author: Mr. Justice McLEAN

text:
    W. and H. Massingill, Plaintiffs, v. A. C. Downs, Claimant.
    Where a judgment was obtained in the Circuit .Court of the United States for the District of'Mississippi in 1839, and in 1841 the State of Mississippi passed a law, requiring judgments to be recorded in a particular way, in o'rder to make them a lien upon'property,. this statute did not abrogate the lien which had been acquired under the judgment of 1839, although the. Ihtter had not been recorded in the manner required, by the statute.
    This case came up from the Circuit Court of the United States for the Southern District of Mississippi, upon a certificate of division in opinion between the judges thereof. -
    The facts are fully set forth in the opinion of the court, as delivered by Mr. Justice McLean, to whieh the reader is referred.
    It was argued by Mr. Sargent and Mr. Bell,, for the plaintiff, and Mr. Lawrence and Mr. Badger, for Downs, the claimant,

      Mr. Sargent and Mr. Bell made the following points:-
    1. When this judgment was entered, it became a lien on all the .personal and real property of Che wiling, in Mississippi.Hutch, Miss. Code, 881,282. Brown v. Clarke, 4 How. 12; .4 Stat. at Large, 184; ib. 278; Rankin v. Scott, 12 Wheat.,-177; United States v. Morrison, 4 Peters, 124; Burton v. Smith et al., 14 peters, 464; Tayloe et al. v. Thompson, 5 Peters, 358.
    ,2. The rules of court, so Jar as they are more than declaratory of the effect of the United Statés process act .of 1828, adopt the State practice of November 25, 1839; they adopt nothing prospectively.
    , 3. The State act of 1841. does not purport to. operate on federal judgments. No State statute can operate proprio vigore to affect directly, or indirectly a judgment of the federal courts. Wayman 'v. Southard, 10 Wheat. 1; Bank of the United States v. Halstead, ib. 51.

      4 There had been no adoption by Congress, or the federal- courts of Mississippi under the authority of Congress,- of the State act requiring the filing of an abstract, of -judgments in the county where the defendant’s property is situated, at the time this execution was levied.

      Mr. Lawrence, for the claimant.
    Is the law of Mississippi as to the limitation of liens of judgments applicable to the judgments of the federal courts ?
    We contend that it is, because the lien of a judgment is something affecting property, forming no intrinsic quality of .the judgment itself as such, but derived entirely from the sovereignty within whose jurisdiction the property affected by it is situated.
    It is said that a State cannot interfere with and control the federal courts in relation to the effect and operation of their judgments ; that it would leave those courts entirely at the mercy of the State legislatures.
    This is the most plausible, if not the only, argument against us in this case, and a slight examination will show that it is of no real weight.
    'We do not contend that the States can interfere with the effect of the judgments of the United States courts, either in making them less than judgments in fact .or in law, or in preventing the friction of those judgments by process of execution. Congress has, under the Constitution, the exclusive power, to regulate the proceedings in the United States courts; and even where the forms of process used in the States are adopted, it is, after all, but an exercise of the same power of Congress, and not a recognition of any authority over the subject .by the States. Wayman v. Southard, 10 Wheat. 1.
    If, therefore, a State law should enact that a judgment should be no evidence of debt, or should abolish all writs of execution, such a law would not be applicable to the proceedings of the federal courts, because, in the first instance, it would take away the proper intrinsic effect of the judgment itself, and make it, in whole, or in part, no judgment; and, in the other instance, it would take from the United States courts a necessary part of the organization of a court, namely, the power to carry into effect its own judgments.
    But the lien of a.judgment is not an intrinsic quality of the judgment itself, nor is’ it any part of the process of a court for enforcing a judgment.
    1st A judgment is in effect what it is definen to be in theory; “ the sentence of the law given in a court of law.”
    The lien of á judgment is a quality added to it, — a quality not in any manner altering it as the sentence of the court, but superadded to it, taking effect on property, qualifying property, restraining the alienation of property; not by an act of appropriation and sale under an execution, (which come under the denomination of “ proceedings;” and are subsequent to the judgment,) but ás the effect of the mere existence of the judg-. ment.
    Now it is a matter of legal history, that, originally, judgments did not-constitute any lien at all on property in England, which proves that the lien .of a judgment was no part of the judgment itself.
    It is matter of legal history, that even executions could not be levied on lands in England before the Stat, of Westm. 2. Consequently the common law judgments could not affect real property, either by lien or otherwise.
    It is true that it has been held in England, that this statute gave alien on lands as a consequence of the elegit, and- it has been supposed that. therefore a. lien was. the consequence of every execution. But. this by no means follows, for it has never been held that the right of levying an execution on personal property has created a lien-on that species of property by the mere rendition of the judgment, as would have been the case if the lien resulted From the right of execution alone. We think that this consequence was peculiar to. the writ of elegit, which .was authorized by the Stat. of Westm. 2. It has never in England been held to result from any other writ of execution. Prior to 1824, judgments did hot constitute a lien on property in Mississippi.
    It is only by virtue -of local law that this lien exists. . It is a qualification of property which can only be .derived from the sovereignty within whose jurisdiction the property to be affected by it is situated. .That sovereignty can confer it or take it away, or modify it when-conferred. That sovereignty can attach it to a judgment, or to a bond, or to any thing else. But wherever and however attached, it is a regulation of property emanating, not from the court, but from the local authority. United States v. .Crosby, 7 Cranch, 115; Wayman v. Southard, 10 Wheat. 25; McCormick v. Sullivan, 10 Wheat. 192; United States vi Morrison, 4 Pet. 1.36; Ross v. Duvall,-13 Pet. 61; Tayloeh.'.Thompson, 5 Pet. 367,368; Reid v. House, 2 Humph. 576; Thompson t. Phillips,; 1 Bald. C. C. 273, 274;. Manhattan Co. v. Evertson, 6 Paige, 466, 467; Conard v. Atlantic Ins. Co., 1 Pet. 443.
    Second, the lien attached to a- judgment is not (within the meaning of the acts of Congress) any part of theJ“ process ” of a'court;, or of its mqdes of proceeding. •

      If it is, it must be a part either,of the final process, or else of the modes of proceeding to carry the judgment into effect.
    In Annis v. Smith, 16 Pet. 312, 313, this court has laid down what “process” is, and what “ modes of proceeding ” are, as those terms áre used in the act of 1828.
    It is there said that “final process” means.all the writs of execution then in use, and “ modes of proceeding ” are the exercise of all the.duties of the ministerial officers of the States prescribed by the laws of the States for the purpose of obtaining the fruits of judgments. See also United States Bank v. Halstead, 10 Wheat. 61, 63,
    Now a lien is certainly not a writ or precept of any kind. It is no part of the action of the court in a suit, nor is it the exercise of a ministerial duty of an officer of; the court, nor even the result of any such exercise of duty. It is no proceeding at all, it implies no action at all; and the whole; progress of a suit may go on now, as it did formerly, from the original writ to .the satisfaction of the judgment by a sale under execution, without any. lien whatever. It is a mere dormant, extrinsic quality, attached to' the judgment not by the court, nor in the federal, courts by the power creating those courts, but by another power, taking effect not on the judgment itself, but upon property, qualifying that property and restraining its alienation.
    But it may be said that the Circuit Court, in compliancy with the law of 1828, did, in .1837, make, a rule' that the lien of judgments and decrees shall continue as now provided by law, and that the Mississippi act of 1841,. now in controversy, has not been adopted.
    To this we answer, that if the lien of a judgment is a regulation of property, and not a “process” or “mode of proceed--ing,” then this rule of court can have no effect whatever. It was beyond the power of the court.
    Whether or not Congress itself has the power to say what shall or shall not. constitute a lien on property within a State, it is not necessary now to inquire, because' we say thát Congress has not attempted to do it, nor has it authorized the courts to attempt it.
    We say, that, under the act of 1828, the Circuit Court of Mississippi had no power, by adoption or- the want of adoption, to alter or continue a lien on property.
    ■ The act of May, 1828, directed that writs of execution and other final process, issued' on judgments and decrees, and the proceedings thereupon, shall be the same in each State as are now used in each State. 4 Stat..at Large, 278, 279.
    The third section of that act declares, that it shall be in the power of the courts so far to alter final procéss in said courts as to conform the same to any change made by the State legislatures for the State courts.
    The thirty-fourth section of the Judiciary Act of 1789 enacts that “ the laws of the several- States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or prescribe, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases' where they apply.” 1 Stat. at Large, 92.
    The power of the court, then, in this respect, is confined rto the alteration of final process.
    The case of Annis y. Smith, before referred to, (16 Pet. 312, 313,) has settled the meaning of “ final process ” to be writs of execution. The lien of a judgment not being a writ of execution, the court has no power to adopt it, under the third section of the act of 1828, and, besides,, the third section obviously is confined to action in. court,
    Neither does the act of 1828, in the preceding sections, adopt the lien, of judgments, unless it is “ final process ” ora “proceeding thereupon.” But the case of Annis v. Smith has settled this latter expression to mean the ’ exercisé of a ministerial duty of some officer of the court in the service of “ final process.”
    If this be so, then, under the thirty-fourth section of the Judiciary Act, the United States courts are bound to regard the law of the State upon the subject of the lien of judgments.
    .. (The argument of Mir. Lawrence on the constitutionality of the Mississippi statute is omitted, the. decision having turnéd upon the first, point.)
    Of Mr. Badger’s argument the reporter has no notes.
   Mr. Justice McLEAN

delivered the opinion of the court.

