text:
    Pliny Cutler, Appellant, v. William A. Rae.
    Where a vessel was rim on shore by the captain in order to save the lives of those on board, and for the preservation of the cargo, by which act the vessel was totally lost, but the cargo saved and delivered to the consignee, a libel in personam, filed by the owner of the vessel against the consignee of the cargo, (and the result would be the same if filed against the owner of the cargo,) for a contribution by way . of general average, cannot be sustained in the admiralty courts of. the United States.'
    Those courts have jurisdiction wherever the vessel or cargo is subject to an absolute lien, created by the maritime law; and will follow property subject to" such a lien into the hands of assignees. The lien, in suclj cases, does not depend upon possession.
    But in cases of general average, the lien is a qualified one, depends upon the possession of the goods, and ceases when they are delivered to the owner or consignee.. Whatever may be the liability of-the owner after he has received his cargo, it is founded upon an implied promise to contribute to the reimbursement of the owner of the lost vessel, which promise is implied by the common law, and not by the maritime law. . . ._ ' . _
    . _ The case is, therefore, beyond the jurisdiction of courts of admiralty, and the libel' must be dismissed.
    This was an appeal from the Circuit Court of the United States for the District of Massachusetts.
    It was a. libel filed in the District Court, as a court of admiralty and maritime jurisdiction, by Rae, the owner of a vessel called the Zamora, against Cutler, in a cause of contribution or general average,- civil and maritime.
    The facts in the case- are set forth by Mr. Chief Justice Taney, in delivering the opinion of the court, to which the reader is referred. .
    The District Court decreed that Rae should recover $ 2,500 from Cutler, which decree was affirmed in the Circuit Court.
    It was submitted upon printed arguments in this court by Mr. Loring, for the libellant below, and Mr. Fletcher and Mr. Ctirtisj for the respondent and appellant.
    The Reporter would .he gratified if he could insert the whole of these arguments, but want of room forbids it.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This is a proceeding in admiralty, and the point first to be considered is the question of jurisdiction.

The appellee filed a libel in personam against the appellant, in the District Court of the United States for the District of Massachusetts, setting forth that he was the owner of the bark Zamora, which sailed, from New Orleans for Boston, on the 6th of November, 1845, with an assorted' cargo, a- part of which consisted of 154 bales of cotton, consigned to the appellant.; that she was overtaken by "a storm in Massachusetts Bay, and was run on shore by the captain, in order to save the lives of those on board, and for the preservation of the cargo, which, together with the vessel, were in imminent danger of being totally lost; that by this voluntary stranding, the vessel was totally lost, but the cotton was saved; and that the appellant had- saved the' value of it, to wit, § 5,400; and that the appellee .is entitled to contribution from the owners of the .-cargo and the appellant, to indemnify him for the loss of his vessel.

The appellant answered, admitting the ownership of the vessel as alleged in the libel; that she was wrecked in-Massa,chusetts Bay, and that the cotton had come to his hands in a damaged state ; but denies that the appellee is entitled to the general average he claims, and insists that he is Rot liable to contribute on account of the- cotton, to indemnify the owner for the ioss of his bark.

. Upon this libel and answer-, the parties proceeded -to take testimony to show the circumstances under which the vessel had been stranded; and upon the hearing, a decree was passed in the District Court in favor of the appellee for $ 2,500, which was affirmed in the Circuit Court, and from which last-mentioned decree, the present appeal to this court was taken. .

Upon the face of the proceedings, therefore, the question arises whether the District Court had jurisdiction, as a court of admiralty, to try the matter in dispute. And it is unnecessary to state more fully the pleadings.and testimony until this question is disposed of.

It is true, the counsel for the appellant has waived all objections on that score. But the consent of parties cannot give jurisdiction to the courts of the United States, in cases where it has not been conferred by the Constitution and laws.' And if the proceedings show a case which the District Court was not authorized to try, it is the duty of this court to take notice of the want, of jurisdiction, without waiting, foran objection .from either party.

The court of admiralty undoubtedly.has jurisdiction in cases where the vessel or cargo is subject to a lien created by. the maritime; law. And where the lien is attached to the vessel or cargo, it will, until it is discharged, adhere to the property in the hands of third-persons, and will follow the proceeds, in certain cases, in the hands of assignees. • And in such cases, the lien may be enforced in'a court of admiralty, by a . proceeding inpersonam, against the party who holds the property or proceeds. This doctrine was recognized in this court in the case of Sheppard v. Taylor, 5 Pet. 675. In that case, the holders of the proceeds of. a ship which had been condemned in a Spanish .tribunal, and the value of the vessel afterwards paid to the owners by the Spanish government/were held liable for seaman’s wagés, in a proceeding. in personam, although they held them as assignees of the: owners jn payment of a bona, fide preexisting debt. And in deciding that case, ithe court said, that, in cases of prize, bottomry,, and salvage,’ as well as seaman’s wages, the party entitled to the lien may proceed in admiralty in personam against the party holding the proceeds of -property to which the lien had attached.

. But in the cases mentioned by the court, the maritime law attaches an absolute and unconditional lien upon .the property. The possession is not necessary to its validity. Indeed, in cases of seaman’s wages and bottomry, the party entitled to the lien never.has possession; and the same is most commonly the case., where salvage services are rendered.

But it is otherwise in general average.' The party entitled to contribution has no absolute and unconditional. lien upon the goods liable to contribute. The Gaptain has a right to retain them until the general average with which they are charged has been paid or secured. And as he may do this for the security of the party entitled, he must be regarded as his agent in this respect, and exercising his rights. This right of retainer, therefore, is a qualified lien, to which the party is entitled by the maritime law. But it depends on the possession'of the goods by the master or ship-owner, and ceases when they are delivered to the owner or consignee. It does not fol-. low them into their hands, nor adhere to the proceeds. This is the doctrine not Only in England, but on the Continent .also. It is unnecessary to' refer to the various authorities on this point, as the principal ones are collected in Abbott On Shipping, 507, (margin,) Perkins’s edition, and 3 Kent’s Com.- 244.

■ In the case before us, the goods, with the bill of lading, were delivered to the consignee, and not to the owner. We do not, however, propose to inquire, whether, upon the facts stated- in the libel, the consignee would be liable for the contribution in any form, but whether a court of admiralty can try the question. - And treating the case as if the consignee stood in thé place of the owner, and was liable to the same extent, we think it was not within the jurisdiction of the court of admiralty. The owner is liable, because, at the time he receives the goods, they are bound to share in the loss of other property by which they have been saved ; and he is not entitled to -demand them until the contribution has been paid. And as this lien upon his goods is discharged by the delivery, the law implies a promise that he will pay it. But it is not implied by the maritime law which gave the lien. It is implied upon the principles of the common law courts, upon the ground that in equity and good conscience he is bound to pay the money, and is therefore presumed to have made ’the .promise when he received the goods. Indeed this case .seems, in its principles, to be nothing more than the'common law action for money had and received, brought in a court of admiralty.

ít .is very much to be regretted, that the jurisdiction of the court of admiralty in .this country is not more clearly defined. It has been repeatedly decided in this court, that its jurisdiction is not restricted to the subjects .over which the English courts of admiralty , exercised jurisdiction at the time ., our Constitution was adopted. But there is no case, nor any principle recognized by this court, that would justify us in-extending it to a subject like the one now before the court. Whether the court of admiralty might not have * proceeded in rem to enforce the maritime law before the goods were delivered, is a question which does not arise in this case, and upon which, therefore, we express no opinion. But the case, as presented in the record, we think, is not within the admiralty jurisdiction,; and the judgment rriust therefore..be reversed, and the case remanded to the Circuit Couft,. with directions, to dismiss the libel,-

Mr. Justice WAYNE.

I regret that this case has been sent to this court upon the printed arguments of the counsel in the court below, and still more regret that. this court has decided an important constitutional question of admiralty jurisdiction, without .either oral or printed argument.

It is the first time in this court, that such a result has happened; and it was a sufficient reason, in my mind, to restrain this court from action, until after the point had been argued.

