author: Mr. Justice CURTIS

text:
    Cyrus H. McCormick, Appellant, Charles M. Gray, and William B. Ogden.
    Where two partners assigned ail. their partnership property to a trustee with certain instrpetions how to dispose of it, and afterwards agreed between themselves to appoint an arbitrator, recognizing in tbeir bonds the directions given to the trustee, the arbitrator had no right to deviate from these directions, and make other disposition of the' property.
    The reason given by the arbitrator, that he preferred creditors before awarding a certain sum to one of the partners, is insufficient.
    Nor had the- arbitrator a right to depart, in any particular, from the arrangement of the property which the partners had. designated in their deed to the trustee.
    This was an appeal from the Circuit Court of the United States for the District of Illinois.
    McCormick was the inventor of McCormick’s patent Virginia Reaper,” and being desirous of manufacturing, the same for -sale in the States of Illinois and ■'Wisconsin, entered into partnership with Gray. The'articles were very specific, but too. long to be inserted here. The object was to manufacture five ‘hundred reapers for the harvest of 1848, and the partnership was -formed on the ,30th of August, 1847. Three lots of ground were purchased in Kenzie’s addition to Chicago, and the manufacture was commenced.
    Some disagreement afterwards occurred, and , both parties united in transferring all the assets of the firm to William B. Ogden, and a settlement was to be made according to the award of Judge H. T. Dickey. The principal parts of the assignment to Ogden, are recited in the opinion of the court, and need not be repeated.
    Afterwards, on the 20th of December,. 1848, they formally agreed to the reference to Judge Dickey, and exchanged arbitration bonds. By these bonds it was made an. express condition of the reference that the award to be made by the arbitrator should “ not in any way alter or affect the demands of property and assets in the hands of William B. Ogden, as the trustee of said parties, or the agreements, between said • parties relative to the collection and disposition of said demands, assets, and property, but the same shall jremain under the provisions of said contract.” The time for making the award, as originally limited, was afterwards extended to sixty days from the 20th of January, 1849.
    The referee, on the 20th of March, 1849, -made his award, which was as follows :
    “ Award between Cyrus H. Me Co'rmick and Charles M, Gray.

    It having been submitted to me, by Cyrus H. McCormick arid Charles M. Gray, by articles of agreement and submission dated the twentieth day of December, in the year of our Lord one thousand eight hundred and forty-eight, and a supplement thereto dated 19th (nineteenth) January, one thousand eight hundred and forty-nine, to arbitrate and determine certain differences and dispute's between them growing out of the partnership affairs, business, and dealings of the late firm of McCormick & Gray, submitting all their said partnership differences and all other differences to me as such arbitrator : And the said parties having appeared before me as such - arbitrator on the fourteenth day of January last, and for several days thereafter, together with their respective counsel, and witnesses, vouchers and. proofs having been then sworn, exhibited, produced, and examined, and the said differences'and disputes having been finally submitted to me on the nineteenth day of January last, and it appearing to me that such differences and disputes so existing grew out of the partnership business and dealing of the said late firm of McCormick & Gray, arid in the accounts of the said respective parties, and in the-claims on their respective parts, one against the other,,for alleged breaches of the copartnership articles, and' in the final, settlement and adjustment of all their copartnership business, dealings, and .accounts, and all of the same having been by me fully examined and considered, I do find and award as follows, to wit:
    I do find that the assets and liabilities of said iate firm on the fourteenth day of January last, were as they are stated to be in an account of assets and liabilities hereto annexed, and marked A, that is to say :
    Real estate constituting assets of said firrri, amount-to . $9,406 06
    Machinery amounting to 3,637 17
    Bills receivable, &c., for reapers, 36,853 15
    Iron on hand, . . . $623 14
    238 sickles, $3,50, -. . . 833 00
    13 reapers, $120, 1,560 00 3,021 14 $52,917 52

      Liabilities.

    Debt to Fitch, Barry, & Co., . , . $1,802 82
    Debt to Seymour & Morgan, . . . 1,750 60
    Debt to Seymour & Morgan, . . . 1,635 .29
    Debt to O. Orcutt, . . . 30 00
    Debt to M. & 'M. Stone, .... 105 00
    Debt to H. Rowell, . . . 204 08
    Debt to George M. Gray, . . ■ . 73 75
    Debt to Charles M. Gray, . . . 4,051 $8
    Debt to C. H. McCormick, .. . . 12,050 67
    $21,710 09 Profit and loss. . . . . 31,207 43
    $52,917 52

      And I do, therefore; award as follows :
    1st. I award out of the money and assets of said firm, whether in the hands of either of said copartners or of their agents, there in the first place be paid the following of said debts and liabilities of said firm, pro raid, until the same shall be fully paid, viz., the above-mentioned debts and liabilities, principal and' interest, to the time of payment due to Fitch, Barry & Co., Seymour & Morgan, (both claims,) O. Orcutt, M. «fe M. Stone, H. Rowell, and George M.. Gray, and - all other outstanding debts, if there should be any' found to be omitted in the above account due or coming due by said firm to third persons.
    2d. I award that in the next place there be paid to Cyrus H. McCormick, one of said copartners, out of money and assets, the sum of fourteen thousand six hundred arid ten dollars, ($14,610,) for his patent fees, as stipulated by the • articles of copartnership, for reapers sold by said firm.
    . 3d.' I award that in the third place there be.paid out of the assets-of the said firm, and in the manner hereinafter stated to each of said copartners, viz., to the said Charles M. Gray, and to the said Cyrus H. McCormick, the amount due by said late firm to each of said copartfters as stated above, and in the annexed account, marked A, viz.-, to the said Charles M. Gray, the sum of four thousand and fifty-one dollars and eighty-eight cents, (4,051.88,) and to the said Cyrus H. McCormick,-the sum Of twelve thousand and fifty dollars and sixty-seven cents,-(12,050.67,) the said two last mentioned sums to be paid to each of said copartners in the-manner specified hereinafter fifthly ; and the balance coming to said McCormick over and above his half of his real estate and machinery mentioned hereinafter to be paid lo him in money.
    4th. I award that out of the balance of the money and assets of said firm, as profits, after paying the- items above mentioned, there be paid to the firm of Ogden and Jones, of Chicago, on-account of the sale made to them by the said Charles M. Gray, by deed dated the fifteenth day of January, one thousand eight hundred and forty-eight, one fourth part, to Cyrus H. McCormick, one of the said copartners, one fourth part, and to Charles M. Gray, the other of, the said copartners, the remaining- two fourth parts; the said parts to be paid to each of the said parties, pro raid, as the moneys and assets are received and collected.
    5th. I do award that the real estate and machinery and- their appurtenances, and the tools of the said- late firm of McCormick & Gray, amounting together, according to the above statement, to thirteen thousand and fortyrthree dollars and twenty-three cents, (13,043.23,) that is to say, the real estate to nine thousand four hundred and six dollars~and six cents, ($9,406.06,) and the machinery, &c., to three thousand six hundred and thirty-seven dollars and seventeen cents, (3,637.17,) be taken, one half part, thereof by each of the said copartners, viz., the said McCormick and the said Gray, at the above-mentioned rate, that is to say, six thousand five hundred and twenty-one dollars and sixty-one and ahalf cents ($6,521.61¿,) each, and that such appropriation by each of said copartners of one half of the said real estate and machinery kt the ,sum of six thousand five hundred and twenty-one dollars and sixty-one and a half cents, (6,521.61-i,) each, be applied towards the payment of the respective balance due to each of them by the said firm, that is to say, of the balance of twelve -thousand and fifty dollars and sixty-seven cents due to the said McCormick, and the balance of four thousand and fifty-one dollars and eighty-eight cents, (4,051.88,) due the said Charles M. Gray, and that the balance of the said Charles M. Gray’s half of said real estate and machinery, over and above the payment of the said’sum of $4,051188, be. applied ■ in part payment of the two fourth parts of the profits of said firm, coming to him as awarded fourthly above.
    6th. I do award that the thirteen reapers belonging to said firm, on hand and unsold, be sold with all convenient despatch, and at the best price that can be had for the same, and that out •of the proceeds thereof, there be paid to Cyrus H. McCormick the sum of thirty dollars for each of said reapers so to be sold, as a patent fee; but if the said reapers shall sell for a less amount than one hundred and twenty dollars a.piece, then the patent fee aforesaid shall be apportioned to the amount of the sale of each reaper in the- same proportion as thirty dollars is to one hundred and twenty dollars, and the said, patent fee to be paid as aforesaid upon the salr of the said thirteen reapers shall be deducted from the profits to be divided as above fourthly stated.
    7th. I do award that the bills, receivable accounts, and debts due the said firm, not already collected, whether in the hands of, either of said .copartners or their agent or agents, be collected and caused to be collected in money by the said co-partners,. áirih.each of them, with all reasonable diligence and despatch ;’ arid that the iron and sickles on hand mentioned in said account,• arid all other assets of the said firm, (excepting the real estate and machmery-’and tools above stated,) not already sold, be sold and converted into money with all convenient and reasonable diligence,'and at the best price that can be procured for the same, and the proceeds of all of the above applied in pursuance of the direction and provisions of this award.

