source: Caselaw Access Project

author: Mr. Chief Justice TANEY

license: Public Domain

text:
    The United States, Plaintiffs, v. William S. Rogers.
    The United States have adopted the principle originally established by European nations, namely, that the aboriginal tribes of Indians m North America are not regarded as the owners of the territories which they respectively occupied. Their country was divided and parcelled out as if it had been vacant and unoccupied land.
    If 4he propriety of exercising this power were now an open question, it'would be one for the law-making and political department of- the government, and not the, judicial.
    The Indian tribes residing within the territorial limits of the United States are: subject to their authority, and where the country occupied by them is not within the limits of any one of the States,.Congress may, by law, punish any offence committed there, no ihalter whethet the offender be a white man or an Indian. The twenty-fifth section pf the act of 3f)th June, .1834, extends the laws iff the United States over the Indian country, with a proviso that they shall not include punishment for “ crimes committed by one Indian against the person or property ofanother Indian.”
    This exception does not embrace'.thé, cáse of a white man who, at mature age, is. adopted into an Indian tribe'. He is not ah.“ Indian,” within the meaning <ff-the law.
    The treaty with the Cherokees, concluded at New Echota, in 1835, allows the Indian Council to make laws for their own people or such persons as have connected themselves with them. But it alsó provides, that such laws shall not be inconsistent with acts of- Congress: The act of 1834, therefore,’'controls and ex- ' plains the treaty: '
    It results from these principles, that a plea, set up by a white man, alleging that he had been adopted by an Indian tribe; ,and was. not subject to the jurisdiction of. the Circuit Court of the United States, is not valid.
    This Báse came up, on a certificate of division, from the Circuit. Court of "the United States for the District of Arkansas.
    At the April term, 1845, of the said Circuit Court,,the grand jury indicted William S. Rogers for the murder of Jacob Nicholson. Both Rogers and Nicholson were alleged, in the indictment, to he “ white men and not Indians.” The offence was charged, to have been committed within the jurisdiction of the court, that is' to say, In that part of the Indian^ country west of the Sfate-of Arkansas that is bounded north by the north line of lands assigned to the Osage tribe of Indians, produced east to. the State of Missouri, west by the Mexican, possessions,'south by Red River, and east by the west line of the now State of Arkansas, and- the State of Missouri (the same being territory annexed to the said District of Arkansas, for the purposes in the act of Congress in that behalf .made and..provided).
    The defendant .filed the following plea : —
    “ And the defendant in his own proper person, comes into court, and, having heard the said indictméDt read, says, that the court ought not to take further cognizance of the said prosecution* because, he says, heretofore, to wit, on the-day of November,
    1836, he then- being a free white man and a citizen of the United States, and haying been born in the said United States, voluntarily and of his free will removed to -the portion of the country .west of the State of Arkansas, assigned and; belonging to the Cherokee tribe of Indians, and did incorporate himself with said tribe, ánd from that time forward became and continued to be one of them, and made the same.his home, without any intention of returning to the said United States ; and that afterwards, to wit, on the-day of November, 1836, he intermarried with a Cherokee Indian woman, according to the forms of marriage, and that he continued to live with the said Cherokee woman, as his wife, until September, 1843, when she died, and by her had several children, now living in the Cherokee nation, which is his and their home.