A.s I gather the facts of the case from the record, the question of jurisdiction was not argued either in the District or Circuit Court; though, in makipg up the record for this courtj the point was suggested by the counsel for the respondents. It is a curious incident in the history of our jurisprudence, that a constitutional point should have been ruled here, which had neither been argued at the.bar in this court, nor elsewhere; and I think it • will be. thought so much so, that it will not occur again. Such a silent and Uncontested judicial disposition of a question arising under the Constitution is at variance with the interest hitherto shown by our'courts, and by,, the public, in such matters, and does not partake of that watchful and patient in^ quiry concerning constitutional powers, which has been so much the characteristic of the American mind, when either of-the departments of our government has been called upon to exercise them.

I think, too; that this decision should not have beén made at this time ;.for thoügh.a full court was present in our consultation upon this case, one of the judges, Mr. Justice Catron, refused', to deliberate with us upon it, stating as his reason for not doing so, that important points, constitutional and otherwise, were involved, and that the case was only before us upon printed arguments upon the latter. I think he did so with great propriety, and I agree with him, that the rule of the court permitting cáses to be sent here upon printed arguments was not meant to embrace cases involving constitutional questions. That it was not meant to do so, I infer from this being the first case in which it has been done with the practical acquiescence of this court, and from our use, in having hitherto avoided the decision of such questions, except upon oral argument before a full court..

Mr. Justice Catron’s withdrawal left eight of us to act upon •the case, and we were for some time equally divided upon this-point of jurisdiction. It was ultimately disposed of as it has-been by a majority of the court, rather by our acquiescence ini what was thought to be English authorities against the jurisdiction, than from a close and searching scrutiny into the practice and jurisdiction of courts of admiralty, and how far they were comprehended within our constitutional extension of judicial power to all cases of admiralty and maritime jurisdiction.

Under such circumstances, with every inclination to carry out without further inquiry the decisions of this court, and with unfeigned respect for all of the judges who have made this decision, I hope I shall not be considered as doing any thing at variance with either, if I shall hear argument upon this point of jurisdiction, should such a case occur before me upon the circuit, or if I shall ask, should it ever arise here again, that we may hear argument from counsel upon a point which we had not an opportunity to hear when it was decided.

But my objection to the ruling of the point is greater than to the circumstances under which it has been made.

I think that the case is within our constitutional admiralty and maritime jurisdiction, and that it has been so decided by this court.

An attempt has been made to take it out of the case of Sheppard v. Taylor, 5 Peters, 675, by making a distinction between eases of absolute and unconditional maritime lien, , and such as are now called qualified cases of lien, to which a party is entitled by the maritime law. And it is said, “ in general average, that the party entitled to contribution has no absolute and unconditional lien upon the goods liable to contribute ; but that the captain has a right to retain them until the general average with which they are chargeable has been paid or secured.’7

Besides, not having been able to find, in the books and cases which I have read, any such distinction, (now, I believe, for the first time made,) I have always thought that a lien given by the maritime law, of whatever kind it jpay be, is oné which can be enforced in a maritime court, for the purpose of con-stimmating, for the benefit of all concerned, the equity which raised or created it. For instance, that if a master of a vessel gets a lien upon the saved cargo, in a case of jettison, or voluntary stranding of his vessel, and he is in any way dispossessed of any part of it, either by a freighter or .other person, he may bring a possessory action in a maritime court to regain it, or a petitory libel, if the goods saved have got into the hands of a third person, who claims a right of property in them against the freighter. And further, that if the freighters, in a case of jettison or voluntary stranding of a vessel, disagree, as to what should be their respective contributions, and there is no fixed rule for ascertaining it without suit in the country where the said cargo may happen to be, either the captain having the cargo in possession, or the freighters, or either of them, may go into a maritime court, to have it judicially determined. And that, a party interested in such a lien may file his libel in personam, in a maritime court, against a freighter for his contribution, if he has got possession of his part of the saved cargo, and has removed it beyond the sovereignty in which the court is, so that it may not'be sequestrated or put under arrest, to answer the court’s decree. And it matters not whether the freighter’s possession of the saved goods has been obtained by the delivery of it to him by the master, or otherwise. A lien, or right given to the master to retain the goods, until the general average with which they are chargeable has been paid or secured,” as this court says the master has, has nothing in it of the character of a personal agency, which the master may throw off at his will; for neither, in its beginning nor in its continuance has it a voluntary appointment; but it is a trust, which the. maritime law casts, upon him, from the necessity of the case, in virtue of his official relation to the vessel and cargo, and to those who are the owners of them,.- It is a lien given to the captain by the maritime law, for the purposes of a high equity, produced by necessity ; and it cannot be taken frpm the jurisdiction of a maritime court by any act of a party interested in it; short of what that equity demands; though the parties interested may themselves determine and receive from each other what they may think that equity gives to each of them.

And the foundation of this jurisdiction of a eourt of admiralty in such cases, both in rem and in personam, is not on. account of the locality of the jettison or stranding, or that it is a thing done at sea; but because, happening at sea, the peril producing it makes new and involuntary relations between the freighters; where there were none before, and for which the interests of commerce require a tribunal, into which, by the law of its creation, all the parties interested may be brought together for settlement. Of course, in what I have said, I have had no reference to the admiralty jurisdiction in England since the time of Charles II., but to that of the maritime courts upon the Continent, and as the practice in them continues to be, and also to what had been the ancient practice and jurisdiction in England on admiralty, until the reign of James.I., notwithstanding the statutes of 13 Richard II., ch. 5, and 15 Richard II., .ch. 3 ; for we know historically, that, until the time of James, the statutes of Richard operated* rather to restrain the usurped jurisdiction of the Court of Admiralty in England, than to limit it, in what rightfully, belonged' to its cognizance.

When, then, we are referred to Abbott on Shipping and to Kent’s Commentaries,, and to the cases cited by them, in support of the conclusion to which this court has here come, con-ceming the want of jurisdiction, in an American court of admiralty", of a libel in personam to enforce a right in a-maritime lien which cannot be enforced in rem, in consequence of the removal of the subject-matter of the lien beyond the reach of the court’s monition and attachment, it will be found, by a perusal of Abbott and Kent upon General Average, and the cases cited by those writers, that neither of them is discussing at all the jurisdiction of a court of admiralty, even in England; but that each only states — rand one from the other— what áre the remedies in England for the recovery of the-contributions of a general averagé. The language in Abbott is: —

“ In case of dispute, the contribution may be recovered, either by'a suit in equity only, or by. an action at law, instituted by each individual entitled . to recover, against each • party that ought to pay for the amount of his share.” (<§>'14, p. 610.) And it is admitted that the English jurisdiction in admiralty was not meant by the framers of the Constitution, when the judicial power was extended “ to all cases of admiralty and maritime jurisdiction.” The language Of the court now is, — “It has been repeatedly decided in this court, that its jurisdiction is not restricted to the subjects of which the English courts of admiralty exercised jurisdiction at the time our Constitution was adopted.” We must, therefore, in all cases, whether or not there has been an occasion in our courts for the exercise of jurisdiction in a particular case, look to the maritime courts on the Continent, and to works on admiralty jurisdiction, to determine whether the case in hand is embraced by our constitutional provision.

Nor can I partake, of the regret just expressed, that the jurisdiction of the court of admiralty in this country is not more defined.

