DANIEL

delivered the opinion of the court.

The facts upon which this case is founded are' to the effect following. The legislature of Indiana, having by a law bearing date on the 20th January, 1826, laid off and established the county of Tippecanoe in that State; by the same act appointed four commissioners for the purpose of selecting and establishing a seat of justice for the county thus created, in conformity with the provision. of another statute of the State, passed on the 14th of January, 1824, entitled “ An act establishing seats of justice in new counties,.” and with the provisions of other acts amend- ' atory of the law last mentioned. Pending the investigation of the commissioners who took upon themselves the fulfilment of the duties prescribed by the statutes above mentioned, proffers were.made to them by various persons, proprietors of land in ■and adjacent to the town of .Lafayette, of certain lots and parcels of land as donations to the county of Tippecanoe, and amongst these proffers was that of the land involved in this suit, then held by.Samuel Sargeant, from whom the lessors of the plaintiffs deduce their title. The commissioners having accepted the donations offered as above mentioned, and selected the town of Lafayette as the seat of justice for the county of Tippecanoe, took from the»several donors their joint and several title-bond, dated May 4th, 1826, in the penalty of ten thousand dollars payable to the board of justices of the county to be thereafter organized, with condition that these obligors should convey by deed with general warranty to the board of justices, on the 1st day of October, 1826, the lots and parcels of land contained in their respective donations within the town of Lafayette, and took also the separate bond of Samuel Sargeant, conditioned to convey at the same period, by a like deed to the board of justices, another parcel of land of ten acres, adjoining the town, as in the conditions annexed to those bonds set forth. The board of justices appointed by the Governor of Indiana for the county of Tippecanoe, was organized on the 8th day of July, 1826, and on that day received the report .of the commissioners appointed by law to select the’seat of justice for the county of Tippecanoe, and at the same time received and accepted the joint and several ■obligation of Samuel Sargeant and others above mentioned; and also the separate bond of Samuel Sargeant, conditioned for the execution of a deed with general warranty to the board of justices for the tract of ten acres of land as before referred to, the said Samuel Sargeant having been chosen their clerk by the board of justices, entered upon the record their acceptance of the title-bonds given by himself and others in his own handwriting. Samuel Sargeant having died before the execution of any deed either by the obligors in the joint and several bond, or by Sargeant alone, in pursuance of his separate obligation, proceedings were instituted at the November term, 182?, of the Circuit Court of the county of Tippecanoe, for the appointment of a commissioner, for the purpose of conveying'to the board of justices the title and interest held by Samuel Sargeant in his ■lifetime in the lots and parcels of land mentioned in the joint and several bond of Sargeant and others, and in the ten acres of land mentioned in the separate title-bond executed by Sargeant. The Circuit Court appointed Richard Johnson a commissioner, in conformity with the application, and this commissioner, conjointly with' all the obligors except Sargeant, executed to the board of justices a deed with general warranty for the lands mentioned in the joint and several bond, and a separate deed for the ten acres of land described in the bond given by Sargeant individually. • The proceedings of the Circuit Court of Tippecanoe, upon the petition of the board of justices, and the conveyances ordered by that court, took place in the years 1826 and 1827, and are of record.

In the year 1846, the lessors of the plaintiffs, representing themselves to be heirs at law of Samuel Sargeant, instituted' this their action of ejectment against the State Bank of Indiana, as the tenant in possession of lots No. 90 and 132, situated in the town of Lafayette. The said defendant also deducing title mediately from Samuel Sargeant, by purchase from the board of justices for the county of Tippecanoe, no question therefore is raised upon the validity of the title as originally existing in Samuel Sargeant.

At the trial, the lessors of the plaintiffs having introduced evidence to show the death of Samuel Sargeant on the 31st of July, 1826, and that the said lessors were his heirs at law, and evidence also of the value of the property in dispute, there rested then cause.

The defendant then offered in evidence the report of the commissioners appointed under the act of the legislature of January. 20th, 1826, to locate the seat of justice for the county of Tippecanoe ; the record of the appointment and qualification of the board of justices for the said county in July, 1826 ; the delivery to them and their acceptance of the title-bonds from the locating commissioners; their petition to the Circuit Court in order to obtain a conveyance of the lands mentioned in the title-bonds; the record of the proceedings of the Circuit Court of Tippecanoe upon the petition of the board of justices, and the conveyances to them made in pursuance of the judgment of that court, as comprised in the foregoing statement of facts. Upon the evidence thus submitted the jury found a verdict for the defendant.