      8th. I do award that all moneys, notes, and other property. and assets of said late firm, in the hands or possession of or under the control of either of said copartners, shall be forthwith applied by them, and each of’them, according to the terms and provisions of this award.
    9th. In case any part of the debts mentioned in the first above-mentioned item, or of the patent fees mentioned in the second above-mentioned Item, shall have been paid since the hearing of the .arbitration aforesaid, the amount of such payment shall be deducted from the amounts directed thereby to be paid.
    10th. I do award that all necessary costs and expenses which may be expended or incurred in the sale of any of the copartnership property, and in the collection of the bills receivable and debts due the said firm, shall be paid out of the balance of the partnership moneys and assets fourthly above mentioned, before the whole of such balance shall be finally divided as mentioned in said above-mentioned fourth item.
    11th. This award shall be a final settlement of the accounts of the late partnership firm of McCormick & Gray, and of the manner in which the assets of said firm are to be paid, appropriated, alid applied, and embracing as well the settlement" of the accounts of the respective partners, as an adjustment of their respective claims one against the other, growing out of their said partnership dealings, and of all differences and matters of difference between the said Cyrus H. McCormick and Charles M. Gray, which have been submitted by the arbitration.
    All of which is signed by me in duplicate, as my award 'in the premises, this twentieth day of March, one thousand eight hundred and forty-nine.
    Hu&h T. Dickey.” •
    In June, 1849, McCormick filed his bill in the Circuit .Court of the United States, for. the District of Illinois, against Gray and Ogden for an account, &c., upon the ground that the award was null and void for the following reasons:
    “ First. The said award is not within the terms or spirit of the said submission ; and the said arbitrator exceeded the power abd jurisdiction conferred upon him by the said parties, in this, to wit: T 1st. That in and by the said assignment from the said McCormick and Gray to said trustee, William B. Ogden, it is expressly declared in the first section thereof, that said Ogden shall proceed to collect said assets as speedily as may be, and after first páying all expenses, costs, and commissions ' attending the collection and disbursement of the same, shall pay over to said McCormick the sum of $14,610, on account of patent fees due him for the manufacture of said Virginia Reaper as aforesaid; whereas the said arbitrator, wholly disregarding the said assignment and the said proviso of said arbitration-bond hereinbefore tnentioned and set forth, in and by his said award, awarded and directed in the seventh section thereof, (amongst other things,) that the bills receivable, accounts, and debits due the said firm, not (then) already collected, whether in the hands of either of said copartners, or of their agent or agents, be collected or caused to be collected in money by the said copartners, and each of them; and in and by the said first, section of said award, the said arbitrator awarded (amongst other things) that out of the money and assets. of said firm, whether in the hands of either of the said copartners or of their agents, there in the first place be paid certain debts and liabilities of said firm, mentioned and specified in said section, pro raid; and the said section of the said award directed and awarded, in substance, that in the next place there be paid to your orator out of the funds of said copartnership the . sum of $14,610 for his said patent fees. Thus attempting to subvert and annul the said assignment so made to said Ogden, by dirécting the said parties to collect the said debts and assets so assigned to him, instead of said Ogden, and in utter disregard of his rights and duties as trustee, and to disburse and distribute the funds of sa^d partnership in a different manner from that provided in and by the trusts of said assignment, and postponing the payment of the said sum of $14,610 so due to your orator for patent fees, until after the payment of said debts mentioned in said first section of said award, contrary to the tenor and effect, true intent, and meaning of the said assignment, and of the'said arbitration-bond.
    ' 2d. The said assignment provides, in the second section thereof, that said Ogden shall pay all legal liabilitities and. debts of the said McCormick and Gray as they shall become due; whereas the said award in the first section thereof awards and directs, in substance, that certain debts in said last-mentioned section specified, shall be paid pro raid until the same shall be paid.
    3d. The said assignment in the third section thereof (amongst other things,) provides, in substance, that the balance of said assets, as fast as collected, shall be paid in pro raid sums as follows ; to said McCormick one half of all moneys collected, to Ogden and Jones one' fourth, arid the remaining fourth to said Gray ; provided, however, and it is in said third section agreed and understood, that the respective sums therein provided to be paid to said McCormick and Gray, respectively, shall be retained by said Ogden' to await the award of said Dickey, and shall in no case be paid over to either of said parties, until said award shall be made; and when said award 'shall"be made,.in case it should be made against eithér party, the amount of such award shall be tallen out of the mqneys going to the party .against whom the said award shall be made, and paid over to the' party in whose favor the said award shall be made; and when-said award shall have been paid, the balance of said moneys going to said McCormick and Gray, if any there shall be, shall be paid over to them, respectively, jn- the proportion in said assignment provided •; whereas, in and by the fourth section of the said, award, it is awarded and directed, that of the balance of the money and assets of said firm, as profits, after paying the items therein mentioned, there be paid to'said Ogden and Jones one fourth part, to said McCormick one fourth, and to said Gray ■ the remaining two fourths; and no sum certain is awarded to either party within the intent and meaning of the said assignment and submission, but the assets of the said firm are directed to be distributed and divided as last aforesaid.
    4th. That the said arbitrator has exceeded his powers in other respects, and the said award is uncertain, unjust, illegal, .and tends to the manifest injury, wrong, and- oppression of your orator; and your-orator humbly insists and' submits that the said award ought to be annulled and wholly set aside, and the said Gray ought to be enjoined and restrained from commencing any suit or other proceeding to enforce the collection thereof, or ffom interfering with said assignment aforesaid, or intermeddling with the property and assets in said assignment mentionedand that the said Gray ought to come and account with your orator of and concerning the said partnership dealings and transactions from the commencement thereof; and that-the said pretended award, so made as aforesaid, is no bar to such account.”
    The defendants appeared, and demurred to the bill; and the Circuit Court, then holden by the district judge, sustained the demurrer and dismissed the bill.
    The complainant appealed to this court.
    It was argued by Mr. Johnson, for the appellant, and submitted, on a printed argument, by Mr. Butterfield, for the appellee.

      Mr. Johnson, for the appellant, made the following point’s: —
    1. - That the averments in the bill gave the court jurisdiction over the parties and the subject.

      2. That the award, being beyond and against .the terms of the submission, was void. Archer v. Williamson, 2 Harris & Gill, 68; Adams v. Adams, 8 N. Hamp. 82; Camochan v. Christie, 11 Wheat. 446; Lyle v. Rodgers, 5 Wheat. 394.
    3. The award being put of the way, the bill presents a familiar case for discovery and relief, being by one partner against another for an account and settlement of partnership transactions ; an averment, of itself, vesting the court with jurisdiction, and entitling the complainant to relief. 1 Story’s Eq. sect. 450, 672, 683; Scott v. Pinkerton, 3 Edw. Ch. Rep. 70.