I.know at one time it was thought so, but subsequent investigations of it by our judges and jurists, I believe, have given a very general impression to American lawyers, that the constitutional clause, “ all cases of admiralty arid maritime jurisdiction,” is as well and as definitely expressed, for the purpose meant, as it can be, and that it leaves nothing doubtful, except. as to some cases of which the admiralty court in England took jurisdiction, which had been there exclusively within the cognizance of the courts of. common law, and also of other cases in the Continental maritime courts, which did not relate to “things done upon the sea, or to contracts, pleas, and quarrels which were not maritime.” Among the lat-ler is certainly not a case of general average, and, except in England, I believe, the jurisdiction of the maritime courts has always embraced, both in rem and in personam, “ all cases of freight, charter-parties,, mariners’ wages, debts due to material-men for the building and repairing of ships,” and all accidents upon the sea, affecting the rights of those having any interest in the cargo of a vessel, or who are in any way connected with her. I do not think that there'is any thing doubtful in the terms used in the Constitution. “ To all cases of admiralty and maritime jurisdiction,” means all cases arising of happening on the sea, growing out of war or commerce, and all cases strictly of maritime contracts, — admiralty jurisdiction meaning originally thoge cases of which the admiral took cognizance in virtue of his office upon, the sea, and maritime, these also, with all others arising out of the perils or accidents upon the sea; trespasses upon it of all kinds; contraéis relating to commerce in which a sea service was to be rendered; contracts for building and repairing of ships, and for money loaned upon bottomry. ■ Now, it having been repeatedly ruled by this court, that its admiralty jurisdiction was not limited' by what was the jurisdiction in England when the Constitution was adopted, the principal difficulty in the way of interpreting the words of the Constitution relating to it has been overcome. And if we will but rid ourselves of those doubts in respect to what are oases for a maritime court caused by the limitation of them in England, I do not think we shall eyer be at a loss to determine what cases are within the admiralty jurisdiction of the courts of the United States; and I believe the whole of them will be found to make no trespass upon, or interference with, the jurisdiction of the other courts of the United States," or with those of the States, either as to the modes of proceeding in them, or as to the suits of which they have cognizance.

Mr. Justice CATRON.

On the question of jurisdiction, for want of which this cause • has been dismissed, I am not satisfied either way, and therefore give no opinion.

Order.

This cause came on to be heard on3 the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel. On consideration whereof, it is the opinion of this court, that neither the said Circuit Court, nor the District Court from which this case was removed to’ the said Circuit Court, had jurisdiction of this cause, and that consequently this court has not jurisdiction bu| for the purpose of reversing the decree of the said Circuit Court'j Whereupon, it is now here ordered and decreed by. this court,, that the decree of the said Circuit Court, entertaining jurisdiction in this cause, be, and the same is hereby, reversed for the want of jurisdiction in that court-; and that this appeal be, and the same is hereby, dismissed for the want of jurisdiction; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to proceed therein, in conformity to the opinion of this court.


source: Caselaw Access Project

author: Mr. Justice DANIEL

license: Public Domain

text:
    Hezekiah Smith, Plaintiff in error, v. William Hunter, Treasurer of Butler County, James B. Cameron, Auditor of Butler County, and the President and Trustees of the Miami University.
    Where a complainant alleged that a school tax, which was levied- upon his land, was • contrary to the spirit and meaning of a law of the State of Ohio which exempted his property from all State taxes, and conflicted also with the terms and conditions of the leases by which he held his land, and the State court dismissed the hill, this decision of the State court cannot be reviewed by this court by a writ of error issued under the twenty-fifth section of the Judiciary Act.
    The rules which regulate cases brought up to this court under that section again examined and affirmed.
    This case was brought up from the Supreme Court of Ohio, by a writ of error issued under the twenty-fifth section of the Judiciary Act.
    The facts were these: —
    By the fourth section of the act of Congress of the 3d of March, 1803, to enable the State of Ohio to form a State constitution, (2 Statutes at Large, 226,) a township of land, to.be laid off in the Cincinnati land district, was granted to the State of Ohio for the purpose of establishing an academy.
    On the 17th of February, 1809, the legislature of the State of Ohio passed an act. entitled “ An act to establish the Miami University.” (Pamphlet Acts of 1809, page, 184.)
    That act incorporated the university, provided for its support, government-, &c. Section tenth vested the above-mentioned township in the corporation, for the use and support of the university, and authorized the corporation to divide the township into lots, and lease them out for the term of ninety-nine years, re-newáble for ever, subject to a valuation every fifteen years. The thirteenth section exempts the township from all State taxes. It reads in these words: — “ That the lands appropriated and vested in the corporation, with the buildings which may be erected thereon for the accommodation of the president, professors,, and other officers, students, and servants of the university, and any buildings appertaining thereto, and also the dwelling-house and other buildings which may be built and erected on the lands, shall be exempt from all State taxes.” Under this act the university lands wére divided into lots and leased out, the plaintiff in error being the lessee of a part of them.
    On the 16th of. March, 1839, the legislature of Ohjo passed an act entitled “ An act providing for the levying of a school tax in Oxford township, in Butler county.” . Local Laws Of Ohio, p. 235 of Pamphlet Acts.
    The township here named is the university township. The first section of the. act directs the county commissioners of that county to appoint appraisers in the township of Oxford “ to appraise the lands held under permanent leases in said township at their true value in money, considered in their natural state,” taking into view the rent encumbrancé upon the same, payable to the university.
    The secorid section of the act is in these words: — “ Said commissioners shall, in addition to the levying of a tax on personal property in said township, authorize the levying of a school tax annually upon the ad valorem amount of appraisement in said township, the property of blacks and mulattoés excepted, not exceeding one mill on the dollar, which assessment shall be made by the county auditor, and collected by the county treasurer, in the same manner as other county, township, or State taxes are levied and collected.”
    The third section provides, that “ the taxes so levied and collected under the provisions of this act shall be appropriated exclusively for the support of common schools in the respective districts in the township of Oxford-,- and in the disbursement of the same, the provisions of the act entitled ‘ An act for the support and better regulation of common schools, and to create permanently the. office of superintendent,’ passed March 7th, 1838, shall be conformed to, at least so far as it is practicable to carry out the objects of this act, having in view the support of common schools in the said township of Oxford.”
    Under this last-named act, a tax for the support of common schools in Butler township was levied on the university lands, and, among others, on the lands of the plaintiff in. error. Whereupon he filed his bill in chancery in the Court of Common Pleas for said county of Butler, setting out in substance the facts as above stated, and praying that the treasurer and auditor of the county might be~enjoined from -collecting said tax, on the ground that it was imposed in contravention of the terms of his lease, and of the act of the 17th of Fébruary, 1809, •to establish the Miami University.
    The defendants demurred to this bill, and on the hearing the •demurrer was sustained and the bill dismissed.. From this decree of the. Common Pleas the plaintiff appealed to the Supreme Court of Ohio, where, upon hearing on the demurfer, the,. bill was again dismissed. From this last decree the plaintiff sued out a writ of error into this court.
    It was argued by Mr. Schenck, for the plaintiff in error, and Mr. Vinton, for the defendants in error.

      Mr. Schenck contended that the cáse was drawn into the. jurisdiction of this court, —
    1st. Because it arises under a law of the United States. It presents, in fáct, a question as to the effect and objects of a grant of lands made in pursuance of an act of Congress for the purposes óf ediication, and how far the same may be interfered with and controlled by State legislation.
    2d. Because it is claimed that the act of the legislature of Ohio of 1839, taxing these lands, conflicts with a former act of the legislature in 1809, exempting them from taxation, and, being in violation of the rights of lessees (of whom the complainant is one) under that act of 1809, is a law impairing the obligation of contracts.

      Mr. Vinton denied the jurisdiction of this court, and contended also that State taxes in.Ohio were dead, distinguished from county and road and school and bridge ta- s, which were eiftirely local, and not included in the exemption from State taxes.
   Mr. Justice DANIEL

delivered the opinion of the court.

This is a writ of error to the Supreme Coui of Ohio,- prosecuted under the twenty-fifth'section of the act to establislrthe judicial courts of the United States, and arises out of the following facts and proceedings.

By the fourth section of an act of Congress of the 3d of March, 1803, (2 Statutes at Large, 226,) a township of land in the Cincinnati land district was granted to-the State of Ohio for the purpose of establishing a university.