The questions presented for our consideration by this record arise upon exceptions to the rulings of the court refusing certain instructions asked by the plaintiffs with regard to the evidence adduced by the defendant, and in charging the - jury upon the law applicable to that evidence as expounded by the. court. Thus the plaintiffs prayed the court to instruct the jury,— 1, That the title-bonds given in evidence by the defendant were void as against Samuel Sárgeant and his heirs for want of an obligee in existence capable of being contracted with at the time of the delivery of these bonds.

2. That the title-bonds are a nullity as against the said Sargeant and his heirs.

3. That the record and proceedings of thé Tippecanoe Circuit Court arid the commissioners’ deed in pursuance thereof are wholly void, and did not divest the title of Samuel Sargeant’s heirs.

4. That the certified copy of the notice and proof of publication' given in evidence by the plaintiffs, is a part of the record of the proceedings of the Tippecanoe Circuit Court, and as such, may explain and qualify the statement in the record, that proof was made that “ due and legal notice had been given.

These several instructions the court refused to give, but charged the jury that the said record of Tippecanoe Circuit Court was not void, and that the proof produced and given- in evidence as aforesaid by the defendant was competent to prove a dedication to ppblic use, and the title of the premises in controversy out of the lessors of the plaintiffs, it was agreed by the parties in this case that the printed statutes of Indiana, so far as they are applicable to the case, should be deemed and taken as parts of the record in -this cause, and be so considered by this court.

In considering the three first charges asked for by the plaintiffs, this court can perceive no essential difference between them, but regards them as resolving themselves into the single objection of the want of an obligee or grantee capable of receiving any legal rights from the acts of Samuel Sargeant; for it follows necessarily that if any legal or equitable rights were invested or transferred by the title-bonds delivered by Sargeant in his lifetime to the commissioners, such rights could not remain in his heirs. The fourth charge required of the court presents quite a different question, and one going rather to the mode or form by which the title to the property has been transferred or ratified, than to the foundation of the right or title itself.

Although, if tested by the rules of law applicable to conveyances of real property, bonds like those executed and delivered by Samuel Sargeant in his lifetime could not confer a legal title, yet if adduced in support of a possession of twenty years, held as in this instance, in pursuance of the express condition of those bonds, they would seem to corroborate such possession against an action founded upon the mere right of entry in the obligor or his heirs.

But these bonds should not be judged of by the strict rules of the common law, nor by the general principles applicable to uses and trusts in the conveyance of legal titles, but should be interpreted according to the local policy of the community which called them into existence, and which has defined both their objects and effects. Whatever these bonds were designed to be,— whatever purposes they were, by the local policy and laws of Indiana, intended to accomplish in respect to the makers thereof, or the beneficiaries therein named, this court should endeavor to effectuate.

By the general law of Indiana, approved January 14th, 1824, entitled “An act to establish the seats of justice in new counties,” it is provided in section first, “ that whenever any new county shall be laid off, five commissioners shall be appointed, whose duty it shall be to locate the seat of justice in such new county, to receive donations in land, and to take bond or bonds of any person proposing to give any such lands, payable to the board of county commissioners and their successors in office, and conditioned for the -conveyance of such tract or tracts of land so given or sold to such person as the county commissioners shall appoint to receive the same, which bond or bonds the said commissioners shall deliver to the county commissioners, together with a plain and correct report of their proceedings, containing a particular description of the lands so selected for the county seat.” By section fourth of the same act, it is declared “ that the county commissioners, so soon as the report of the locating commissioners is received, shall appoint a county agent, who shall receive deeds for such donated lands, and lay them off into lots,” &c. The act- of the Indiana legislature creating the county of Tippecanoe, passed January 20th, 1826, by section seventh, so far alters the general law of 1824, for the establishment of new counties, as to substitute a board of five justices of the peace, who shall constitute a board for transacting all other county business, as well as the duties theretofore devolving on the board of county commissioners in organizing a new county. This statute was to take effect on the 1st of March, 1826, and, by its second section, the board of commissioners were appointed by name for the purpose of fixing a permanent seat of justice for the county on the first Monday in May, 1826. The election or appointment of the board of justices for the county of Tippecanoe was, by the proclamation of the governor, to take effect not until the day of June following. The grant? or donations to the locating commissioners having been authorized by law from the first Monday in May, 1826, and the grantees or ultimate beneficiaries, viz., the board of justices, not being chosen or their election authorized until after the day of June, 1826, if the objection alleged to the donations made or received by the locating commissioners, viz., the absence of a competent obligee or grantee, be sustained, then the whole legislation of the State upon this subject, and the obvious purposes of that legislation, must be defeated. Such a result, however, can hardly be reconciled with either the provisions or the purposes 6f the legislation of Indiana in reference-to this subject ;■ for by the general law of that Stat'e, approved January 14th, 1824, regulating .the establishment of new counties, we find it provided that the commissioners appointed to locate the seat of justice in a new county, and to receive the donations and to take the bonds ‘ mentioned in that law, are required, together with their report, to deliver said title-bonds to the county commissioners. This delivery, therefore, of the bonds so taken, must have been by this general provision intended to refer .to some period after these county commissioners or board of justices had come into existence. "We think-there can be no question as to the power of the State to create or authorize a contract which should operate in this mode.