      Mr. Butterfield, for the appellee, ma*de the following points: —
    1. The first point made by the respondent upon this appeal is, that there is nothing in the case to show that the matter in controversy, or the difference between what the appellant is entitled to under the award and what he would be entited to if the award should be set aside and a new account should be taken, is sufficient in amount to sustain the jurisdiction of the court.
    2. The complainant, by applying to the court below, and obtaining leave to amend his bill after the allowance of the" demurrer, waived the right to appeal from the decision of the court, allowing the demurrer; and no appeal lies to this court from a decision of the court below, refusing to amend. The dismissal of the suit was a necessary consequence of the neglect of the complainant to amend within the sixty days allowed to him by the court, and no appeal lies from that decision. Wright et al. v. Lessee of Hollingsworth, 1 Pet. 165; Matheson’s Administrator v. Grant’s Administrator, 2 How. 263; Read v. Hod-gens, 2 Mol. Rep. 381.
    3. The award „ of the arbitrator was not an excess of powér in any respect, and was not inconsistent with the spirit of the assignment of the debts of the firm to William B. Ogden, as trustee.
    4. The courts, in support of the validity of an award, will make every reasonable presumption in favor of its being .certain and final, as a determination of all the matters in dispute ; especially when, as in this case, the award states that the arbitrator has examined and considered all the matters in difference between the parties, and that the award is intended to be a final settlement of all such matters as were submitted to the arbitrator. Wood v. Griffith, i Swanst. Rep. 43; Doe ex dem. Madkins v. Horner, 8 Adol. & Ellis, 235; Smith v. Demarest, 3 Halst. Rep. 195; -9 Adol. & Ellis, 522; 3 Greénl. Rep. 421; 6 NewHamp. Rep. 264; 1 Leigh, 491; 9 Wend. 649; 2 Johns. Ch. Rep. 551; 2 Bay, Rep. 370 ; 2 New Hamp. Rep. 179 ; 1 Dali. 174,188.
    5. An award' cannot be set aside, either at law or in equity, except for errors apparent on its face, misconduct in the arbitration, or for some palpable mistake, or on account of the fraud of one of the parties. And nothing dehors the award can be pleaded or given in evidence, to show that it is unreasonable or unjust. Hunch v. Blair, 1 Johns. Ch. Rep. 101; Shepherd v. Merrill, 2 Id. 276 ; Todd v. Barlow, Id. 551; Heard v. Muir, 3 Rand. Rep. 121, 128; Shermer v. Beale, 1 Wash. Rep. 11; -Ple$ants v. Ross, 1 Id. 157; Administrator of Scherick v. Cuttréll, 1 Green’s Ch. Rep. 297; Strodes v. Patton, 1 Brock. Rep. 228.
    The bill in this case, which seeks to raise a question as to the decision of the arbitrator, that the complainant should, out of his share of the profits of the partnership, pay the defendant an amount equal to the one half of the defendant’s share thereof, transferred to Ogden and Jones, by reason of the neglect of the complainant to- supply his portion of the capital of the firm, pursuant to his agreement, cannot be sustained; for the award estops the complainant from alleging any thing contrary to it. Garr v. Gomez, 9 Wend.. 649.
    6. If a part of the award is invalid, as being contrary to the provisions of the assignment, that does not render the whole award void, but only so much thereof as is inconsistent with the provisions of the assignment, will be rejected, leaving the residue of the award in full force. Taylor’s Administrator v. Nicolson, 1 Hen. & Munf. 67 ; McBride v. Hagan, 1 Wend. Rep. 326; Bacon v. Wilber, 1 Cow. 117; Martin v. Williams, 13 Johns. 264; Cox v. Jagger, 2 Cow. 649; Gordon v. Tucker, 6 Greenl. 247; Lyle v. Rodgers, 5 Wheat. 394.
   Mr. Justice CURTIS

delivered the opinion of the court.

This is a bill for an account of certain partnership transactions betwen McCormick and Gray, and to set aside an award by which that account has been stated. The bill was demurred to, apd, by a decree of the Circuit' Court of the United States for the District of Illinois, it was dismissed, and the complainant appealed.

The demurrer raises the question, whether the award is valid? The objection to the award is, that it is not pursuant to the submission. To decide this question, it is necessary to examine the terms of the submission and the award. The submission is contained in arbitration-bonds, mutually executed by the parties, bearing date on the 20th day of December, 1848, submitting, generally, all their partnership and other differences with this limitation: “ Provided, that the award so to be made by said arbitrator shall not in any way alter or affect the demands of property and assets in the hands of William B. Ogden, as the trusted of said parties, or the agreements between, said parties, relatívé to the collection and disposition of said demands, assets, and property; but the same shall remain under the provisions of said contract.”

This clause in the submission refers to an assignment of the principal part of the choses in action of the partnership, in trust to collect thém, made by the partners before the execution of the submission-bonds, 'which assignment recites the fact of the submission, and contains agreements as. to marshalling this part of the partnership assets. Amongst other trusts declared in this assignment are the following: —

“1st. Said Ogden shah proceed to collect said, assets as speedily as may be, and, after first paying all expenses, costs, and commissions attending the collection and disbursement of the same, he shall pay over to said McCormick the sum of $14,610, on account of patent fees due him for the manufacture of said Virginia Reapers, as aforesaid. •

.“ 2d. To pay all legal liabilities and debts of said McCormick .and Gray as they shall become due.

“ 3d. The balance of said assets, as fast as collected, shall be paid in pro rata sums, as follows, — to said McCormick, one half of all moneys collected; to Ogden and Jones, one fourth part of said moneys, being the. amount heretofore sold and assigned by said Gray to them; and the remaining one fourth part, to said Charles M. Gray. Provided, however, and it is hereby expressly understood and agreed between the said McCormick and Gray, that- the respective • sums herein ■ provided by this clause, to be paid to said McCormick and Gray, respectively, shall be retained by the said Ogden, to await the award-of Judge Dickey, in the submission ‘above referred to, and shall in no case be paid over by him to either of said parties until said award shall be made; and when said award shall be made, in case it shall be made against either-party, the amount of such award shall betaken out of the moneys going to the party against whom said award shall be made, and paid over to the amount thereof, to the party in whose favor said award shall be made; and when said award shall have been paid, the balance of said moneys going to said McCormick and Gray, if any there shall be, shall be paid over to them, respectively, in. the proportion hereinbefore provided for. Provided,'“further, that, if said Gray shall not pay to said McCormick, within, thirty days from the date hereof, the sum of $2,500, on account of the indebtedness of Gray and Warner to said McCormick, then the said Ogden shall retain and pay 'over to said McCormick, out of the rest of 'the moneys to be paid to said Gray, as aforesaid, after first paying any award which said judge may make in the submission above mentioned, against said Gray, the aforesaid sum of $2,500, on account of the-said indebtedness of said Gray and Warner, aforesaid, together with ten per cent, damage thereon, as; a penalty for any delinquency on the part of said Gray, to pay said, sum of $2,500 within the time- above limited, every thing hereinbefore contained to the contrary notwithstanding; and the said Gray' agrees to furnish the said McCormick, within the thirty days aforesaid, a full,’ true, and correct account or statement of the -indebtedness of said Gray and Warner to said McCormick; and any excess over and above the said sum of $2,500, which said account or statement shall show to be due tto said McCormick, shall also be paid to him by said Gray, within the thirty days above limited, or, in default thereof, the said Ogden shall pay the' same out of the same funds, in the same manner and with the like penalty that the said sum of $2,500 is hereinbefore provided to be paid.”

These stipulations, by which this part of the partnership assets is disposed of, are, in legal effect, incorporated, into the submission, and limit the authority of the arbitrator. He could do nothing to alter or affect them. But, instead of observing this limitation, his award treats the entire property of the partnership, and the respective rights of the partners, as if no such, agreements had been made.

He postpones the payment of the fourteen thousand six hum dred and ten dollars to McCormick, for his patent fees to the payment of the debts of the firm, though the agreement of the parties was, that it should be first paid out of the choses in action assigned. It is argued, that this was justified by the prior right of creditors. But, as between the partners, they had a perfect right to control the possession of the partnership funds, and. determine that the whole, or any part,-should go into the possession of either partner. Both are ultimately liable for the debts, and whether one or other member of the firm shall have possession of the funds, either under a claim as a creditor of the firm, or otherwise, while they act in good faith, is a matter wholly subject to their control. Indeed it is only through them,' and by means of their equity to have the partnership property applied to the payment of the partnership debts, that creditors have any lien on, or specific rights to, the property of the firm, as distinguished from the property of its members. Ex parte Ruffin, 6 Ves. 119; Ex parte Fell, 10 Ves. 347; Ex parte Williams, 11 Ves. 5.