      “ And the defendant further says, that, from the time he removed, as aforesaid, he incorporated himself with the said tribe of Indians as one of them, and was and is so treated, recognized, and adopted by said tribe and the proper authorities thereof, and exercised and exercises all the rights and privileges of a Cherokee Indian in said tribe, and was and is domiciled in the country aforesaid ; that, before and at the time of the commission of the supposed crime, if any such was committed, to wit, in the Indian country aforesaid, he, the defendant, by the acts aforesaid, became, and was, and still is, a citizen of the Cherokee nation, and became, and was, and still is, a Cherokee Indian, within the- true intent and meaning of the ant of Congress in that behalf .provided. And the said defendant further says, that the said Jacob Nicholson, long before the commission of said crime, if any such was committed, although a native-born free white male citizen of the United States, had settled in the tract of country assigned to said Cherokee tribe of Indians west of the State of Arkansas, without any intention of ■ returning to said United States ; that he intermarried with an Indian Cherokee woman, according to the Cherokee form of marriage ; that he was treated^ recognized, and adopted by the said tribe as one of them, and entitled to exercise, and did exercise, all the rights and privileges of a Cherokee Indian, and. was permanently domiciled in said Indian country as his home, up to the time of his supposed murder.
    “ And the said defendant further says, that, by the acts aforesaid, he, the said Jacob Nicholson, was a Cherokee Indian at the time of the commission of the said supposed crime, within the true intent and meaning of the act of Congress in that behalf made and provided. Wherefore the defendant says, that this court has no jurisdiction to cause the defendant to make a further or other mxswer to said' bill of indictment, for said' supposed crime alleged in the bill of indictment. And the defendant prays judgment, whether he shall be held bound to further answer said indictment.”
    To this plea the, [District-Attorney of the United States filed the following demurrer.
    “ And the said United States, by Samuel H. Hempstead, District-Attorneycome and-say, that'the said first, plea of the defendant to the jurisdiction of this honorable court is .insufficient in law, and that, by reason of any thing , therein contained, ..this court ought not to refuse to entertain further jurisdiction of tk¿ crime, in said bill of indictment alleged.
    “ And the following causes .of demurrer are assigned to said plea: —
    “ 1st. That a native-born- citizen.of the United States cannot expatriate himself, so as to owe no allegiance to the United States, without some law authorizing-him, to. do so.
    “ 2d, That no white man can rightfully become a citizen of the Cherokee tribe of Indians, either by marriage, residence, adoption» or any other means, unless the proper authority of the United States shall authorize such incorporation.
    “3d. That the proviso of the act of Congress, relating.to crimes committed by one Indian upon the property or person of another Indian,» was never, intended to embrace white persons, whether married and residing in the. Indian nation or not.”
    And, upon the argument of the said demurrer, the following questions arose, and were propounded for the decision of the court; but the judges being divided in opinion upon the same, upon motion, ordered that they be entered of record, and certified to the next term of the Supreme Court of the United States for its opinion and deeision thereupon.
    1st. Was it competent' for the accused, Being a citizen of the United States, either under the fourth clause of the eighth section . of the first article of the Constitution of the United States; or under any act of Congress passed in virtue of the Constitution oT the United States, upon the subject of naturalization ; or in virtue of any admission; obligation^ or duty incumbent upon the government of the United States, and-implied by the said clause, section, and article of the Constitution’; or any of the said acts olr Congress in reference to citizens of the-United States, or to foreign govemr ments, their subjects or citizens, upon the authority of the will and act of the accused, and without any form, mode, or condition prescribed by the government of the United States, — to divest himself of his allegiance to that government, and of his character of citizen of the United States ?
    2d. Could the accused, asa citizen of the United States, or-a resident within the same, possess the right or the power resulting from the nature and character of the civil and political institutions of the United States, or as appertaining to, and inhérent in, him, as a free moral and political agent, or derived to him from the law of nature or. from the law of nations, founded either upon natural right or upon convention, voluntarily and entirely put off his allegiance to, and his character of citizen-.of,-the United States, and transfer that allegiance and citizenship to any other government, etate, or community ?
    3d. Could the tribe of Indians residing without the limits of any one of the States, but within the territory of the United States, as set forth in the pleadings in this prosecution, and designated as the Cherokee tribe, and also as the Cherokee nation (and by whom the accused alleges that he has been adopted), be held and recognized, in reference to the government, and under the laws of the United States, as a separate and distinct government or nation, possessing political rights- and powers such as authorize them to receive and- adopt, as members of theiy state, the subjects or citizens of other states or governments, with the assent of such subjects or citizens, and particularly the citizens of the United States, and thereby to sever their allegiance and citizenship from the states or governments to which they, previously appertained, and to naturalize such subjects or citizens, and make them exclusively'or effectually members, subjects, or citizens- of the said Indian tribe, with regard to civil and political rights and obligations ?
    4th. Could the accused, by any act or assent of his. own, combined with the acts, authority, or assent of the above-mentiotied tribe, residing within the territory aforesaid, so change and put off his character, rights, and obligations as a citizen of the United States, as. t*>. become in his social, civil, and' political relations and condition a Cherokee Indian ?
    5th. Does the twenty-fifth section of the act of Congress of the 30th of June, 1834, entitled “ An act to regulate trade and intercourse with the Indian 'tribes, and to preserve the peace of the frontiers,” and the proviso to that sectjpn, limit the operation of the said act, and give effect to the said proviso, as to instances of erimes committed by -natives, of the Indian tribes of full blood, against native Indians of full blood only; or do the said section and.proviso have reference also to Indians (natives), or others adopted by, and permanently resident within, the Indian, tribes ; or have they relation to the progeny of Indians by whites or by negroes, or of whites or negroes by Indians, bom or permanently resident within the Indian tribes and limits/or to whites or free negroes born and permánently resident in the tribes, or to negroes owped as slaves, and resident within the Indian tribes, whether procured by purchase, or there bom the property of Indians ?
    ,6th. Does the plea interposed by the accused in this prosecution, the facts whereof are admitted by the demurrer, constitute a valid objection to the jurisdiction of this court ?
    The twenty-fifth section of the act of-1834, referred to in the fifth point certified, enacts as follows : — “ That so much of the laws of the United States as provides for the punishment of crimes committed'witbiri any place within the sole and exclusive jurisdiction of the United States shall be in force in the Indian country; provided, tjiat the same shall not extend to crimes committed by one Indian against the person or property of another-Indian.”
    The defendant moved the court for an order to discharge him from imprisonment, on the ground that the court were divided in opinion on his plea to the jurisdiction ; but the court overruled the motion, and remanded him to the custody of the marshal.
    The case came .up to this court upon the points certified, and was argued by Mr. Mason, Attorney-General, on behalf of the United, States.
   Mr. Chief Justice TANEY

delivered the opinion, of the court.

This case has been sent here by the Circuit Court of the United States for the District of Arkansas, under a certificate of division of opinion between the justices ,of that court.

It appears by the'record, that William S. Rogers, a white man, was indicted in the above-mentioned court for murder, charged to have been committed upon a certain Jacob Nicholson, also a white man, in the country now occupied and allotted by the laws of the United States to the Cherokee Indians.

The accused put in a special plea to the indictment, in which he avers, that, having beencitizen oí the United States, he, long before the offence charged is supposed to have been committed, voluntarily removed to the Cherokee country, .and made it his home, without any intention of returning to the United States, that he incorporated himself with the said tribe of Indians as one of them, and .was so treated, recognized, and-adopted by the said tribe, and the proper authorities thereof, and exercised all the rights and privileges of a Cherokee Indian in the said tribe, and was domiciled in their country ; that by these acts he becáme a citizen of the Cherokee nation, and was, and still is, a Cherokee Indian, within the,true intent and meaning of the act of Congress in that behalf made and provided; that the said Jacob Nicholson had in like manner become a Cherokee Indian, and was such at the time of the commission of the said supposed crime, within the true intent and meaning of the act of Congress in that behalf made and provided ; and that therefore the court had no' jurisdiction to cause' the defendant-to make a further or other answer-to the said indictment.

This is the substance of the plea, and to this plea the attorney for the United States demurred,, setting down the causes of demurrer which appear in the foregoing statement of the case. .

. Several questions have been propounded by the Circuit Court, which dó not arise on the plea of the accused, and some of. them we think cannot be material in the decision of the case, and need not therefore be answered by this court.

'The country in which the .crime is charged to have been committed is a part of the territory of the United States, and not within the limits of any particular State. It is true that it is occupied by the tribe of Cherokee Indians. But it'has been assigned to them by the United States, as a place of domicile for the tribe, and they hold and occupy it with the assent of the United States, and under their authority. The native tribes who were found on this continent at the time of its discovery have ne,ver been acknowledged or treated as independent nations by the European governments, nor regarded as the owners of the territories they respectively occupied. On the contrary, the whole continent- was divided and parcelled'out, and granted by the governments of Europe as if it had.been vacant and unoccupied land,, and the Indians continually held to be, and treated as, subject to their dominion and control.

It would be useless at this day to inquire whether the principle thus adopted is just or not; or to speak of the manner in which the power claimed was in many instances exercised. It is due to the- United States, however, to say, that while they have maintained the doctrines upon this subject which had been previously established by other nations, and insisted upon the same powers and dominion within their territory, yet, from the very moment the- general government came into existence to this time, it has exercised its power over this unfortunate race in the spirit of humanity and justice, and has endeavoured by every means in its power to enlighten their minds and increase their comforts, and to save them if possible from the consequences of their own vices. . But had it been otherwise, and were the right and the' propriety of exercising this power now open to question, yet it is a question for the law-making and political department of the government, and not for the judicial. It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dispute, that the Indian tribes residing within the territorial limits of the United States are subject to their authority, and where the country occupied by them is not within the limits of one of the States, Congress may by law punish any offence committed there, no matter whether the offender be a white man or an Indian. Consequently, the fact that Rogers had become a member of the tribe of Cherokees is no objection to the jurisdiction of the court, and no defence to the indictment, provided the case is embraced by the provisions of the act of Congress of the 30th of June, 1834, entitled “ An act to regulate trade and intercourse with the Indian tribes, and to preserve the peace, of the frontiers.”