The acts of the board of commissioners for selecting the county seat, those of the board of county justices, and of the donors of lands "to the county, all conform to this construction. Thus in the case before us, the title-bonds were taken by the former board, were by them subsequently, together with their report, delivered to the board of justices; and Samuel Sargeant, who had previously deposited the title-bonds executed by himself with the former board, and who had been subsequently appointed the clerk of the county justices, in his character of clerk, certifies the record of these proceedings. We think, therefore, that the Circuit Court for the District of Indiana properly refused to pronounce the bonds executed by Samuel Sargeant, and the proceedings of the board of commissioners and of the board of justices void, and correctly allowed them to be given to the jury as competent evidence .to be weighed by them in expounding the provisions of the statutes of Indiana above referred to.

Should it be conceded that the execution of the title-bonds by Samuel Sargeant in his lifetime, and the proceedings on the part of the board of commissioners and of the board of justices did not, under the statutes of Indiana, confer a legal title- on the; county, or clearly divest the title of Sergeant; yet, these acts standing alone and unconnected with the" proceedings of the Circuit Court of -Tippecanoe, show an equity on the part of the county which clearly authorized them to call for the legal title from Sargeant. They show a written contract formally entered into and solemnly'recognized by him, and a fair equivalent or consideration for that contract, in the enhanced value of property arising from the establishment of the seat of justice, forming ah obligation from which neither Sargeant nor his heirs could withdraw without the perpetration of a gross fraud.

This brings us to a consideration of the fourth charge- asked of the Circuit Court in the trial below, and of the decision of ^the court thereupon, involving the regularity of the proceedings \t the suit of the county justices in the Circuit Court of Tippecanoe, in order to perfect their title stipulated for in the bonds executed by Samuel Sargeant. The court was requested by the proposed charge to say to the jury, that a certified copy of a notice and proof of publication offered in evidence by the plaintiffs, were a part of the record of the proceedings of the Tippecanoe Circuit Court, and, as such, might explain and qualify the statement of the record itself, that proof was made that due and legal notices had been given,” which charge the court refused to give, but charged the jury that the said record of the Tippecanoe' Circuit Court is not void, and that the above proof, so produced and given in evidence by the said defendant, is competent evidence to show a dedication to public use, and the title of the premises out of the lessors of the plaintiffs.

Of the correctness of the Circuit Court in refusing this last charge, we entertain no doubt whatever. With a view of determining the propriety of this rejection by the Circuit Court, it may be proper here to refer to an act of the legislature of the State of Indiana, approved on the 20th of January, 1826, entitled An act amendatory of the law for the better advancement of justice,” (under which statute the decision of the Circuit Court of Tippecanoe, impugned by the plaintiffs below, was made.) By the tenth section of this statute it is provided, “ that whenever any person or persons who shall have executed, or hereafter shall execute his or their obligation for the conveyance of any real estate to any person or persons, body politic or corporate, shall die intestate or without having made the necessary provisions by will for the conveyance of such estate, it shall be lawful for the obligee or obligees in such bonds, or his or their assignees, to apply to the Circuit Court of the county in which such real estate lies, to appoint a commissioner to convey the same in conformity with the conditions of the said obligation, by a deed to be by such commissioner, executed, of the same tenor and effect as the deceased obligor was bound to make in his lifetime; provided the- person or persons making such application as aforesaid, shall first give four weeks personal notice to the heir or heirs of such obligor or obligors if residents of the State, and if non-residents, then three months notice of such application, by advertising the same three weeks successively in the nearest public newspaper to which the said real estate is situate — and the commissioner shall,” &c., &c.