This partnership was solvent, and the object of the submission was to adjust the relative rights of the partners. The payment of the debts, and a provision for them out of the partnership funds, was probably necessary, in order to make a final settlement, without recourse over, in .consequence of payments .compulsorily made by one partner, which might disturb the - balance between himself and his' copartner. But it certainly was not within the authority of the referee to-' make this pro* vision out of a fund which the partners had otherwise dis-of by an agreement, which they made part of the submission, and which constituted a limitation on his authority.

It is said-that, by the terms of the agreement between the parties contained in the assignment, these debts were to be paid as they should become due, and that to support the award the court will intend, they were all payable at the time it was made. But if this were intended, the agreement, would nevertheless remain, by force of which McCormick’s patent fees were to be first paid, out of the proceeds of that particular part of the property assigned.-

The partners agreed in the assignment, that, after paying McCormick the sum of $14,610, and discharging the legal liabilities of the firm, the balance of the assets assigned, as fast as collected, should be paid, one half to McCormick, one fourth’to Gray, and the remaining fourth to certain assignees of Gray, but that each partner should have a lien on the share of the other, for any.balance found due to him by the arbitrator: and that McCormick should' have a lien on Gray’s share, in the hands of the assignee, for a specific claim of' twenty-five hundred dollars, together with any. further amount which plight prove to be due to him according to an account therein agreed to be rendered.

Upon the face of the award we are unable, by any fair intendment, to reconcile it with these stipulations. The radical error of the arbitrator seems to have been, that he disregarded these arrangements of the parties, by which they had finally bound, so much of their assets as .were in the hands of the assignee. It was his duty to assume that their contract, in respect to this part of the partnership property, was to be specifically executed, and then 'proceed to consider the equities of the parties in consequence of such an appropriation of those funds, as well as in consequence of the other facts. But each partner had a right to the specific performance of the trusts declared in the assignment, and the submission gave no power to the arbitrator to make an award inconsistent with fheir execution. But this award is so. In one aspect of this bill, it is a bill for the execution of those trusts, and no reason appears why they should not be executed, except the award. If the award .is- valid, the court below rightly decided that the bill must be dismissed, for it not only bars the general account of the partnership transactions, but destroys the particular trusts created by the assignment in favor of each partner, in respect to the proceeds of the choses in action assigned. Yet it was expressly agreed- that the arbitrator should do nothing which could have that effect, and so far as the award is relied on as a defence to the bill against Gray and Ogden, the trustee, to have these trusts performed, it is in direct conflict with the express words of the submission.

It is suggested that the award may be held valid in part, and so far as it does pursue the submission. There are cases in which, after rejecting part of an award, the residue is sufficiently final, certain, and in conformity with the submission, to stand; but it is' indispensable that the part thus allowed to stand should appear to be in no way affected by the departure from the submission. In the present case this does not appear. • On the contrary, the basis of this whole award is erroneous, resting on the assumption that the disposal of the entire assets of the partnership was the subject of the award, and it is certain the arbitrator could properly have made no part of this award, as it stands, if he had assumed that the trusts declared in the assignment were to be executed.

It is objected that the amount in controversy is not sufficient to justify an appeal to this court; but this is a suit for an account involving verj large sums of money, the complainant claiming sums greatly exceeding two thousand dollars, by force of the assignment and otherwise, and the defendant Gray insisting on the award, as a oar to the whole claim. It is no answer to say that, if this suit should be defeated, the complainant may have some other title, which will, not be worth two thousand dollars less than the value of whaf he now claims. The question is, whether the matter in dispute in this suit is of the value of two thousand dollars. Besides, this matter is a claim for an account far exceeding that amount, and it does'not appear that the defendant concedes to the complainant his whole claim, except some sum less than two thousand dollars. There remains, therefore, a dispute concerning this- large claim, not narrowed by any concession of the defendant,- so as to be reduced below the sum which is required by law for an appeal. It is urged, also, that the appeal is not well taken, because the complainant obtained leave to amend, after the decree dismissing the bill was entered. But it appears from the record that this decree to dismiss the bill was regularly stricken out before the leave to amend was granted, and afterwards, when the complainant elected not to.amend, the bill was ordered to be dismissed by reason of the demurrer. P’rom this last-mentioned decree the appeal was taken, and it was regularly and properly allowed.

The decree of the Circuit Court must be reversed, and the case remanded with directions to that court to overrule the demurrer, and order the defendants to answer the bill.

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 Illinois, 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 with costs, and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to overrule the demurrer, and order the defendants to answer the bill.


source: Caselaw Access Project

author: Mr. Chief Justice TANEY

license: Public Domain

text:
    The United States, Appellants, v. Francis P. Ferreira, Administrator of Francis Pass, deceased.
    The treaty of 1819, between the United Státes and Spain, contains the following stipulation, viz.: —
    “The United States shall cause satisfaction to be made for the injuries, if any, which •by process of law shall be established to have been suffered by the Spanish officers and individual Spanish inhabitants by the late operations of the American army in Florida.”
    Congress, by two acts passed in 1823 and 1834, (3 Stat. at Large 768, and 6 Stat. at Large 569,) directed the judge of the Territorial Court of Florida to receive, examine, and adjudge all cases of claims for losses, and report his decisions,' if in favor of the claimants, together with the evidence upon which they were founded, to the Secre tajy of the Treasury, who, on being satisfied that the same was just and equitable, within the provisions of the treaty, should pay the amount thereof; and by an act of 1849, (9 Stat. at Large p. 788,). Congress directed the judge of the District Court of the United States for the Northern District of Florida, to receive and adjudicate certain claims in the manner directed by the preceding acts.
    From the award of the district judge, an appeal does not lie to this court.
    As the treaty itself designated no tribunal to assess the damages, it remained for Congress to do so by referring the claims to a commissioner according to the established practice of tbe government in s.uch cases. His decision was not the judgment of a court, but. a mere, award, with a power to review it, conferred upon the Secretary of the Treasury.
    (Mr. Justice WAYNE did not sit in this cause.)
    This was an appeal from the District Court of the United. States for the Northern District of Florida.
    The facts of the case are stated in the opinion of the court.
    . It was arguéd by Mr. Crittenden, who placed the case upon the ground which will be presently, stated, and by Mr. Johnson for the appellee. There were also briefs filed on the same side by Mr. Sherman, Mr. W. Cost Johnson, .and Mr. Ewing.

      Mr. Crittenden,

    after giving a' history of the cause and the laws, proceeded.

      The District Judge, being satisfied with, the causes assigned why this claim'was not presented under the act of 1834, adjudicated to the petitioner, upon his claim and proof, as the amount or value of his losses, $6,080, and for interest thereon at the rate of 5 per cent, from the tenth of May, 1813, to the 26th June, 1835, $6,726.83, making in all $12,806.83.
    From this decision the District Attorney prayed an appeal to the Supreme Court of the United States, “ to the. end, that he might, if the laws allowed it,-prosecute such appeal if instructed to do so.” I know nothing more of this proceeding than that, upon this .appeal, the case has been brought to this court; and being here, it would beguité agreeable tome if the court virould, by its high authority, settle and determine all the questions that arise out of this case, and which are presented before the Treasury Department in many others of a like character, and especially the question respecting the allowance of interest on the amount of the losses or injuries sustained by the claimants.
    These questions have from the first been subjects of controversy between the claimants and the Secretary of the Treasury, and are likely to continue so till some higher authority shall in-' terpose. It would be conducive to the public interest, and certainly desirable to the government, to obtain the judgment and directions of this enlightened court on this vexed subject.
    In the adjustment or adjudication of these Florida claims by the Florida judges, interest was allowed, except in a few. in-stances. The first of these adjudications were presented to the Secretary of the-Treasury for payment in the year 1825, and others have been constantly and successively presented from that time to the present. The number, of claims thus presented is. about two hundred, and the amount paid has exceeded one million of dollars. But from the first, and in every case where interest had been allowed by the Florida judge, the principal only was paid, and the interest disallowed and rejected by the Secretary of the Treasury. For the period of the last twenty-five years this has been the unvaried and uniform course of decision and action by every successive Secretary of.the Treasury, who has acted on the subject, sustained by.the.official opinions of several attorneys-general, and without the expressed dissent of any one of them officially declared.
    It is respectfully insisted on the part of the United States that such a uniform and long continued series and course of decision has made the disallowance of interest, in whatever form awarded, a res adjudicata.