This action was brought in the Southern District of -Mississippi, to try the right, of property which had been levied on. The plaintiffs showed g judgment of the Circuit Court, entered the first Monday of November, 1839, for $ 3,716.43, with interest, &c., against one J. J. Chewning and others, on which an execution had been issued 1 and levied upon, certain slaves claimed by A. C. Downs. At the time, of the levy, the property was in possession of the defendant Chewning. Downs produced- a mprtgage on the slaves, executed by. said Chew-ning, and regularly recorded, in favor of the “ Commercial Railroad Bank of Vicksburg,” to show a title in the bank adverse to the right of the plaintiffs. This-mortgage bears date subsequent to. that of the judgment.

On these facts,. the. court were requested by plaintiffs to charge the jury “to disregard the mortgage, because of the paramount right of the plain tiffsRo have execution of their judgment by means of said levy, although no abstract or brief of the judgment had been recorded or enrolled in the county where the property was situated.” And on this prayer for instruction, to the jury, the opinions of the judges were opposed; and, at the request of the counsel on both sides, the point was certified to this court.

By the first section of the act of Mississippi of February 6th, 18.41, it' is provided that “all judgments and decrees of any circuit, district, or superior court of law or equity, holden within this State, -shall operate as liens from the date of their rendition upon the property of the debtor, being within the county in which the sitting of such court may be holden, and not elsewhere, unless upon compliance with the conditions hereinafter enacted.”

By the second section, — “ That any judgment or decree heretofore rendered shall, be a lien from the date of its rendition upon the property of the debtor, situated in any other county than that in which the same was rendered; on condition, that an abstract thereof, on or before the first day of July next, be filed in the office of the Circuit Court of the county in which said property may be situate, in pursuance of the subsequent section of this act.”

The third section provides, that where an abstract of a judgment or decree is filed in the office of the clerk of the Circuit Court, which it is made his duty to record, it shall be a lien on the property of the defendant within the county from the time 1 uf such filing.

The judgment under which the levy was made was rendered more than a'year before the above act was passed.

Prior to the act of 1824, there was 'no statutory lien of a judgment in Mississippi. A lien was created in that State, as in England, by the delivéry of the execution to the sheriff. The Stat. of Westm. 2, or 13 Ed. I., ch. 18, gave the elegit which subjected real estate to the payment of debts, and this, as a consequence,, it has always been held, gave a lien on^-fchc lands of the judgment debtor. 3 Salk. 212; 1 Wils. 39.

“There is no statute in Virginia which, in express terms, makes a judgment a lien upon the lands of the, debtor. As in England, the lien is the consequence of a right to take out an elegit.” United States v. Morrison, 4 Pet. 136, And in The Bank of the United States v. Wooster, 2 Brock. 262, the chief justice says, “ The - lien depends dá the right to sue out an elegit.”

The same doctrine was held'by, the Supreme Court of Indiana before the act of 1818 of that State, which gavé alien on the real estate of the defendant by the judgment. Ridge v. Prather, TBlackf. .401.

In North Carolina, the lien on lands is created by the delivery of the execution to the sheriff, there being no statute in that State on the subject. And in other States of the Union,'the same principle has been long established.

Now in all these cases the lien arises from, the power to issue process. to subject real estate to the payment of the judgment, either by an extension or sale. In Maryland, this rule has been extended by long usage, so that a lien is created by the judgment without execution. Tayloe v. Thompson, 5 Peters, 369.

The Circuit Courts of the United States exercise jurisdiction coextensive with their respective districts. And it has never been supposed, that, by the. process act of 19th February, 1828, which adopted the process and modes of proceeding of the State courts, the jurisdiction of the Circuit Courts was restricted. The process and modes of proceeding ” in the State were adopted by Congress in reference to the jurisdiction of the Circuit Courts, arid not with the view of limiting the jurisdiction of those courts.

In those States where .the judgment on the execution of a. State court creates a lien only within the .county in 'which the judgment is entered, it has not been doubted that a similar proceeding in the Circuit Court of the United States would create a lier\ to the extent of its jurisdiction. This has been the practical construction of the power of the courts of the United States, whether the lien was held to be created by the issuing .of process or by express'statute. Any other construction would materially affect, and in some degree subvert, the judicial power of the Union. It would place suitors in the State courts in a much better condition than in the federal courts.

That by-the course of practice in Mississippi the lien of a judgment in the Circuit Court extended throughout the district, prior to the act of 1841, is not controverted. And the question is, whether that act can impair or affect in any respect a judgment rendered, in the federal court before its passage. The point certified does not require us to consider whether the law can operate on judgment liens entered subsequent- to its date. The plaintiffs in the above judgment acquired a right under the authority of the United States, and that right may be protected from any judgment of the Supreme Court of the State which shall impair it, under the twenty-fifth section of the Judiciary Act. .

It is contended that the lien in Mississippi exists by the statute of the State, and that under the thirty-fourth section of the Judiciary Act of 1789, it is a rule of property, and that it is consequently a rule of decision for the courts of the United States, and that the process act of 1828 has no bearing upon the question.

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

No State statute is of more frequent application in the federal courts than the above section; and it has often been held that the settled construction of a State, statute by its supreme court is considered as a part of the statute. And the statute, as thus expounded, is regarded as a rule of'decision in the courts of the United States where it applies, “ except where the Constitution or acts' of Congress otherwise provide.”

The' thirty-fpurth section has never been considered as an act to regulate process. And it is argued that a statutory lien, being a rule of property, is applied to judgments in the Circuit Courts, under this section, without being influenced, in any degree, by the process act.

We have seen that, where there is no statutory lien, it is created by issuing and delivering to the sheriff an execution, which authorizes the sale or extension of the real estate of the defendant. In those States, it is the process authorized by the judgment which creates the lien; and in such cases we necessarily look to the nature of .the process, and the extent of its opération, to determine the lien. It must act upon the land of the defendant, and consequently the land must, lie within the jurisdiction of the court.

What is a judgment lien ? In the argument, it was compared to a mortgage. “ A mortgage is often called a lien for a debt, but it is something more. It is a transfer of the property itself as security for the debt. . This is true in law and in equity. ” Conard v. The Atlantic Insurance Company, Peters, 441. A judgment lien on land constitutes no property or right in the land itself. It only confers a right to levy on the same, to the exclusion of other adverse interests subsequent to the judgment; and when the levy is actually made on the same, the title • of the creditor for this purpose relates back to the time of the judgment, to cut but intermediate encumbrances. ” Subject to this charge, the defendant may convey the land; “ A judgment creditor has no jus in re, .but a mere power.to make his general lien effectual, by following up the'steps of the law.” What law? The law which authorizes the judgment, and the issuing of the. process through which means the judgment may be satisfied. A failure to do this releases the charge on the property. Ib. .

The lien,, if not an effect of the judgment, is inseparably connected with it. And this is the case, whether the lien was created by the judgment and. execution, or. by statute. And. in either casé, where the. right has attached in the courts of the United States, a State has no power, by legislation or otherwise, to modify or impair it. Retrospective. laws of a remedial character may be passed; but no legislative act can change the rights and liabilities of parties, which have been, established by a solemn judgment.

This court therefore direct that it be certified to the Circuit Court, that the right of lien claimed by the plaintiffs under the' judgment is paramount to that of the defendant claimed under the mortgage.

Order.

This cause came on to be .heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and on the point or question on which the judges of the' said Circuit Court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. . On consideration whereof, it is the opinion of this court, that'the right of lien claimed by the. plaintiffs under the judgment is paramount to that of the defendant claimed under the mortgage; whereupon it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court.


source: Caselaw Access Project

author: Mr. Chief Justice TANEY

license: Public Domain

text:
    Grant B. Udell and Jacob Miller, Plaintiffs in error, v. Alexander B. Davidson.
    The act of 1838, (5 Stat. at Large, 251,) relating to preemption rights, provides, that “ before any person claiming the benefit of this law shall have a patent for the land which he may claim, by having complied with its provisions, he shall make oath, &c., that he entered upon the land which he claims in his own right, and exclu- • sively for his own-use and benefit, and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatever, by which the title which he might acquire from the government of the United States should enure to the use and.benefit of any one except himself, or' to convey or transfer the said land, or the title which he may acquire to the same, to any other person or persons whatever, at any subsequent time.”
    Where a preSmptioner sold his inchoate title, which passed ultimately into the hands of a trustee, and the trustee loaned money out of the trust fund to the pre* - emptioner, in order to enable him to pay the government; and the title thus obtained from the United States was conveyed by the preemptioner to the trustee, without any reference to the trust; and the trustee was ordered by a State court to hold the property subject to the trust, — he cannot remove the case to this court, by virtue of the twenty-fifth section of the' Judiciaiy Act..
    There is no title, right,- privilege, or exemption, under an act of Congress, set up by the party and- decided against him by the State court. • By his oym showing, he-has acquired no title from the United States. <' \

    The allegation is, that a fraud was perpetrated upon the government, and another-meditated upon the cestui que trust¡ both of which this court is called upon to maintain and ea,rry out.
    The case is dismissed, for want of jurisdiction.
    This case was brought up from the Supreme Court of the State of Illinois, by a writ of error issued under the twenty-fifth section of the Judiciary Act.
    The facts in the case áre sufficiently set forth in the opinion of the court..
    A motion to dismiss it, for want of jurisdiction, was made by Mr. J. Mason Campbell, which motion was sustained by him, and opposed by Mr. Coxe.

   Mr. Chief Justice TANEY

delivered the opinion of the court

A motion has been made to dismiss this case, for want of jurisdiction.