Under the authority of the section just quoted, application in the name and on behalf of the county of Tippecanoe was made by petition to the judges of the Circuit Court of that county, for the.appointment of a commissioner to convey the lands mentioned in the title-bonds executed by Sargeant, and which he had failed to convey in conformity with those obligations. In setting forth the action of the court upon this petition, the record contains the following statement: “ Came into court Peter Hughes, agent, for the county of Tippecanoe by his attorneys, and moves the court now here to appoint a commissioner to convey real estate under and in conformity to a title-bond given by,Samuel Sargeant, deceased, and others therein named in his lifetime, to the board of justices of Tippecanoe county and their successors in office, which bond he now here files, for .the conveyance of certain town lots in the. town of Lafayette in the said bond mentioned and numbered.- Also files a bond given by-the said Samuel Sargeant deceased, by himself, for the conveyance of ten acres of land east , and adjoining the town of Lafayette, to the board of justices of the county and their successors in office, and it appearing, to the court now here, that proper and legal notices have been given of this motion, it is by the court now here ordered, that Richard Johnson be appointed commissioner to convey by good and sufficient deed unto the board of justices of Tippecanoe county and their successors in office, the said lots and parcels of ground, in pursuance of the aforesaid bonds in fee-simple, for and on behalf of the heirs of Samuel Sargeant, deceased.” It is this record of the decision of the Circuit Court of Tippecanoe county, and particularly that portion of it which states that the decision was pronounced after proper and legal notices had been given to the heirs of Samuel Sargeant, that the plaintiffs asked of the court to charge was irregular and void, upon the strength of a paper purporting to be a notice which they urged the court to consider as a part of the record of the proceedings of the Tippecanoe Circuit Court, and as such, explaining and qualifying the statement in that record, that proof was made to the court of due and legal notice to the heirs of Samuel Sargeant.

With respect to the propriety and regularity of this application to the.Circuit Court, we would remark in the first place, that the mere fact of a paper being found amongst the files of a cause, does riot of itself constitute it a part of the record of the^ cause. In order to render it a part of the record it should form some part of the pleadings in the cause, or be brought under and ingrafted upon the action of the court by some motion from the parties. Without this, such a paper can no more be a portion of the record than would the knowledge of facts on the part of a witness, who had been summoned and not examined, or the oral testimony given to a jury, and not noted by exception or otherwise. There is nothing in the record of the Circuit Court of Tippecanoe to show that the paper on which this fourth charge asked for by the plaintiffs is founded, was ever brought to the notice of the court last mentioned. The real veritable record informs us, that legal and sufficient notice was given to the heirs of Samuel Sargeant, but whether by this paper or' in what other mode (except that it was legal and sufficient) we are not told, and are not at liberty in this case to indulge in inferences against the verity of the record. It is a principle well settled, too, in judicial proceedings, that whatever may be the powers of a superior court, in the exercise of regular appellate jurisdiction, to examine the acts of an inferior court, the proceedings of a court of general and competent jurisdiction cannot be properly impeached and reexamined collaterally by a distinct tribunal, one not acting in the exercise of appellate power. To permit the converse of this principle in practice, would unsettle nine tenths of the rights and titles in any community, and lead to infinite confusion and wrong. In support of a principle so obvious and of such universal acceptation as is that just above stated, a recurrence to cases would seem to be wholly unnecessary. We will mention, however, one in. this court, which, from its direct appositeness to the question now under consideration, may be regarded as conclusive. The case alluded to- is that of Grignon’s lessee v. Astor. 2 Howard, 319. This was ah action of ejectment brought by the heirs of a decedent to recover lands which had been sold by the personal representative, who, by the law of Michigan, was, in the event of a deficiency of the personal assets to pay debts, authorized to sell the real estate, upon a license granted him to effect such sale, but to be obtained only upon proofs prescribed by the statute to be made before the court by which the license to the administrator was to be granted. The objection to the title of the purchaser was, that by the record of the court granting the license to the administrator to sell, it was apparent that the prescribed evidences of deficiency of the personal assets had not been adduced, and that the court had therefore exceeded the powers with which it was clothed by the statute. The language of the record is as follows : (t The petition of Paul Grignon, administrator on the estate of Pierre Grignon, late of thé county of Brown, deceased, was filed, praying for an order from the court • to authorize him to dispose of the real estate of the said Pierre. In consideration of the facts alleged in said petition* and for . divers other good and sufficient reasons, it is ordered, that he be empowered as aforesaid.”

