text:
    John Glenn and Charles M. Thruston, Appellants, v. The United States.
    In 1796, when Delassus was commandant of the port of New Madrid, he exercised the powers of sub-delegate, and had authority, under the instructions of the Governor-General of Louisiana, to make conditional grants of land.
    He made a grant to. Clamorgan, who stipulated, upon his part, that he would introduce a colony from - Canada, for the purpose of cultivating hemp and making cordage.
    This obligation he entirely failed to perform.
    By the laws'and ordinances of the Spanish colonial government, (which this court is bound, under the act of 1844, to adopt, as one of their rules of decision,) this condition had to be performed before Clamorgan could become possessed of a perfect title.
    The difference between this case and that of Arredondo explained.
    If the-Spanish Governor would have refused to complete the title, this court, acting under the laws of Congress, must also decline to confirm if.
    After the cession of the province of Louisiana to the United States, Clamorgan could not legally have taken any steps to fulfil his condition. He was forbidden by law. By the treaty of cession, no particular time was allowed for grantees to complete their imperfect grants.- It.Was left to the political department of the . government, and Congress accordingly acted upon the subject.
    The 3d day of March, 1804, was the time fixed by Gongress, and the grant must nbw bo judged of, as-it stood upon that day.
    This Was an appeal from, the District Court of the United States for the State of Arkansas.
    Glenn and Thruston, the appellants, filed a, petition in the District Court of Arkansas, "on the 24th of January, 1846, in virtue of the act of 1824, as revived by the act of 1844, claiming confirmation of a concession of a large tract of country which liesN partly in Arkansas and partly in Missouri, consisting-of nearly half a million of acres of land and known as the Clamorgan grant.

      The circumstances of this grant are fully set forth in the opinion.
    'The District Court decided against the claim and the petitioners appealed to this court.
    It was argued by Mr. Webster and Mr. Johnson, for the appellants^ and Mr. Crittenden, (Attorney-General,) for the United States. The points made by the counsel respectively were the following.
    For the appellants:
    1st. Because if the concession was upon conditions they were conditions subsequent to the vesting of the estate in the grantee, and could only be taken advantage of' by some proceeding for that purpose instituted by Spain, or.by France, or by the United States claiming under Spain, and no such proceedings have been. instituted. 3 Am. St. Papers, 270; 5 Id. 704.
    2d. Because if the concession was upon conditions which should have been complied with in order to vest the estate as against Spain, whilst the conditions were practicable and might have been performed by the grantee, the estate vested without such performance because the province was ceded by Spain before the time for performance had expired, and because of the change of government, manners, &c., consequent on that cession. The United States v. Arredondo et al., 6 Pet. 706; Soulard et al; v. The United States, 4 Pet. 511; Delassus v. The United States, 9 Pet. 117.; The United States v. Percheman, 7 Pet. 51; Strother v. Lucas, 12 Pet. 410; The United States v. Forbes, 15 Pet.173; The United States v. King, 3 How. 773 ; Chouteau v. Eckhart, 2 How. 344; The United States v. Lawton et al., 5 How. 10; Hughes et al. v. Edwards et al., 9 Wheat. 489; 2-Black. 157;~ 2 Thomas’s Coke, 18.
    3d. Because there was a sufficient survey of the grant; and
    4th. Because no such survey was necessary, the calls of the ■grant being sufficiently certain of themselves to separate l¿ie land granted froto the rest of the royal domain.
    5th. That the District Court had jurisdiction over the claim. Act of 26 May, 1824, c. 173, 4 Stat; at Large, 52'; act of 9 July, 1832, c. 180, 4 Stat. at Large, ,565; act of 17 June, 1844, c. 95, 5 Stat. at Large, 676.
    6th. That the decision of the District Court of Missouri was • no bar to this suit.

      Mr. Crittenden, for the United States.
    I. That the claim is barred under both the- act of 1824 and-1832.

      II. That Delassus had no authority to make such a concession, and the burden of proof is on the claimants to show that he had such authority.
    III. That the concession could not have been perfected into a complete title, from the political considerations mentioned.
    IV. That the .conditions of the concession were never performed during- the sovereignty of Spain over the country, or since, and that Clamorgan mat be considered as having abandoned the claim.
    V. That the cession of Louisiana to the United States did not maké the concession absolute, without the performance of the conditions.
    VI. That the survey of 1806 was void for want of authority to make it.
    VII. That the concession is void for uncertainty in the description of the land intended to be conceded.
    That Clamorgan lost all claim to have the concession perfected into a complete title, even if it had been in all other respects unobjectionable, by his failure to comply with the requisitions of the 23d article of Morales’ regulations of 1799, to make known his incomplete title within the six months limited by that article. Read the' 23d article in connection with the four preceding articles. 2 White’s Recop. 240.
   Mr. Justice CATRON

delivered the opinion of the court.

In August, 1796, James Clamorgan petitioned Colonel Delassus, then acting as commandant of the post and dependency of New Madrid, for a grant of land fronting - on the Mississippi River, for many miles, and running back to the'western branches of White River, including a section of country equal in area to 536,904 arpens, as was afterwards ascertained by measurement. To obtain title and possession of this large quantity of land,. Clamorgan represented, that he was a merchant residing in St. Louis; that he had been strongly encouraged by the Governor-General of the Province of Louisiana, to establish a- manufactory of cordage, fit and proper for the use of his Spanish Majesty’s vessels, and especially for the necessities of the Havana, to which place His Excellency desired the petitioner to export the cordage, under his, the Governor-General’s protection; of which facts the commandant was advised, so that he might exercise his power to favor an enterprise likely to become very important to the prosperity of the dependency, and very lucrative to all the inhabitants of Upper Louisiana. Furthermore, that the petitioner, Clamorgan, was then connected in correspondence and interest with a powerful house in Canada, which might procure, for him a sufficient number of cultivators to teach in that region the manner of cultivating hemp, and fabricating it into various kinds of cordage, in the most perfect manner, so as thereby to respond to the views of the General Government; which desired the prosecution of this enterprise by all proper and honest means that possibly could be used, in order .to exempt His Majesty from drawing in future from foreigners this article so important for the equipment of his vessels.

Clamorgan further stated, that “ it is with this hope, that the petitioner has actively made the most pressing demands to obtain from his correspondents in Montreal a considerable number of people proper for this culture, who must of necessity by inducement be attracted hither, although at this moment the political circumstances of Canada appear to oppose it} but in more favorable times hereafter this object may undoubtedly be obtained. Notwithstanding which, the petitioner is obliged to assure himself, in advance, from you, Monsieur, a title which may guarantee to him the proprietorship of a quantity of arable land, proportioned to his views, in order to form an extensive establishment, as soon as the time shall appear' favorable to his enterprise, and as soon as his correspondents shall be able, without compromitting their sense of duty, to cause to‘emigrate to this country the number of people necessary to give birth to this •culture, so much desired by the government.”

“ Considering, Monsieur, this exposition of the petitioner, and the particular recommendations of His Excellency the Governor-General of the province, the petitioner 'hopes that you will, be pleased to grant him the quantity of land which he desires- to obtain, as well in order to favor him, the execution of all which may contribute to the future success of his project, as to furnish him the means of attracting hereafter from a foreign country an ftjnigration of cultivators, which- may not, perhaps, be obtained ntil after a considerable lapse mf time, and upon promises of rewards, which the petitioner will be obliged to fulfil in their favor.”

The land solicited is then described; and the petitioner proceeds to set forth the title he desires: “ To the end that as soon as it may be in the power of the petitioner, he may be able to establish and select, in the tract of land so demanded, those portions which shall be best fitted to improve for the culture of hemp ; because, inasmuch as a great tract of said lands is now drowned in swamps and unimprovable lowland, making it impossible to fix establishments in its whole extent; all to be done that the petitioner may enjoy the land, and dispose of it always as a property belonging to him, his heirs or assigns; and also may distribute them, or part of them, if he think fit, in favor of such person or persons as he may judge proper, to attain, as far’ as on him depends, the .accomplishment of his project; and the petitioner will never cease to return thanks for y.our favors.”

To this demand of Clamorgan, the commandant responded, and proceeded to grant as follows: “ Since, by the exposition contained in this petition, the means of the petitioner are appaT tent to me, and his new connection with the house of Todd, which will be ablé to facilitate to him the accomplishment of the enterprise proposed, the .profit whereof, if it succeed, will redound in' part to the advantage of this remote country, miserable on account of its small actual population ■; and I giving particular attention to the recommendations which Señor the Baron de Carondelet, Governor-General of these provinces, has communicated to me, when he thought fit to appoint me commandantiof this post and its dependencies,1 to seek by all means the mode of increasing tfie population, and of encouraging agriculture in all its branches, and particularly the cultivation of hemp,’ it appearing to me that the propositions which the petitioner makes are conducive to the attainment of this last recommendation. In virtue of this, I concede to him, for him and bis heirs, the tract of land which he solicits, in the place and with the same boundaries that he práys for, provided there is injury to no, one; and so that the same may be established, he shall cause a survey to be made, not obliging him to accomplish this immediately, as from the excessive extent of space, it would cause him great expense, if it were done before the arrival of the families, which he is bound to cause to come from Canada, but so that on their arrival^ and being put in'possession, it shall be his duty to secure his property, by means of exercising the power of survey, in order afterwards that he may make application to the Governor-General, to obtain his approval with the title in form of this his concession.”

By various conveyances, the foregoing claim was vested in Glenn and Thruston, who filed their petition in the District Court of Arkansas, seeking to have it confirmed according to the act of 1844. They set forth Glamorgan’s application; the commandant’s decree thereon, and the mesne conveyances.

The Attorney of the United States answered, and-, among other grounds of defence set up, alleged, that he‘was wholly -uninformed as to the several statements and' allegations contained in the petition; that he denied the said statements and allegations, and required full proof thereof; as well as of all other matters and things necessary or material, to establish the validity of the claim of said James Clamorgan.