Op the 17th of February, 1809, the legislature of Ohio, by law, incorporated and established the Miami University, and, by the tenth section of this law, vested the township above men-tionéd in the corporation, for the support of the university, and authorized it to divide the township into Tots, and to make leases of these lots for the term of ninety-nine years, renewable for ever, but subject to. a valuation at,intervals of fifteen years. The thirteenth section of the law contains the following provision : — “ That the lands appropriated and vested in the corporation, with the buildings which may be erected thereon for the accommodation of the president, professors, and .other offi-«ers, students, and servants of the University, and any buildings appertaining thereto, and also the dwelling-house and other buildings which may be. built and erected on, the lands, shall be exempt from all State taxes.’' Under the authority of this law of Ohio, the lands vested in the university were divided into lots and leased out, and the plaintiff in error became the lessee of a part of them. On the 16th of March, 1839, the legislature of Ohio passed an act entitled ■“ An act providing ,for the. levying of a school tax in Oxford township, in Butler county.” The township of Oxford is the same which was vested in the Miami University by the law of the 17th of February, 1809. The first 'section of the law of 1839 provided that the county commissioners of Butler county should appoint one or more appraisers in the township of Oxford, whose duty it should be to appraise the lands held under permanent leases in said township at their true value in money, considered in their natural staté, and that, in making such appraisement, they should take into view the rent encumbrance upon the same annually or otherwise payable to the Miami Univérsity by reason of the condition , of the leases under which such lands are holden. The third section of the act of 1839 appropriates the taxes thereby ordered to be assessed and levied on the lands in Butler bounty exclusively to the support óf the cojnmon schools in the school districts of the township of Oxford, and directs the disbursement of the amount of these taxes in conformity with the provisions of a statute of Ohio for the regulation of common schools, passed on the ■ 7th of March, 1838. The lease under which the plaintiff in error claims sets out specially the extent of his tenure, with the. privilege of. perpetual renewal,'and, in general terms, refers to all the privileges and immunities granted to the lessees of the university by the several acts and laws of the State. Inconsequence of a demand made-by the auditor and treasurer of Oxford township for the taxes assessed on the lands held by the plaintiff for the use of the common schools of that township, the plaintiff filed his bill in the Court of Common Pleas of Butler county,(making defendants thereto the auditor and treasurer of the township and the trustees of the Miami University, and praying that the auditor and treasurer and their successors might be perpetually enjoined from collecting of the plaintiff any taxes whatsoever enacted by the State and imposed oh the. lands held by him under leases from the president and directors of the Miami University. The plaintiff claims an exemption from the payment of all taxes, under the provision of the tenth section of the act of 1809, and insists that the law of 1839 is inconsistent with the privilege or exemption secured to him by the former law; The bill was demurred to by the defendants ; the demurrer was sustained by the Court of Com-naon Pleas, and the bill directed to be dismissed'; and upon an appeal to the Supreme Court of the State, the decree ol the Court of Common Pleas was in all respects affirmed.

In considering this case, a difficulty meets us at the threshold in . the question of jurisdiction. This being neither an appeal from, nor writ of error to, a court of the United States, but a case brought hither under the twenty-fifth section of the Judiciary Act, it must fall within some of the categories prescribed by that section, in Order to justify the cognizance of it by this court; and this must appear too in the modes, and to the extent, which this court has repeatedly and distinctly announced. It is contended, in the argument on behalf of the plaintiff in error, that the act of the legislature of Ohio, of March 6th, 1839, is an invasion of his right to exemption from taxes, or rather from all taxation, alleged to have been conferred by the act of 1809, and therefore an infringement of that portion of the tenth section of the first article of the Constitution of the United States, which prohibits the passing of'laws by the States impairing the obligation of contracts. On the other hand, it is insisted for the defendants, that the phrase “ State taxes,” contained in the law of 1809, was and is applicable to a well-known distinction between taxes for general revenue, and payable as a portion of the public fisc, and county, or township dues levied by lo'cal power, and applicable only to purposes which were local and limited in their character. . The latter would seem to be the interpretation adopted by the courts of Ohio of the two laws in question; they must have been regarded as reconcilable and consistent with each other, to justify the dismission of plaintiff’s bill on .the merits. But whether these statutes of Ohio be reconcilable with each other, or in conflict with themselves and with the above-cited article of the Constitution, is a matter into which; according to the record before us, we do not think it material to inquire. The pleadings in this cause nowhere allege any right, title, or interest derived from or under any authority of the United Statés, nor the violation of any right, title, or interest §o derived, nor any violation of the Constitution, nor of any right, guarantied thereby. Nothing of.this kind is apparent either on the face of the decree of the Court of Common Pleas, or of that of the Supreme Court, of Ohio. The course of decision here, as to the requisites apparent upon the record to invest this court with jurisdiction under the twenty-fifth section of the Judiciary Act, would seem too clear, and too well established, to' be misunderstood; but whether understood or regarded by parties or by counsél, this court cannot permit the disturbance of á settled rule of' practice, whereby -great confusion and inconvenience would of necessity be induced. Some of the positions ruled by this court, upon the subject of jurisdiction, under the twenty-fifth section, will be here adverted to. In Montgomery. v. Hernandez, 12 Wheat, 129, it is said that the' Supreme Court hás no jurisdiction under the twenty-fifth section of the Judiciary Act; unless the right, title, privilege, or exemption under a statute or commission of the United States be specially set up, by 'the party claiming it, in the State court, and the decision be against the same.” In the case of Crowell v. Randell, 10 Peters, 392, the court, after reviewing all the previous cases touching the question of jurisdiction under the twenty-fifth section of the Judiciary Act, some of which cases were calculated to shed doubt upon the meaning of the statute, lays down these clear and well-defined propositions. That to give this court jurisdiction, two things should have occurred and be apparent on the record, — first, that some one of the questions - stated in the section did arise in the court below; and secondly, that a decision was actually made thereon by the same .court, in' the manner required by. the section. That if both these do not appear on the record, the appellate jurisdiction fails. It is not sufficient to show that such a question might have occurred, or such a decision might have - been made in the court below. It must be demonstrable, that they did exist, and were decided. In the case of McKinney v. Carroll, 12 Peters, 66, it is said, two things must be apparent on the record, to give the Supreme Court jurisdiction under the twenty-fifth section of the Judiciary Act; — first, that some one of the questions stated in that section did arise in the State court; and secondly, that a decision was actually made thereon in the manner required by the section.

The same positions aré ruled, almost in the identical words, in the cases of Coons v. Gallaher, 15 Peters, 18, and of Fulton v, McAffee, 16 Peters, 149.

In the last case which will be here cited, that of Armstrong v. The Treasurer of Athens County, reported in 16 Peters, 281, this subject of jurisdiction.under the twenty-fifth section of the Judiciary Act appears to have been still more elaborately ■treated than it had been-previously done, and the law concerning it propounded in a series of six plain propositions; they are are as follow. That to give jurisdiction, it must appear on the record itself that the case is one embraced by the section, —first, either by express averment, or by necessary intendment in the pleadings in the case; secondly, by directions given by the court, and stated in the exceptions; or, thirdly, when the proceedings are according to the laws, of Louisiana, by the statement of .the facts, and of the decision as is usually made in such cases by the court; fourthly, it must be entered óh the record of the proceedings of the appellate' court, in cases where the record shows that such ¿ point may have arisen and may have been decided, that it was a fact raised and decided, and this entry must appear to have been made by order of the court or by the presiding judge by order of the court, and certified by the clerk as.part of the record in the State court; or, fifthly, in proceedings in equity, it may be stated iii the body of the final decree of the State court ; or, sixthly, it. must appear, from the record, that the question was necessarily involved in the decision, and that the. State" court could, not have given the judgment or decree without deciding it.

Thus, with' respect to. the construction proper to be given to the twenty-fifth section of the Judiciary Act, and with respect also, to the.modes of presenting upon the records from the State courts the questions arising under that section, which can properly draw the decisions of. those courts within the cognizance of this tribunal," we find a series of adjudications embracing and settling the law as to both these subjects. The rules and principles settled by those, adjudications, are entirely approved, and could not be disturbed without much inconvenience and mischief. Recurring to. the record of the case under consideration, and regarding it as deficient in all the requisites to give jurisdiction, according to the express demands of the authorities cifed, we therefore adjudge and order, that the writ of error in this case be dismissed.

Order.