By the twenty-fifth section of that act, the prisoner, if found guilty, is undoubtedly liable to punishment, unless he comes within the exception contained in the proviso, which is, that the provisions of that section “ shall not extend to crimes committed by one Indian against the person or property of another Indian.” • And' we think it very clear, that a white man who at mature age is adopted in an Indian tribe does not thereby become an Indian, and was not intended to be embraced in the exception above mentioned. He may by such adoption become entitled to certain privileges in the tribe, and. make himself amenable to-their laws and usages. Yet he is not an Indian ; and' the exception is confined to those who by the usages and customs of the Indians are regarded,as belonging to their race. It does not speak of members of a tribe, but of the race generally, — of-the family of Indians ; and it intended to leave them both, as regarded their own tribe, and other tribes also, to be. governed hy Indian usages and customs. And it’would perhaps be found difficult to preserve peace among them, if white men of every description might at pleasure settle among them, and, by procuring an adoption by one of the tribes, throw off all responsibility to the laws of the United S ates, and claim to' be treated by the governmentand its officers as if they were Indians born. It can hardly be supposed that Congress intended to grant such exemptions, especially to' men of that class who are most likely to become Indians by adoption, anti who will generally, be found the most mischievous and dangerous inhabitants of the Indian country.

. It may have been supposed, that the treaty of New Echota, made with the Cherokees in 1835, ought to have some influence upon the construction of this act of Congress, and extend the exception to all the' adopted members of the tribe. But there is nothing in the treaty in conflict with the construction we have given to the law. The fifth article of the treaty stipulates, it is true, that the United States will secure to the Cherokee nation the right, by their national councils, to make and carry into effect such .laws as they may deem necessary for thé government and protection of the persons and property within their own country, belonging to their people, or such persons as have connected' themselves with them. But a-proviso immediately follows,'that such laws shall not be inconsistent with the Constitution of the United States, and such acts of Congress as had been, or might be,.passed, regulating trade and intercourse with the Indians. Now the act of Congress under which the prisoner is indicted had been passed but a few months before, ■ and this proviso in the treaty shows that the stipulation above mentioned was not intended or understood to alter in any manner its provisions, or affect its construction. Whatever obligations the prisoner may have taken upon himself by becoming a Cherokee by adoption, his responsibility tó the laws of the United States remained unchanged and undiminished. He was still a white man, of the white race, and. therefore not within the exception in the act of Congress.

■ We are, therefore, of opinion, that the matters stated in the plea of the accused do not constitute a valid Objection to the jurisdiction of the court, and. that, if he is found guilty upon the indictment, he is liable to the punishment provided by the- act of Congress before referred to, and is not within the exception in relation to Indians. And we shall direct this opinion to be -certified to the Circuit Court, as the answer to the several questions stated in the certificate of division. We abstain from giving a specific answer to each question, because, as we have already said, some of them do not appear to arise out of the case, and, upon questions of that description, we deem it most advisable not to express an opinion.


text:
    John A. Barry, Plaintiff in error, v. Mary Mercein and Eliza Ann Barry, Defendants.
    After a case has been called, and placed at the foot of the docket, the court cannot take it -up, on motion, and assign a day for its argument, when other cases, of great public importance, have already been assigned for what may be the remain- ' Ser of the term.
    The circumstances which led to the interlocutory opinion of the court in this case are sufficiently set forth in the memorial of Mr. Barry, and the opinion of the court.
    The memorial was as follows : —
    “ To their Honors, the Justices of the Supreme • Court of the United States of America.
    “ The memorial of Johh A. Barry respectfully represents, that he is a British subject, domiciled and resident abroad within the dominions of her Britannic Majesty ; that, for some considerable time past, he. has had upon the docket of . this honorable court a highly important and most interesting case, on a writ of error to the Circuit Court for the Southern District of New York : that, consequently, he came over.to these United States in November, 1844, to attend to the said case at the last term of this honorable court; but the number of the case being 128, he wag greatly disappointed in being obliged to -return to his home without its having been reached : that he has now again come over to this country for the purpose of meeting the said case ; but, owing to- an unusual length of passage, did not ..arrive at Boston until after this honorable court had commenced its present session : that it was his intention, and full expectation, to have been before this honorable court whenever the said case (No. 72) on the present calendar should .be called ; but, owing to an attack of bodily indisposition, he was detained in NewYork until he became apprehensive that he might not be enabled to b.e present at the call of the said case in its regular order: that he thereupon wrote a letter to W. T. Carroll, Esq.,.the clerk of this honorable court, intimating his said apprehension, in order that,should it be realized, the cause thereof might be communicated to your Honors, in the hope that, under the circumstances, your. Honors would he pleased to permit the case to be passed over without prejudice until your memorialist’.: arrival in Washington : that he received an answer from the said W. T. Carroll, Esq., acknowledging his receipt of the said letter, hut informing your memorialist that, unfortunately, the case had been reached only the day before, when, agreeably to the forty-third rule of court, the said case was placed at the foot of the calendar : that, iii the even|. of its so remaining, your memorialist will, if he shall live, be necessitated to come again — a third time — to this country, at the next setting of ■this honorable court, as no probability exists that the case can be reachedj in its new position, during the present term.'

      u Your memorialist, therefore, respectfully prays, hat, in consideration of the foregoing premises, and further, that the case is one in relation to the writ of habeas corpus, in favor of liberty, in proceedings on which courts are accustomed to relax that stringency of technical requirement so strenuously adhered to and insisted on in ordinary formal suits at law, the said forty-third ..rule of court may not be .enforced on the present occasion ; but that your memorialist may be heard dh the matter at such earlier day as may comport with the convenience of your Honors, or be appointed for the pure pose by this honorable court. JOHN Á. 'BARRY.
    “ Washington, D. C., February 6th, 1846.”
   Mr. Chief Justice TANEY

delivered the opinion of the court.