On these issues the parties went to trial.

The petitioners established by proof that Glamorgan’s application, and the Governor’s decree thereon, were gemdne; and also proved a due execution of the several conveyances vesting title in Glenn and Thruston. No other evidence was introduced by either side. The District Court dismissed the petition; and from that decree an appeal was prosecuted to this court.

No controversy has been raised drawing in question the valid-ity of the mesne conveyances ; nor do we suppose there is any difficulty in locating the land demanded in Glamorgan’s petition : Primd facie, its locality is sufficiently described tó authorize a survey thereof according to Spanish usages.

As regards the- commandant’s power to.make the concession to Clamorgan there is more difficulty. In 1796, when Delassus was commandant at the post of New Madrid, he also acted as sub-delegate and exercised the faculty of granting concessions for, and ordering surveys of land. In the exercise of "his functions he was directly subordinate to the Governor-General at New Orleans; and acted according to his instructions. Nor was he in any decree dependent on the Lieutenant-Governor of Upper Louisiana, residing at St.. Louis; as appears by a letter of August 26,1799, from Morales to Delassus, reciting the facts. The letter is found in- document, 12 of Senate Documents,- 2d Session 21st Congress, p. 29, and filed as evidence by Judge. Peck, preparatory to his trial before the Senate of the United States.

In a deposition of Delassus, forming part of the documents filed before the Board of Commissioners for Missouri, in,1833, and afterwards returned by them for the consideration of Congress, Delassus states the fact-that he, as commandant at New Madrid, exercised the powers of sub-delegate. Doc. No. 59, p. 17; H. Repts. 1st Session,'24th Congress.

^ This- commandant’s powers were therefore, coextensive with tblose of the Lieutenant-Governor at St. Louis, in distributing the public domain. Having acted under the Governor-General, to whose orders and instructions the commandant was bound to conform, it becomes necessary to ascertain what these instructions were in the present instance; and taking the facts stated in Glamorgan’s memorial, and in Delassus’s decree thereon, to be true, (as we are compelled to do,) it is sufficiently manifest, as we think, that the commandant did' stipulate with Clamorgan, in accordance with the Governor-General’s instructions. That the Governor-General had power thus to contract was held by this court, .when the agreements of Maison Rouge, and Bastrop, were before it for * adjudication; and having done the same through his deputy in'this instance, the acts of that deputy cannot be called in question, on the assumption that he exceeded his powers. .

In the document No. 59, above referred- to, Delassus states what his practice was, in giving out concessions. He kept no books in which the fact was recorded; all he did was to indorse his decree on the petition, and return it to the party demanding the land; and the party might hand it to the surveyor, or retain it at his option. That he, Delassus, believed the surveyor made a note of the concession of record ; but whether before or after the survey was made, he knew not, as that matter did not concern the deponent. That no time was limited within which the party was bound to survey.

Thus it appears that Clamorgan got the paper title relied on, in the ordinary form, and which he retained in his own hands until after Upper Louisiana was delivered to the United States in March, 1804. No possession was taken of the land, or any part of it; nor was it surveyed during the time Spain governed the country; nor has any claimant under Clamorgan ever had possession, so far as this record shows.

The surveys produced to us are private ones, and of no value in support of the claim. ’ And this brings us to a consideration of the mere title paper, standing alone. On its true meaning this controversy depends.

1. The petition of Clamorgan, and Delassus’s decree on it, niust b'e construed together; there being a proposition to do certain acts on the one side, and an acceptance on the other, limited by several restrictions.

2. What is stated in either paper as to facts, or intent, must be taken as ti-ue.

Such are the rule’s laid down in JBoisdoré’s case, 11 How. 87, and which apply here.

The. country was vacant, and greatly needed population; which could only be drawn from abroad; and this population Clamorgan stipulated that he would ^supply, and establish a colony from Canada on the land. That he would introduce cultivators of hemp, and artisans skilled in the manufacture of cordage; and would grow hemp and make cordage, to an extent so large as to be of national consequence.

On the faith of these promises the grant was made. As already stated, no step was taken by Glamorgan to perform the contract; all that he did was a presentation of his petition, and the obtaining of Delassus’s approval and decree on it. This paper he retained about thirteen years, when it was assigned to Pierre Choteau, May 2d, 1809, by a deed of conveyance for the land claimed. In view of these facts, several legal considerations arise.

It was held in Arredondo’s case, 6 Peters, 711, that, by consenting to be sued, the United States had submitted to judicial action, and considered the suit as of a purely judicial character, which the courts were bound to decide as between man and man litigating the same subject-matter; and that, in thus deciding the courts were restricted within the limits, and governed by the rules Congress'had prescribed. The principal rules applicable here, are, that in settling the question! oí validity of title, we are required, by the act of 1824, to proceed in conformity with the principles of justice; according to the law of nations ; the stipulations of the treaty by which the country was acquired, and the proceedings under, the same; the several acts of Congress in relation thereto; and the laws and ordinances of the government from which the claim is alleged to have been derived.

When deciding according to the law of nations, and the sti-, pulations of the treaty, wé are bound to hold, that such title as Clamorgan had by his concession, or first decree, stood secured to him as private property; and that, the claim being assignable, the complainants represent Clamorgan. And this brings us to the question as to what right was acquired by- the concession, according to the laws and ordinances of the Spanish Colonial Government, existing and in force, when the grant was made. By these, the commandant Delassus, had authority to contract, and give concessions, and make orders of survey, by first decrees, either with or without conditions; as this court held in the case' of Soulard v. The United States, 10 Pet. 144; provided, the concession was founded on a consideration primd facie good; either past, when the concession was made, or to follow in'future. Here, the consideration was to arise, by future performance, on the part of the grantee. But, it is insisted that forasmuch as a title vested in Clamorgan by the grant to him, even admitting that it was incumbered with conditions, still, as their performance was to happen subsequent to the vesting of the estate, the want of performance could only be taken advantage of by a proceeding instituted by government for that especial purpose; nor could want of performance be set up as a defence, in this suit.

If the premises assumed were true, the conclusion would necessarily follow; and Arredondo’s case is relied on in support' of this position, and as governing the present case. That proceeding was founded on a perfect' title, having every sanction the Spanish government could confer. It was brought before the courts according to the 6th section of the act of May 23; 1828, which embraced perfect titles, and was oiily applicable to suits in Florida.

The subsequent condition there relied on to annul the grant, was rendered immaterial,, and perhaps impossible, by the grantor himself, as this court held; and the grantee discharged from its performance. But in Glamorgan’s case, the conditions to occupy and cultivate were precedent conditions ; they addressed themselves to the. Governor-General, and.-their performance was required in advance. -Before any .right existed in Clamorgan to apply for a complete title,' or even to have a public survey, preparatory to such application, he was bound by his contract to establish his colony on -the land; and furthermore, to set up his manufactory to make cordage, and to supply it with hemp grown on the land, unless these conditions were waived on the part of the Spanish government. And as,we are called on by the complainants to adjudge the validity of this claim, and to order that a .patent shall issue for the land, in the name of the United States, it necessarily follows, the same duty is imposed on us that would have devolved on the Governor-General, had the Spanish government continued in Louisiana.

By the Spanish regulations, Clamorgan was not recognized as owner of a legal title without the further act of the King’s deputy, the Governor-General; or the Intendant-General, after the power to make perfect grants was conferred, on him. Until this was done, the legal title remained in the crown; and the same rule has been applied in this country; no standing can be allowed to imperfect and unrecognized claims in the ordinary judicial tribunals, until confirmed either by Congress directly, or by a special tribunal constituted by Congress for that purpose.

For our opinion more at large on this subject, we refer to the case of Menard v. Massey, 8 How. 305, 306, 307.

As we are asked to decree the final title, and bound to do so, in like manner that the Spanish Governor-General or Intendant was bound, it follows we may refuse, for the same legal reasons, that they could refuse. And the question presented is, whether we are bound to refuse, according to the face of the contract sued on, and in conformity to our previous decisions in other cases, depending on similar principles ?

Very many applications made for perfect titles to the District. Courts, under the act of 1824, have been resisted, because sub-' sequent conditions had not been con:plied with: First, such as mill grants in Florida, where the usual quantity of 16,000 acres was given by concession, with a condition that the mill should be built within a specified time: Second, where grants were made for the purpose of cultivation, and no .cultivation followed, as in the case of Wiggins, (14 Pet.) and of feoisdoré, (11 How.): Third, where, by the concession, parties were required by special regulations to levee and ditch on the river’s front in Lower Louisiana. - These were subsequent conditions, just as much as the introduction of a colony of hemp-growers, and the manufacture of cordage, by Clamorgan; and yet, no one has ever sue-. cessfujly maintained that a party having such concession, could hold- the land and obtain a perfect title, ¿lthough he did not build the mill, nor occupy and cultivate, nor levee, and ditch, founded on the assumption that performance was unhecessary. In all these cas.es it was held that performance was a condition precedent and the real equity, on which a favorable decree for a patent could be founded, under the act of 1824.

Tf Glamorgan’s concession carries with' it conditions, similar in principle, it must abide by this settled rule of decision. This depends on the true meaning of his contract with the Spanish authorities. He agreed to establish a colony by introducing a foreign population, and to grow hemp and manufacture cordage, to. an amount so large as to make it a national object. By these. promises he obtained a concession for more than half a million of arpens of land. A promise of performance was the sole ground on which the Spanish commandant made the conees-. sion; and actual performance was- to be the consideration on which a complete title could issue.