    Congress had power to create & special tribunal, with jurisdiction to examine and adjust or adjudge these claims arising under the treaty with Spain. Their power in this respect was plenary and discretionary. By the acts above referred to they exercised that power, and created such a tribunal. It was a judicatory tribunal which they established, consisting of two parts or members, namely, one of the territorial judges of Florida to act and decide in the first instance; and secondly, the Secretary to exercise a revisory power or jurisdiction over the decisions of the Florida judge, paying the amount of them only “ on being satisfied that the same is just and equitable' within the provisions of the treaty.” To this tribunal, thus constituted, Congress gave authority to decide on these claims; the decision, of the Secretary of the Treasury being revisory and final. ' Ilis decision was in its nature judicial, and made of the matter decided, a res adjudicata, in every rational and legitimate sense of those terms. The- decision of a special or limited tribunal upon a subject within its jurisdiction is just as conclusive and binding as the judgments of courts of the. highest and most unlimited jurisdiction.
    . The present case is, in its origin, and in respect tc the question of interest, identical with the other Florida cases above alluded to.
    I take it for granted that the substitution of the judge of the District Court of the United States, &c., in place of the territorial judge, as the person to adjust or adjudge these claims, can in no respect make any material difference. The authority of the one and the other is exactly the same, and the effect of their acts the same, whether they bo called judges, or commissioners as in the above-cited act of Congress of 22d February, 1847. The act of Congress is the measure of their authority and. of the effect of their proceedings under that authority.

      Mr. Johnson

    was the'only counsel who argued the case orally, for the appellee; the other counsel filed briefs. It is proper to say, that a motion had been made by the counsel for the appellee to dismiss the case for want' of jurisdiction. This may serve to explain the preliminary remarks t>f Mr. Johnson, which were as follows:
    It is our earnest wish, in behalf of the appellee, that this court should take jurisdiction of the case, and hear and decide it upon the merits, that if the aeeision of the court below be vyrong, its errors may be corrected, and we may know the limits of our rights ; and if the decision be correct, that it may be so pronounced by the authoritative voice of this high tribunal;
    Nevertheless, in order to raise such questions as may be thus raised, we have found it necessary to move to dismiss the appeal. In the consideration of that motion, however, we do not feel bound to use such arguments only as will tend to show that an appeal does not lié in this case, but think we may with propriety present such views on the subject, and refer to such authorities, as in our judgment in any manner bear upon the question, and which will enable the court the more readily to apprehend and decide it.
    The question now strictly.before the court involves the nature of the claim, and the character of the tribunal whose decision is here for revision. We will, therefore, consider it in this order, and —
    1st. As to the nature of the claim; is it, and is the class to which it belongs, the proper subject of judicial investigation and decision ?
    (Then followed an explanation of the case, after which the inference was drawn.)
    There can be, therefore, no objection to the ordinary jurisdiction of the courts of the United States arising from the nature of these claims. They are proper subjects for the investigation of courts of justice, involving as they do questions touching the rights of property and injuries thereto. They fall properly within the jurisdiction of courts of the United States, as the judicial inquiry, and the rights to which it refers, arise out of treaty stipulations, and acts of Congress to carry the treaty into effect.
    They are, therefore, wholly unlike the duties attempted to be imposed by the act of March 3, 1.792, on the Circuit and District Courts, relative to pensions, and which they refused to perform because they were not judicial, holding the act for that, among other things, .unconstitutional and void. Vide 2 Dali. Rep. 410, note.
    Whatever analogy, therefore, may be found in other respects, or if not found, made by construction, between the act of 1792 and thatcof 1823, they differ wholly in this, that the duty imposed by that act. was not judicial in its nature; in this, it is strictly so; and the instructions of the legislature to the judicial tribunals on whom the duty is imposed “to receive,-examine, arid adjudge,” is an explicit instruction to perform that duty judically.
    II. We have next to consider the character of the tribunal whose decision is before this court for revision; and on this point several inquiries suggest themselves : ,'
    1st. Was it a mere commission, not judicial in its character, whose decision might he taken up to, and revised by, the Secretary of the Treasury in his capacity as án executive officer ?
    2d. Or was it a judicial tribunal, part of a judicial system, created by the acts of 1823 and 1834, under the treaty, which acted and decided judicially, but from which an appeal lay, not to this court, but to the Secretary of the Treasury, as the highest appellate tribunal in. thát special system créated under the treaty by those statutes ?••••'
    3d. Or was it a judicial tribunal whose decision was final in all cases coming within the special jurisdiction conferred upon it under the treaty ? ..
    4th. Or was it an ordinary judicial tribunal, from which, in these as in other cases, an appeal lies to this court?
    (Upon each of these questions the argument was very elaborate.)
    III. Then arises the question, is the decision final, or do^s an appeal lie from it to this court ?
    There is nothing in the nature of the -case itself, or the mode of proceeding directed by the acts, of 1823 and 1834, which tends to settle this question. If the United States had pot assumed the satisfaction of these injuries, suits would have been brought against the trespassers in the usual form, and a writ of error would have lain to revise the judgments. But the United States assumes the liability, agrees by treaty to open her courts, and allow the injuries to be established by her legal process, and binds herself to make satisfaction for the injuries, if any, which shall be so established. But .the United States is not formally made defendant on the record ^ this,was not directed by the acts of Congress, but the claims were presented to the tribunals which she designated “ to receive, exámine, and adjudge ” them. They were claims against the United States, and it is not a matter of substance whether she was named on the record as defendant or not; they were, nevertheless, “ cases,” within the legal meaning of the term; whether belonging to that numerous class, of cases called in the books ex parte,, or the still more numerous class of cases inter partes, is immaterial. But what militates against the right of appeal is the provision, that the judges shall report their decision to the Secretary of the Treasury, who shall “ pay the amount thereof.”
    But, on the other hand, we perceive nothing in these statutes to cut off an appeal, if the decision be against the claimant. The case before the court was prosecuted in, and decided by, the District Court of Florida, and there seems to ‘be no other reason,' than- that named, why the general law authorizing appeals from those courts should not extend to and embrace this case. If, however, an appeal do not lie, it must be, as we think, because the decision of the judge of the District Court of Florida was final, not because the Secretary of the Treasury is the appellate tribunal.
   Mr. Chief Justice TANEY

delivered the opinion of the-court.

This purports to be an appeal from the District Court of the United States for the Northern District of, Florida. The case brought before the court is this :

The treaty of 1819 by which Spain ceded Florida to the United States, contains the following stipulation in the 9th article.

“ The United States shall cause satisfaction to be made for the injuries if any, which by process of law shall be established to have been suffered by the Spanish officers and individual Spanish inhabitants by the late operations of the American army in Florida.”

In 1823 Congress passed an act to carry, into execution this article of the treaty. The 1st section of this law authorizes the judges of the superior courts established at St. Augustine and Pensacola respectively, to receive and adjust all claims arising within their respective jurisdictions, agreeably to the provisions of the article of the treaty above mentioned ; and -the 2d section provides that in ail cases where the judges shall decide in favor of the claimants the. decisions, with the evidence on which they are founded, shall be by the said judges reported to the Secretary of the Treasury, who on being satisfied that the same is just and equitable, .within the ’ provisions of the treaty, shall pay the amount thereof to the person or persons in whose favor the same is adjudged.”

Under this law the Secretary of the Treasury held that it did not apply to injuries suffered from the causes mentioned in the treaty of 1812 and 1813, but to those of a subsequent period. And in conseqenee of this decision, another law was passed in 1834, extending the provisions of the former act to injuries suffered in 1812 and 1813, but limiting the time for presenting the claims to one year from the passage of the act. This la w embraced the claim of the present claimant.