. In the case of John A. Barry v. Mary Mereein and Eliza Ann Barry, a motion was made on Friday last by the plaintiff in error to assign some day during the present term for the argument. A -petition was filed at the last term by one of the defendants in error, praying that the writ of error might'be .dismissed for want of juris- ' diction. The case in the regular order of business was called on the 15th day of January last, and neither party appearing-, it was, according to the rules of the court, placed at the foot of the calendar ; and it is now evident, from the number of cases standing before it, that it cannot be reached during the present term, unless by a special order of the court giving it priority.

There afe two questions in the case, both of them grave' and serious ones — 1st. Whether this court have jurisdiction upon a writ of error in a case like this; and, 2d. If it should be determined that it has jurisdiction, then, whether the Circuit Court committed an error in refusing to Rward the habeas corpus.

As this controversy, while it continues undecided, must be a painful one to the parties on both sides, the court feel every disposition to bring it to a speedy hearing, if it could be done without injustice to others ; and if the-motion to assign a day was liable to no other objection than that it would be a departure from the order of business prescribed by the rules, there would be no difficulty in making this case an exception, and assigning a day for the hearing.

But at-the present period of the term, the assignment of a particular day for the trial of this case involves other and higher considerations than that of a mere departure from established rules. In four or five weeks, at farthest, the court will be compelled to close its session, in order to enable its members to perform their duties at the circuits ; and several important cases, some of which cannot be continued without producing much public inconvenience in three or more of the States, have already been specially assigned for argument, and the order in which they are to be taken- up announced lrom the bench ; and in obedience to this notice counsel have been for-some time past, and still are, attending to argue them. It is very doubtful whether enough remains of the term to enable the court to dispose of these cases, ánd it is probable that one or more of them may of necessity be continued. Under such circumstances, we cannot, without injustice to others and inconvenience to the public in several of the States, make a new and unexpected arrangement in the order of business, by which another case, not entitled to priority,-is interposed out of its proper order. The case in question must, therefore, stand over until the next term.


author: Mr. Justice McLEAN Mr. Justice NELSON

text:
    Edward Bradford, Plaintiff in error, v. Robert W. Williams, Defendant, and John Judge, Plaintiff in error, v. Robert W. Williams, Defendant.
    By a statute of Florida, where suit is brought upon a bond, the plaintitf need not prove its execution unless the defendant denies it under oath. It also provides that such an instrument may be assigned; that the assignee becomes vested with all the rights of the assignor, and may bring suit in his own name.
    Under this statute, where a joint and several bond was signed by three obligors and made payable to three obligees, one of whom was also one of the obligors, and the obligees assigned the bond, the fact that one of the obligors was also an obligee was no valid defence in a suit brought by the assignee against the two other obligors.
    The inability of one of the obligees to sue himself did not impair the vitality of the bond, but amounted only to an objection to a recovery in a court of law. The assignment, and ability of the .assignee to sue in his own name, removed this difficulty.
    The statute of Florida places bonds, as far as respects negotiability and the right of the assignee to sue in hi own name, upon the same footing as bills of exchange and promissory notes. The case, therefore, falls within the principle of a partner drawing a bill upon his house, or making a nóte in the name of the firm, payable to his own order, both of which are valid in the hands of a loná fide holder.
    These were kindred cases, argued and decided together. Bradford and Judge were obligors upon the same bonds,-although'sued separately, and the same questions were common to both cases. -

      They came up,, by writ of error, from the Court of -Appeals for the Territory of Florida.
    The case was this.
    . The-defendant in error brought an action of debt in the Superior Court in the Middle District of Florida against the plaintiff-in er-: ror, and declared upon four bonds, amounting in the aggregate to the sum of §4,854-28, made by the defendant below, William P. Craig, and Ed. Bradford, by which they bound themselves jointly and severally to pay that sum to William B. Nuttall, Hector W. .Braden, and William P. Craig, or to their order, setting out the assignment of said bonds, in due and proper form, by the obligees to the plaintiff in the suit.
    Thp defendant, by his attorney,.craved oyer of the bonds, and, after setting out the same, pleaded “ that William P. Craig, one of the obligors mentioned, was, and is, the same identical person named William P.-Craig as one of the obligees in the said bonds, who, together with the others, had indorsed the bonds to the plain-; tiff, and that the same was therefore null and void at law, and not the deed of the defendant,” concluding with a verification.
    To which the plaintiff demurred, and the defendant joined in the demurrer.
    The court gave judgment for the plaintiff on the demurrer, which judgment was affirmed by the Court of Appeals, upon which this writ of error was brought.
    The record not having been filed in time, the cases had been docketed and dismissed under, the forty-third rule of court, on motion of the defendant in error. Afterwards, a motion was made by Mr. Westcolt to reinstate them, which, was argued by Mr. Westcott and'opposed by Mr. Thompson; upon which motion
   Mr. Justice McLEAN

delivered, the' opinion of the court.

A writ of error having been' allowed in this case, and the record not having been filed by the plaintiff within the forty-third rule, a motion was made by the counsel of the defendant, on presenting a statement of the judgment below, regularly certified, to dock it and dismiss the cause, which the court ordered to be done. And-now a motion is made to set-aside that order, on the ground that■the clerk, who certified the judgment, acted without authority.

The certificate objected to is in the proper form, is signed by R. T. Birchett, clerk of the Court of Appeals of Florida, and is authenticated by the seal of that court.

Florida was admitted into the Union as a State, on the 3d of March last, but provision was made under the seventeenth article in the constitution for the continuance of the courts and officers of the Territory until superseded under the laws of the State. We think the clerk, having possession of the records of the Court of Appeals, has a legal right, under its sanction, to certify its judg merits, and therefore that the order of dismissal cannot be set aside on the above ground. But in consideration of a change of government in the Territory, and the consequent embarrassments and doubts in regard .to this writ of error; and also in consideration that the plaintiff in error, in seven days after the above dismissal, made this motion, and <asked leave to file the record; the court will set aside the former order, and permit the record now to be filed ; on the condition, that, atibe optionofthe defendant, in error, the plaintiff shall submit the case, on printed arguments,- at the present term.

Mr. Wfstcott and Mr. Ingersoll, for the plaintiff in error.

These cases are both depending on the same principles. The statement of defendant in error, in his brief of the pleadings, is correct. The notice of the court is, however, asked to the particular form of the cpunts on the bonds sued on. They are described as' the joint and several bonds of Judge, Bradford, and Craig,' and as given to Nuttall, Braden, and Craig.. They are averred to have been indorsed by all the obligees (Nuttall, Braden, and. Craig) to Williams. The plaintiff must recover upon the case made in his declaration, or not at all, in this action.-

The fact that Craig, named as obligee in the bonds, is also one of the obligors, is distinctly averred in .defendant’s plea. The plaintiff ’s demurrer admits this fact. The first question, then, arises as to the correctness of. the position assumed by the defendant, that the bonds are nullities, and cannot he sued upon at law by the. obligees or their assignees v.