So far from complying, Glamorgan never took a single step, after the agreement was made; and in 1809 sold out his claim on speculation, for the paltry sum of fifteen hundred dollars. Under these circumstances we are called on to .decide in his -favor, according to the principles of justice : this being the rule prescribed to us by the act of 1824, and the Spanish regulations. To hold that an individual should have decreed to him, or to. his assignees, a domain of land more than equal to seven hundred square miles, for no better reason than that he had the ingenuity to induce a Spanish commandant to grant the concession, founded on, extravagant promises, not one of which was ever complied with, would shock all sense of justice. And such decision would be equally contrary to the policy pursued by Spain, which was, to make grants for the purposes of settlement and inhabitation, and not to the end of mere speculation. We so held in Boisdoré’s case, (11 How. 96,) .and the principle applies even more strongly in this case than it did in that; as there, something was done towards compliance; and here, nothing has been attempted.

The remaining ground on which the complainants demand a confirmation is the following: “Because if the concession was upon conditions which should have bfcen complied with in order to vest the estate as against Spain, whilst the conditions were., practicable and might have been performed by the grantee, the-estate vested without such performance, because the province. was ceded-by Spain before the time for performance had expired, and because of the change of government, manners, &e., consequent on that cession.”

That Glamorgan could take no step after the change'of government, is not open to controversy.

By the 14th section of the act of March 28, 1804, which established the Territories of Orleans and Louisiana, Clamorgan iwas prevented from doing any further act in support of his title, had he been disposed so to do. He was positively prohibited from making settlements on the land, or making a survey of it, under the penalty of fine and imprisonment. But no advantage resulted from this provision to claimants whose concessions carried with them conditions that had not then been complied with.

The 1st section of the act of 1824, in conformity to which we are now exercising jurisdiction, limits the courts, as to the validity of title and standing of the various claims, to the, condition they held before the tenth of March, 1804.

By the 3d article of the treaty of cession by which Louisiana was acquired, it was stipulated that the inhabitants of the ceded country should be admitted as soon as possible, and become citizens of the United States, and be maintained in the free enjoyment of. their property in the mean time. But no time was provided by the treaty within which conditions appertaining to imperfect grants of land might be performed; this was left to the justice and discretion of our government; and in a due exercise of that discretion, the acts of 1804 and Í824 were passed; and to these acts of Congress, the 2d section of the act of 1824 commands us to conform.

The treaty addressed itself to the political department; and up to the passing of the act of 1824, that department alone had power to perfect titles, and administer equities to claimants. And when judicial cognizance was conferred on the courts of justice to determine questions ‘of title between the government' and individuals, the 'limits of that jurisdiction were prescribed, to wit: that no act done by the Spanish authorities, or by an individual claimant, after the 3d day of March, 1804, should have any effect on the title; but that its validity should be determined according to its condition at that date.

All claims lying within the territory acquired by the treaty of 1803, which have been brought before the courts, according to the acts of-1824 and 1844, have been compelled to abide by this test; great numbers have been rejected, because the conditions of occupation and cultivation had not been complied with before the restraining qct of 1804 was passed, or before the 10th day of March, 1804. Nor have the claimants under Clamorgan more right to complain than others; his neglect extended through nearly eight years, during the existence of the Spanish government; whereas many similar claims have been rejected, where the neglect was not naif so long.

If Clamorgan could come forward because of the prohibition, and .be heard to excuse himself from performing the onergus conditions his contract imposed, so could every other claimant who had neither taken possession, nor in g.ny manner complied with his contract, do the same; arid on this assumption, coricessioris issued by France or Spain would be'without condition, and a simple grant of the land described in the paper. Its genuineness, and proof of identity of the land, would settle the question of title.

No tribunal has ever accorded any credence to this claim; two boards of commissioners have pronounced it invalid: the first in 1811, and the second in 1835. The latter on the ground that the conditions of the grant had not been complied with. By this decision it fell into the mass of 'public lands, according to the 3d section of the act of July 9, 1832, which declares that the lands contained in. the second, class (being'those rejected) shall be- subject to sale as other public lands. By the act of 17th June, 1844, another opportunity was afforded to apply to the District ’Court for a confirmation; that court agreed with the boards of commissioners, and again declared the claim invalid, because 'the conditions had not been complied with, and dismissed the petition; and with this decree we concur.

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 Arkansas, 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.


source: Caselaw Access Project

author: Mr. Justice CATRON

license: Public Domain

text:
    The Heirs of Don Carlos de Vilemont, Appellants, v. The United States.
    In 1795, Baron de Carondelet, the Governor-General of Xouisiana, made a grant of land on the Mississippi Kiver, upon condition that a road and clearing should be made within one year, and an establishment made upon the land within three years.
    Neither of these conditions was complied with, nor was possession taken under the grant until after the cession of the country to the United States.
    The excuses for these omissions, namely, that the grantee was commandant at the post of Arkansas, and that the Indians were hostile, are not satisfactory; because the grantee must have known these circumstances when he obtained the grant.
    According to the principles established in the preceding case of Glenn and Thruston v. The United States, the Spanish authorities would not have confirmed this grant, neither can this court confirm, it.
    Moreover, in this case, the land claimed cannot be located by a survey.
    This was an appeal from the District Court of the United States for the District of Arkansas.

      It was a^jietition 'filed by the heirs of Don Carlos dé Vilemont, under the act of 1824, as revived by the act of 1844, praying the confirmation of a grant of land issued by the Baron de Carondelet in 1795.
    The circumstances attending the grant are ■ set forth in the opinion of the court.
    The District Court decided against the claim and the petitioners appealed to this court.
    In the District Court, Horace F. Walworth, Mary B.- Miles, and' James B. Miles, were made defendants with the United States.
    It was argued-in this court by Mr. Taylor, for'the appellants, and Mr. Lawrence and Mr. Crittenden, (Attorney-General,) for the appellees. A brief was also filed by Mr. Pike for Mr. Walworth

      Mr. Taylor, for the appellants,
    thus noticed the. omission of Vilemont to comply with the conditions of the grant. (It will be seen, by referring to the opinion of the court, that this -was an important point in the case.)
    The confirmation of the claim ig resisted in the answer of the District Attorney, on the ground that the conditions of the grant wtere not complied with. The conditions, as has already been stated, were those almost invariably inserted in orders of survey, that a road. and a settlement should be made within a given day. The record contains the testimony of two aged inhabitants of Louisiana, who, as officers in the same regiment in which Vilemont served many years, were attached to the person of the Governor, and one of whom was employed ih the Land-Office in New Orleans, showing that these conditions .were mere matters of form and mechanically inserted ydth the orders of survey, without inquiring into the situation of the land. They add that they never were enforced, and that no land was ever forfeited under the Spanish government on account of a non-compliance with these conditions. This testimony is emphatically confirmed by Judge. Simon, for mány ■years a practising lawyer in Louisiana, and during six years a. judge of the Supreme Court of that State, before whose eyes probably thousands of such claims have passed.
    In this instance the. land was asked for-to establish a stock farm. What neééssity was there to cultivate it, if such was the purpose of the grant ? And how much of the two leagues front and one in depth should have been cultivated and established ? The land was twenty-five leagues below the mouth of the Arkansas, and -more than that distance from any. white settlement. What use would there have been for a road, and where would it have been ?
    But if these conditions, in such a case, were more than an idle formality, Vilemont would have been relieved from a compliance with them. In 1795, when the grant was made, and until 1802, Vilemont was the civil and military commandant of the post of Arkansas. During all this period he never left his post, not even to visit New Orleans. His presence 'there wás constantly required by the threatening aspect of the Indian tribes by whom he was surrounded, while the garrison of the fort never exceeded forty men. Bight - letters from Governor Carondelet to Vilemont, (which will be found bn pp. 72 - 76 of the printed and Vilemont’s official correspondence with, the Govérnor of Louisiana, until his appointment to a higher office; in 1802,) furnish a striking proof of the arduous service in which he was engaged, and of ceaseless feuds among the Indians, and attacks upon the whites, and leave no doubt that even a temporary absence from the command would not have been tolerated by the Governor. Can'it be pretended that, under these circumstances, the government seriously, and under pain of forfeiture; expected him to make a road within one year, and a settlement within three years, upon this rude and remote spot ? The. government kept him until 1802 at the post of Arkansas; the government then removed him to a. new scene of service, and this, if any case, falls under the rule established in the United States v. Arredondo et al., 6 Pet. 745. “ It is an acknowledged fact that if a grant is. made on a condition subsequent, and its performance becomes impossible by the act of the grantor, the grant becomes single.”
    The other reason why a settlement could not be required of Vilemont is, that hostile Indians made it impossible. Vilemont was not bound, though he might have attempted, to form a settlement by agents. Indeed, already, in 1795 or 1796, he sent Bogy there with that object, but Bogy was driven off by the Indians. Nor did the danger from the Indians cease until a •number of years after the change of gbvernment.

      Mr. Crittenden, for the United States, made the following points:
    I. That the appeal ought to be dismissed for want of being duly prosecuted.
    II. That the appellants’ ancestor was never put in possession of.the lands, and the conditions on which the concession was made were not performed during the time therein, limited, or during the sovereignty of Spain over the country, or subsequently.

      There is no evidence whatever that the Surveyor-General, or a deputy approved by him, ever put Vilemont into possession of the lands ■ as required by the terms of the concession. No survey was ever made, and no plat and certificate were ever reported to the governor, and no title in form could therefore have been issued to Vilemont at any time during the continuance of the Spanish power.
    The petition of de Vilemont sets forth his desire to establish a plafitation.and stock farm, in order to supply the post, of which he was commandant, with cattle. This is the inducement he presents to de Carondelet to make the concession. It was accordingly. made to him under the express condition that he-shall make the regular road and clearing within the peremptory term of one year, the concession to be null, if, at the precise expiration of three years, the land should not be'established.
    From the date of the grant, in 1795, until the delivery of Louisiana to the United States, in 1803, he had completely failed to comply with the conditions above mentioned, and thereby forfeited all right to require a title in form. He had done nothing whatever. This, therefore, is not such a concession as might have been perfected into a complete title had not the sovereignty of the country been transferred to the United States.
    But to examine the evidence on the point of non-performance of the conditions presented in the record:
    The appellants themselves state, in their petition, that De Vilemont “ endeavored, soon after the date of said concession, to procure persons to make a settlement, but could not succeed ” on account of the danger arising from-fiostile Indians. It further states, “ that in the year 1803 he again attempted a settlement, but that, from the year 1807,” he, or persons employed by him or his family, had been in actual possession of part of-the land.
    The above is the petitioners’ own statement. In jaio, m De Vilemont’s lifetime, when he presented his claim to the recorder of land titles, he did not submit a particle of proof to show that he had done any thing with respect to establishing the stock farm, making the road, or settling the land. Joseph Bogy, his father-in-law,' then ’ testified that he, De Vilemont, proposed to witness to settle on the tract, but that he declined on account of the supposed danger from the Indians, which continued until 1803. Francis de Vaugene also then testified that the Indians continued so hostile as to make it unsafe to settle at -Isle Chicot till the year 1803.