He did not, however, present his claim within the time limited. And in 1849 a special law was passed authorizing the District Judge of the United States for the Northern District of Florida, to receive and adjudicate this claim and that of certain other persons mentioned in the law, under the act of 1834; the several claims to be settled by the Treasury as in other cases under the said act. Florida had become a State of the Union in 1849, and therefore the District Judge was substituted in the place of the territorial officer.

Ferreira presented his claim according to the District Judge, who took.the testimony offered to support it, and decided that the amount stated in the proceedings was due to him. The District Attorney of the United States, prayed an appeal to this court, from this decision; and under that prayer the case has been docketed here ,as an appeal from the District Court.

The only question now before us is whether we have any jurisdiction in the cáse. And in order to determine that question we must examine the nature of the proceeding, before the District Judge, and the character of the decision from which this appeal has been taken.

The treaty certainly created no tribunal by which these damages were to be adjusted, and gives no authority to any court of justice to inquire into or adjust the amount which the United States were to pay to the respective' parties who had suffered damage from the causes mentioned in'the treaty. It rested with Congress to provide one, according to the treaty stipulation. But when that tribunal was appointed it derived its whole authority from the law creating it, and not from the treaty ; and Congress had the right to regulate its proceedings and limit its power; and to subject its decisions to the co'ntrol of an appelate tribunal, if it deemed it advisable to do so.

Undoubtedly Congress was bound to provide such a tribunal as the treaty described. But if they failed to fulfil that promise, it is a question, between the United States and Spain. The tribunal created to adjust the claims cannot change the mode of proceeding or the character in which the law authorizes it' to act, under any opinion it may entertain, that a different mode of proceeding, or a tribunal of a different character, would better comport with the provisions of the treaty. If it acts at all, it acts under the authority of the law ánd must obey the law.

The territorial judges therefore, in adjusting these claims, derived their authority altogether from the laws above mentioned; and their decisions can be entitled to no higher respect or authority than these laws gave them. They are referred by the act of 1823, to the treaty for the description of the injury which the law requires them to adjust; but not to enlarge the power which the law confers, nor to change the character in which the law authorizes them to act.

The law of 1823, therefore, and not the stipulations of the treaty, furnishes the rule for the proceeding of the territorial judges, and determines their character. And it is manifest that this power to decide upon the validity of these claims, is not conferred on them as a judicial function, to be exercised in the ordinary forms of a court of justice. For there is to be rio suit; no parties in the legal acceptance of the terra, are to be made — no process to issue; and no one is authorized to appear on behalf of the United States, or to summon witnesses in the case. The proceeding is altogether ex parte; and all that the judge is required to do, is to receive the claim when the party presents it, and to adjust it upon srjch- evidence as he may have before him, or be able himself to obtain. . But neither the evidence, nor his award, are to be filed in the court in which he presides, nor recorded there; but he is required to transmit, both the decision and the evidence upon which he decided, to the Secretary of the Treasury; and the claim is to be paid if the Secretary thinks it just and equitable, but not otherwise. It is to be a debt from the United States upon the decision of the Secretary, but not upon that of the judge.

It is too evident for argument on the subject, that such a tribunal is not a judicial one, and that the act of Congress did not intend to make it one. The authority conferred on the respective judges was nothing more than that of a commissioner to adjust certain claims against the United States ; and the office of judges, and their respective jurisdictions, are referred to in the law, merely as a designation of the persons to whom the authority is confided, and the territorial limits to which it extends. The decision is not the judgment of a court of justice. It is the award of a commissioner. The act of 183=1 calls it an award. And an appeal to this court from such a decision, by such an authority from the judgment of a court of record, would be an anomaly in the history of jurisprudence. An appeal might as well have been taken from the awards of the board of commissioners, under the Mexican treaty, which were recently sitting in this city.

Nor can we see any ground for objection to the power of revision and control given to the Secretary of the Treasury. When the United States consent to submit the adjustment of claims against them to any tribunal, they have a right to prescribe the conditions on which they will pay. And they had a right therefore to make the approval of the award by the Secretary of the Treasury, one of the conditions upon which they would agree to be liable. No claim,' therefore, is due from the United States until it is sanctioned by him; and his decision, against the claimant for the whole or a part of a claim as allowed by the judge is final and conclusive. It cannot afterwards be disturbed by an appeal to this or any other court, or in any other way, without the authority of an act of Congress.

It is said, however, on the part of the claimant, that the treaty requires that the injured parties should have an opportunity of. establishing their claims by a process of law; that process of law means a judicial proceeding in a court of justice; and that the right of supervision given to the Secretary, over the decision of the District Judge, is therefore a violation of the treaty.

The court think differently; and that the government of this country is not liable to the reproach of having broken its faith with Spain. The tribunals established are substantially the same with those usually created, where one nation agrees by' treaty to pay debts or damages which may be found to be due to the citizens of another country. This treaty meant nothing moré than the tribunal and mode of proceeding ordinarily established on such occasions; and well known and well understood when treaty obligations of this description are undertaken.' But if it were admitted to be ■ otherwise, it is a question between Spain and that department of the government which is emirged with our foreign relations ; and with which the judicial branch has no concern. Certainly the tribunal which acts under the law of Congress, and derives all its authority from it, cannot call in question the validity of its provisions, nor claim absolute and' final power for its decisions, when the law by virtue of which the decisions are made, declares that they shall not be final, but subordinate to that of the Secretary of the Treasury, and subject to his reversal.

And if the judicial branch of the government had the right to look into the construction of the treaty in this respect, and was of opinion that it required a judicial proceedingand that the power given to thé Secretary was void, ás in violation of the treaty, it would hardly strengthen the case of the claimant on this appeal. For the proceedings before the judge are as little judicial in their character as that before the Secretary. And if his decisions are void on that account, the decisions of the judge are open to the same objections; and neither the principal nor interest, nor any part of this claim could be paid at the Treasury. For if the tribunal is unauthorized, the awards are of no value.

The powers. conferred by these acts of Congress upon the judge as well as the Secretary, are, it is true, judicial in their nature. For' judgment and discretion must be exercised by both of them. But it is nothing more than the power ordinarily given by law to a commissioner appointed to adjust claims to lands or money under a treaty $ or special powers to inquire into or decide any other particular class of controversies in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a Secretary as well as on a commissioner. But is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States.

The proceeding we are now considering, did .not. take place before one of the territorial judges, but before a District Judge of the United States. But that circumstance can make no difference. For the act of 1849, authorizes him to receive and adjudicate the claims of the persons mentioned in the law, under the act of 1834; and provides that these claims may be settled by the Treasury, as other cases under the said act; It conferred on the District Judge, therefore, the same power, and the same character, and- imposed on him the same duty that had been conferred and imposed on the territorial judges before Florida became a State.

It would seem, indeed, in this case, that the District Judge acted under the erroneous opinion that he was exercising judicial power strictly speaking under the Constitution, and has given to these proceedings as much of the form of proceedings in a court of justice as was practicable. A petition in form is filed by the claimant ;■ and the judge states in his opinion that the District Attorney appeared for the United States, and argue'd the case, and prayed an appeal. But the acts of Congress require no petition. The claimant had nothing to do, but to present his claim to the judge with the vouchers and evidence to support it. The District Attorney had no right to enter an appearance for the United States, so as to make them a party to the proceedings, and to authorize a judgment against them. It was no' doubt his duty as a public- officer, if he knew of any evidence against the claim, or of any objection to the evidence produced by the claimant, to bring' it before the, judge, in order that he might consider it, and report it to the Secretary. But the acts of Congress certainly do not authorize him to convert a proceeding before a commissioner into a judicial one, nor to bring an appeal from his award before this court.

The question as to the character in which a judge acts in a case of this description, is not a new one. It arose as long ago as 1792, in Hay bum’s case, reported in 2. Dali. 409.

'The act of 23d of March, in that year, required the Circuit Courts of the United States to examine into the claims of the officers and soldiers and. seamen of the Revolution, to the, pensions granted to invalids by that act, and to determine the amount of pay that would be equivalent to the disability incurred, and to certify their opinion to the Secretary of War. And it authorized the Secretary, when he had- cause to suspect imposition or mistake, to withhold the pension allowed by the court, and to report the ease to Gongress at its next session. • The authority was given to the Circuit Courts; and. a question arose whether the power conferred was a judicial one, which the Circuit Courts, as such, could constitutionally exercise.