It is a principle of the common law, that no one can bé’ both obligor and obligee in the same bomb He cannot sue himself, and the instrument is a nullity. 1 Plowden, 367, 368 ; Co. Litt. 264, 265 ; Bap. Abr. 156, 157 ; Powell oh Contracts, 438 ; East-man v. Wright, 6 Pick. 321 ; 6 Taunt. 407 ; 1 Tucker’s Comm. 277 ; 2 American Common Law, 412, 414 ; 1 Chitty’s Pleadings, 45 ; 2 Saunders’s Rep, 47, note T ; Roscoe on Bills, 43, 44 ; 2 . Coventry & Hughes’s Dig. 238, art. 9, §7, art. 7, § 12.; Turton v. Benson, 10 Mod. 450 ; Mainwaring v. Newman, &c., 2 Bos. & Pull. 120; Jus v. Armstong, 3 Dev. 286 ; Taylor’s case, ibid. 288 ; Bonner’s case, ibid. 290 ; Shamhour’s case,. 2 Dev. 6 ; Davis v. Somerville, 4 Dev. 382 ; 13 Serg. & Lowb. 328. The court are particularly referred to the North Carolina cases-above cited.

Independent of all authority, the common sense of .this principle is so obvious that it cannot be disputed. Delivery, which, with sealing, is an essential part of a bond, cannot be made by a man to bimself, nor can a man sue himself. This objection, therefore, is insuperable, unless it can be evaded.

In conformity with the above order, the case was submitted, upon the following printed arguments, by Mr. Westcott and Mr. C. J. Ingersoll, for the plaintiff in error, and Mr. Thompson, for the defendant.

The counsel for defendant in error, in his submitted brief, does not seem disposed to contest this position, but it is attempted to be évdded by contending that the thirty-third and thirty-fourth sections óf'thé Territorial statute of 1828 (see Duval’s Comp., p. 69, correctly quoted in 2d" page of defendant's brief), alters the common lato on this subject.

The common law was adopted in Florida at the first session of the Territorial legislature after the cession. (See Laws of Florida Of 1822, p. 53}. It has continued , in force in, Florida ever since. In 1828, a. revision of the laws was attempted by the legis,lature, and in the enumeration of the acts to be continued in force; the act of 1822, above referred to, was, as is nojoriouá, by mere inadyerteface," omitted. Until it was reenacted in 1829, it was contended by. sonde that during thát interim the civil lato Of Spain, ánd not the common law of England, was to be regarded is existing in that territory) .but such position never received the sanction of any judicial decision. It is submitted that the Common law,once adopted as a system 'in 1822, continued till positively and affirmatively abrogated. A different rule would Occasion greatconfusion and embarrassment as to. contracts rmde hr the. year 1828, made according to the rüles and forms of the common lato, and in thebelief that it controlled them. Yet defendant in error seeks to establish such doctrine.

TBe Territorial statute cited “ vests'” the indorsee with the same rights; powers, and capacities as might have been “ possessed hy the assignor .or indorser ; and the assignee or indorsee may bring suit in Ins own ñamé.” (See § 34 of statute cited, p. 2, defendant’s brief, and Duval’s Comp., p. 96.)

- This Territorial"statute does not give to the assignee or indorsee Of a bond any more “'rights, ;powets, or capacities*” than “ might have been possessed by the assignor or indorser.” The restrictive words* u- the same,” used in fie law, show such intention by the legislature? Defendant in error cannot sue as indorsee, unless the words “ the saíne ” are construed to--mean more. It would be as reasonable to argue; that the words might have been possessed,”, used in the same elause,. meant fiat fie indorsee of an invalid bond should have the “same rights, powers, and capacities” as his indorsee “ might ” Have had, if the bond had been valid.

The concluding elause, providing that “ the assignee or indorsee may bring suit in his own name;” was not intended to “ vest ” him with sueh “ right, power, dr capacity,” as an additional right to that possessed by his assignor or indorser ; in other words, to sue on fie bond in his own name, even if his assignor or indorser- could not sue on it.' The statute was intended to make valid bonds negotiable, and allow the assignee or indorsee to sue in bis own name, which was not allowed at common law ; all the indorser’s right to sue in his own name is founded on the statute. It was not intended to make a bond, invalid before indorsement, become valid by indorsement.

It was never contemplated that it would be used to overturn a fundamental principle of the common law, that the same person could not be both obligor and obligee in the same bond, and both plaintiff and defendant in the same suit.

In tins case the counts all allege Nuttall, Braden, and Craig to be obligees ; .they allege Nuttall, Braden, and Craig to be indorsers, and they allegd Judge, Bradford, and Craig to be the obligors. We are saved all inquiry as to what might have been properly decided, if plaintiff had not made these express allegations, and if he had counted differently, dropping Craig either as obligor or as obligee and indorser, with appropriate averments. This case must be decided on the pleadings ; and they state that Williams, the plaintiff, claims, as indorsee of Nuttall, Braden, and Craig, of a bond' given to them by Judge, Bradford, and Craig. Craig is expressly ■ alleged to be one of his three joint indorsers. He has, therefore, in this suit, under the statute, cited precisely “ the .same,” or “all” (as defendant cites the statute in p. 3 of his brief) “ the rights, powers, and capacities,” as his indorsers, Nuttall, Braden, and Craig, had, and no more. He cannot gainsay his own pleadings. If these bonds had not been indorsed, could Nuttall, Braden, and Craig have sued Judge, Bradford, and Craig ?

The cases cited show that they could not at common law, and the statute gives Williams the same and no additional rights to those they had-

The argument of’ defendant in error (page 3 of brief filed), ¿which concedes that “ Craig sealed, but could not deliver, the bond, because he was one of the obligees; the execution of the bond was therefore incomplete, until Craig, joining the other obligees in the assignment to Williams, by that single act compelled the execution,” &c., it is submitted, gives up- the law of this case upon these pleadings. The counts are not,consistent with such case as that made by such arguments. To sustain it, the bonds must be regarded as being made and delivered directly to Williams, by Judge, Bradford, and Craig, and Craig not regarded as indorser.

The pleadings are the reverse of this supposed case. So, too,, all the arguments and authorities cited by defendant, with respect to “ express ” and “ implied ” delivery of a deed and “inchoate ” instruments, and delivery to part, and not all, of the obligees, are inapplicable to this case upon the pleadings, and they áre conclusively answered by a similar 'reference. The cases and rules of law contended for by defendant in error, if they were conceded, do not apply to his case, made upon his own pleadings.