      It will thus be seen that De Vilemont made no pretence then, or offered no proof to show, that he had fulfilled any of the conditions, but he sets up an excuse merely for not having done so. The recorder, under the column titled “ possession, inhabitation, or cultivation,” states, “ danger from the Indians prevented settlement,” and gives his opinion that the claim ought not to be confirmed, the conditions not having been complied with.
    Mr. Crittenden then examined the evidence.
    But it is said that De Vilemont could not leave his post to attend to the performance of the conditions, that he was prevented from' performance by danger fronf the Indians, and that the conditions were merely formal.
    The answers to the first of these excuses are obvious. De Vilemont styles himself, in the petition to Baron dé Carondelet, the commandant of the post of Arkansas, and asks for the land at the place it is given, the inducement being, that he might furnish cattle to the post. It would be strange if, under these circumstances, his not being allowed to leave the post should expuse the pérformance of the conditions. As to being prevented from establishing the stock farm, and performing the other conditions, by danger from the Indians, he knew that the Indians were in the country at the time he made the application ; and if he sought for a concession, the conditions of which he could not comply with, it can afford no exemption from their performance. As to the allegation that the conditions were merely formal, it is negatived by the third article of O’Reilly’s regulation, where the non-performance of the conditions as to roads, settlements, &c., is thus spoken of: “ And in default of fulfilling these conditions, their land shall revert to the king’s domain, and be granted anew.” 2 White’s Recop. 228. These regulations were approved bythe king. See letter of Marquis de Grimaldi to Unzaga, 24th August, 1770, Id. 460. See also the third, fourth, fifth, and sixth articles of regulations of Morales, Id. 235.
    III. That the evidence in the casé shows that De Vilemont had abandoned his claim to the land.
    IV. That the concession is void, because no land was Severed from the public domain by survey giving it a certain location, previous to the treaty of cession, and the description is so vague, indefinite, and uncertain, that no location can be given to the lands. United States v. Miranda, 16 Pet. 156; United States v. Boisdoré, 11 How. 63.
    V. That the decree as to floats'is void, the individuals holdr ing the lands in respect of which floats are decreed, not having been made parties in the case.

       The Spanish word is printed percutorio ; it should have been pmmptorio.- All the translators agree in translating peremftorio.

   Mr. Justice CATRON

delivered th^ opinion of the court.

The heirs of Don Carlos de Vilemont filed their petition in the District Court of Arkansas; to have a confirmation of a grant for two leagues of land front, by one league in depth, lying on the right descenNug bank of the Mississippi, at a place called the Island del Chico!, distant twenty-five leagues below the mouth of the Arkansas River; the cypress swamp of the island being-called for as the upper boundary of said tract.

The-Governor-General granted the land on the express conditions/“ that a road and regular clearing be made in the peremptory space of one year; and this concession to be null, if, at the expiration of three years’ time, the said land shall not be established ; and, during which time it cannot be alienated; under which conditions the plat and certificate of survey shall be made out and remitted to me in order to provide the interested with the corresponding title in form.” The concession was made June 17, 1795. No possession was taken of the land by De Vilemont, nor any survey made or demanded, during the existence of the Spanish government. The petition .alleges that possession was first taken in 1807; and as an excuse for the delay, it is stated, that the grantee was commandant at the post of Arkansas up to the end of the year 1802, and confined to his official duties there; and, 2dly, that so hostile were the Indians in the neighborhood of the land, that no settlement could be made on it. The proof shows that De Vilemont first took possession in 1822 or 1823. The 2d regulation of O’Reilly of 1770, required that roads should be made and kept in repair, in case of grants fronting on the Mississippi River; and that grantees should be bound within the term of three years to clear the whole front of their lands to the depth of two arpens ; and, in default of fulfilling these conditions, the land claimed should- re-, vert to the king’s domain; nor should proprietors alienate until after three years’ possession was held, and until the conditions were entirely fulfilled. In this instance the time was restricted to one year, for making the improvements required by the regulations, and three years were allowed for making an establishment on the premises. In this case where a front of six miles was granted, a clearing to the whole extent was of course not contemplated ; yet to a reasonable extent it certainly was ; but it was undoubtedly necessary, that an establishment should be made within three years — such being the requirement of the concession, in concurrence with the regulations.

The act of March 26, 1804, prohibited any subsequent entry on the land; and declared void all future, acts done. to the end of obtaining a perfect title even by a.n actual settler, if the' settlement was not made before the 20th of December, 1803; De Vilemont’s title must therefore abide by its condition when the act of 1804 was passed. For further views on this subject we refer to our opinion expressed on Glamorgan’s title, at the present term, in the case of Glenn and Thruston v. The United States.

We are asked to decree a title, and to award a patent, on the same .grounds that the Governor-General of Louisiana, or the Intenda'nt, would have been bound to do, had application for. a perfect title been made during the existence of the Spanish colonial government. The only consideration on which such title could have been founded, was inhabitation and cultivation, either by De Vilemont himself, or his tenants ;■ and having done nothing of the kind, he had no right to a title; nor can an excuse be heard that hostility from Indians prevented a compliance with the conditions imposed, as Vilemont took his concession subject to this risk; and the alleged excuse that he was commandant of the post of Arkansas, and bound to be constantly there in the performance of his official duties, is still more idle, as he held this office when the concession was made, and knew what his duties were.

. The petition was dismissed by the District Court, because the land claimed could not be located by survey. The concession is for two leagues front, by one in depth, with parallel boundaries, situate at Chicot Island; the cypress swamp on the island being the upper boundary. ■ Chicot Island is represented in the concession as being twenty-five leagues below the mouth of the Arkansas River. The land -now claimed by the petition is represented to' lie five leagues below the mouth of that river, at a place known as Chicot Point; being a peninsula included in a sudden bend, and surrounded on three sides by the Mississippi'River.

It is difficult to conceive that Chicot Point, lying in fact nearly twenty-five leagues below the mouth of the Arkansas, is the Chicot Island to which the concession refers ; but admitting that the Point, was meant, (which we believe to be the fact,) still, no cypress swamp is found ■ there to locate the upper boundary; nor is it possible to make a decree fixing any one side line, or any one place of beginning, for a specific tract of land.

. Our opinion is, that, on either of the grounds stated, the'petition should be dismissed, and the decree below affirmed.

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 Arkansas, 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.


author: Mr. Justice CURTIS

text:
    William Neves and James C. Neves, Appellants, v. William H. Scott and Thomas N. Beall, Administrators of William F. Scott, deceased, and George W. Rowell and Lawrence G. Rowell, Executors of Richard Rowell, deceased.
    The courts of the United States, under the Constitution and laws, have equity jurisdiction. Unless the general principles of equity have been modified by the laws or usages of a particular State, those general principles will be carried out everywhere in the same manner, and equity jurisprudence be the same, when administered by the courts of the United States, in all the States.
    Hence, the decision of a State court, in a case which involved only the general principles of equity, and was not controlled by local law or usage, is not binding as • authority upon this court.
    In the case of Neves et al. v. Scott et al., reported in 9 Howard, 196, this court decided two points, — one, that volunteers could, in that case, claim the interference of chancery to enforce the marriage articles in question; and the other, that the articles constituted an executed trust.
    The Supreme Court of Georgia does not agree with this court upon the first point. Nevertheless, this court does not change its decision.
    Moreover,'the second point upon which this court rested the case (toes not appear to have been brought before the Supreme Court of Georgia; and, of course, it expressed no opinion upon the point.
    This was an appeal from the Circuit Court of the United States for the District of Georgia.
    It was argued at December term, 1849, and is reported in 9 How. 196. It being suggested afterwards that, at the time when the case was argued and decided, Richard Rowell, the principal-defendant, was dead, the judgment was stricken out and the cause argued again.
    It was argued by Mr. Johnson, for the appellants, and Mr. Cone, for the appellees.