. It appears that a man by the name of Gregory had obtained, by residence on the land mentioned in the proceedings, a right of preemption, under the act of Congress of 1838. But, before he paid the price fixed by the government in such cases, or máde the entry, he sold his right to Miller, one of the plaintiffs in error. Miller afterwards conveyed to a man by the name of Joslyn, in secret trust foi; himself, and subject to his control. ■ Subsequently to this conveyance, Joslyn, by the direction of Miller, conveyed to UdeM, the other plaintiff in error, in trust to sell to the highest bidder, and apply the proceeds to the • payment of -the creditors of Miller, pro rata, if they were not sufficient to pay all demands.

Udell accepted the trust, and, after having done so, made an agreement with Gregory, by Which Gregory was to enter the land at the proper office, at the preemption price, and then convey to Udell ■ in trust, for the benefit of Miller’s creditors, reserving a small portion of the land to Gregory himself. Udell'was to furnish the money to enable Gregory to make the entry.

■Under this agreement, Udell executed a release to Gregory of all his right to the land, in order to enable him to make the entry as preémptioner, and at the same time took from him a note - for a thousand dollars, which was to be given up if Gregory made the conveyance according to his agreement.

The land was worth á thousand dollars. The government price to the preémptioner was only two hundred- dollars, which sum was advanced by Udell to Gregory. One hundred and fifty dollars of this money belonged to the creditors of Miller, and was so applied, at his request, and upon his statement that this application would be for the interest of his creditors. The .remaining fifty was advanced by Udell,- to be repaid out of the proceeds of the land, when sold. But it does not appear that the defendant in error, or indeed any of Miller’s creditors, sanctioned this transaction at the time, or had knowledge of this application of the trust funds.

With the money thus obtained, Gregory made the entry, and then executed a deed to Udell. This deed, upon the face of. it, is absolute, and contains no trust for the creditors.

After having thus. obtained a conveyance, Udell refused to execute the trust, and therefore the defendant in error, as one of the creditors of Miller, .in behalf of himself and the other creditors, filed a bill in chancery, setting out more at large the1 facts above stated, and praying that the land might be sold for their benefit, in pursuance of the. trust.

The plaintiffs in error demurred to the bill, assigning various causes of . demurrer, and, among others, that the transaction with Gregory, by which Udell obtained a conveyance, was- in violation of the act of 1838.

The chancery court, upon the hearing, décided that, the land; in the hands of Udell was chargeable with the trust, and directed it to be sold, and the proceeds to be applied accordingly. This decree was affirmed in the Supreme Court of the State, and the present writ of error has been presented upon that judgment.

It is unnecessary to notice any of the various causes of ■ demurrer assigned by the plaintiffs in error, except that which relies on the .provisions of the act of 1838. For this being a writ of error, to a State court, we have no right to revise its decision upon any of the other causes assigned, and the only question before this court is, whether any title, right, privilege, or exemption, claimed by the plaintiffs in error in the State court under this act of Congress, was drawn in question and decided against them.

They do not claim that Udell obtained a valid, title by the entry made by Gregory, and his subsequent conveyance to Udell. And if their defence had been placed .on that ground, it would not have given jurisdiction to this court, because the proceeding to cjiarge it .with a trust created by contract would have been no impeachment of the grant made by.the United States.

They defend themselves upon the ground, that the transaction between them and Gregory, by which the entry was made under a previous contract to convey, was a violation of the act of 1838. This is undoubtedly.true; for the act requires the party who claims tfce right of preemption by. residence to make oath that he' has not contracted to sell- or transfer the land, to any other person. And he is not permitted to purchase at the low price at which ' the' person, entitled to preemption is allowed tó buy, until this oath is' taken and filed with the register of the land-office'. And if he swears falsely, he is liable to an indictment for perjury, andfforfeits all title to the land, and deeds made by him convey no title, unless they are made to a bond fide purchaser without notice.

The plaintiffs in error admit that they participated in the fraud, and consequently Udell, upon their own showing, has acquired no right to the land under the act of Congress on which he relies. They do not claim that he obtained a valid title under the law, but insist that the transaction was against its. policy, and in violation of- its principles. What right or privilege does he then claim'under this act of Congress? It is this. He not only admits, but insists, that, by á fraud Upon the government, he has obtained a deed to himself for this land, and that he, being trustee for the creditors of Miller, used the money which belonged to his cestui que trusts to accomplish his purposes; and now contends, that,' by means of this fraud upon the government, he has acquired under this act of Congress a right to perpetrate a fraud also upon his cestui que trusts.

This, in plain words, is the amount of his defence; and this is the right or privilege which he claims under thé provisions of the act of 1838, and calls upon this court to recognize and maintain. We shall not comment .on such a claim. The writ of error must be dismissed, for want of jurisdiction.

Order.

This cause came on to be heard on the transcript of the record from the. Circuit Court of Winnebago county, State of Illinois, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this writ of error be, and the same is hereby, dismissed, for the want of jurisdiction.


text:
    Hall Neilson, Plaintiff in error, v. Wilson Lagow.
    Where, upon the trial of a casé in a State court, a party claims the land in dispute,. •' under an authority which he alleges has been exercised by the Secretary of the Treasury, in behalf of the United States, and the decision was against the validity of the authority, the party is entitled to have his case brought to this court under the twenty-fifth section of the Judiciary Act.
    This case was brought up from the Supreme Court of Indiana, by a writ of error isued .under the twenty-fifth section of the Judiciary Act.
    . As a motion was madeto dismiss it for want.of jurisdiction, and , the merits , of the case were hot discussed; a brief statement of the facts will'be sufficient.
    . It was an action of disseizin, similar to. ah ejectment, brought by Lagow in the Circuit Court for the county of Knox ahd State of Indiana, against Neilson, Billis, and Thomas, to recover possession of a piece of property known by the name of the Steam-mill Tract, lying in the town of Vincennes. Billis and Thomas disclaimed all interest, and the. suit Was carried on by Neilson alone. On the 19th of September, 1821, Lagow and others conveyed the'property to the President, Directors, and Company of the Bank of Vincennes, their successors and assigns, for ever, for the consideration of $ 98,000.
    On the 1st of July, 1822, the bank conveyed this, property to Badoliet, Harrison; and Buntin, and their successors, in trust for the use of the Secretary of the Treasury of the United States, in extinguishment of the debt due by the bank to the United States. The trustees were to sell,whenever- requested by the Secretary of the Treasury, and continue, to pay until the United States were paid the sum of $120,308, with interest. The Secretary of the Treasury was vested with power to fill up vacancies in the trust.
    In July, 1822, there came on for trial in the court at Vin-cennes a quo warranto, which had been issued'by the State of Indiana against the bank. The jury found a verdict,of guilty, ahd the court decreed that all the franchises and property of the bank should be seizéd for the use of the State. The sheriff returned that he had seized the franchises; but being unable, to find any effects of any nature* soever of the .bank, he was unable to obey the command of the writ in respect to them. The writ was issued on the 6th of July, and the return made on the 19th of August, 1822.
    In November, 1823, a judgment for $123:80 was obtained in the court át Vincennes against Lagow and the other partners of the steam-mill company, and execution issued thereon. The property in question was levied upon, sold at auction, and purchased ,by Lagow, to whom a deed was executed by the sheriff on the 26th of December, 1823.
    In 1826, another sale of the property took place, by authority of the Supreme' Court of Indiana. Badollet, Harrison, and Buntin, the trustees, had J&led a bill and obtained a decree against Lagow and;his partners in the State court, which was carried up to the. Supreme Court. That court ordered the steam-mill tract, with all the buildings, engines, and appurtenances, to be sold, and appointed three commissioners to make, the sale. It was accordingly made, ratified by the court, and a deed executed by two of the commissioners on thé 20th of June, 1827. The purchasers were Badollet, Harrison, and Buntin, the trustees, who took tli/deed to themselves, their heirs and assigns, without noticing thé trust. The amount of the purchase-money was one thousand dollars. Evidence was. given upon the trial) that no money was paid excepting the costs and coun-sél fee, which payment was made from the funds of the United States, by order of the Secretary of the Treasury.
    On the 28th of June, 1827, a déed was executed by Lagow and his partners, by which they renounced all claim upon each other arising from transactions pf the steam-mill company, and conveyed thé whole property, debts, &c., to Lagow, he. undertaking to pay all debts due to other persons than the partner's.
    Evidence was given upon the trial, that Hall Neilson had hád possésS'ibn of that property since 1832, claiming to hold it urider Badollet, Harrison, and Buntin, who were all dead, hbw-¿vér, prior to the eommencement'óf thé suit.
    Whéri the testimony was closed, the court, at the instante of the plaintiff, Lagow, gave the following instructions to the niry.
    1. That on the proof of possession as owners by the steam-mill company in 1820, arid of the conveyance by the company to' Lagow, of Juhé, 1827, Lagow, the plaintiff, is érititled to recover, unless the defendant has shown a better title.
    2; That'the seventh section of the act of Congress of thé'1st of Mhy, 1820, forbids “ tlie purchase of any lánd pn account of the United States,” unless authorized by act of Congress;

      3. That the term “ purchase of land ” in law, and in the act of- Congress, means any and every mode of acquiring an interest in real estate other than by inheritance.
    4. That if the government is prohibited from purchasing land directly in its own name, it is also' prohibited from purchasing indirectly in the name of, an agent or trustee.

      5. That if there is. any act of Congress or law authorizing the conveyance from the bank to the trustees, it is incumbent on. the defendant to show it; and from the fact that the defendant does not set up any such act or law, the jury may infer there is none.
    6. That all acts, deeds, and agreements, contrary to the plain language, or even to the.policy, of an act of Congress, are void.