. This cause came on to be heard on the transcript of the record of the Supreme Court of the-State of Ohio, and was argued by counsel. On consideration whereof, and. it appearing to the court here, from an inspection of the transcript of the record, that there is nothing upon its face to give this court jurisdiction in the case, it is thereupon now here' ordered and adjudged by this court, that this cause be, and the same ‘is hereby,-dismissed for the want of jurisdiction.


author: Mr. Justice NELSON

text:
    William McDonald, Administrator of Duncan McArthur, deceased, Plaintiff in error, v. Matthew Hobson.
    Where the complainant and respondent in a suit in chancery entered into a mutual covenant, that, pending the.suit, they, would divide the money between them in certain proportions, and that if, in the said suit, it should be decreed that these were not the correct proportions, they would respectively pay the difference so as to conform to the decree i and the result of said suit was a dismissal of the complainant’s bill, with costs; and the respondent brought an action of covenant against the complainant, reciting the agreement in his declaration, with an averment, that, by virtue of the decree of dismissal, he was entitled to receive a certain sum of money, — this declaration was bad.
    The agreement looked to a judicial determination of the rights of the parties in some court of law or equity, and the declaration omits all averment that these rights had been so settled.
    The decree of dismissal did not, of itself, prove that the complainant owed the respondent any thing. It only proved that the respondent was not indebted to the .: complainant'. • . .
    Nor is this defect in the declaration cured by verdict. .It cannot be,presumed that. evidence was given, upon the trial to show that some decree had adjusted the amount due, as claimed in the declaration, because this would be presuming against the record, which recites the substance of the decree. A total omission to state any cause of action is a defect which a verdict will not cure.
    The averment of the virtute cujus is insufficient either as matter of law or tact; — as law, because no such Iqgal consequence could follow from the premises, and as • fact, because the averment was in contradiction to the record itself.
    This case was brought up by writ of error from the Circuit Court of the United States for the District of Oh'io.
    There was ño bill, of exceptions in the. case, but the whole record was brought up, upon the allegation of a fatal defect in it, because no cause of action was shown by the plaintiff below in his declaration.
    Hobson, a citizen of Alabama, brought an action of covenant against McDonald, as the administrator of McArthur. As the' whole case depended upon -a very nice point of pleading, the Reporter has thought. it proper to insert the whole of the declaration, whjch was as follows: —
    “William McDonald, administrator Of all and singular the goods, <fcc., of Duncan McArthur, deceased, (which said William is, arid the said Duncan was, at the time of his" death, a citizen and resident of the State of Ohio,) was summoned to answer unto Matthew Hobson, a citizen and resident of the State of Alabama, in the said United'States of America, of a' plea of covenant broken ; ánd thereupon the said Matthew, by' Wm. Key Bond and H. Stanbery, his attorneys, complains: for that whereas, heretofore, to wit, on the 25th day of September, A.- D. 1830, at Chillicothe, in the said district of Ohio, by a certain article of agreement, made and executed, as well by the said Matthew as by the said Duncan, and sealed with their seals respectively, which said article being on ijile in this court,as an exhibit in the case in chancery hereinafter rhentioned, the said plaintiff is unable to make proferí thereof, it was, among other things, witnessed : That whereas,- on the 10th day' of Ne= vember, in the year of our Lord 1810, a contract was entered into by and between John Hobson and Matthew Hobson, (the said plaintiff,) of the one part, and Duncan McArthur, (the said defendant’s intestate,) of the other part, providing for the withdrawal of certain én tries of land-warrants, and the relocation of the same, as by reference to. said contract will appear, since which, time the said John Hobson had transferred nis interest in said contract to the said Duncan McArthur; and whereas, on the 26th of May, 1830, the Congress of the Ünited States passed and enacted a certain statute, in virtue of which it became competent for the parties to the said last-mentioned contract, as holders and owners of the reentries made under said last-mentioned contract, to relinquish the same to the United States, and receive therefor the amount at which the lands included in said entries were valued by an inquest appointed By the United States, with interest, as by the said statute would appear. And whereas the said Matthew and Duncan were each willing to make such relinquishment to the United States, and avail themselves of the benefits of the said act of Congress, but had disagreed about their respective rights under said last-mentioned contract; in consequence of which said disagreement the said Duncan McArthur had then recently instituted a certain suit in chancery in the Supreme Court of the State of Ohio, in and for the county of Ross, in said State; and, among other things, had obtained an injunction in said cause, restraining the said Matthew Hobson from receiving any money under the said act of Congress, until the matters could be inquired into, as by reference to said suit would fully appear.. And whereas, (as is further recited by said article of agreement first herein mentioned,) the said parties, to wit, the said Matthew; and Duncan, were then mutually willing and anxious that the said money, so appropriated by the said act of Congress, or such part of it as should await the determination of said suit) should not remain inactive, and did therefore wish to put the whole matter in such state as would make the fiine available and profitable, pending the same suit, but without in any manner affecting, or being held, or interpreted as affecting, their said controversy ; in order to accomplish which it had then been determined and arranged, that the said' Matthew should assign and transfer to the said Duncan all the interest of the said Matthew of, in, and unto the said entries and warrants in such way as would enable the said Duncan to receive from the United States the moneys aforesaid, .out of which said money the said Duncan should at once pay to the said Matthew the sura of eleven thousand fhfe hundred dollárs, and retain the balance of the same in his, the said Dunca&s, possession; and the said Duncan, in and by the saidr article of agreement first herein mentioned, did covenant, to and with the said Matthew, .that if, in the said suit so instituted as aforesaid, it should be held, adjudged, decreed, or determined, that the said' Matthew, his heirs or assigns, executors or administrators, were, or should. be, entitled to any greater portion of said money, directly or indirectly, than the said sum of eleven thousand five hundred dollars, then, and in such case, . he, the said Duncan, his heirs, executors, or administrators, should and would pay to the said Matthew, his heirs, executors, administrators, or assigns, at the Bank of Chillicothe, any such excess over and above said sum, together with interest on such excess, from the day of the date of said article of agreement, which said covenant last aforesaid, it was. provided by said article of agreement, should be held to embrace any judgment, order, or decree, which might produce the said result* whether made and rendered in said suit in chancery, or in any other suit, or before any other tribunal, founded on. the same subject-matter or contract; and in and by said first-mentioned article of agreement, it was further witnessed, that the said Matthew Hobson did thereby covenant to and with the said Duncan Mc-Arthur, that in case it should be . determined, held, ordered, adjudged, or decreed in said chancery suit, or before any other tribunal finally decided in a suit founded on the same subject-matter, that he, the said Matthew Hobson, was entitled to a less sum than the aforesaid sum of eleven thousand five hundred dollars, then,' and in such, case, he, the said Matthew Hob-son, his heirs, executors, and administrators, should and would refund and pay to the said Duncan McArthur, his heirs, executors, administrators, or assigns, at the Bank of Chillicothe, the said amount so received by him beyond what he was entitled to, with interest thereon from the said date of said article of agreement.
    . “The said plaintiff further says, that, in performance of his covenant in that behalf in said article of agreement mentioned, he did, afterwards, to wit, on the said 25th day of September, A. D. 1830,-at Chillicothe aforesaid, assign and transfer to the said Duncan McArthur all the interest of him, the said Matthew, of, in, and unto the' said entries and warrants; which said assignment and transfer was then and there accepted .and received by the said Duncan in discharge of the said covenant of the plaintiff in that behalf so made as aforesaid. In virtue of which said assignment and transfer, the said Duncan, after-wards, to wit, on the same day and year last aforesaid, at Chil--licothe aforesaid, did receive from the United States the moneys so appropriated, amounting, in the whole, tó a large sum of . money, to wit, the sum of fifty-seven thousand six hundred and eight dollars.