      Mr. Cone, for the appellees made the following points:
    1st. The marriage contract is executory; it conveys no titles, and creates no trusts, nor does it impair or abridge the rights of the husband during the continuance of the coverture. 2 Story’s Eq. Jur. sects. 1, 379, 380, 381, 382, 383. Clancy on Rights, 269; Hill on Trustees, 420.
    2d. Roper on Husband and Wife, 156,161; Sea. borough v.
      Bowman, 1 Beav. 34; Stanton v. Hall, 2 R, & M. 180; Harkins v. Colton; 2 Porter’s Rep. 463; Cook v. Kinny, 12 Alabama Rep. 42; Stewart v. Stewart, 7 Johns. Ch. Rep. 229; 7 Smedes & Marshall’s Rep. 798; Lee v. Perdue, 3 Brown’s Chancery Rep. 358.
    The fact that the parties to the contract considered it as final, and contemplated no further settlement, cannot alter its legal • character or change its legal effect. Hester,.Executor, Young, 2 Georgia Rep. 45, 46: Barker v. Giles, Rice, Eq. R. 516; Lee v. Perdue, 3 Brown’s- Chancery Rep. 381; Hill on Trustees, 84; Antrobus v. Smith, 12 Ves. 39 ; 6 Humph. Rep. 127.
    2d. The complainants are not within the marriagd consideration, and do not claim through any person, that is, they claim not as heirs, but as purchasers under the articles; they are, therefore, volunteers. Osgood v. Strode, 2 P. Williams. 255; Goodwin v. Goodwin, 1 Ves. 228; Tudor v. Anson, 2 Ves. 582; Marstón v. Gowan, 3 Bro. Ch. 170; Strode v. Russel, 2 Vern. 621; Bias v. Bias, 2 Ves. 164; Atherley oh Mar. -Set. 66, 73, 74, 75; Story’s Eq. Jur. sect. 986; Kittery v. Atwood, 1 Vern. 298, 471; 2 P. Williams, 172; 1 P. Williams, 483; Beatson v. Beatson, 12 Sim. 281; Goring v. Nash, 3 Atk. 186; Holt v. Holt, 2 P. Williams, 248; Johnson v. Legard, Turner & Russell, 281, 293; Colgate v. Mulgrave, 2 Keen, 98; Saltón v. Chetwynd, 3 Meriv. 249; 6 Maulé & Selw. 60.
    3d. Courts of equity will not interpose in favor of volunteers, either upon a contract, covenant, or settlement. 2 Story’s Eq. sects. 793, 973, 986, 987; 1 Turner & Russell, 296; Coleman v. Sarel, 2 Ves. Jr. 50; Hill on Trustees, 83 ; Atherley on Mar. Set, 72, 73, 74,76 ; 2 Story’s Eq. Jur. 372,433,706,787; Jeffreys v. Jeffreys, 1 Craig & Phil. 138, 141; Ellison v. Ellison, 6 Ves. .656; Colman v. Sarel, 3 Brown’s Ch. 12; Edwards v. Jones, 1 Mylne & Craig, 226-; Dillon v. Coffin, 4 Mylne &' Craig, 647; Halloway v. Headington, 8 Sim. 324, 571; Meek v. Hallowell, 1 Hare, 464, 475; Wycherly v. Wycherly, 2 Eden, 177; 2 Keen, 81, 123, 134.
    ' 4th. But if there were any doubt in relation to the soundness of the foregoing positions, the law of Georgia upon these points has been settled by a decision of the Supreme Court of that State, made upon the contract now under consideration, and being a contract made in Georgia, and to be executed in Georgia, its character, interpretation, force, and effect, must-be governed by .the laws bf that State.'
    Carroll v. Renich,- 71 Smedes & Marshall, 798; 12 Wheat. 153, 167; 5 Pet. 151; 6 Pet. 172; 8 Peti'361; 8 How. 170; 1 Gaff. Circuit Court Rep. 160, 371.
    In the case of Merritt et al. v Scott & Beall, 6 Georgia Rep. 563, the questions now presented to this court upon this contract came before the Supreme Court of that State. That court established the following positions:
    1st. That marriage articles, like 'those now under consideration, will be specifically executed upon the application of any person within the scope of the consideration of such marriage, or claiming under such person.
    2d. That in no case whatever will courts of equity interpose in favor of mere volunteers, whethér it be a voluntary contract, or a covenant, or a settlement, however meritorious may be the consideration, and although they stand in the relation of a wife or child. 5 '
    3d. That where a bill is brought by a person who is within the scope of the marriage consideration, or claiming under them there, courts of equity will decree a specific execution "throughout, as well in favor of mere volunteers as plaintiffs in the suit.
    4th. That no persons are within the marriage consideration but the husband, and wife and their issues ; that all others are volunteers.
    5th. That the complainants in that case (who occupied the exact position that the complainants do in this case in relation to the contract) were not entitled to the aid of a court of equity to enforce the covenant in their favor.
    6th. That although the contract under consideration made no provision for the issue of the marriage, yet that did not aid the case of the complainants ; that they wer,e still volunteers, and as such, not entitled to the aid <of a court of equity.
    •7th. That the decree rendered in the case of Catherine Neves against Richard Rowell was not such a- partial execution of the marriage contract as would enure to the benefit of complainants, nor could said decree be invoked in their favor; and that they were not entitled to the discovery and relief that they sought.
   Mr. Justice CURTIS

delivered the opinion of the court.

This case came on to be heard at the December term, 1849, and was argued by counsel. The decision of the court is reported in 9 How. 196, under the name of William Neves and James C. Neves, appellants, v. William F. Scott and Richard Rowell. At the present term, it was suggested to the court, that at. the time when the cause was argued and decided, Richard Rowell, the principal party defendant in interest, was dead; and thereupon proceedings took place which made his representatives parties,- and the decree heretofore entered was stricken out, the cause brought forward, and again heard at the present term. It has been elaborately and ably argued upon the grounds on which it was rested at the former hearing, and upon one additional ground, which will first be adverted to.

It appears that a short time before the former argument, the Supreme Court of Georgia, where the marriage articles in question were made, and the parties thereto domiciled, in a suit between other persons claiming a separate interest under these articles, had made a decision, involving an equitable title like that passed on by this court. This decision was not made known to us at the former hearing; and the respondents counsel now maintains, that it is binding on this court, as an authoritative exposition of the local law of Georgia, by the highest tribunal of that State.

To appreciate this position, it is necessary to ascertain what questions have been decided by the Supreme Court of Georgia, and are. for decision by this court.

By reference to the case in 9 How. 196, it will be found that there were two questions presented to this court, either of which being decided in favor of the complainant, would dispose of the cause.-

The first was, whether the trusts manifested by this particular instrument, were what a court of equity deems executed trusts, that is, trusts actually defined and declared and in the view of a court of equity created, or whether a court of equity would treat the instrument'as only exhibiting an incomplete intention to create some trusts at a then future period; and the second .being, whether the complainants, as collateral heirs of one of the setters, can have the aid of a court of equity, to enforce the delivery of the property to. them, or are precluded from that relief, by the fact that they are not issue of the marriage ; in other terms, whether by the rules of equity law the complainants are volunteers, or within the consideration of the articles. No question has arisen, concerning any statute law of Georgia; nor was it then, nor is it now suggested, that any word, or phrase, or provision of the articles, should bear any peculiar, or technical meaning, by reason of any local law, or custom. Indeed, the actual intentions of the parties are so plain, that no doubt has been suggested concerning them; and the qnly inquiry in either court has been, how far, and in favor of what parties, a'court of equity will lend its aid. to carry those intentions into eifect. And, accordingly, the Supreme Court of Georgia, as well as this court, has resorted to the decisions of'the High Court of Chancery in England, and to approved writers on equity jurisprudence, as affording the proper guides to a correct decision. If, according to sound principles of the law of equity, a trust existed, or the complainants, have an equitable right to the specific performance of an agreement to create, a trust, then the relief is-to be granted, otherwise it is to be refused.

Such being the nature of the questions, we do not consider this court bound by the decision of the Supreme Court of Georgia. The Constitution provides, that the judicial power of the United States shall extend to all cases m equity arising between citizens of different States. Congress has duly con-, ferred this power upon all Circuit Courts,.- and among others upon that of the District of Georgia, in which this bill was filed, arid the same power is granted by the Constitution to this court, as an appellate tribunal.

Wherever a case in equity may arise and be determined, under the judicial power of the United States, the same principles of equity must be applied to it, arid it is -for the courts of the United States, and for this court in the last resort, to decide what those principles are, and to apply such of them, to each particular case, as they may find justly applicable thereto. These principles may make part of the law of a‘ State, or they may have been modified by its legislation, or usages, or they may never have existed in its jurisprudence. Instances of each kind’ may now be found in the several States. But in all the States, the equity law, recognized by the Constitution and by acts of Congress, and modified by the latter, is administered by the courts of the United States, and upon appeal’ by this court.

Such has long been the settled doctrine of this court, repeatedly and steadily affirmed in whatever form the question has been presented. In The United States v. Howland, 4 Wheat. 115, Chief Justice Marshall said : 11 As the courts of the Union have a chancery jurisdiction in every State,- and the Judiciary Act confers the same chancery powers on all, and gives the same rule of decision, its jurisdiction in Massachusetts must be the same as in other States.” So Mr. Justice Story, in Boyle v. Zacharie et al. 6 Pet. 658, says: “ The chancery jurisdiction given by the Constitution and laws of the United States is the same in all the States of the Union and the rules of decision aré the same in all.” See also Robinson v. Campbell, 3 Wheat. 222; Livingston v. Story, 9 Pet. 654; Russell v. Southard, decided at the present term, and reported in 12 Howard, 139.

But while we do not consider this decision of the Supreme Court of Georgia a binding authority, on which we have a right to rest our decision, the respect we entertain for that learned and able court, has led us to examine its opinion with great care ; and although we find it not consistent with some of the views heretofore taken by us of one of the questions arising under this-marriage settlement, we do not find that the ground on which our -decision was .actually rested was at all examined by that learned court. That ground is, “ That the deed in .question is a marriage settlement, complete in itself; ah.executed trust,which’ requires only to be obeyed and fulfilled by those standing in the relation oi trustees, for the benefit of the cestuis que trust, according to the provisions of the settlement.” 9 How. 211. This position does not appear to have been taken by the counsel for the complainants in the Supreme Court of Georgia, nor is it noticed by the court in its' opinion; though it is conceded, in the course of the opinion that while courts of equity will not enforce a mere gratuitous gift, or a mere moral obligation or voluntary executory trust, it is otherwise, of- course, where the trust is already vested.”

On the former argument in this court we formed the opinion, that the instrument in question did completely define and declare,.and so did create, certain trusts; that they were, in the sense of a court of equity, trusts executed; that the complainants were cestuis que trust; that the failure to interpose trustees to hold the property created no difficulty, each party to the settlement being regarded, so far as may be necessary to effectuate their intent, as holding their several estates as trustees for ’the uses of the sfettlement; and so the complainants were entitled to the relief prayed.