      7. That if the deed of trust from the bank is contrary to the letter, or to the spirit and meaning, or to the policy, of the act of the 1st of May, 1820,. it is void; and the interest which the bank then had in the land remained in the bank.
    14. That it is incumbent on the defendant to show the conveyance made by the trustees, if any such they did make.
    20. That to defeat the plaintiff’s title, founded on prior possession, as owner, it is necessaryjfhat the title set up by defendant should be shown to be a subsisting title, and superior to Lagow’s title. To which instructions the defendant at the time excepted.
    The court then,, at the instance of the defendant, gave the following instructions to the jury, to wit, that if they believe, from the evidence, that defendant, and those under whom he claims, had been in peaceable adverse possession more than twenty years at the time this suit was commenced, the claim of the plaintiff is barred by the statute of limitations, and they must find for the defendant.; to which instruction the plaintiff at the time excepted.
    The defendant then asked the eourt to give to the jury the following instructions, to wit:—
    2d. That the plaintiff in this case, in order to recover, must establish a good title in himself, and that he cannot recover if the defendant has shown the real title to the land to be in another persop ; that it is sufficient if the defendant has made it appear to the jury that a legal and possessory title does not subsist in the plaintiff.
    3d. That it was competent for the Bank of Vincennes to make a deed to trustees for the benefit of the United States, and such a deed is valid and lawful for the purpose for which it was made ; but the court :refused to give the same to the jury; to which refusal of the court the defendant at the time excepted.

      Under these instructions and refusals the jury found a verdict for the plaintiff, Lagow. A motion was made for a new trial, which was overruled, and the case carriéd .up to the Supreme Court of Indiana, where the judgment of the court below was affirmed. A writ of error, issued in the manner already stated, brought it up to this court.
    A motion was .made by Mr. Bradley to dismiss the case for ' want of jurisdiction, which was opposed by Mr. Gillet..

   Mr. Chief Justice TANEY

delivered the opinion of the court.

It appears, that, at the trial in the State court, the plaintiff in error claimed the land in dispute under au authority which he alleged had been exercised by the 'Secretary of the Treasury in behalf of the United States; and the decision was against the validity of the authority thus alleged to have been exercised. Whether the title, of the plaintiff in error can be maintained under it, or not, will be the subject of inquiry when the case is heard on its merits. That question is not now before the court, and the only point tó be determined at this time is, whether we have jurisdiction to try and decide it. We think it is:evidently one of the cases prescribed for in the twenty-fifth section of the act of 1789 ; and the motion to dismiss is therefore overruled.

Order. .

On.consideration of the motion made in this cause on ¿ prior day of the present term, to wit, on Friday, the 2d instant, to dismiss the writ of error, and of the arguménts of counsel-thereupon had, as well against as in support of the motion, it is now here ordered by the court, that the said motion be, and . the same is hereby, overruled.


text:
    William Lewis, who sues for the Use of Nicholas Longworth, Plaintiff, v. Thomas Lewis, Administrator de bonis non of Moses Broadwell, deceased.
    By a law of the State of Illinois, passed in 1827, “every action of covenant shall be commenced within sixteen years after the cause of such action shall have accrued, and not after.” But by a proviso, persons beyond the limits of the State were exempted from the operation of the law, and might bring the action at any time within sixteen years after coming within the State. Afterwards, in 1837, this' proviso was repealed.
    The statute of 1827 begiris to run, as to non-residents, from the time of the repeal of the saving clause, in 1837, and not before.
    This case came úp from the Circuit Court of the United States for the District of Illinois, on a certificáte of division in opinion between the judges thereof.
    It was an action of covenant under the following circumstances.
    . On the 12th of March,' 1819, Broadwell executed a deed with" a general warranty, to William Lewis, by which he conveyed to him a tract of land in Ohio.
    In June, 1825, one Matthews recovered, by ejectment, one hundred acres of the land.
    Broadwell died in 1827, and one Cromwell was appointed his, administrator.
    In_1843, Thomas Lewis was appointed administrator de bonis non, and in the same year William Lewis brought this action.
    Amongst other pleas filed (which it is not necessary to notice) was one of limitation, to which the plaintiff réplied that he was beyond the limits of the State.
    To this replication the defendant demurred.
    The acts of the legislature of Illinois, under which the question was raised, were the two following..
    The first, passed on thev 1 Oth of February, 1827, and entitled “ An act for the limitation of actions and for avoiding vexatious lawsuits.”
    “ Sec. 4. That every action of debt, or covenant for rent, or arrearages of rent, founded upon any lease under seal, and every action of debt or covenant, founded upon any single or penal bill, promissory note, or writing obligatory, for the direct payment of money, or the delivery of property, or the performance of covenants, or upon any award under the hands and seals of arbitrators, for the payment of money only, shall be commenced within sixteen years after the cause of such action shall have accrued, and not after; but if any payment shall have been made on any such lease, single or penal bill, promissory note, writing obligatory, or award, within sixteen years after, such payment shall be good and effectual in law, and not after.”

      “ Sec. 7. That every real, possessory, ancestral, or mixed action, or writ of right, brought for the recovery of any. lands, tenements,, or hereditaments, shall be brought within twenty years-next after the right or title thereto, of cause of such action ■accrued, and not after: Provided, that.in. all the foregoing cases in this act mentioned,.where the person or persons, Who shall, have right of entry, title, or cause of action, is, are, or shall be at the time of such right of .entry, title, or cause of action, under the age of twenty-one years, insane, beyond the limits pf this State, or feme covert, such person or persons may make such entry, or institute such action, so that. the same be doné within such time as is within, the different sections of this act limited after, his or her becoming of full age, sané, feme sole, or coming within this State.”
    The other act was passed on the 11th of February, 1837, and was as follows: —
    “ An act to amend an act entitled. ‘ An act for the limitation of actions, and for avoiding vexatious lawsuits.’
    “ Set. 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly, that the proviso to the seventh section of the act, to which this is an amendment, shall not be held to extend to any non-resident; unless such non-, resident be under the age of twenty-one year's, insane, or feme covert, and then, in that case, the rights of such persons shall be' saved for the time limited by the different sections of said act; after his or her becoming of full age, sane, or feme sole. Approved February 11, 1837.”
    Upon the trial, the opinions of. the judges were opposed upon the following points, which were certified to this court:—
    “ 1st. Whether the statute of 1827 begins to run from the time of the repeal of the saving clause in. 1837, or from the. time the debt, became due.
    “2d; Whether the statute oegan to run before administration was granted!
    “3d. Whether the period which .elapsed between the two administrations mentioned in thé replication is to be deducted from the period of the statute of limitations of .1827.”
    The case was argued by Mr. Wright, for the plaintiff, and Mr. Lawrence and Mr. Lincoln, for the defendant.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This, case depends upon the construction and operation of the statutes of limitation of the State of Illinois, and comes before us upon a certificate of division betweén the judges of the Circuit Court.

It. is an action of covenant, brought in 1843, upon causes of action which accrued before 1827, The defendant pleaded the statute of limitations; to which the plaintiff replied, that, at the time the causes of action accrued, he was in parts beyond •vthe limits of the State, and has ever since remained, and yet is, beyond the ,limits of the State. The defendant, demurred to this, replication, and the plaintiff joined in demurrer.

An act - for the limitation' of actions was passed on the 10th of February', 1827, by which it was, among other things, provided, that every action for the performance of covenants should “ be commenced within sixteen years after the cause of such action should have accrued, and not after.” But, by a proviso in the seventh section of the act, it is declared, that every person who was or should be, at the time of such cause of action, beyond the limits of the 'State, might institute his action within •the time limitéd in the act, after coming within the State. Af-terwards, by a law passed February 11, 1837, it was enacted, that this proviso should not be held to extend to" any .non-resident, unless such non-resident was under thé age of twenty-one years, insane, or feme covert.

Upoii the argument of the demurrer, the following points arose, upon which the judges were opposed in opinion^ and which have been certified to this court: —

1st. Whether the statute of 1827 begins to' run from the time of the repeal of the saving' clause in 1837, or from the tinie the ‘debt becáme due.
'u 2d. Whether the statute began to run before, administration was granted.
,“3d. Whether the period which elapsed between the two administrations mentioned in the replication is to be deducted,. from the period of the statute of limitations of 1827.”

Previous to the act of 1827, there, was no. law of the State of Illinois which limited the time, within which an action of covenant should be brought; and, consequently, there was no restriction as to the period within which a suit might be instituted' upon, the cause of action now in question! The same thing was the case after the passage of this act, as long as the plaintiff continued beyond the limits of the State. For, until he came into it, the proviso above-mentioned excluded this cause of action from the operation of the statute. And as the plaintiff did not come- into the State, there was no* limitation running against:it until the passage of the .act- of 1837. This act, by repealing the saving contained in. the -former law, broughtnhe claim within its provisions, and subjected it to the limitations therein contained.

The-question is, From what time is this limitation to be cál-culated ? Upon principle, it would seem to be clear, that it must commence when the cause of action is first subjected to the operation of the statute, unless the legislature has otherwise provided. For it is. at that time that the statute first acts upon it, and limits the period within which' suit must be brought. ’Such is obviously the policy and intention of the Illinois statute of limitations. For if the plaintiff had come into the State the day before the act of 1837 was passed, and by that means subjected his cause of action to the provisions of "the former law, the limitation would have commenced running on that day, and his action would not have been barred until the expiration of sixteen years afterwards. * For the act of 1827 gave him sixteen years from the time he brought his - cause of action within its operation.