      “, And the said plaintiff further says, that such proceedings were afterwards had in the said suit in chancery, referred to in said before-recited article of agreement, that afterwards, to wit, at the December term, A. D. 1831, of said Circuit Court for the Seventh Circuit and District of Ohio, the said suit in chancery was, on the petition of said Matthew Hobson, on the ground of his residence and citizenship in the State of Alabama aforesaid, removed to and docketed in the said Circuit Court; and such further proceedings were afterwards had in said suit, that the same was finally heard and decided before the Supreme Court of the United States at Washington, (to which said court the same had been taken by appeal from the'decree of said Circuit Court,) at the January term thereof, A. D. 1842; and such decree was, by the said Supreme Court of the United States, then and there rendered, that it was adjudged and ordered, that the said Matthew Hobson should recover against the complainants in said suit, viz. Allen C. McArthur, James D. Mc-Arthur, Effie Coons, Mary Trimble, Eliza Anderson, Frances Walker, and John Kercheval, heirs at law of said Duncan Mc-Arthur, (he, the said Duncan, having deceased during the pen-dency of said suit, and the said last-mentioned complainants having been made parties thereto in his place and stead,) the sum of one hundred and sixty-six dollars and eighty-three cents, for his costs therein expended, and that he have execution therefor ; and further, that the said cause should be, and the same thereby was, remanded to the said Circuit Court, with directions to the said last-mentioned court to dismiss the bill without prejudice.
    “ And afterwards, to wit, at the July term, A. D. 1843, of the said Circuit Court, to which the mandate of the said Supreme Court had been duly sent for execution of the said last-mentioned decree,-the said bill was, by the order of said Circuit Court, in conformity with said mandate, dismissed without prejudice; all which will more fully and at large appear by reference .to the record and proceedings of said suit in chancery, and the said, mandate, and several orders and decrees therein, now in said court remaining. ;
    “ And the said plaintiff further avers, and in fact says, that, in virtue of the decree aforesaid, he is well entitled to have and demand of and frqm the said defendant, as administrator as aforesaid, a greater portion of the said moneys, so received by the said Duncan McArthur as aforesaid, than the said sum of eleven thousand five hundred dollars, (which last-mentioned sum the .plaintiff admits he received from said Duncan at and after the execution of said article of agreement,) to wit, the sum of three thousand two hundred and one dollars, with interest thereon from the said 25th of September, A. D. 1830. Of all which premises the said defendant, afterwards, to wit, on the 10th day of July,. A. D. 1843, at Cincinnati, in the District of Ohio aforesaid, had due notice; yet neither the said Duncan, whilst in life, nor the said defendant, as administrator as aforesaid, since the decease of said Duncan, has at any time, though thereto requested, paid to said plaintiff the said last-mentioned sum of money, at the Bank of Chillicothe or elsewhere, or any part théreof, but the same to do have hitherto refused, and the same, with the accruing interest, still remains wholly due and, unpaid. Wherefore the said plaintiff saith,, that neither thé said Duncan nor the said defendant, his administrator as aforesaid, hath.kept the said covenant in that behalf, but the same is broken, to the damage, of the said plaintiff of ten thousand dollars; and therefore he brings suit, &c.
    “ Bond & H. Stanbery, Attorneys 'for Plaintiff.'1'

    The defendant demurred to this declaration, but his demurrer was overruled.
    At December term, 1843, the defendant craved oyer of the agreement, and pleaded non est factum and ñul tiel record. The plaintiff joined issue upon both pleas.
    The case was submitted to the court upon both issues', neither party requiring a jury. The court decided in favor of the plaintiff upon both pleas, and assessed the damages at $ 5,833.30, with costs.
    The defendant, McDonald, sued out a writ of error,' and assigned the following causes: —
    1st. That the declaration aforesaid, and the matters therein contained, are not sufficient in law to maintain the -said action.
    2d.. That said judgment was given in favor of the said plaintiff, when, by the laws of the land, it ought to have been given for the defendant.
    3d. It does not appear, from the record, that there was any cause of action. in favor of the said plaintiff against the said defendant, at the commencement of this suit; but, on the contrary, it does appear, from the record, that there was no cause of action.
    Upon this writ of error, the cause came up to this court.
    It was argued by Mr. Vinton, for the plaintiff in error, and Mr. Stanbery, for the defendant in error.

      Mr. Vinton made the following points: —
    1st. Under the contract on which the suit was brought by Hobson, it was a condition precedent to his right to the money claimed, that he should obtain a decree in the suit mentioned in that contract establishing his right to it.
    Such being the character of the contract, the declaration must aver the fulfilment of this condition precedent. 1 Chit. 351-401.
    Till such condition precedent is performed, no action accrues on the contract. 1 Chit. 353; Doug. 683.
    Every material fact which constitutes the ground of the plaintiff’s action must be alleged in the declaration, and no proof at the trial can make good a declaration which contains no ground of action. Buxendon' v. Sharp, 2 Salk.- 662; Drowne v. Stimpson, 2 Mass. 444; Rushton v. Aspinwall, Doug. 683 ; Avery v: Hoole, Cowper, 825; 1 T. R. 145.
    And after verdict nothing is to be presumed but what is expressly stated in the declaration, and is necessarily implied from those facts, which are stated. Spieres v. Parker, 1 T. R. 141.
    The averment in the declaration, that, by virtue of the decree set forth by plaintiff below, he was well entitled to the money he sued for, is an inference of law deduced from the facts averred, and as such not traversable. A traverse must be taken on matter of fact, not on matter of law. 1 Chit-. 645; 1 Saund. 23, note 5; 11 Price, 343 ; 3 Wils. 234; 1 Moore & Payne, 803.
    The only exception to the rule, that the virtute eujus, pre-texta, or per quod, are not traversable, is when they are compounded of law and fact,, which are connected together. Then a traverse may be taken for the purpose of trying the fapt which is connected with the law. . 1 Chit. 646; Beale v. Simpson, 1 Ld. Raym. 413; Trustees of Rochester v. Symonds. 7 Wendell, 396; 2 Blackf. 776; 2 Young & Jervis, 304; 1 Saund. 23, note 5; 11 Price, 343 ; 3 Wils. 234.

      Mr, Stanbery, for defendant in error.
    There are three causes of demurrer stated specially: —
    1. That plaintiff has not shown any cause of action against McArthur, or his administrator.
    2. That he has shown no breach of the covenant.
    3. That there is nothing to show the plaintiff entitled to demand the said sum of $3,201, and interest.
    The three grounds of demurrer are in effect one, — that no cause of action is shown; and though called, or intended for, a special demurrer, is in truth a general demurrer, for it relies on matter of substance, not of form.

      We suppose the point intended to be made is, that we have not averred or shown how the final decree, which upon its face is simply a decree of dismissal, made the defendant liable to the payment of the $-3,201.
    Very clearly, the decree is not for any money; and if our action was upon that alone, we should show no case. It does not, per se, give us any action for any money. But our action is not founded on the decree, but on a covenant anterior to it.
    In the sealed instrument containing that covenant, it is acknowledged, in such form as to estop any proof to the contrary, that certain lands belonging to this plaintiff and McArthur were to be paid for by the United States; that a controversy existed as to their relative rights to the land, which had led McArthur to commence a suit in chancery to enjoin the payment of the money by the United States; that both parties were anxious to make the fund available, and therefore they temporarily divide the fund, the plaintiff taking $11,500, McArthur all the residue. Upon this state of things the covenant is made; pro? viding that the parties shall stand, as to-the money, in statu quo, until the determination of the suit; and that if, directly or indirectly, by any decree to be made in such suit, it should be held that the $11,500 wás less than Hobson’s portion of the whole sum, or if such a result should in any way flow from any decree, then McArthur covenants to pay any excess that Hobson might be entitled to.
    Now it is perfectly clear that the parties did not contemplate that the decree itself should be a decree for the money in dispute. A covenant to pay such a decree would be useless, for the. decree itself would be better than the covenant to pay it. Besides, the express language is, that the covenant is to take, effect upon any decree, which, directly or indirectly, should or might produce a result in favor of the plaintiff’s right to a greater portion of the money than the $11,500.
    In setting forth a decree, then, which is not a decree for the money, we show the sort of decree which is contemplated by the covenant; but yet not such a decree as, without further averment, would make a case against McArthur.
    We do not stop, however, by showing the decree, but by .positive averment state, that in virtue of it Hobson became entitled, under the covenant, to the sum stated beyond the $11,500. In effect, following the language of the covenant, we aver that this was a decree which produced that result.
    Must we show, by averment, how a decree of dismissal produced the result alleged? That'is the only question that can be made. In other words, must we introduce all our evidence into our declaration ? Unquestionably we must, on the trial, prove the allegation, that the liability to pay moré than the $ 11,500 resulted from, the covenant and the decree. We admit that, but cannot admit that we must spread all the evidence out in the declaration.
    There are instances in which the mere averment of the fact is not good,' without showing the. manner ;■ as where there, is a covenant to pay money on the release of all actions. - An averment that the plaintiff executed a release will not do, for it must: appear how the release was made,i. e. by an instrument under seal, that the court may judge of its sufficiency.
    In this case that doctrine does not apply. The fact of liability to pay is not dependent upon a technical thing .that can only be done in one way, and which must always be alleged to have been done in that way. >
    Simply, the case is sen action for so much money received -by McArthur to Hobson’s use; and the only reason why we might not recover in indebitatus assumpsit is, that the covenant under seal drives us to this action of the higher nature.
    It well appears that a certain sum of money arising out. of joint property of Hobson and McArthur was in the treasury of the United States. The parties differ in the division; Mc-Arthur files a bill to enjoin it in the treasury; they then agree that Hobson shall take $11,500, and McArthur the residue, amounting to $46,108, and to stand upon that division until the end of the suit pending. The plaintiff avers the suit to be ended, and that , he is entitled to $3,201 of the moneys so received by McArthur beyond the amount'he has received-; and all this is admitted by the demurrer.
    I confess I am not able to see why this is not a good declaration.
    But the case does not now stand upon the. demurrer to the declaration; but upon a writ of error after a finding or verdict for Hobson, and a judgment consequent on such verdict.
    It appears that, at the December term, 1843, the court, below overruled the demurrer, and the defendant then took leave to plead, and filed two pleas, —non est factum and nul tiel record. Issue being joined on these pleas, the trial thereof was submitted .to the court, at the July term, 1844, and there, was a finding on both pleas for Hobspn, an assessment of damages, and judgment.
    If there were any objection that might have, been sustained to the declaration in consequence of any supposed defective statement of the plaintiff’s right to recover the $ 3,201, with interest from .September 25, 1830, it is now, after verdict,, to be intended that such defect was supplied in the proof. The rule on this subject is nowhere better laid down than by Lord Mansfield, in Rushton v. Aspinwall, Doug. 679: —