The assimilation of this case to those founded upon the rules of commercial law, by which bills of exchange and notes, payable to the order of the -njaker, are held valid, and, when indorsed by the maker, suits sustained upon them, we think will not be sanctioned by this court. The essential difference between sealed instruments and simple contracts, and the pleadings Opon them, and the distinctions of the mercantile law, are so obvious, that it is not necessary to refer to them. . Nor has the law governing simple contracts by partnerships any analogy to. the law relating to sealed obligations.

The case of Smith v. Lusher, 5 Cowen’s Rep. (cited by defendant in error) , was a case turning on both a partnership and a promissory note, in which, according to the law merchant, and for securing the free circulation of those negotiable instruments which have become a convenient substitute for the common cúrrency of the country, and, in many, respects, equivalent to money itself, the court' could not do less than sustain the right of recovery. But . no bond was in suit in that case, and the whole argument, both at the bar and on the bench, whenever the case of a bond is alluded to, shows what would have been the decision if the action had been upon a bond. The instance of an obligation payable by a man to himself is constantly mentioned as an absolute nullity.

The case cited by defendant from 7 Gill & Johns. 265, is deemed to be in our favor. The principle for which we contend, that the bonds declared on were void at common law, is, we conceive, conceded in that case ; arid the only question was, what constituted an assignment of the instrument then sued on. The court held the bequest to, be such assignment, especially as it was delivered to plaintiff by the executor, who was the party owing and sued. The objection we make in this case at bar, that these bonds were void in their inception, could not be made in that. The instrument there was confessedly valid, and the objection made was, that it was extinguished by coming to the hands of the executor. Whether these bonds can be made valid by any indorsement, aAd whether the court would so hold in a case in which the pleadings were consistent with a case so made, as before observed, it is not necessary now to inquire.

The rule admitted by defendant in error (see page 3 of his brief), that “ there is a technical objection to the jurisdiction of a court of law in cases of suit on a bond in which the same party is obligor and obligee, and such.suits are properly cognizable in a court of equity, because it is in such courts only that adequate relief can be given,” is, however, all-sufficient for plaintiff in error in this case. We admit, though these bonds are void at Common law,, the obligors can be compelled to do justice by a court of equity. The defendant in error states, on same page in his brief, that these bonds are by one “company of persons to another company or association, and one of the persons is a member of. both. ” This is but a partial statement of the case. If it had been stated, also, that.these bonds were given for lands, for which lands bonds to make titles were given by the obligees, and that the vendors are unable to make good titles, the justice of the rule conceded by defendant in error, and the reason and object of a. defence against these bonds at law would be manifest, for, in such case, a court of equity is the only tribunal proper to decide between the parties.

It ctin scarcely be necessary to observe, that the rule of the Federal courts, to follow the decisions of the highest State court in the construction of th.e local statutes regulating practice in suits, has never been held to apply to the Territorial courts, which áre made subject to the appellate and revisory power of this court by act of Congress, which, courts are created by Federal legislation, and, indeed, the legislation of the Territory wholly derived^ from Federal authority ; nor does the rule apply to the decision of a State court, when the question is, *as in this oasej not as to a mere matter of practice, but as to a fundamental rule of common láw, and whether it has been abrogated by the statute. 'Whether three or four, out of five, judges of the Florida court concurred in the decision now under examination, we do not ‘deem important. If all had concurred, and if erroneous, it should be reversed ; but, in answer to the statement in the brief on the other side on this subject, we would remark, that the only judge who filed a dissenting opinion speaks of the decision as being made by “ a majority of the court.”

Mr. Thompson, for defendant in error.

This" was an action of debt,' instituted in the Superior Court of the Middle Pístrict of Florida by Williams against the present plaintiff in error, as one of the obligors of four joint and several .bonds, made by, John Judge, Edward Bradford, and W illiam P. Craig, payable to Hector W. Braden, William B. Nuttall, and William P. Craig, or order, and by the said obligees assigned to Robert W. Williams, the defendant in error in this court.

The declaration contains five counts, — one upon each bond, and the fifth upon an account stated.

The defendant pleaded two pleas ; the first ápplicable to the first four counts, and the second, a plea of nil debet to the fifth count: The plea to the special counts craves oyer of the writings

obligatory, and Alleges, that William P. Craig, one of the obligors,’ was and is the same identical person named William P. Craig,” as one of the obligees in said bonds, and the same'are therefore, null and void in law, and not the deeds of the said Judge. To this plea there was a general demurrer and joinder, and the Superior Court sustained the demurrer, and gave judgment for the plaintiff (Williams) according to the agreement of counsel filed in the record.

The cause was removed to the Court of . Appeals of the Florida Territory r -which-court affirmed the judgment , of the Superior Coin#.

The question whieh presents itself for considératibú in this case is this : —Does the fact alleged in the plea, and admitted by the demurrer, of the identity of William P. Craig, one of the obligors, as one; of the obligees, repder the bonds null and void in law as to all thé obligors, so as to defeat the right of action of Robert W. Williams, the assignee ?

We maintain the negative of this proposition, and contend that the present case is clearly distinguishable from the cases cited by. the plaintiff in. error in argument in the cdurt below, and which will doubtless be pressed upon the consideration of the court here. It was said that such an instrument was void, because Craig codld not deliver the instrument to himself, and delivery was essential to the validity of a bond, and because no action could be maintained upon it; the same person cannot be plaintiff and. defendant.

This case, however, is not to be determined by the rules of the common law, but by the act of the legislative- council of Florida, which has made some important alterations in the law as it formerly stood.

By the thirty-third section.of the act of 1828, it is provided,-— tc That it shall not be necessary for any person who sites upon any bond, note, covenant, deed, bill of exchange, or other writing whereby money is promised or secured to be paid, to. prove the execution of such bond, note, covenant, deed, bill of exchange, or other writing, unless the same shall be denied by the defendant under oath.”

The thirty-fourth section provides, — “ That the assignment or indorsement of any of the forementionéd instruments of writing shall vest the assignee or indorsee thereof with the same rights, powers, and capacities as might have been possessed by the assignor or indorser. And the assignee or indorsee may bring .suit in his own name,” &c. (See Duval’s Comp., p. 96.