In overruling the objection made to the title derived from the personal representative, this court said, p. 339 : “ The record of the County Court shows that there was a petition representing some facts by the administrator who prayed for an order of sale; and the court took those facts into consideration, and for these and divers other good reasons, ordered that he be empowered to sell.” Again this court say, p, 340: “After the court has passed on the representation of the administrator, the law' presumes that it was accompanied by the certificate of the judge of probate, as that was a requisite to the action of the court. Their order of sale was evidence of that or any other fact which was necessary to give them the power to make it; and the same remark applies to the order to give notice to the . parties. This is a familiar principle in ordinary adversary actions, in which it is presumed ifter verdict, that the plaintiff has proved every fact which is indispensable to his recovery, though no evidence appears on the record to show it; and the principle is of more universal application in proceedings in rem after a final decree by a court of competent jurisdiction over the subject-matter.” Again say the court, “ The record is absolute verity, to contradict which, there can be no averment or evidence; the court having power to make the decree, it can be impeached only by fraud in the party obtaining it.” Several decisions by this court upon this particular point will be found cited in the opinion above quoted as delivered by the late Justice Baldwin, who concludes that opinion with the following striking and cogent observations: “We do not,” said that learned judge (alluding particularly to the case of Vorhees v. The Bank of the United States, 10 Pet. 473,) “ think it necessary, now or hereafter, to retrace the reasons or the authorities on which the decisions of this court in that case and those which preceded it rested; they are founded on the oldest and most sacred principles of the common law. Time has consecrated them; the courts of the States have followed, and this court has never departed from them. They are rules of property on which the repose of the country depends; titles acquired under the proceedings of courts of competent jurisdiction must be deemed inviolable in collateral actions, or none can know what is his own; and there are no judicial sales around which greater sanctity ought to be placed, than those made of the estates of- decedents by order of those courts to whom the laws of the States confide full jurisdiction over the subjects.” By the doctrine thus ruled the decision of the Circuit Court is fully .sustained,, and, upon a review of the whole case, it is the opinion of this court that the decision of the Circuit Court 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 District of Indiana, 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.