He did not, however, conje into the State; and his cause of action was brought within the limitation of that law, not by' his own act, but by another law. ' Can there be any reason for a different run of limitation in the latter case, from that which the law itself has provided in the former ? The construction and object and policy of the act of 1827 must be the same in both instances ;• and the act of 1837 makes’ no change in it in that respect. It merely subjects the cause of action to its limitations, and does precisely what the plaintiff himself would have done, if he had come into the State, — that is to say, it brought the plaintiff within the limitations of the former law, and subjected him to the restrictions therein contained.

The question, however, has been, already decided in this court in the case of Ross et al. v. Duval et al., 13 Pet. 62. In .that case a.saving clause in a statute of limitations of Virginia, similar to the one contained in the Illinois law, had beeh repealed by a subsequent statute. And this court decided, that, against the persons embraced in the saving clause of the original law, limitations would not begin to run until the time of the repeal; and.that the party was entitled to the full period of limitation prescribed in the original act, commencing from ' the date .of the repealing law.

A passage in the report of that case, m page 64, was cited in the argument, as maintaining a contrary doctrine. But it will be found to be entirely consistent with what the court, had previously said. It relates to claims included in a statute of limitations, when, from the language of the law, it may. b'e justly inferred that the legislature intended to embrace a périod of time already past, during which the party had omitted to sue, yet still leaving him reasonable time to prosecute his claim. But the rule there stated can have no application to. the case, before Us; for this claim was not embraced in, nor operated upon by, the statute of limitations- of 1827. It was brought within it by the subsequent law. And that law makes no new limitations as to. past or future time, and. merely subjects the cause of action to the provisions of the original law. The passage above mentioned, therefore, cannot apply to it, and is not inconsistent with what had before been said in relation to the effect of a law repealing a saving in a.former act of limitations.

Under this-view of the subject, the court is of opinion, upon the first point in the certificaté of division, that the statute of 1827 begins to run from the time of the repeal.of the saving clause in 1837, and not before; and will direct it to be so certified to the Circuit Court.

And as this decision disposes of the whole case presented by the demurrer, the other points do not arise; and‘it is unnecessary to examine them.

Mr. Justice McLEAN.

I dissent from the opinion just pronounced. It overrules a solemn decision of this court in the case of Ross et al. v. Duval et al., 13 Peters, 57. Andas that'opinion is. relied on as sustaining the decision now given, I shall examine it.

The judgment of the court in that case was placed upon two grounds. First,' that the action was barred under the statute of Tirginia of 1792. That act provided, that where an execution had not issued on a judgment, it might be revived within ten years, of where an execution was issued, and there was no return, other executions might be issued within the ten years from the rendition of the judgment. There was a saving in the act in behalf of infants and persons beyond the Commonwealth, “ giving five years after the removal of thé disability to'proceed on the judgment.”

By the act of 1826, the saving in the act of 1792 was repealed, but the time of the bar was to be computed, as specially provided, from the time of the repeal of the saving.

The court considered the act of 1792 as a limitation on the judgment,- and, as more than ten years had elapsed, that all proceedings on the judgment were barred. There was nothing in the pleadings or evidence which showed that the plaintiff was within the saving of the statute.

And the court remark, — “ There is another, view of this case, which, though not much considered in the -argument, is deemed important by the court.” “ And this arises under the process act of 1828,” <fcc. “ If the act of 1792, or any part of it, is to be considered as a process act merely, and not'an act of limitations. the act of 1828 makes it the law of Congress for the State of Virginia, and gives immediate effect to it.” “ If it be viewed as aii ■ ct of limitations merely, and not for the regulation of process, it then takes effect , as a rule of property, and is a rule of decision in the courts of the United States under the thirty-fourth section of the Judiciary Act.” “ In either case, effect, is .given to the act of 1792, and it is decisive of the present con-tr'oversy.”

But if it be considered, as contended, an act of limitations adopted by the act of 1828, the court are to give a construction to the act of 1828-. If this' be clear in its provisions, we are bound to give effect to it, although it may, to some extent, vary the construction of the act of 1792. And this is no violation of the rule that this court will regard the. settled construction of a State statute as a rule of decision. For in this case the construction of the State law, in regard to the effect it shall have, is controlled by the paramount law of- Congress.”

■ “ The judgment in the Circuit Court was entered in 1821, so that seven years of the ten years’ limitation of the act of 1792 had run when it was adopted by the act of 1828. Now the question is, shall no effect be given to this act of Congress in Virginia before its passage, because of the construction by the Virginia courts of the act of 1792 ? ”

“It must be recollected, that this .act of 1828 is a national law, and was intended to operate in the national courts in every State. As it regards some of the States, it may at first have-operated less beneficially in them than in others ; but its provisions took immediate effect in all the States.”

“ It is a sound principle, that where a statute of limitations-prescribes the time within which- suit shall be brought, or an act done, and a- part of the time has elapsed, effect may be- ■ given to the act; and the time yet tó run, being a reasonable part of the whole time, will be considered the limitation, in the mind of the legislature in such cases.”

“ There may be some contradictory decisions on this point, in-some of the States; which have been influenced by local-considerations, and the peculiar language or policy of certain acts'of limitations. But the rule is believed to be founded on. principle and authority.”

I have cited largely from the above .decision, to show that the point was distinctly considered and decided, as arising under the act of 1828, that effect may be given to a statute of limitations, where a part of the time has run but a reasonable part of the- whole time has yet to run.. And this is the principle which is repudiated in the case under consideration. I have a distinct recollection, that the point was first suggested by the lamented Justice Story,' and was discussed, and. the principle was laid down, with the entire concurrence of the court, so far as I know. There was no dissent expressed, either in consultation or on the bench.

It is true .theré was another ground on which the decision was rested; but it was also placed upon this ground, so that one ground as well as the other was ruled by the court. In the case of Ross, the court say, — “ The saving clause of the act of 1792, as to non-residents, is repealed, the only effect of which is to bring within the limitation of the statute of 1792 those who were within its saving clause, and against whom the statute-had not begun to run. Against such persons the statute could not begin to operate, until the repeal of the exception by the act of 1826.” And that remark is-considered by the court, in the case before us, as having been made on general principles. Now such was the express provision of the act of Í826, that it should take effect from its date, and the remark was made in reference to that provision.

There is no rule better settled, in the construction of statutes of limitations, than that effect must be given to them according to their language. If they make no exception in favor of infants, femes coverts, or non-residents,. the courts can make none. And when the exceptions of a statute of limitations are repealed, the act stands as though it had been originally passed without them. In Jackson v. Lamphier, 3. Peters, 28ti, the court say, — “ The time and manner of their operation, [statutes of limitations,] the exceptions to them, and the ácts ¿rom which the time limited shall hegin to run, will generally, depend on the sound discretion, of the legislature. Cases, however, may occur, where- the provisions of the law on these subjects may be so unreasonablé, as to amount to a denial óf a right, and to call.for'the interposition of the court. If thé legislature .of a. State should pass an act by.^fhich a past right of action shall be barred, and without any allowance of time for the institution of a suit in future', it would' be difficult to reconcile such an-act with the express constitutional provisions. in favor of the rights of private property-” It must. be admitted that the legislature could mot bar .a claim, to which there was no bar: .but ho one can doubt that a statute may bar claims where the right of action existed, and a reasonable part of the whole' time of the statute has to run. This is often done in some of the States. But, while it is not doubted .that the legislature may do this, it is objected that it cannot be done as a matter of construction.

This objection is .more plausible than sound. The statute creates a bar, and the question arises on its construction, whether it is .“ so unreasonable as to amount to a denial of,a right,” in the language of this court’in the case above cited. • If the answer to this shall be in the affirmative,-then, in the language above cited, “ it would be difficult to reconcile such an act with the express constitutional provisions in favor of the rights of private property.” But if the question can be answered in the negative, then a court is bound to give effect to the statute. And here is an answer, in the words of this court, to the principal ground taken in thé case under consideration, and on which the decision is founded. If the court may determine whether a statute is so unreasonable as to cut off a private right, of necessity they may decide whether it is not so reasonable as to be enforced.

In the case before us, the Illinois act of 1827 limits the right of action to sixteen years, and the proviso gives the same time to sue to a non-resident, after he. shall come within the State. But this proviso was repealed by the act of 1837, which placed residents and non-residents, as to the time of. bringing an action, on the samé footing. The plaintiff’s cause of action accrued. under the act of 1827.; in 1837, the saving being repealed, six years were left for the statute to run to bar the claim. Was this a reasonable time ? The answer must be in the affirmative. Then the act is not unconstitutional. It deprives the party of no right. In the language of the court in the case of Ross v. Duval, “ the time yet to run,(when the proviso was repealed,) being a reasonable part of the whole time, will be considered the limitation in the mind of the legislature, in such cases.” There can be no mistake as to the point decided by the court; and that point is directly opposed to the decision now made. In such cases, it is . always better to overrule - a former opinion directly, than to destroy its force by indirection. In their former opinion the court say, “ The rule is believed to be founded on principle and authority.”

In statutes of limitations it is usual to say, they shall begin to run from the time the action shall hereafter accrue, and when.a saving of such act is repealed, that it shall operate from the date .of the repeal; and if these provisions be not in the acts, they will, as a matter of course, take effect upon their passage. They must take effect from their passage, unless the language shows the time is to be computed from the date of the act. Without this provision, the question would arise whether a reasonable part. of. the time allowed by the statute, from the time, the, action accrued, had yét to run, as béfore remarked..

In Luckett v. Dunn and Bass, 3 Litt. 218, the court say, — “ But the privilege previously " allowed to persons who might be out of the country when their causé' ¡qf action, Or right of entry, accrued, to maintain their action within ten years after their"return, was expressly repealed by the first section of the act of January, 1814, which, by a!, subsequent clause in the third .section of the same act, was to take effect at the. expiration of six months from its passage ; and it was not until more than a year after the passage of that act, that this suit was brought by Luckett in the Circuit Court. It is obvious, therefore; that the absence of Buckner Pittman cannot have prevented the time which has ¿lapsed since the lot had been'held adversely by the defendants, and those through whom they claim, from barring the plaintiff’s action.