The character of the transaction, as infetrible from the instruments, seems to have been an indebtedness of several persons composing one joint company, of which Craig was one, to another company of several persons, of which he was also amember, and the bond was 'executed as the evidence of that indebtedness. We admit that delivery is essential to the complete .execution of every deed, but we contend that where there are several cb-obligees, a formal delivery, to all is not necessary (Moss v. Riddle, 5 Cranch, 351), and we presume .where there are several co-obligors a formal delivery by all to the obligees is equally unnecessary. In this case we see no valid objection to the • delivery of these bonds by Judge, Bradford, and Craig, the obligors, or by some one of them, to Braden or Nuttall, representing the obligees.

Delivery oF a deed may be express, or implied by circumstance, — by saying something and doing nothing, — or by doing something and saying nothing.” Shep. Touch. 57 ; 4 Halst. N. J. Rep. 153; 1 Johns. Cas. 253; 1 Harris & Gill’s Rep. 324; 1 Harris & Johns. Rep. 323.

. But suppose the bonds were inchoate, or incomplete in the hands of the obligors for want of delivery, because Craig could not deliver to himself. The statute which we have referred to will, upon the assignment of the instrument, avoid the mere technical objection by providing a person to whom Craig could and did deliver the instruments. Judge and Bradford sealed and delivered the obligations to the obligees, — Craig sealed, but could not deliver,'because he was one of the obligees, — the execution of-the bond was therefore incomplete until Craig, joining the other obligees in the assignment to- Williams, by that single act completed the execution ; Williams, the assignee,. being invested by the statute with “ all the rights, powers, and capacities ” of his ■ assignors, and the bond becoming by the mere operation of the • statute payable to Williams, the assignee.

The-instruments were not technically void, because inchoate; they were merely in the progress of creation, and had life and vigor when complete and perfect. In Kent v. Somerville, in the Court of Appeals of Maryland, it was held that a bequest by the obligee of a single bill was-an inchoate transfer of the billrin writing, which when assented to by the executor is made perfect, and vests at law in the legatee the bona fide title or interest in the bill. 7 Gill & Johns. 265, 271.

The bequest in this case was not held void because inchoate' and incomplete; it was only inoperative till it received the assent of the executor, which completed the act of transfer.

Next, we contend that the bonds were not void because Craig could not sue himself. This is not precisely the -case of a bond by one person to himself; it is of one company of persons to another company or association, in which one of the persons is a member of both.

We admit there is a technical objection to .the jurisdiction of a court of law in such a case ; that such suits are properly cognizable in a court of equity, because it -is in the latter courts only that adequate relief can.be given. It is quite common in the mercantile world for one person to be a member of two firms, and for one of Such firms to become indebted to the other, yet we have never known such a contract to be held and deemed void, because a court of common law would not take jurisdiction. And why should this transaction be deemed void, because the parties chose to use a sealed instrumént as the evidence of their contract ?

As the law formerly stood in Florida, before the act of 1828 before- cited, there was a technical objection to the jurisdiction of a court of law upon the bonds ; but the act of 1828, making bonds and all other instruments whereby money is promised or secured-to be paid ”■ assignable, and giving the assignee a right to suetin his own- name, avoids the objection, and, instead of forcing him to use the names of the original obligees, which would drive him for his remedy to a court of equity, throws open to him the courts of law. The suit is in the name of Williams, the assignee; the plaintiff and defendant on the record are not the same person.

In Florida, since thé act of 1828, the analogy between bonds and notes, in regard to their negotiability, is complete. Prior to the Stat. 3 and 4 Anne, in England, promissory notes were regarded as mere choses in action ; the transfer or assignment did not vest the transferee with a right to sue in his own name ; the statute gave them this negotiability by putting them on the same footing with inland bills of exchange.

It is, and has been for many years, a common practice to draw both bills of exchange and notes payable to the order of the drawer and maker, and then, by indorsing and putting them into circulation, give them vitality and full effect. Now it must be admitted that the action on a note, at law, prior to the statute of Anne, must have been in the name of the payee, for the use of the assignee -or indorsee ; and if the note were payable to the maker’s own order, such action would have been liable to the common .law objection, that the plaintiff could not sue himself; but since the statute of Anne, giving the assignee or indorsee a right to sue in his own npae, courts of law have sustained actions in the names of indorsees, or notes payahle to the maker’s own order, and by him indorsed to. the plaintiff. This is expressly recognized in the Court of Errors in New York, in Smith v. Lusher. In this case, a note was' made by a partnership composed of several persons, payable to one of the firm, and it was held, that, though no • action could be maintained by the payee, because he was both payee and one of the makers, yet the plaintiff, to whom it had been transferred by indorsement, might sue at law upon the note as indorsee, and recover. It was, say the court, like a note payable to the.maker’s own order, and by him indorsed and put intb circulation. See 5 Cowen’s Rep, 689.

The case of Kent v. Somerville, cited before from 7 Gill & Johns. 265, also bears strongly upon this case, if not directly in point. In that case, S., the holder and obligee of a bond, bequeathed the same specifically to ,A., and made T., the obligor, his executor ; upon the demise of S., the executor, who was also obligor, assented to the legacy and delivered it to the legatee. It was objected that the bond was a chose in action of the testator, and a suit upon it could only have been brought by the executor, and that he could not sue himself. But the court held, that the bequest was an inchoate assignment, rendered perfect by the assént of the executor, and that, although, as the law in Maryland formerly stood, he could not sue upon it at law, either in the name of the obligee, because he-Was dead, or in the'name, of the fexeeutor, because he was the obligor and could, not sue himself, yet, by the act of 1829, c. 51, giving to the assignee of a bond a. right to sue in his own ríame, he was enabled to maintain the action;

The application to the case at bar will be seen in this' : when the bond, by the demise of S., passed to the executor, it was in the same position as the.bonds in the present case while in the hands of the obligees ; a suit at law could not be maintained upon it; but when the executor, who was also the debtor, perfected the assignment by his assent, then the objection was removed ; so in. the case at bar, where die objection to the jurisdiction of a court of law, because of the identity of Craig as obligor and obligee, was removed by the assignment to Williams.

It was urged in the court below, that the language of the thirty-fourth section of the act of 1828 was restrictive ip its character, and gave to the assignee no other “ rights, powers, and capacities ” than those possessed by the assignee ; but thefe are no negative or restrictive words in the section, no words of limitation. It expressly gives the same rights, but does not prevent the assignee from acquiring any other rights which necessarily result from, or spring out of, the act of assignment; and one of the <c rights, powers, and capacities ” possessed by the assignee beyond those previously* had by the assignor, and resulting from or springing out of the assignment, by the . mere operation of law, is the removal of the technical objection to the jurisdiction of a court of law.