We find nothing in the opinion of the Supreme Court of Georgia in conflict with these views, because we do not find they were there adverted to; and after considering the elaborate and able argument of' the respondent’s counsel a.t this term, we remain satisfied of. the correctness of our opinion, and judgment must be entered accordingly.

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 Georgia, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that this cause be, and the same is hereby, reversed,' with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court for further proceedings to be. had therein, in conformity to the opinion of this court.


author: Mr. Justice NELSON

text:
    William W. De Forest, George F. Thomas, and Robert W. Rodman, Plaintiffs in error, v. Cornelius W. Lawrence, late Collector of New York.
    The tariff law of 1846, passed on the 30th of July, (9 Stat. at Large, 42,) contains no special mention of imported sheepskins, dried with the wool remaining on them. They must he regarded as a non-enumerated article, and charged, with a duty of twenty per cent, ad valorem.

    This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern' District of New York.
    The plaintiffs in error, W. W. De Forest & Co. sued the collector to recover back money paid under protest, for duties on importations into New York, in the years 1847 and 1848, from Buenos Ayres,. invoiced as sheepskins, having the wool on them.
    The collector (under instructions from the Secretary of the Treasury) demanded and received a duty of thirty per cent, 'ad valorem on the wool upon the sheepskins, and a duty of five per cent, ad valorem upon the pelts.
    The wool upon the skins was appraised at, . thereon at $18,596.52
    Skins without' the wool, ...... Duty thereon at five per cent., . ‘ 498.60 . 9,972.14
    Total ,valuation of wool and skins, $28,568.66)
    Total duty, $6,077.55
    Whilst the collector thus charged one duty upon the skin and another upon the wool, the importers claimed to enter the articles at a duty of five per cent, upon the whole, and the court decided- that the proper duty to be charged was twenty per cent, upon the entire valuation.
    The cause of this great difference of opinion was as follows: By the act of 19th May, 1828, (4 Stat. at Large, 271, chap. 55, sect. 2, first paragraph,) a duty is imposed on wool unmanufactured : “ And all wool imported on the skin shall be estimated as to weight and value, and shall pay the same rate \of duty, as other imported wool.”
    By the act of July 14,1832, (same vol. chap. 227, sect. 2, first paragraph; p. 584,) wool unmanufactured is charged with duty :
    “ Provided, that wool imported on the skin shall be estimated, as to weight and value, as other wool.” .
    By the act of 30th August, 1842, (5 Stat. at Large, chap. 270, sect. 1, paragraph first, p. 548,) a duty on wool unmanufactured is imposed: “ Provided, also, that wool imported on the skin shall be estimated, as to weight and value, as other wool.”
    In the 5th sect, and sixth paragraph of that same act, of 1842, (p. 554,) duties are imposed “ on sheepskins, tanned and dressed, or skivers, two dollars per dozen; on goat or sheepskins, tanned and not dressed, one dollar per dozen; on all kid and lambskins, tanned and not dressed, seventy-five cents per dozen; and on skins tanned and dressed, otherwise than in color, to wit, fawn, kid, and lanib, usually known as chamois, one dollar per dozen; ... on raw hides of all kinds, whether dried or salted, five per cent, ad valorem; on all'skins pickled and in casks, not specified, twenty per cent, ad valorem.”
    Subsequently to these three statutes, so mentioning and distinguishing those three several classes of imports, eame the statute of 3títh July, 1846, (9 Stat. at Large, (Little & Brown,) chap. 74, p. 42,) entitled “ An act reducing the duties on imports* and for other purposes.”
    The first section enacted, that, from and after the first day of December then next, “ in lieu of the duties heretofore imposed by law, on the articles hereinafter mentioned, and on' such as may be now exempt from duty, there shall be collected, levied, and paid, on the goods, wares, and merchandise, herein enumerated and provided for, imported from foreign countries, the following rates of duty.” Then follows the enumeration of various articles, subject to various duties, in schedules from A to II, ranging from duties of one hundred per centum to five per centum ad valorem.

    Section 2 enacts that the goods “ mentioned in schedule I, shall be exempt from duty.”
    Section 3.imposes on all goods, wares, and merchandise imported from foreign countries, “ and not specially provided for ■in this act, a duty of twenty per centum ad valorem.”
    In schedule C, of articles subject to thirty per cent, ad valorem, “ wool unmanufactured ” is mentioned, but “ wool imported upon the skin ” is not specially provided for therein. In schedule H, among other articles subject to the duty of five per cent, ad valorem, “ raw hides and skins of all kinds, whether dried, salted, or pickled,” are mentioned; but “wool imported .on the skin ” is not therein mentioned. In schedule I, of articles exempt from dut/, wool imported on the skin, is not mentioned, neither is it mentioned in any one of the schedules, from A. to I indlusive.
    On the trial of the case in the Circuit Court, Mr. Justice Nelson instructed the jury that the article eame most appropriately within the schedule of non-enumerated articles, and as such was chargeable with a duty of twenty per cent.

      To which charge the counsel for the plaintiffs excepted, on the ground that the court should have charged the jury that the article imported by the plaintiffs, raw sheepskins dried, fell under schedule H, of the íariff of 1846, and was not a non-enumerated article, but on the contrary, was enumerated under saia schedule H, and was liable only to a duty of five per cent., and not to a duty of 20 per cent. That the said article being a raw skin dried, and being not otherwise specifically provided fof in said act, was liable only to the same rate of duty as all other raw skins dried. . And the counsel for the said plaintiffs requested the court to charge the said jury accordingly, which request was refused by the court, and the counsel for the plaintiffs there-, upon excepted.
    Upon this exception, the cause came up to this court, and was argued by Mr. Schley,, for the plaintiffs in error, and by Mr. Oriitenden, (Attorney-General,) for the defendant.
    The points for the plaintiffs in error were the following:
    I. The Tariff of 1846 provides,
    1. For such articles of import as are “ specially enumerated,” as liable to certain rates of duty.
    2. Such as are “ exempt ” from duty; and
    3. Such as are not “ specially provided for in this act,” but, as non-enumerated articles, are made subject generally to a duty of twenty per cent, ad valorem.

    II. If an article is not “specially enumerated,” or “exempt,!? it must fall under the third class of “ non-enumerated ” articles.
    This act, therefore, provides for every possible article of import, and whether any duty is leviable, and if so, at what rate, is to be tested by this act alone.
    III. The terms “ skins ” and “ hides ” are general descriptions or denominations of certain classes of articles, known by that name both as natural products and as articles of' merchandise and commerce.
    It is to be presumed that' Congress used and intended them to be understood as they are ordinarily used and understood. The “ skin ” or the “ hide,” the covering of the flesh of animals, as a composite article, has parts: the fleece and the pelt. When the general term is used, the parts are included; as in speaking of the head, we include the eyes or the. hairC
    IV. If the article is to be removed from its natural and commercial classification, be broken up, and one part be artificially classed as wool, or hair, or fur, this can only be done by express provision. Such an instance, of separation appears in schedule G, where “ furs undressed, when on the skin,” are made liable to a duty of ten per cent.

      V. “ Wool” and “ hair” are used to designate a certain portion of the covering of the animal after it is shorn, clipped, or cut off the skin; until clipped or cut they are a part of the skin. A contract for wool would not justify a delivery of sheepskins; nor a contract for sheepskins, a delivery either of wool, or of a pelt shorn of the wool.
    - VI. “ Wool unmanufactured,” mentioned in schedule C, and “ hair of all kinds, uncleaned and unmanufactured,” mentioned in schejdule G, refer to wool and hair, clipped or cut, and not to the skin or hide with the wool or hair on, in its natural state. When the skin or hide is shorn, one part is denominated wool or hair, and the remainder is no longer termed a “skin,” but a “ pelt.”
    VII. Thus as “ hair ” pays a duty of ten per cent., but the skin with the hair on, only a duty of five per cent., in the case of a deerskin; so in the case of a sheepskin, while the “ wool” pays a duty of thirty per cent., the skin with the wool on should pay only a duty of five per cent.
    VIII. The terms “skins” and “hides,” are generic, and include all kinds of skins and hides. Schedule H, embodies this idea in words, “ hides and skins of all kinds,” and intends the hide or skin of every animal, deer, sheep, calf, horse, &c. Though all these are known in trade as hides and skins, yet to distinguish them, the denominations of deerskins, sheepskins, calf-skins, horsehides, &c., are appropriately used. To say that because one kind of skins is called “ sheepskins,” and another “ deerskins,” &c., they are by such distinctive terms, removed from the general class designated in schedule H, “ hides and skins of all kinds,” would be to destroy the class entirely; fot one after another, every kind of hide and skin could be thus removed until no kind would be left. If, because a particular skin is called in commerce a sheepskin, it is removed from the genus “ skin,” by the same argument Saxony wool, or Smyrna wool, would not be comprised under “ wool unmanufactured; ” nor camwood or fustic,'under “dye woods,” in schedule II; nor horsehair under “hair of all kinds,” nor beaver fur under “furs,” nor emeralds under “ precious stones,” in schedule G, &c.
    It is obvious that such a rule of construction would destroy the tariff. Does.a stone cease to be a precious stone because it is called an emerald ? or a skin cease to be a skin because it is called a sheepskin?
    IX. If schedule H, then, merely described “ hides and skins of all kinds,” a sheepskin would be comprised under it as appropriately as any other kind of skin.
    X. But schedule H requires that the “ hide or skin ” should be “ raw,” that is, unmanufactured or undressed, in order to bring it under that schedule. The article in question in this case, was “ raw.” Again, schedule H requires that it should be “ dried,” “ salted,” or “ pickled,” (various ways of preserving the skins.) The article in.question was “ dried.”
    XI. The Buenos Ayres sheepskins imported by the plaintiffs were “raw skins, dried,” and as such, were articles- enumerated in schedule H, and liable only to a duty of five per cent.
    In the argument of these points, -the counsel referred to the following authorities: 1 Sumner, C. C. Rep. 166; 1 Story’s C. C. Rep. 341, 560, 610; 2 Id. 374 ; 8 Peters, 277; 10 Id. 137; 3 How. 106; 7 Id. 786; 1 Excheq. R. 281; Hume’s Laws of the Customs, 284, 287.