      . “ But on looking into the cases, we find .the rule to be, that where the plaintiff has stated his title or ground of action defectively or inaccurately, — because, to entitle him to recover, all circumstances necessary in form or substance to complete the title so imperfectly stated must be proved at the trial, — it is a fair presumption, after verdict, that they were proved; but that, where the plaintiff totally omits to state his title or cause of action, it need, not be proved at the trial, and therefore there is no room for presumption.”
    In our declaration we set out the covenant with all necessary strictness, and aver that, in virtue of the decree, McArthur became bound' to pay the money demanded. This averment, “ in' virtue of said decree,^ was traversable.
    Where the virtute cufds contains only matter of law, it is not traversable; otherwise, where it is mixed with fact. Beal v: Simpson, 1 Ld. Raym. 408; Trustees of Rochester v. Symonds, 7 Wend. 392.
    Now if the covenant had been limited to a decree which, per se, was to be a decree for the money, and had been to pay so much money as should be so decreed, the decree alone would fix the liability without reference to any fact aliunde. Such is not the covenant, nor such the decree contemplated by the parties.
    The decree may be any decree which, directly or. indirectly, that is in itself, or in reference to matter dehors, .may produce the result.
    iWhen, therefore, we allege, a decree which does not per se ■ give us the money, or establish our right to it, and aver that, in virare of it, we .became, under the covenant, well entitled to a specific sum, the averment is clearly mixed with matter of fact, and is traversable, and must be proved, at. the trial, unless admitted by the pleadings.
   Mr. Justice NELSON

delivered the opinion of the court.

This is a writ -of error to the Circuit Court, of the United States, held in and for the District of Ohio by the district judge.

The questions presented arise upon the record of judgment, no bill of exceptions having been taken to the rulings of the court at the trial. Ifls insisted that' the declaration is fatally defective, and the'judgment for that reason erroneous.

The action is covenant, brought by Matthew Hobson against William McDonald, as administrator of Duncan McArthur, deceased.

The declaration recites, that, on the 10th of November, 1810, a contract was entered into between the said Matthew and Duncan, providing'for the withdrawal of certain entries of land-warrants and relocation of the same ; that on the 26th of May, . 1830, Congress passed an act which enabled the parties, as holders and owners of these warrants, to relinquish the same, and receive their value in money; that the said Hobson and McArthur were each willing'to make such relinquishment, and to avail themselves of the provisions of the act, but that they had disagreed as to their respective rights under the contract of 1810; in consequence of which. disagreement, McArthur had commenced' a suit in chancery in the State of Ohio against Hobson, and had obtained an injunction restraining .him from receiving any of the moneys, under the act of Congress, until the matters in dispute should be settled; that both parties had, then become anxious that the money, or such part of it as must otherwise await the determination of the suit, should not remain useless, and therefore desired to put their differences on such a footing' as would make the fund available and profitable during the litigation, and, at the same time, without in any manner affecting the suit; that, in order to accomplish this, it had been agreed that Hobson snould assign and transfer .to McArthur all his interest in the said warrants, so as to enable him to receive the money from the government, out )f which he should, at once; pay over to Hobson the sum' of $>11,500, and retain the balance; and the said McArthur did then and there covenant .to and with the said Hobson, that if it should be adjudged and'determined in the suit in chancery that the latter was entitled to a greater portion of the money than the f11,500, directly or indirectly, then and in such case McArthur would pay to. him such further amount, with interest, at the Bank of Chilli-. Cothe. It was, at the same time, declared, that the covenant, should be held' to embrace any judgment or decree that might produce this result, whether rendered in the suit in chancery or in any other .suit, or before any. other tribunal, founded on the same subject-mátter. And the said Hobson, did also then and there covenant' to and with McArthur, that in case it should be adjudged and determined in the suit in chancery, or in any other tribunal^ that he was entitled to a less sum than the $ 11,500, then and in such casé he would refund to; Me Arthur the excess so received, with interest, at the Bánk-of Chillicothe.

The declaration, then, after setting out the transfer of the interest of Hobson in the land-warrants to McArthur, and also the receipt of the sum of $ 57,608 from- the government by the latter, averred, that such proceedings were had in the suit in chancery, that it was removed into the' Circuit Court of the United States, and that such further proceedings were there had, that -it was finally heard and decided in the Supreme Court of the United States, at Washington, at the January term, 1842, to which the same had been carried by appeal, and such decree was then and there rendered, as adjudged and ordered, that Hobson recover against McArthur $166.83 for his costs, and that the cause be remanded to the Circuit Court, with directions to dismiss the bill without prejudice, — all which wás after-wards done at the, following July term of the Circuit Court accordingly.

The plaintiff then avers, that, in virtue of the. decree aforesaid, he is well entitled to have and demand óf and from the defendant, as administrator as aforesaid, a greater portion of the said moneyá, so received by McArthur, than the sum-of $11,500, to wit, thé sum of $ 3,201, with interest from the 25th of September, 1830, the date of the articles of agreement, — of all which the defendant had notice.

The usual breach js then set out, concluding to the damage of the plaintiff of $10,000.

The defendant put, in a demurrer to the declaration, which was afterwards overruled by the court. He then- craved oyer of the articles of agreement,- and, after setting them out in hcec verba, plead, 1st, non est factum, and 2d, as to the decree, nul tiel record. Upon which issues were joined, and were found for the plaintiff, and the damages assessed at the sum of $5,833.30.

The question presented for our decision is as to the sufficiency of the declaration after verdict,. and this depends upon the construction to be given to-the articles of agreement upon which the action is founded, and as set forth in the pleadings.

The construction given by one pleader is, that the decree or order on the suit in chancery mentioned in the agreement, and upon which the right to any portion of the, fund in dispute, beyond the $11,500 already received is made to depend, need not determine either the right to any excess beyond that sum, or, if any, the amount of it;.but, on the contrary, either or both may be established by evidence independently of the proceedings in that or any other suit, and that the décree is material only as showing the suit to be at an end. Hence, after setting out the decree by which it appears that the bill of complaint had been dismissed with costs, the pleader proceeds to' aver, that, in virtue , of the decree, the said plaintiff is well entitled to have and demand of and from the defendant a greater portion of the said moneys, so received by the said McArthur, than the sum of $11,500, to wit, the sum of $ 3,201, with interest.

This, it is said, is an averment of a matter of fact, and not of a conclusion of law; and that, after verdict, the court must presume that evidence, was given on the trial , to establish the right of the plaintiff to the amount recovered over and above the sum already received, and that, upon this ground, the judgment may well be sustained.