text:
    Alanson Saltmarsh v. James W. Tuthill.
    Where an appeal was taken in a common-law case instead of a writ of- error, and after the lapse of ten days the plaintiff issued an execution upon his judgment, and the defendant then sued out a writ of error to bring the case up to this court, it was error in the court below to quash the execution and supersede the judgment.
    The appeal did not remove the case, and the writ of error was sued out too late to stay execution. It is immaterial whether it was a mistake of the party or the court.
    The question reserved is whether this court has the power to issue a mandamus to the judge below, commanding him to set aside the supersedeas and order the clerk to issue an execution.
    A motion was made for a mandamus in this case, to compel the district judge to set aside an order of supersedeas and to. order the clerk to issue an execution.
    The circumstances were these: —
    At the fall term, 1849, of the District Court of the United States for the Middle District of Alabama, Tuthill obtained a judgment against Saltmarsh in a common-law case.
    Saltmarsh took an appeal in open court, and at the same time executed an appeal-bond, in a penalty of double the amount of the'judgment.
    After the expiration of ten days, Tuthill caused execution to be issued on the judgment. Before the return of this writ, Salt marsh sued out a writ of error, and filed a writ of error bond.
    At the return term of the execution, viz., May, 1850, Salt-marsh moved the court to quash the execution and to supersede the judgment. Both motions were granted. The execution was quashed, and it was further considered and ordered by the court, that a writ of supersedeas be, and the same is hereby, awarded, commanding the clerk of the District Court of the United States for the Middle District of Alabama not to issue execution, or any other process, on said judgment rendered at the December term of this court, in the year of our Lord one thousand eight hundred and forty-nine, while the writ of error to the Supreme Court of the United States is pending, nor until a decision is had thereon. And also to command the marshal of the United States for the district aforesaid, that from every and all proceedings on execution, or in anywise molesting the plaintiff in error on accouzit of the said judgment, he entirely surcease, the same being superseded.
    The writ of error having brought the case up to. this court, a motion was made by Mr. Pryor and Mr. Seward, for a mandamus to compel the district judge to set aside the order of supersedeas, and to order the fclerk to issue an execution.
    1. The order was void for the want of jurisdiction in the court. There was no subject-matter in controversy of which the court could take jurisdiction, to hear and determine. Judiciary Act 1789, ch. 20, sects. 22, 23; Act regulating appeals, 1803, ch. 40, sect. 2; Wiscart v. Dauchey, 3 Dall. 327; Murdock ex parte, 7 Pick. 303, 321; Wetherbee v. Johnson, 14 Mass. 412, 420; Livingston v. Jefferson, 1 Brock. 203, 211; The San Pedro, 2 Wheat. 132, 141; Sarchet v. United States, 12 Pet. 143, 144; Parish v. Ellis, 16 Id. 451, 452, 453, 454; United States v. Wouson, 1 Gall. 4, 10, 11; Villabolo v. United States, 6 How. 81, 90, 91; United States v. Currey, Id. 106, 112, 113; Hudson v. Guertier, 7 Cranch, 1; The Avery, 2 Gall. 386, 389; Jackson v. Ashton, 10 Pet. 480, 481; Ex parte Crenshaw, 15 Id. 119, 123; Cameron v. McRoberts, 3 Wheat. 591, 593; Griffith v. Frazier, 8 Cranch, 9, 10; Patterson v. United States, 2 Wheat. 221, 225, 226; Hickey v. Stewart, 3 How. 750, 762; United States v. Moore, 3 Cranch, 159, 172, 173; Durousseau v. United States, 6 Id. 307, 313, 314; United States v. Goodwin, 7 Id. 108; Ex parte Kearney, 7 Wheat. 38, 42; Expande Watkins, 3 Pet. 193, 201; United States v. Nourse, 6 Id. 470, 493, 494, 495, 496, 497; Wood v. Lide, 4 Cranch, 180; Hogan v. Ross, 11 How. 294.
    2. But if the court did have jurisdiction, then the jurisdiction was improvidently exercised, and this court ought to issue the mandamus. This court has a gezieral superintending control over inferior courts of the United States, and may issue such process as is necessary to enable it to make this control effectual. Judiciary Act, 1789, ch. 20, sects. 13, 14; McIntire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6 Wheat. 368; Ex parte Crane, 5 Pet. 190; Life & F. Ins. Co. v. Wilson, 8 Id. 291, 306; Marbury v. Madison, 1 Cranch, 137; Ex parte Bradstreet, 6 Pet. 774.

      Mr. Campbell in opposition to' the motion.
    The 23d section of the Judiciary Act (1 Stats, at Large, 85,) does not take away the power which existed in the courts to grant a supersedeas upon the allowance of a writ of error. Tidd’s Practice, 1070 et seq.; 1 Arch. Prac. 517 et seq.; 10 Wend. 624; 7 Hill, 162; 3 How. 405; 2 Miles, 108.
    The remedy by mandamus is not proper. Tillinghast & Yates's Treatise, 449.
    The remedy open to the plaintiff is a writ of error. 6 Pet. 648; 1 Bibb, 346; 1 Stew. & Port. 187; 9 Porter, 275.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

The judgment in this ease being in a common-law proceeding, it was not removed to this court by the appeal; and, consequently, the appeal-bond did not operate as a supersedeas.

The writ of error afterwards sued out, has brought the case regularly before this court. But as it was not sued out within ten days after the rendition o,f the judgment, the writ of error-bond does not stay the execution under the act of 1789. °

Nor is there any equitable power in' the Circuit Court to stay the execution, upon the ground that a mistake as to the manner or time of removing the case was committed. And it is immaterial in this respect whether it was the mistake of the party or the court. For this court has never deemed the tribunals of the United States authorized to dispense with the express provisions of the acts of Congress regulating appeals and writs of error, upon any equitable ground. No such power is given to them by law. It was so decided in this court in United States v. Curry and others, 6 How. 113; and Hogan and others v. Ross, 11 Id. 297. The Circuit Court therefore erred in setting aside the execution which the plaintiff had issued on the judgment.

But we do not think it necessary at this time to determine, whether this court has the power to issue the mandamus, requiring the Circuit Court to issue the execution. Because we are satisfied from the facts before us, that the Circuit Court, without any coercive process, will conform to the opinion of this court, and issue execution when informed of this decision.

The question, therefore, as to'the power of this court'to issue the mandamus, is, for the present, reserved.