      Mr. Crittenden.

    • The importation must fall within the class of articles embraced in the third section of the act' of 1846, as not specially otherwise provided for, and thereby be subjected "o a duty of twenty per cent, ad vabrem.

    “ Wool, imported on the skin,” ■ was, by the act of 1828, subjected to a specific duty of four cents per pound, and also in addition to an ad vabrem duty of forty -per cent.; and- also increasing annually by five per centij until the ád vabrem. duty amounted to fifty per centum; by the act of 1832, it was subjected to a specific duty of four cents per pound, with the addition of an ad vabrem duty of forty per cent.; and by the act of 1842, it was subjected- to a specific duty of three cents per pound, with the additional duty of thirty per centum ad vabrem. So stood the revenue laws in the statute books, when the revenue act of 30th July, 1846, was framed, and under consideration, and passed. It -is not reasonable to suppose that “ wool imported on the skin,” an article of foreign importation, which had been, eo nomine, so long distinguished from “ raw hides and skins,” by different descriptions, and by different rates of d imposed on them, respectively, were, by the act of 1846, confounded and subjected to one and the same rate of duty, under one and the same name.
    By the well-established rules of construing statutes, “ if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any 'one of them.” Where there are-different statutes in pari materia, though made at different times, or even expired, and not referring to each other, they shall be taken and construed together as one system, and as explanatory of each other. Rex v. Loxdale and others, 1 Burr. 447; 4 Bac. Abr. Statute (I.) 3, 646; The King'n. Mason, 2 Term R. 586; Allesbury v. Pattison, Douglas, 30; 1 Black. Comm. 60, and Tufcker’s note, 3; Dwarris on Statutes, 700.

      The revenue laws of the United States are all to be taken together as one system, one statute as explanatory of another. The revenue act of 30th July, 1846, has reference expressly to the former law for imposing duties and for exempting articles from duties.
    • In accordance with the established rulés for construing statutes, “ wool, imported on the skin,” so noticed as an article of commercé, and as such subjected to duty, in acts of 1828, 1832, and 1842, cannot be lost sight of in construing the act of 30th July, 1846; that article of commerce not being otherwise specially provided for in any of the schedules, from A to I inclusive, must, of course, come under the general provision of the third section, which imposes the duty of twenty per cent, ad valorem upon all goods imported from abroad, not otherwise specially provided for in the act.
    After the distinctions so clearly drawn, in the revenue law of 1842, between sheepskins, imported with the wool on the skin, and raw hides and skins, dried, salted, or pickled, a construction of the act of 1846, would be preposterous and in violation of the established rules, which should obliterate that distinction, force sheepskins imported with the wool on the skin into the denomination of raw hides, to be subjected to the same rate of duty as if they had been imported divested óf the wool.
    The evidence adduced by the plaintiffs established, without doubt, that the sheepskins were .imported with the wool on the skin. The law applicable to the fact made the importation!» liable to the rate of duty provided in the third section of the act of 1846.' _
    _ The opinions of the witnesses introduced by the plaintiffs, that sheepskins, imported with the wool on the skin, dried, as it came from the body of the sheep, may be comprehended under the denomination of raw hides and skins dried, cannot change the law, can have no legal effect to alter the construction of the statutes. It is the province of the witness to testify as to fact; it is the province of the judge to pronounce the law applicable to the fact.
   Mr. Justice NELSON

delivered the opinion of the court.

This is a writ of error to the Circuit Court of the- Southern District of the State of New York.

The action was brought by the plaintiffs against the defendant, the late collector of the port of New York, to recover back an excess of duties paid under protest on an article imported from Buenos Ayres, described in the invoices and entries as “ sheepskin's.” The importations were under the tariff act of 1846. The article was imported with the wool on the skins, and by the in* struetions of the Secretary of the Treasury, the collector was directed to cause the wool to be estimated and appraised, and to be charged with a duty of thirty per cent, ad valorem under schedule C, and five per cent, on the skin, under schedule H. The plaintiffs claim that no more than a duty of five per cent, ad valorem should be charged upon the entire article. It is usually described,in the invoices, and shipped as sheepskins, and known in trade and commerce by that designation. The skin is in the same condition as when taken from the animal, except it is dried. It is not dressed.

The court below charged the jury, that the article came within neither of the schedules mentioned, but was more properly a non-enumerated article, and chargeable with a duty of twenty per cent, ad valorem. And judgment was rendered in the case accordingly.

By the act of May 19,1828, (4 Stat. at Large, 271, sect. 2,) a duty is charged upon wool imported on the skin; and direction is given to estimate it as to weight and value, and impose the same duty as' on' other imported wool.

A similar provision is found'in the act of July 14, 1832, (Id. 584, sect. 2,) and also, in the. act of August 30,1842, (5 Id. 548.)

The article is not enumerated according to its previous de-. signation in the revejiue laws in the act of July 30, 1846, (Sess. Laws, 68,) and, of course, no duty is specifically charged upon it in that act as in the previous acts. But it is claimed, on the part of the plaintiffs, that it falls within the description under schedule H, “ raw hides, and skins of all kinds, whether dried, salted, or pickled, not otherwise provided for,” and which are chargeable only with a duty of five per cent, ad valorem.

TÍÍÍ6 description was obviously taken from the act of 1842, (sect. 5, para. 6,) “ on raw hides of all kinds, whether dried or salted,' five per cent, ad valorem; on all skins pickled, and in casks, not specified, twenty per cent, ad valorem.”

The only difference between this act, and the present one is, that the two classes, “ raw hides,” and “ skins,” are now ranged in one class, and the duty of five per cent, charged upon each. “ Skins pickled,” are classed with “ raw hides dried or salted,” which latter article, it is well known, is extensively imported into the country for the purpose of being manufactured into leather, and the duty is fixed at a low rate for the encouragement of the manufacturer.'

In this same act of 1842, it will be remembered, sheepskins, imported with the wool on, were charged with a specific duty, the same as unmanufactured wool, thus distinguishing the article from skins pickled, referred to in the 6th paragraph of the 5th sect, of that act.

"We have no doubt, from the association of skins with raw hides in the act of 1846,' in ’ connection with the description, and classification in the act of • 1842, that they should be regarded as an article imported, like raw hides,, for the purpose of being manufactured; and, by no reasonable construction, can be regarded as descriptive of the article in question.

The argument is quite as strong, and we think stronger, in favor of ranging the article under the clause in schedule E: “ skins of all kinds, not'otherwise provided for,” and which is chargeable'with a duty of twenty.per cent, ad valorem.

Neither do we think that :the. article cari be separated, and a duty charged separately upon the estimated quantity of the wool, and upon the skin, according to the rate chargeable upon each. ■ This would be the introduction of- a principle in the construction of the revenue acts heretofore unknown, and which' has no countenance in the provisions of the acts themselves. .

. . The 20th section of the act of 1842 looks to the component •parts of a manufactured article of two or more materials infixing the duty; but does not separate it, and charge the,duty on each part according to the class to which it belongs. It assesses the duty on the entire article at the highest rate at which any of the component parts, might be charged. *

.It is difficult also to say to what length this principle, if admitted, must be carried in construing these acts. It could'not, consistently, be -.limited to the article in question; for, while skins, dried, are charged only with the duty of five per cent, ad valorem, “ hair of all kinds ” is chargeable with a duty of ten per cent.; and the same rule of construction that, would separate the sheepskin, and charge a duty separately on the wool, and on the skin, would require the deerskin, with the hair on, to be separated, and the duty to be levied on each part; And so, in respect to every other skin -dried, salted, or pickled, imported with the hair on.

It is true, that in the acts of 1828,1832, and 1842, in each of .which a specific duty was charged upon the wool imported on sheepskins, the appraisers were directed to estimate the weight and value, for the purpose of assessing the duty. But'.the article was not divided, as no separate duty was assessed upon the skin by either of these acts. The act of 1842 assessed a duty upon “ skins pickled and in -casks,” but skins imported with the wool on, when separated from the wool, would not fall within this description. The whole duty, therefore, that, could be properly assessed upon the article was assessed upon the estimated quantity of wool imported upon it.

The article has never been classed in any of the tariff acts, under the designation of skins; but has been charged always, since it came under the notice of these acts, with a. specific duty. It has been thus charged,, since the act of 1828, down to the present act, a period of some eighteen years. , And, although it has been invoiced, and is known in trade and commerce, by the designation of sheepskin raw, and dried, and may, generally speaking, be properly ranged under the denomination of skins, as a class-; yet, having a known designation in the revenue acts, distinct from the general class to which it might otherwise be assigned, we must regard the article in the light' in which it is viewed by these acts, rather than in trade and commerce. For, when Congress, in legislating on the subject of duties, has described an article so as to identify it by a given designation for reveriue pufposes, and this has been so long continued as to impress on it a particular designation as an article of import, then it must be treated as a distinct article, whether there be evidence that it is so known in commerce or not. It must be taken as thus known in the sense of the revenue laws, by reason of the legajf designation given to it, and by which it has been known and ■ practised on at the custom-house.

It -is but fair to presume, after having been treated by the law-makers for a considerable length of time as an article known by this designation, with a view to the assessment of the rate of duty upon it, that, if intended to be charged specifically, or by enumeration, the designation by which, it was ■known to them would have been used, instead of the one known to trade and commerce, if that should be different;

The 3d section of the act of 1846, enacts, that on all goods, wares, and merchandise not specifically provided for in the act, a duty of twenty per cent, ad valorem shall be charged.