The question was not decided in the Supreme Court in the case above mentioned. But the opinions of the judges of the Circuit Courts for the Districts of New York, Pennsylvania, and North Carolina, are all given in a note to the case by the reporter.

The judges in the New York Circuit, composed of Chief Jus-' tice Jay, Justice Cushing, and Duane, District Judge, held that the power could not be exercised by- them ás a court. - But in consideration of the meritorious and benevolent object of the law, they agreed to construe the power as conferred on them individually as commissioners, and to adjourn the court over from time tp time, so as to enable them to perform the duty in the character off commissioners, and out of' court.

Thej'udges of the Pennsylvania Circuit, consisting of Wilson and Blair, Justices of the Supreme Court, and Peters, District Judge, refused to execute it altogether, upon the ground that it was conferred on them as a court, and was not a judicial power when subject to the revision of the Secretary of War and Congress.

The judges of the Circuit Court of Nortn Carolina, composed of Iredell, Justice of the Supreme Court, and Sitgreave3, District Judge, were of opinion that the court could not execute it as a judicial power; and held it under advisement whether they might not construe the act as an appointment of the judges personally as commissioners, and perform the duty in the character of commissioners out of court, as had been agreed on by the judges of the New York Circuit.

These opinions, it appears by the report in 2 Dali., were all communicated to the President, and- the motion for a mandamus in Hay.bum’s case, at the next term of-the Supreme Court, would seem to have been made merely for the purpose of having it. judicially determined in this court, whether the judges, under 'that law, were authorized to act in the character of commissioners. For every judge of the court, except Thomas Johnson, whose opinion is not given, had formally expressed his opinion, in writing, that the duty imposed, when the decision was subject to the revision of a Secretary and of Congress, could not be 'executed by the court as a judicial power: and the only question upon which there appears to have been any difference of opinion, was whether it might not be construed as conferring the power on the judges personally as commissioners. And if it would bear that construction, there seems to have been no doubt, at that time, but that they might constitutionally exercise it, and the Secretary constitutionally revise their decisions. The law, however, was repealed at the next session of the legislature, and a different way provided for the relief of the pensioners-: and the question as to -the construction of the law was not decided in the Supreme Court. ' But the reptil of the act clearly shows that the President and Congress acquiesced in the correctness of the decision, that it was not a judicial power.

This law, is the same in principle with the one we .are now considering, with this difference only, that the act of 1792 imposed the duty on the court eo nomine, and not personally on the judges. In the case before us it is imposed upon the judge, and it appears from the note to the case of Hayburn, that a majority of the judges of the Supreme Court were of opinion that if the law of 1792 had conferred the power on the judges, they would have held that it was given to them personally by that description; and would have performed the duty as commissioners, subject to the revision and control of the Secretary and Congress, as provided in the law. Nor have Justices Wilson, Blair, and Peters, District Judges, dissented from this opinion. Their communication to the President is silent upon this point. But the opinions of all the judges embrace distinctly and positively the provisions of the law now before us, and declare that, under such a law, the power was not judicial within the grant of the Constitution, and could not be exercised as such.

Independently o.f these objections, we are at some loss to understand how this case could legally be transmitted to this court, and certified as the transcript of a record in- the- District Court. According to the directions of the act of Congress, the decision; of the judge and the evidence on which it is founded, ought to have been transmitted to the Secretary of the Treasury. They are not to remain in the District Court, nor to be recorded there. ■ They legally belong to the office of the Secretary of the Treasury, and not to the court; and a copy from the clerk of the latter would not be evidence in any court of justice. There is no record of the proceedings in the District Court of which a transcript can legally be made and certified' mcl consequently there is no transcript now before us that we an recognize as evidence of any proceeding or judgment in tnat court.

A question might arise whether commissioners appointed to adjust these claims, are not officers of the United States within the meaning of the Constitution. The duties to be performed are"* entirely alien to the legitimate functions of a judge-or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due’ administration of the laws. And, if they are to be regarded' as officers,, holding offices under the government, the power of - appointment is in- the President, by and with .the advice and consent of the senate; and Congress could not by law, designate the persons to fill these offices. . And if this be the construction of the Constitution, then as the judge designated could not act in a judicial character as a court, nor as a commissioner, because he was not appointed by the President, every thing that has been done under the acts of 1823, and 1834, and 1849, would be void, and the payments heretofore made, might be recovered back .by the United States. But this question has not been made; nor does it arise .in the case. It could arise only in a- suit by the United States to recover back the money. And as the-case does not present it, and the parties interested are not before, the court, and these laws have for so many years been acted on as valid and constitutional we do not think it proper to express an opinion upon it.' In the case at bar, the power of the judge to decide in the first instance, is assumed on both • sides, and the controversy has turned upon the power of the. Secretary to revise it; and it is in this aspect- of the cáse, that it has been considered by the court, in the foregoing opinion.

The appeal must be dismissed for want of jurisdiction;

Order.

This cause came on to be heard on the transcript of the record-from the District Court-of the United States for the North-, ern District of Florida, and was argued by counsel. On con-, sideration whereof, it is now here ordered, adjudged, and decreed by this court, that this cause be, and the same is hereby dis-missed for. the want of jurisdiction.

NOTE BY THE CHIEF JUSTICE, INSERTED BY ORDER OF THE COURT.

Since the aforegoing opinion was delivered, the attention of. the court has been, drawn to the ease of the United States v. Yale Todd, which arose under the act of 1792, and was. decided in the Supreme Court, February 17, 1794. There was no offi* cial reporter at that time, and this case has not been printed. ' It shows the opinion of the court upon a question which was left in doubt by the opinions of the difieren* judges, stated in the note to Hayburn’s case. And as the.subject is one of much interest, and concerns the nature and extent of judicial power, the substance of- the decision in Yale Todd’s case, is inserted here, in order that it may not be overlooked, if similar questions should hereafter arise. -

The 2d, 3d, and 4th sections of the act of 1792,'were repealed at the next session of Congress by the act of February 28, 1793.' It was these three sections that gave rise to the questions'stated in the note to 'Hayburn’s case. The repealing act provided another mode for taking testimony, and deciding upon the validity of claims to the pensiors granted by the former law; and by the 3d section it saved all rights to pensions which might be founded “upon any legal adjudication,” under the act of 1792, and made it the duty of the Secretary of War, in conjunction with the Attorney-General, to take such measures as might be necessary to obtain an adjudication of the Supreme Court, “ on the validity-of such rights, claimed under the act aforesaid, by the determination of certain persons styling themselves commissioners.”

It appears froth this case, that Chief Justice Jay and Justice Cushing acted upon their construction of the act of 1792, immediately after its passage and before it was repealed. A.nd tlie saving and proviso, in the act of 1793, was manifestly occasioned by the difference of opinion upon that question which existed among the justices, and was introduced for the purpose of having it determined, whether under the act conferring the power upon the Circuit Courts, the judges of those- courts when refusing for the reasons assigned by them to acts as courts, could legally act as commissioners out of court. If the decision of the judges, as commissioners, was a legal adjudication, then the party’s right to the pension allowed him was saved; otherwise not.

In pursuance of this act of Congress,' the case of Yale Todd was brought before the Supreme Court, in an amicable action, and upon a case stated at February Term, 1794.

The case was docketed by consent, the United States being plaintiff and Todd the defendant. The declaration was for one hundred and seventy-two dollars and ninety-one cents, for so much money had and received by the defendant to' the use of the United States ; to which the dcfendai t pleaded non assumpsit.

The case as stated, admitted that on the 3d of May, 1792, the defendant appeared before the Hon. John Jay, William Cushing, and Bichard Law, then being judges of the Circuit Court held at New Haven, for the District of Connecticut, then and there sitting, and claiming to be commissioners under the act of 1792, and exhibited the vouchers and testimony to show his right under that law to be placed on the pension list; and that the judges above named, being judges of the Circuit Court, and then and there sitting at New Haven, in and for'the Connecticut District, proceeded, as commissioners designated in the said act of Congress, to take the testimony offered by Todd, which is set out at large in the statement, together with their opinion that Todd ought to be placed on the pension list, and paid at the rate of two thirds of his former monthly wages, which they understood to have been eight dollars and one third per month, and the sum of one hundred and fifty dollars for arrears.