This is the view of the case, as set forth in the declaration, and which was sought to be sustained in the argument; and, conceding it to present the true construction of the articles of agreement, —- though the averment is certainly informal , and illogical in the mode of stating it., as it is difficult to perceive how the right to the sum of money claimed, or to any sum, 'can result to the plaintiff, even as a matter of 'fact, in virtue of a decree dismissing a bill in chancery against him, — yet, with the usual intendments of the law in support of a judgment after verdict, it might,' perhaps, be deemed sufficient. The appellate court would presume that evidence had béen required and given, under the averment, at the trial, to support the claim to the amount recovered. 1 Saund. 228, n. 1; 1 Chit..Pl. 589; 1 Maule & Selw. 234; Doug. 68; 7 Wend. 396.

But the court is of opinion, that the pleader has mistaken-altogether the true construction of the agreement in the particular mentioned, and has placed the right of action upon ground not warranted by any of-the stipulations of'the parties. This will be apparent, on recurring for a moment to' the agreement as set forth in the pleadings.

The recitals show, that a dispute had arisen in respect to the division of a large sum of money coming from the government, in which the parties were jointly interested, and that a suit had been commenced by McArthur against Hobson, in chancery, enjoining him from receiving any part of it, until their rights had been judicially determined. -The effect of this proceeding was to tie up the fund in chancery, pending the litigation, and until the court could make a proper distribution. It was to remedy this inconvenience, and to enable, the parties .to possess .themselves of the fund, pending the controversy, that the agreement in question was entered into, and which was, in substance, as follows. McArthur was to receive the whole of the money from the government, and at once piay over to Hobson $11,500, retaining in his possession the residue;' and if, in the suit then pending,-it should be determined, dwectly or indirectly, that Hobson was entitled to . a larger amount for his share, then McArthur would pay such additional sum, with interest, at the Bank of Chillicothe ; and, on the other hand, if it should be determined that Hobson’s-portion of the fund was less than the sum already received, he would refund the excess, with interest, to McAr-thur, at the same place.

The object of the parties was to procure the money irom the government, where it was lying idle, and, at .the same time, , to make a provisional distribution, without in any way interfering with the suit in chancery. • That was.to be carried on. for the purpose for which it was originally commenced; but as a provisional division had taken place, it became necessary to provide for a special decree, having reference to the changed situation of the fund, and, as the suit had become an amicable one, to provide, also, for the payment of any sum that , might be found due from either party. Hence the stipulation, that the decree should be made upon the basis of this provisional distribution and that the parties should pay over at once any balance that might be found due, without furthpr proceedings.

The strongest proof exists, in the agreement itself, that the parties did not intend to interfere with the settlement of their differences by the suit in chancery, or by some other suit to be instituted for that purpose'; for the last article provides,, that this contract shall not be used by either, party in the suit pending, or in any other suit, or in any other court, or in any proceeding under the contract of 1810, as affecting or in any way changing the rights of either in the matters in dispute; but. that the suit - in chancery, or any suit which either might think proper to bring, shoúld bé conducted,' in all respects, as though this contract had not been entered into.-

We think, therefore, it is clear, the parties intended that their respective rights to the common-fund in question should be settled and fixed by the chancery suit then pending, or by some other .legal proceeding that might be instituted for the purpose; and that, when so settled,, they would conform the provisional distribution already made to the decision, by, paying over at once the amount adjudged to be .due; for we have seen, that, instead of interfering with the suit whieh had been already commenced, great pains are taken to guard against any such consequence, and, as if apprehensive that their rights might not’be definitively, settled by that suit, provision is made for the institution of ány other, by either party, before the same or any other tribunal having cognizance of the Case.

In á word, the whole amount of the agreement is, to provide, first, for a provisional distribution of the fund, So that the money might be used pending the litigation; secondly, for a judicial determination of the controversy in respect to it,, in some court of law or equity; and, thirdly, for the payment of any balance that might bé found due from either, at the Bank of Chillicothe.. •

- This being, in our'judgment,, the legal effect of the .agreement, it is manifest that.the pleader has failed to comprehend it, and has therefore fáiled to set out any cause of action in the declaration. There is a total omission of any averment of the fact upon which the right of the plaintiff to any portion of the fund beyond the $ 11;500 is made to depend,, namely a judgment, order, or decree awarding to him the amount. There is not only an omission of any such averment, but, the contrary appears upon the face of the declaration, as the decree in the chancery, suit is set out, and its contents particularly described.

It is a decree simply dismissing the bill of complaint, with costs. It may show that the defendant (now plaintiff) had. not received more than his share of the money in the division, otherwise the bill would not have been dismissed; but not that the defendant was entitled to more, unless the dismissal of a bill is evidence that something is due from the complainant to the defendant.

Neither can we presume, e en after verdict, that evidence was given at the trial, by whi-.h it was made to appear that the decree did determine th?’ the amount which has been recovered in this su t was due from McArthur to the plaintiff; for this would be a presumption against the face of the record. That shows what decree was rendered, and any one of a different import would have been inadmissible under the pleadings.

Besides,' there should have been an averment, not only that a decree was rendered in the suit in chancery, hut that the sum claimed had been-therein a.djudged to the plaintiff. This is made the foundation of the right to the money, and, of course, of the action, by the agreement; and the omission is fatal to the judgment.

It is the case- of a total omission- to state any title or cause of action in the declaration, — a defect -which the verdict will not cure, either at common law or by statute. Doug. 683; Cowp. 826; 1 Johns. 453; 2ib. 557; 17 ib. 439.

The. averment, that, in virtue of the decree, the plaintiff was well entitled to recover, &c., is insufficient, either as matter of law or of fact. As matter of law, it was given up in the argument, ás no such legal consequence could follow from the premises stated ; and, as matter of fact, the averment is in contradiction to the record itself. That shows, that the decree determined nothing in favor of the plaintiff; it dismissed the bill against him with costs, and nothing more.

Some weight was given,- in the argument, to the peculiar phraseology of the covenant, oh the part of McArthur, wherein it is provided,' that, if it should be determined in the chancery suit, that the plaintiff was entitled to any greater portion of the money, directly or indirectly, than the $ 11,500, then, and in that case, he would pay, &c. The object of using the words, directly or indirectly, in the connection found, is, perhaps, at best, but matter of conjecture. 'But as the chancery suit was against Hobson, for the purpose of asserting claims and demands against' him by the complainant, it was, according to the rules of chancery, an inappropriate proceeding for the purpose of asserting, claims on the part of the defendant against the complainant.- These would have required a cross-bill. But as the suit had-become. an amicable one, if was provided that the claims of both parties might be settled therein, notwithstanding the irregularity of the proceeding, and hence the use of the peculiar phraseology referred to.

This explanation receives some confirmation from the covenant, on the part of. Hobson, with McArthur. These words are there omitted. The suit was appropriate to. enforce any claim ágainst him.

It was said, also, and some stress laid upon the remark, that the agreement would not have provided for the voluntary payment of the balance' that might be due from pne to the other, ’ if it had contemplated an adjustment of the particular, amount by the suit in chancery, as, in that event, the payment -could be enforced by the decree.

' But we think this consideration leads to an opposite conclu- ' sion. How could the payment be made at the bank, as provided, unless the amount.in dispute was.first adjusted.

There was no dispute about the payment, except as respected the amount. That being determined, each party was ready- to satisfy it. Bésides, it. is difficult to believe, that, in -providing so specially for the settlement of the controversy by judicial proceedings, the parties had in view simply the determination of the question whether the one or the other had received more of the . fund than his share, without regard , to the amount. Such a decision would have been idle, as it could lead to no practical result in the settlement of their differences. ..

Upon the whole, for the reasons stated, - we think the judgment below erroneous^ and should be reversed, and the cause remanded to the court below for further proceedings.

Mr.-Justice WAYNE, being indisposed, did not sit in-this cause.

■ Mr. Justice WOODBURY dissented.

Order.

This pause came • on to be heard on the transcript of the record from the Circuit Court ■ of the United States- for the District of Ohio, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit. Court in this cause be, and the same is hereby, reversed,, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, for further proceedings to be had therein, in conformity to the opinion of this court.