The rule of so construing a statute as riot to give it a retrospective effect is admitted. Arid a legislature can never be presumed to intend to destroy a vested right. Indeed, they have no power to pass such a law. But a law may be- constitu--tional, and yet have a retrospective effect. Matthewson v. Satterlee, 2 Peters, 380. In the case under examination, it is not proposedvto. give the statute a retrospective effect, or to affect in any degree vested rights by a construction of it.'. The only question is, whether the six years that the statute had to run, on the repeal of the saving, is a reasonable part of the whole time required by the act to constitute a bar. The plaintiff, though not a resident of the State, might have sued so soon as the right of action accrued..

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District} of Illinois, and on the print or question on which-the judges of the said Circuit Court were opposed in opinion, and. which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel, On ..consideration whereof, it is the- opinion of this court, that the statute of 1827 begins to run from the time of the repeal of the saving clause in 1837, and not before. Whereupon, it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court.


text:
    Jeremiah Van Rensselaer, Appellant, v. John Watts’s Executors.

      Mr. Blunt, of counsel for the appellant in this cause,
    moved he court to direct the clerk to docket the case ás of the time when, the transcript of the record was received by him, and in support of his motion said, that this record was forwarded to the clerk early in'1848. That it was only recently he learned -that the clerk had declined filing or docketing it, until the bond prescribed by the thirty-seventh rule of court was given. That his client supposed, when he gave bond in the Circuit Court, that he had done all that the law required him to do. That the record had been lying in the clerk’s office about a year, during which some sixty cases had been docketed. That the bond was now filed, as prescribed by the rule, and that the case ought to be docketed as of the day the record was deposited in the office.

      Mr. Seward, for appellees, united in the application.
    This motion was made on the 9th of March, when the court took time to.consider..
   On the 12th,

Mr. Chief Justice TANEY

announced the decision of the court as follows : —

On consideration of the motion made in this cause, on the 9th instant, by Mr. Blunt, of counsel for the appellant, to direct the clerk to docket this case as of the time when the transcript of the record was received by him, and to which Mr. Seward, of counsel for the appellees, .assented, this court consider, the practice established by the decision in Owings v. Tiernan, 10 Peters, and do not wish to disturb it; whereupon it is now here ordered by this court, .that the said motion be, and the same is hereby, overruled.


author: Mr. Justice WOODBURY

text:
    Cornelius W. Lawrence, Plaintiff in error, v. Gilbert Allen and Samuel C. Paxton.
    By the fifth section, of the tariff act passed on the 30th of August, 1842, (5 Stat. at Large, 555,) a duty of thirty per cent, is imposed on “India-rubber oil-cloth, webbing, shoes, braces or suspenders, or any other fabrics or manufactured articles composed wholly or in part of India-rubber.”
    In the ninth section, among .other articles declared to be exempt from duty, is, “ India-rubber in bottles or sheets, or otherwise unmanufactured.”
    By these sections, the duty of thirty per cent, is payable upon shoes made of India-rubber in Brazil, although they are made by the same process as bottles or sheets, provided they come to this country in a condition to be worn without further material labor on them here, and were'actually worn in this form, and provided they were called, in the language of commerce, “India-rubber, shoes ”; and of these two facts the jury ought to judge.
    The articles come within the letter of the law, and the act of 1842 was framed with a' desire to tax whatever might compete with our own manufactures.
    "When India-rubber is made into a shape suitable for use, it may be considered a manufactured article. Originally, it was made into the shape of boots, to he used and worn in Brazil, and afterwards into shoes; hut not intended to he sent abroad ás a raw material.
    The fact, that the material of which these shoes are made is used for other articles of manufacture after their importation, does not change this view of the subject.
    This case was brought up by writ of error from .the Circuit. Court of the United States for the Southern District of New York.
    It was an action of assumpsit, commenced by- Allen and Paxton, the'defendants in error, in the Supreme Court of .the State of New York, for the purpose of recovering hack from the plaintiff,in error, collector of customs,for the port .of New' York, certain moneys exacted by him, as collector, for duties upon, a quantity of common India-rubber shoes, imported into the port of New York in September, 1845, by the defendants in error, from Para, in Brazil.
    ■ Under the provisions of the act of Congress of the 2d of •March, 1833, the suit was removed into the Circuit Court of the United States for the Southern District of New York.
    The declaration contained the common money count's, to which the defendant pleaded the general issue.
    •The cause. was tried in May, 1847, and, under the instructions of the court, the jury found a verdict for the. plaintiffs below for $ 2,908.60.
    A great deal of evidence was adduced upon the trial by the plaintiffs, to show the.manner in which the shoes are made in Brazil, and their use as an article of commerce. Much of this, testimony, was objected to as inadmissible. A part of it is. transcribed, because it is referred to in the opinion of the court.
    The plaintiffs’ counsel then called, as witnesses, James E. Smith, Amory .Edwards, George G. Wales, and William H. Edwards, who, being sworn, severally testified that' they were acquainted with the articles now the subject of controversy, and with other articles' of India-rubber imported from Para; that they had been at Para, and were acquainted with the process of producing or making India-rubber; that the juice or sap of the trees, when collected, is about the color and consistency of milk, and is called milk; that it is placed in a vessel of convenient size ; that moulds of clay, or of wood covéred with clay, in the shape of a shoe, orbottle, or other shape, and to which a handle is attached, are dipped in the milk, and immediately held in the heat and smoke of a fire made of a peculiar kind of nut, which .dries the milk and gives it a dark color; that this process is repeated several times, until the coating is sufficiently thick, when the article is taken from the mould, by breaking the clay of which it is made, or with which it is covered, and the pieces of clay are taken out; that shoes and bottles are then generally stuffed with straw, and that the article is then ready for sale and exportation; that bottles are made in two or three minutes ; that it takes somewhat longer, say about five minutes, to prepare a shoe ; there must be a new mould for every bottle; — the foot-shaped mould is the best form for dipping. The shoe shape is the most convenient mode of making India-rubber. The stuffing of. the shoe is done by the parties who buy them in Para for exportation. The shoes are sometimes shipped in bulk, and sometimes stuffed. . The term, India-rubber shoes, comprehends all kinds of shoes made of India-rubber, both manufactured and unmanufactured ; that the price of India-rubber shoes, in Para, has varied greatly since 1826; that the great demand for India-rubber, of late years, in the United States, for dissolving for manufacturing purposes, has raised the price in Para; that . no such things as suspenders are made in Para; that nothing is made there in a more manufactured state than the square sheets ; that India-rubber shoes are sometimes sold and shipped at Para without being stuffed with straw..
    Much evidence was also introduced by the defendant, the objeet of which was to show that the articles were. known, in commerce, by- the name of “ India-rubber shoes,” . and were bought and sold in the market as imported, without any alteration of any consequence.
    The counsel for the defendant then prayed the court to decide the law of the case, and to instruct and charge the jury, us follows: —
    . First. That in.construing and.applying the provisions of the tariff law of August 30, 1842, to the present case, the' terms used therein are to be understood in their known commercial sense, as used arid understood in the ports of the United States prior to, and at the date of, said law.
    ■ Secondly. That as all “ India-rubber shoes,” imported from ■foreign countries, are, by the said provisions, subject to thirty per cent, duty, the true and only inquiry in the present .case, is, whether, in a commercial sense, and among commercial men dealing therein, the articles in question were imported into, and ■ usually known and bought and sold in, the ports of’the United States, prior to and at the date of the law, under the name and denomination of “India-rubber shoes,”
    Thirdly. That if the jury shall be satisfied, from the evidence, that the articles in question were imported into, and usually known and bought and sold in, the ports of the United States, prior to the 30th of August, 1842, under the name and denomination of “India-rubber'shoes,” then they are liable, under the law, to a duty of thirty per cent, ad valorem, and the jury should be instructed to find for the defendant.; and that, in the case stated, the jury should be instructed to find for the defendant,'notwithstanding they should also be satisfied, from the evidence, either, —
    lst. That the term “ India-rubber shoes,” as used in commerce, includes all other kinds of shoes made in. whole or in part of India-rubber, as well as these; or,
    2d.. That “ India-rubber shoes,” in a more finished condition, and of a better quality, were imported from England, France, or other countries, prior to 1842, and were then, and are now,. known in the marketsor,
    3d. That some additional labor is usually applied to these articles, or is necessary to fit them for convenient use as shoes; or,
    ,4th. That these articles are extensively used by manufacturers in the United States for the purpose of being made, in whole or in part, into other articles; or,
    5th. That no mo’ e or other kind of labor is required to make these articles than is required to make India-rubber in bottles, or sheets, or other kinds of India-rubber, which, by the seventh article of the ninth section, is entitled to admission as free.
    It being insisted, on the part of the defendatíi, that neither of these circumstances, nor all of them combined, can nullify the explicit terms of the preceding fifth section, by which all kinds of “ India-rubber shoes ” are subjected to the thirty per cent, duty, nor make free these articles, provided they are and were known in commerce under the name “India-rubber shoes.”
    But his honor, the presiding judge, refused so to decide the law of the. case, or so to instruct the jury; and, on the contrary, the said judge did then and there decide, and did then and there charge and instruct the said jury, that the case, in the view taken thereof by the, court, entirely depended on the true legal construction of the tariff act of August 30, 1842, and involved no question of fact for the jury; that India-rubber, when used, in whole or in part, in the manufapture of oilcloth, webbing, shoes, braces, or suspenders, or any other fabrics or manufactured articles, was, by the tenth article of the fifth section of this law, subjected to the duty of thirty per centum ad valorem, specified in the clause relating to these fabrics, contained in said tenth article ; that, by the seventh article of the ninth section of said.act, India-rubber, in bottles or shepts, or otherwise unmanufactured, is declared to be exempt from duty; that, by virtue of this clause, India-rubber existing in the particular forms enumerated therein, and existing in any other form in which it may bé imported,, is free from duty, if unmanufactured; that, as these two clauses were both in the mind of. the legislature when treating of India-rubber, they are to be construed together; and that, so construed, the fair conclusion is, — - and such the said judge decided to be the true legal interpretation of said provisions, — that Congress, in laying the duty, had special reference to the manufactured article in a finished state, and intended to allow India-rubber to come in as free, whatever might be its form, if it had not been brought, by manufacture, into a finished state; that, as it was not pretended that the goods in question were shoes manufactured out of the material called India-rubber, and as it was admitted by all the witnesses that they were brought into the form of a shop in the process of making the material called India-rubber, they were not “India-rubber shoes,” within the meaning of the tenth article of the fifth section, but were to be regarded as raw material and as unmanufactured, within the meaning of the seventh article of the ninth section; that the goods in question were, therefore, entitled to be admitted free of duty; that the plaintiffs having protested in writing against the payment of any duty thereon, and the collector having, notwithstanding, illegally exacted a duty of thirty per centum ad valorem thereon, the plaintiffs were entitled to recover back the moneys so exacted, except so far as the same had been ore-funded by way of drawback; and that the jury would, therefore, render a verdict for the amount of such remaining moneys, with interest thereon to the day of trial, in favor of the said plaintiffs.
    And thereupon the said defendant, by his counsel aforesaid, then and there excepted to the whole of the said decision, charge,.and instruction of the said judge, and particularly to those parts thereof wherein the said judge decided and held that the said case involved no question of fact for the jury, and wherein the said judge .instructed and charged the jury, as matter of law, that the goods in question were entitled, under the act of Congress above referred to, to be admitted free of duty; and wherein the said judge also instructed and charged the said jury, as matter of law, that, the plaintiffs were entitled to recover back the moneys exacted by the defendant as duties on the said goods; and the said defendant, by his said counsel, did also then and there except to the aforesaid refusal of the said judge to decide the law of the case,'and to instruct and charge the said jury in conformity with the prayer of the counsel of the said defendant, hereinbefore contained.
    And the said defendant, by his said counsel, thereupon then arid there further excepted to the decision of the said judge, in admitting as evidence against the defendant the deposition of Samuel K. Appleton, and the parts thereof particularly objected to by the said counsel, as hereinbefore mentioned; -and in admitting as evidence against the defendant the testimony of James E. Smith, Amory-Edwards, George C. Wales, William H. Edwards, and John L. Ripley, hereinbefore particularly objected to by the said counsel; and did also further except' to the decision of the said judge in excluding the instructions of the Comptroller of the Treasury, hereinbefore mentioned.
    Upon this exception, the case came up to this court.
    It was very elaborately argued in print by -Mr. Butler and Mr. Toucey, (Attorney-General,) for the plaintiff in error, and Mr. J. Prescott Mall and 'Mr. Curtis, for the defendants in error. These arguments would, of themselves, fill a hundred pages, and the Reporter finds it difficult to select parts of them. He is therefore reluctantly compelled to-omit the whole..
   Mr. Justice WOODBURY