Under the foregoing view of the law of the case, sheepskins, ■ imported with the wool on, must bé regarded-as a non-enumerated article, and fall within-this third section.

The probability is, that the enumeration was omitted from an oversight, else thé article would have been chargeable with a duty in the way provided for in the act of 1842. But, having-been omitted, and not specifically provided for,- it necessarily comes within the section mentioned, and subject to a duty of twenty per cent, ad valorem.

We are of. opinion, therefore, the judgment of the court below was right, and should be affirmed.

Order. .

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


author: Mr. Justice GRIER

text:
    John Walsh, Edward Walsh, and Dickinson B. Morehead, owners of the Steamboat Iowa, Appellants, v. Patrick Rogers, Thomas Sherlock, John B. Simmons, Edward Montgomery, John W. Baker, and P. A. Anshute, Claimants of the Steamboat Declaration, her tackle, apparel, and furniture.
    In a case, of collision, upon the River Mississippi, between the steamboats Iowa and • Declaration, whereby the Iowa was sunk, the weight of evidence was, that the Iowa was in fault, and the libel filed by her owners against the owners of the Declaration was properly dismissed.

      Ex parte depositions, under the act of 1789, without notice, ought not he taken, unless in circumstances of absolute necessity, or in cases of mere formal'proof or. of some isolated fact.
    This was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana.
    ' The libel was filed by the appellants, in the District Court, where they obtained a decree on the 1st May, 1848, for $18,500 and costs. Ah appeal was taken to the Circuit Court.
    On the 19th of February, 1850, the cause was heard finally in the Circuit Court, and upon consideration of all the testimony,as well that considered by the District Court, as the testimony subsequently taken, and arguments of counsel, the judgment of the District Court was declared to be erroneous, was ordered to be reversed and annulled, and the libel to be dismissed at the costs of the appellants.
    The libellants then appealed to this court
    It was argued by -Mr. Fendall and Mr. Chilton, for the appellants, and Mr. Badger, for the appellees.
    The questions were exclusively those of fact and evidence, as will be seen by á reference to ■ the opinion • of the court. No question of law was raised in the case.
   Mr. Justice GRIER

delivered the opinion of the court.

This c-asp presents no question of law for our decision. As is usual in cases of collision, each party makes out a good case by the testimony of the. pilot ánd crew’of his own boat. This collision occurred, also, after night; and although the night was not very dark, the most calm spectator, on such occasions, is subject to great illusions as to the motion and position of the respective vessels. The attention of passengers is also seldom given to the subject until their fears are excited; and the danger to life and property threatened by the sudden shock of the collision, generally renders them incapable of a clear apprehension of what passes at the time, or a distinct recollection of what preceded the event. The pilot and crew of each boat feel bound to’exonerate themselves from blame, and consequently cannot be expected to give a very candid statement of the facts. In such cases the oral examination of witnesses before the court, with a stringent cross-examination by skilful counsel, is almost the only method of eliciting truth from such sources. This may be done in the District Court, and sometimes, possibly, on appeal to the Circuit Court. But such a course of sifting out the truth in doubtful cases cannot be pursued here. We are disposed, thérefore, to require that the appellant should be held to make out a pretty clear case of mistake in the court below, before he should expect a reversal of their judgment. Raising a doubt on contested facts, is not sufficient for the action of this court. An appeal should not be a mere speculation on chances.

It is admitted in this case, that if the story told by the libellants’ witnesses is true, they are entitled to recover the value of their boat. It is admitted, also, that if the facts testified by the respondents’ witnesses are true, the appellants ought not to recover.' Their several statements cannot be reconciled; and one or the other of them must be false in all its material allegations.

The libellants’ witnesses testify: That on the 1st of October, 1847, about 8 o’clock in the evening, the steamboat Iowa was ascending the River Mississippi, above Morgan’s Bend, on a voyage from New Orleans to St. Louis. That she had previously landed a passenger about two miles below the place of collision, on the right bank of the river. That she then crossed the river to the left bank, and. was proceeding in her proper place, close to the shore, (from ten to twenty-five feet from it.) That the Declaration was seen coming down the river towards the Iowa. That the Iowa stopped her engine a minute before the collision.. The Declaration turned towards the left bank, and ran quartering into the Iowa, driving, her, by force of the collision, against the shore, where sue sunk immediately, and so suddenly, that one of the passengers was drowned in his berth. In support of this statement, the pilot, the captain, fifteen of the crew* and ’five passengers, have testified. They are supported,, also, by two witnesses-on the right bank, who testified that the Iowa crossed the river immediately after letting out the passengers. Without, criticizing these depositions^ as to the probability of the facts. stated, or the consistency of each with itself and the others, we shall merely state the opportunity which they respectively had, by their own statements, for observing the material facts to' which they have testified. The pilot and five of the crew were, by their own account, in a situation to know and correctly judge of the facts to which they have testified. The captain and eleven of,the crew were not; some were in the cabin, some in the social hall, and many in their beds asleep, till their attention was aroused by the collision. Yet, whether asleep Or awake, they all swear as positively to the relative course and position of the vessels,- before and at the time of the collision, as those who were in a situation to observe them.

Of the five passengers who corroborate the statement of the crew, one was engaged in, the social hall playing cards, and another asleep in his berth, till aroused by the collision; a third was discredited by proof of his declarations, soon after the occurrence, that the pilot of the Iowa was drunk, and caused the collision by his incapacity'; and a fourth, by his admission that he expected to recover six hundred dollars lost by the sinking of the Iowa, out of the damages to be recovered from the defendants.

On the contrary, the witnesses for the respondents swear distinctly and positively to the following statement of facts:

1st. That the Declaration was coming down the river in the middle of the channel, rather nearer the left than the right bank, having two or more companies of voliinteers, with their officers, on board as passengers.

2d., That it was a clear, starlight night, and that the decks of the Declaration were covered with passengers in a situation to see correctly every thing that occurred.

3d. That the Iowa, when first seen, Was about a-mile off, coming up the right shore of the river, and had not yet crossed to the left.

4th. That when the Iowa: came near, or somewhat below the Declaration, she turned suddenly across the river, either because the boat became unmanageable by the pilot from “ smelling a bar,” or with an intention to cross under the bows of the Declaration;

5th. That from the course pursued by the Iowa she threatened to strike the wheel-house of the Declaration; and that, to,avoid this, the engine of the' Declaration was stopped, and afterwards reversed, so that sh° was commencing a retrograde movement at the time of the collision.

6th. That the IoWa came on under a full head of steam, and impinged herself against the bows of the Declaration, breaking •her flagstaff, and causing the death of one of the soldiers on the deck.

■ 7th. That the head of the Declaration was turned round quartering up stream by force of the collision, and that the Iowa continued under a full head of steam till she struck the left bank of the river, and there sunk in a few minutes.

Nineteen of the crew of the Declaration were examined. Eleven of them were in a situation to see what they testify to. Eight others, whose attention was first called to the matter by the stopping of the engine and backing the boat, corroborate the others as to that fact, without attempting to testify to facts which could not have come under their personal notice. Their statements are circumstantial, consistent, and probable, while those detailed by appellants’ witnesses are improbable and almost incredible. But what is perfectly conclusive of the case, is the fact that the testimony of these nineteen witnesses, who may be supposed to be under the usual bias on such occasions, is completely corroborated by that of seventy of the passengers. Fifty-,four of these .were standing on'the decks, or other parts of the vessel, where they had a full view of the whole transaction from the time that the boats came within sight of each other, till the Iowa sunk to the bottom. They all concur in swearing positively to, the facts we' have stated, and that they could not. be mistaken. The remaining sixteen corroborate them as to the stopping and backing of the engine of the Declaration, and the position of the boats .immediately after the collision.

. If confidence can be placed in human testimony, it is plain that the libellants are not entitled to the judgment of the court in their favor.

Indeed, the only argument which has been urgeu against this overwhelming mass of testimony is, that;the numerous witnesses of respondents coincide so completely in all the circumstances and facts related, not only in their order of narration, but in their language and phraseology, that it leads .to the suspicion of a factitious story, got up after consultation. But the number of the witnesses, the respectability and standing of many of them, the fact that their testimony was taken at different times, by different commissioners, at different places, leaves no room for such an imputation. The coincidence of statement and similarity of language and expression may well have arisen from the fact that their testimony was taken under the act of Congress, ex parte, without cross-examination, and probably by an agent who'had the same stereotyped leading questions put to each of the witnesses in the same sequence and in the same words.

While we are On this subject, it will not be improper to remark, that when the act of Congress of 1789 was passed, permitting ex parte depositions without notice, to be taken, where the witness resides more than a hundred miles from the place of trial, such a provision may have been necessary. It then required neafly as much time, labor, and expense to travel, one hundred miles, as it does now. to travel one thousand. Now, testimony may be taken and returned from California, or any part of Europe, on commission, in two ox three months, and in any of the States east of the Rocky Mountains in two or three weeks. There is now seldom any necessity for having recourse to this mode of taking testimony. Besides, it is contrary to the course of the common law; and, except in cases of mere formal proof, (such as the signature or execution of an instrument of writing,) or of some isolated fact, (such as demand of a bill, or notice to an indorser,) testimony thus taken is liable to greát abuse. At best, it is calculated to elicit only such a partial statement of the truth as may have the effect of entire falsehood. The person who prepares the witness and examines-him can generally have just so much or so little of the truth, or such a version of it, as will suit his case. In closely-contested cases, of fact, testimony thus obtained. must, always be unsatisfactory and liable to suspicion, especially if the party has had time and opportunity to take it in the regular way. This provision of the act of Congress should never be resorted to unless in circumstances of absolute necessity, or in the excepted cases we have just mentioned.

Let the judgment of the Ciréuit Court be 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 Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court 'in this cause be, and the same is hereby, affirmed with costs.