The case farther admits, that the certificate of their proceedings and opinions, and! the testimony they had taken, were afterwards, on the 5th of May, 1792, transmitted to the Secretary of War-, and that by means thereof Todd was placed on the pension list, and had received from the United States one hundred and fifty dollars for arrears, and twenty-two dollars and ninety-one cents claimed for his pension aforesaid, said tobe due on the 2d of September, 1792.

And the parties agreed'that if upon this statement the said judges of the Circuit Court sitting as commissioners, and not as a Circuit Court, had power and authority by virtue of said act so to order and adjudge - of and concerning the premises, that then judgment should be given for the defendant, otherwise for the United States, for one hundred and seventy-two dollars and ninety-one cents, and six cents cost.

The case was argued by Bradford; Attorney-General for the United States, and Hiilhouse for the defendant; and the judgment of the court was rendered in favor of the United States for the sum above mentioned. -

Chief Justice Jay and Justice Cushing, Wilson, Blair, and Paterson, were present at the decision. No opinion was filed stating the grounds of the decision. Nor is any dissent from the judgment entered, on the-record. It would seem, therefore, to have been unanimous, and that Chief Justice Jay and Justice Cushing became satisfied, on further reflection, that the power given in the act of 1792 to the Circuit Court as a court, could not be construed to give it to the judges out of court as cqmmissioners. It must be admitted that the justice of the claims and the meritorious character of the claimants would appear to have exercised some influence on their judgments in the first instance, and to have led them to give a construction to the law which its language would hardly justify upon the most liberal rules of interpretation.

The result of the opinions expressed by the judges of the Supreme Court of that day in the note to Hayburn’s case, and in the case of the United States v. Todd, is this:

1. That the power proposed to be conferred on the Circuit Courts of the United States by the act of 1792 was not judicial power within the meaning of the Constitution, and was, therefore, unconstitutional, and could not lawfully be exercised by the courts.

2. That as the act of Congress intended to confer the power on the courts as a judicial function, it could not be construed as an authority to the judges composing the court to exercise the power out of court in the character of commissioners.

3. That money paid under a certificate from persons not authorized by law to give it, might be recovered back by the United States.

The case of Todd was docketed by consent in the Supreme Court; and the court appears to have been of opinion that the act of Congress 'of 1793, directing the Secretary of War and Attorney-General to take their opinion upon the question, gave them original jurisdiction. In the early days of the Government, the right of Congress to give original jurisdiction to the Supreme Court, in cases not enumerated in the Constitution, was maintained by many jurists,- and seems to have been entertained by the learned judges who decided Todd’s case. But discussion and more mature examination has settled the question otherwise ; and it has long been the established doctriné, and we believe now assented to by all who have examined the subject, that the original jurisdiction of this court is confined to the cases specified in the Constitution, and that Congress cannot enlarge it. In all other cases its power must be appellate.


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    Robert R. Barrow, Plaintiff in error, v. Nathaniel B. Hill.
    Where the only exceptions taken in the court below were to the refusals of the coiirt to continue the case to the next term; and it appears that the continuance asked for below and the suing out the writ of error were only for the purpose of delaying the payment of a just debt, and nop counsel appeared in this court on that side, the 17th rule will be applied and the judgment of the court below be affirmed with ten per cent, interest.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.
    Hill was a citizen of South- Carolina, and sold two slaves to Barrow, a citizen' of Louisiana. Barrow gave his note for $2,000, dated 12th of February, 1848, payable twelve months after date. "When due, it was protested. Hill then filed his petition in the Circuit Court of the United States. Barrow’s answer admitted the execution of the note, but alleged that the negroes were unsound. In April, 1850, the cause came on for trial. . The counsel for the defendant moved the court for a continuance “on the ground that William C. Fisher; a material witness for the defendant is absent or does not appear on the trial of this cause; that the said Fisher is in the city at this time ; that defendant desired the clerk of this court to summon said Fisher, but that the marshal has not been able to find him and serve him with a subpoena. Nevertheless, it appeared thdt on the next day, Fisherwas present in court and examined. The cor "usion of the first bill of exceptions was as follows, viz.-:
    The defendant further declares that he has not induced or consented to said Fisher’s absence ; to all of which the defendant offered to swear, but the court overruled the motions on the ground that it appeared, by the declaration of the counsel for defendant, that the witness Fisher was the day before, seen by him in the city of New Orleans, and therefore the court declared that the testimony of the .said witness would be received before the conclusion of the trial. Accordingly, the next morning, the witness appeared in court, and was regularly examined by the counsel of both defendant and plaintiff, and his testimony was commented on. by counsel before the cause was finally submitted ; whereupon the counsel'for the defendant excepts to the ruling of the court, and tenders this his bill of exceptions, praying that the same may be signed and made a part of this record. Theo. H. .MeCaleb,

      United States Judge.

      The second bill of exceptions was as follows:
    Be it remembered,.that at the trial of this cause before the court, at the term aforesaid, the counsel for the defendant moved the court for a continuance, on the grounds that a commission was issued by this court on the1 11th March, 1850, to take the testimony of William S. Green, a resident of the State of Kentucky, but supposed to be at that time on a plantation owned by said Green in the parish of Terrebonne, Louisiana. That the testimony of said Green is important, material, and necessary to the defence. That due diligence has been used to have this testimony of said Green taken, but that the said commission has not yet been returned to this court; to all of which the defendant offered to swear, but the court overruled the motion, on the ground that the commission had issued some time after issue joined, and subject to the right of the adverse party to have the case tried when regularly docketed; and also upon thé ground that a sufficient time had been allowed for the return of said commission. Whereupon the counsel for defendant excepts to the ruling of the court and tenders this his bill of exceptions, praying that the same may be signed and made a part of the record. Theo. H. Me Caleb,

      United States Judge.

    After hearing Fisher and another witness for the defendant, and a witness for the plaintiff, the court gave judgment for the plaintiff; whereupon the cause was brought up to this court upon the two exceptions above mentioned.
    It was argued by Mr. Venable, for' the defendant in error, no counsel appearing for the plaintiff in error.

      Mr. Venable said,
    the only error assigned is, that the judge below overruled a motion for a continuance for reasons set forth in the bill of exceptions; an application for a continuance being addressed to the. discretion of the court, it is submitted that, in this case, that discretion was soundly exercised; and the defendant prays that the judgment be affirmed. And, as it appears that this writ of error was sued out for delay, he further asks that damages may be awarded him, according to the seventeenth rule of this court.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case is brought up by a writ of error, directed to the Circuit Court of the United States for the Eastern District of Louisiana.

No counsel has appeared in this court for the plaintiff in error. The case ha's been calléd in its regular order for argument, and thereupon the counsel for the defendant has, under the 19th rule of the court, opened the record and argued the case, and prays an affirmance- of the judgment, with ten per cent, damages, on the ground that the writ of error was issued merely for delay.

Upon looking into the record, it appears that two exceptions were taken in the court below by the plaintiff in error; and both of them were taken- to the refusal of the court to continue the case to the next term.

It has been repeatedly decided in this court, that -a motion for the continuance of the cause addresses itself to the sound judicial discretion of the court, and its decision, for or against the motion,.cannot be assigned as error in this court. The rule is so familiar in practice, that it is unnecessary to refer to cases to prove it. The decision of the Circuit Court, therefore, upon the motions above mentioned, is no ground for reversing the judgment, and does not afford any reasonable foundation for-suing out this writ of error.

And, upon examining, the statement in the exceptions, and the reasons assigned by the court for its refusal, the inference would seem to be irresistible, that the continuance was not asked for by the plaintiff in error, under the expectation that it would enable him to obtain testimony material to his defence, biit to delay the payment of'a just debt, and that the writ of error was sujed out for the' same purpose. The case, therefore, falls within the 17th rule of the court, and the judgment is accordingly affirmed, with ten per cent, interest on the amount, from the rendition of the judgment in the Circuit Court until paid.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United State?-for the Eastern District of Louisiana, and was argued by counsel for the defendant in error. 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 with interest, at' the rate, of ten- per centum per annum on the amount, from the rendition of the judgment in the Circuit Court until paid.