delivered, the. opinion of the court.

This was a writ of error to reverse a judgment in the Circuit Court for the Southern District of New York. That judgment was rendered in favor of Allen et al., the original plaintiffs, in a suit to recover back the. amount of duties which Lawrence, the defendant, as collector of the port of New York, had demanded and received on the importation of certain boxes of India-rubber shoes, in September, A. D. 1845, and which the importers claimed to be by law free. The duties were,, therefore, paid under protest; and at the trial, the court, among other things, ruled, that, on the facts proved, these shoes were not, in point of law, subject to any duty; and, consequently, a verdict was returned for the plaintiffs below for the amount which had been paid to the collector, and interest.

The facts proved or admitted, which appear material, were, that these shoes consisted wholly of India-rubber, and in different sizes, suited for men, women, and children; that no other work had been expended on them except to dip the. moulds or lasts into the milky íiquid, as procured from the India-rubber trees, and then dry them over a fire, -^performing this process several times, till a proper thickness was obtained. A small ornament was afterwards drawn on some of them, and a coarse stuffing inserted in others, and in this conditibn they had for many years been imported, and worn without any.essential change or addition here, unless in sqme instances slightly to trim' and stretch > them on a last. It was also proved that shoes, made in part from India-rubber and in part from cloth or 'leather, of a thinner and lighter fabric, had been- sometimes, imported from Europe, and-for several years had been extensively manufactured in this country.

The law which governs the question whether these shoes ought, to pay a duty of thirty per cent, ad valorem, or be admitted free, is the act of Congress of August 30, 1842 (5 Stat. at Large, 555). In its fifth section, thirty per cent, is imposed “ on India-rubber oil-cloth, webbing, shoes, braces or suspenders, or other fabrics or manufactured, articles, composed wholly or in part of India-rubber.” And in the ninth.section, among other articles declared to be “ exempt from duty,” is “ India-rubber, in bottles or sheets, or otherwise unmanufactured.”

The court below entertained an opinion, that the clause in this law imposing a duty of thirty per cent, on India-rubber shoes referred to those made in a finished state from that material, after , being altered in Brazil from its liquid condition to the more solid state, and to the forms of sheets, shoes, bottles, &c:, and that this alteration was not a manufacturé, though into a shape designed for use without any material change, and hence, that shoes so miáde arid imported were not dutiable-. This view was, undoubtedly, correct to a certain extent, and in some aspects of the subject; but in others it seems to us to' involve some errors, which we think ought- to be corrected, and which require more extended explanations because overruling the judgment below. Thus, although this act of Congress clearly meant to impose a duty of thirty per cent, on shoes imported, which had been made in part from India-rubber after it had been hardened and fashioned into some crude shape in South America, yet we have no doubt it might likewise intend to impose this duty on shoes' made abroad wholly from India-rubber while in its liquid staip, and especially if, when so made, such shoes were in a condition to be worn without further material labor on them.here, and were made to be so worn, and were in this form often actually worn.

It is our opinion, therefore, that the jury should have been so • instructed; and if they were satisfied those shoes had been thus made to be so worn, and, in the language of commerce, if such shoes were called “ India-rubber shoes,” no less than those made here or in Europe in part from India-rubber and in a more finished form, that the duty of thirty per cent, ought to have been paid on them.

Some of our reasons for this opinion are briefly these.

The articles imported in this case manifestly come within the letter of the clause imposing a duty of thirty per cent, on “ India-rubber shoes.” They are “ India-rubber shoes.” Being thus provided for as shoes, the subsequent clause, making certain articles free which were unmanufactured, artd not enumerating shoes among them, cannot be presumed to embrace or refer to any thing already provided for. United States v. Clarke, 5 Mason, C. C. 30. Indeed, these shoes were more emphatically India-rubber shoes, than those made only in part of that material, as are most, if not all, of those manufactured in.this country and in Europe. Again, to remove difficulty in many cases whether an article should come under the description of those liable to duty, there it is added, in the first clause, taxing them,. manufactured articles -composed wholly or, in part of India-rubber ” ; ánd, in this way, the duty extends to any shoes,, if a manufactured article^ whether they'be like these, composed wholly of India-rubber, or, like most others, composed only in part of it.

• Much more do the shoes in this case appear to come within this provision in the act of Congress imposing the duty of thirty per cent;, when’ we examine the spirit and object of that provision. To ascertain these with some degree of certainty, it may be useful, in the first place, to advert a moment, to the past, as well as subsequent, legislation of Congress on this subject.

The import of India-rubber, in any form, into- this country, does not appear to have attracted attention in the revenue laws, as a' separate and specific article* till 1832. Before that, and especially in the tariff acts of 1828, 1824, and 1816, all of which are usually conceded to have looked to protection as well as revenue, India-rubber is not enumerated eo nomine as free or dutiable, and hence was taxed generally, from twelve and a half to fifteen per cent., among the non-eniimerated articles (3 Stat. at Large, 310; 4 Stat. at Large, 29 and 590). But in 1832, when the policy had become changed to reduce an overflowing revenue, by leaving frqe such unmanufactured articles as furnished raw materials to our own manufacturers, and such manufactured articles as did not compete with any made here, the act of July 14th, 1832, § 3, exempted from duty entirely “ India-rubber (4 Stat. at Large, 590). In 1833, a like policy, for a like reason, was pursued, and so in 1841, by expressions in the former period placing India-rubber ” among the articles free from duty (4 Stat. at. Large, 630), and in the. latter, making “India-rubber” still excepted from duty, though several articles before free were then taxed (5 Stat. at Large, 463).

But in 1842, when the policy of the government again became adapted to protection no less than revenue, the act now under consideration was. shaped so as to tax whatever might compete with'our own manufacturers, and to admit free only articles in such shape; esc. 4orm' as were .not calculated to rival our own. Now beiorh 18'&, it is well known that the making of shoes in part from India^r-fibber, so as to be water-proof, had .been invented, patented, and extensively practised in this country. Consequently, -such a protective tariff as that introduced in 1842 would be likely to tax any foreign fabric which was, in any considerable degree, a rival to the article made here for a Similar use. And, consequently, a foreign-made shoe, whether “ composed wholly or in part of India-rubber,” was meant to be taxed thirty peí cent., if, in either case, it was in a form-suited- tp be used as water-proof, was so designed and so used, and this form would rival the shoe made here for a like purpose.

In construing statutes, it. is not only our duty to give eifect to all the words used in their ordinary sense, but to eviscerate, if possible, their true spirit and intent from - all the connected circumstancés, attendant or subsequent as well as preceding. Bond v. Hoyt, 13 Pet. 273; 1 Kent’s Com. 461.

The statute applicable directly tp the present case being, in some respects, awkwardly worded, the design of it on this subject has been made more explicit and clear by the subsequent act of July 30th, 1846, changing the forms of expression to describe the articles intended to be taxed. Thus, it is there provided, that a duty of thirty per cent, be imposed on “ braces, suspenders, webbing, or other fabrics composed wholly or in part of India-rubber, not otherwise provided for.” And, to prevent -any misconception of the intention, it is added, under the same schedule and .rate of duty, “ shoes composed wholly of India-rubber.”

It would also be very extraordinary if the spirit of the act of 1842, in its high protective policy, should not mean to tax the foreign India-rubber shoe made wholly of India-rubber, when it was, and still is, a most formidable and successful rival to the shoe made here in part of the same substance; when it was at first, and for many years, the only shoe used here as waterproof ; and when, under all patents and improvements since in lightness and beauty, hone seem able to surpass it now in durability, ease, and economy combined.

But it is contended that the India-rubber shoe, as made in Brazil and imported thence, is not a manufactured article,”' and hence is not within the clause in the act of 1842 imposing a duty of thirty per cent. - It may be conceded that this duty applies only to such an article. Yet what constitutes a manufactured article ?

In some instances, and for some purposes, it may be one kind of process performed on what is found in a natural state, and in some, another kind. Thus the juice of the. maple or of the-cane is in some views manufactured when it is made into molasses or syrup, and in others, when again made into sugar or spirit from molasses. And so the juice of the grape is in one sense manufactured when converted into wine,- and in another, ■when made into brandy. And so is lye from ashes, when boiled down to potash or pearlash, manufactured into them. Here, the juice or sap of the India-rubber tree, while liquid or in its milky state, whether then called caoutchouc or some other name, is still,a natural substance, and in its natural form; and, in one sense and to a certain extent, its being hardened and changed in color, no less than consistency -and bulk, by fire and evaporation, whatever-.new form it may then be turned' into, is a manufacture; It .is. so as much as butter or cheese. is a manufacture from animal milk, or tar from turpentine, and rosin from tar-. Yet from the words of the law, as well as its design, it is manifest that the India-rubber is not meant to be taxed as a mahufacture, though so hardened and,changed, unless, at the same time, it is put into a shape which is suitable for use, and adapted with a design; to be used in a way .that is calculated to rival some domestic manufacture he_re, rather than merely to furnish a raw material in a more portable, useful, and convenient form for other manufactures here. In the latter case, within the policy ahd purpose of the tariff law yielding protection, it is “unmanufactured,” or, in other words, not made abroad for use in its existing form except as a raw material, like pig-iron or pig-lead. But in the former case, within that policy and purpose, it is “ manufactured,” as it is made in a shape for use as a manufacture without being afterwards materially changed in form, and is designed to be so used, and hence comes in as a competitor with our own manufactures.

After these, what'requisite is wanting to bring it within the spirit, no less than the letter, of the provision imposing a duty ? It has been changed, by fire and labor, in its color, consistency, and form, from its natural state as the milk of the India-rubber tree. It has been fashioned into an article of clothing, suitable and customary to be worn in its then shape. It is a rival to other shoes made here.

These elements would, on principles of common sense, seem to amount to a manufacture, and one, when imported .from abroad, likely-to be taxed.

Going.to more technical definitions and. to-first principles, such a process to make the - shoe is making ati article by the hand, which was once thé literal meaning of .the word manufacture, or manu factum, and in the more modern idea attached to the word, it is making an article, either by hand or machinery, into a new form, capable of being used, and designed to be used, in-ordinary life..

Indeed, these India-rubber’shoes were originally made, in «Brazil, not as a form .of sending abroad a raw material to be used for other purposes. But they wpre prepared as a shoe, to be worn in the shape as there finished, ánd for the purpose of-excluding water.. Travellers in Brazil described the usé of India-rubber there first, in the form of boots, because water-proof. 1 McCulloch’s Diet. 311; Ure’s Diet.

The shoe succeeded to the boot, and its export in sheets also, to be cut up. to rub out pencil-marks,v&c., gave to the substance itself the common name of India-rubber. Ibid.

In the form of the shoe, therefore, to be worn in Brazil or elsewhere, because water-proof, it was a manufacture, and one of such value for that purpose as to lead. to a greatly increased expobt of the article in that shape within the. last twenty years.

And as the invention was made, here and abroad, of thinner and lighter shoes manufactured in part from it,- and of extending the use of India-rubber to many hew' objects in dress and the arts, the demand for it, in a state ás hardened and colored, without regard to form, enlarged rapidly.

Considering, too, that a* mode of dissolving it here has been discovered, and of easily, giving to it, afterwards, any desired shape, it may be that shoes, no less fhari sheets or. slabs of India-rubber, in a hardened form, become often, when con-veniént, melted down or dissolved, to be used for other purposes. This might often be done with them, though a manufacture, as their value per pound would vary but little, if any, from India-rubber in'the shape of sheets, as the raw material of ■which they were manufactured was the same, and as the expense of making them is similar,. — one being done by several dippings, like a candle, and the other by several layers of the gum or milk.

But this occasional use of the shoes for other purposes than wearing as water-proof shoes would not alter their original character as a manufacture for- the latter purpose, nor the importation and present character of them; as a manufacture for the same purpose.

Thusj the importation of cast-iron in kettles or handirons in a state to be so used, and frequently so used, would not be altered, as a manufacture .of that kind, and as subject to pay the duty imposed on it in ithe tariff; because some of it, after imported, might occasionally be melted down and recast, artd used for other or similar purposes.

Nor is the juice of the cane — converted into a different consistence and color abroad, and shipped here as molasses, ready to be used, and often used as such — any the less a- “ manufactured' article,” and any less subject to the duty on molasses, because some of it, after arriving in this country, may again be manufactured into sugar or spirit.

A further illustration as to the distinction between the same article, put- into a shape to be sold for use as it is, and into on,e not for use as it is, is that of melted iron.

In that state it may be run in moulds, either for pots or for pigs, and, in the former' case, fitted and sold to be used in that shape, and hence a manufácture; while, in the latter, sold to be made up afterwards into new and different forms, and hence, for some purposes, is then not regarded as a manufacture till so made up.

So lead may be melted into the shape of pigs or bars, for exportation and for foreign manufacture, or be run into weights, for use as weights, and then be regarded as already a manufacture for that purpose.

It is another evidence that shoes composed wholly of India-'rubber were considered by Congress as a manufactured arti- . cle, that they place them in that category in the. tariff with other, clearly manufactured articles, while they place in the category of those unmanufactured such articles as are not in a shape to be used much, if at all, without being made up into new forms. Thus it is with the India-rubber images of alligators and- lizards imported. If bottles are' an exception, they are specially enumerated in the tariff among the free articles, in order to be free, while shoes are not; and the former are so enumerated, because usually made up here into new shapes, for other purposes, before used; and when not so made up, are little employed in their original shape, and have no rival manufacture to be protected by taxing them. Had Congress intended that shoes, when wholly of India-rubber, should be considered as unmanufactured, and be free, it is difficult to conceive why it did not place them in that list, and declare them unmanufac-tured and free, rather than in -the list of manufactured and dutiable articles, as it did both in -1842 and again in the revised act of 1846.

Finally, another circumstance exists, which appears to be a decisive indication that this very importation of shoes, though called in the invoice “unmanufactured,” was meant mainly as shoes for use, to be worn in their existing condition, rather than to be dissolved and used for other purposes. It is, that several of the boxes wete invoiced as shoes for “ ladies,” and others ..for misses,” ..or children, and which different forms or shapes would be useless, as well as more, expensive, if the shoes were intended merely to be cut up or-dissolved for other uses, áad not to be worn by different sexes arid ages, as “ manufactured ” shoes in their present shape.

In several analogous cases, as to teas, -cotton bagging, and sugar, this court has held, that it is a proper fact for the jury to decide, whether the importéd article is or is not known in commerce by the words or terms used in the tariff imposing the duty, and not a question of law, to be settled by. the court, as was' done here. United States v. 112 Casks of Sugar, 8 Peters, 277; Elliott v. Swartwout, 10 Peters, 151, 153; United States v. Breed, 1 Sumner, 164; 9 Wheaton, 438; Curtis v. Martin, 3 Howard, 106.

Unless it be admitted in this case, then, as most of the testimony proves, that these shoes were known in a commercial sense and use as India-rubber shoes, — no less, than others, made in part from it, — we think the jury should return a verdict on that fact; and next, that the jury should have been further instructed, that, if these shoes had been made into their present shape in order to be worn as water-proof, when the purchasers pleased, and that it wás .customary so to wear them, they were withiri the meaning of the act of Congress on this subject, “manufactured,” and liable to pay a duty of thirty per cent.

Without going into other questions raised at the trial, and without dwelling longer on this, our opinion is, that the judgment below must be.reversed, and a venire de novó awarded; and the new trial be governed by the principles; here settled.

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. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court of the United States for the Southern District of New York in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with instructions to award a venire facias de novo, and that the new trial shall be conducted in conformity. to the principles laid down in the opinion of this court.