It Was also urged in the' court , below, that the mention of notes, in the thirty-fourth section of the act of 1828, was superfluous, as they were before negotiable by the' statute of Anne. We do. not see any force in the argument as applied to this case, but if there should bej it is easily answered. When the act of 1828 went into operation, the statute of Anne was not-of force in Florida ; the act adopting the common law and the statutes of Great Britain was not passed until November, 1829. Duval’s Comp. 357.

It is believed that all the cáses cited by the plaintiff in error in the court below were suits brought by the obligees against the obligors, where there was no assignment, or where the assignment did not by law give the assignée a right to sue in his own name.

The view of the case here presented was fully sustained by four out of the five judges composing the Cdurt of Appéals of Florida, and upon it we confidently Test our right to a judgment of affirmance in this court.

Mr. Justice NELSON

delivered the opinion of the court.

Whether the .obligees of the bonds in question could have maintained an action a't law against the defendant is a. question we need not determine, though it is not easy to perceive the force of’ the abjection urged against it, namely, that Craig, one of .the co-óbligors, is also an obligee. The bond is joint and several, and the suit against Judge, one of the obligors ; and if it had been brought in the name of the obligees, Craig would pot have been a party-plaintiff and defendant, which creates the technical difficulty in maintaining the action at law. It would have been otherwise if the obligation had been joint and not several, for then the suit must have been brought jointly against all the obligors.

It has been held,, that if two are bound jointly and severally, and one of them makes the obligee his executor, the obligee may, notwithstanding, maintain an action against the other obligor. Cock v. Cross, 2 Levinz, 73 ; 5 Bac. Abr.816, tit. Oblig., D. 4.

But conceding, for the sake of the argument, the objection to be well taken, that a suit at law would not lie in the name of the obligees, we have no difficulty in maintaining it, even in the aspect iñ whióh the case is presented, and has been argued, before us,

By an act of the legislature of Florida it is provided, — “ That it shall nót be necessary for any person who sues upon any bond, note, &c., to prove the execution of such bond, note, &c., unless the saíne shall be denied by the defendant under oath.” And also, — “ That the assignment or indorsement of any of the fore-mentioned instruments of writing shall vest the assignee .or indorsee thereof with the same rights; powers, and capacities as might have been possessed by the assignor or indorser. And the assignee or indorsee may bring a suit in his own name.” Duval’s Comp., p. 96, §§ 33, 34.

The bonds have been duly assigned in this case, and the suit is in the name of Williams, the assignee, and it being thus authorized by the laws of Florida, all difficulty as to the remedy at law, arising out of the circumstance of the same party being plaintiff and defendant, is removed.

The act 'just recited provides that the assignee shall be vested “ with the same rights, powers, and capacities as might have been possessed by the obligees,” and inasmuch as the bonds were uncollectable, at law, in the hands of the obligees, it has been argued that, upon the words of the statute providing for the assignment and suit in the name of the assignee, they must be equally invalid and inoperative after the assignment, and in his hands.

. This argument, doubtless, would be well founded and conclusive against the plaintiff, if the objection to the bonds was such as went to vitiate and destroy the legal force and effect of their obligation, such as usury, illegality* or the like, which would constitute a valid defence to a suit, in any form in which it might be brought. So, in respect to any other defence in discharge of the obligation, such as payment, release, and the like. For the assignee takes the bonds subject to every defence of the description mentioned ; and can acquire no greater rights by virtue thereof than what belonged at the time to the obligees. This,'we think, is what the statute intended, and is all its language fairly imports-; and is, indeed, only declaratory of what would have been die legal effect, without the particular phraseology of the section.

But the only objection here made to the boiras in the hands of the obligees is, the want of legal validity in a court of law, arising out of the difficulty as to the parties, one of them being common to both sides of the obligation ; not that they are altogether void and uncollectable, for it is conceded they might have been enforced in a court of equity. They are ineffectual at law, from defect of remedy.

Now, the assignment, and ability to sue in the name of the assignees, removed at once this difficulty, and left him free to pursue his remedy at law ; and, as all parties concerned are to be taken as having assented to the assignment and delivery to the assignee, including Craig himself, and the suit in his name being sanctioned by the law, we are unable to perceive any well grounded objection to the judgment.

It has been suggested, that there could have been no delivery of the bonds to the. obligees, and hence none by them to the plaintiff, so as to bind the defendant. But the obvious answer is, that all the parties, except Craig, were competent to make a delivery, and as he joined in the assignment, it is not for him to,, set up the objection for the purpose of invalidating his own act. The inchoate or imperfect delivery as to him in the first instance, arising out of his double relation to the instruments, became complete by his joining in the assignment and delivery to the plaintiff. -

The common case of one partner drawing a bill upon his firm, payable to his own order, or of partners making, a promissory note payable to the order of one of the firm, which becomes valid in the hands of a bond fide holder, and collectable at law, affords abundant authority for the principle of the decision in this case. Smith v. Lusher, 5 Cow. 688 ; Smyth v. Strader et al., decided this term, ante, p. 404.

The statute of Florida has put bonds on the footing of bills of exchange and promissory notes, so far as respects negotiability and right to sue in the name of the assignee.

The above principle is therefore strictly applicable to the case in hand.

We are of opinion, the judgment of the court below should be affirmed.


author: Mr. Chief Justice .TANEY

text:
    John Hunt, Plaintiff in error, v. J. & M. Palao, Defendants.
    Upon the admission of Florida as a State, the records of the former Territorial Court of Appeals were directed by a law of the State to be deposited for safe keeping with the clerk of the Supreme Court of the State.
    No writ of error can be issued to bring up a record thus situated, the Territorial Court being defunct, and the Supreme Court of the State not holding the records as part of its own records, nor exercising judicial power over them.
    Nor could a law of the State have declared the records of a court of the United States to be a part of the records of its own State court, nor have authorized any proceedings upon them.
    If the record were to be brought up under the fourteenth section or tne act of 1789, it would be of no avail, because there is no court to which the mandate of this court could be transmitted.
    This was a motion made to ormg up the- record in the above case, which had been decided by the Territorial Court of Appeals of Florida previously to the admission of Florida as a State.
    The motion was as follows : —
    “ Mr. Westcott,
    in behalf of John Huntr submitted to the court a certified copy of the record of the opinion of said Court of Appeals, and of said judgment in said case, and suggested to the court that said Court of Appeals was defunct by the admission of the Territory of Florida as a State, on the 4th of March last, and that all the records and papers of said Court of Appeals, and the record aforesaid in said case, had been placed, by the act of the General Assembly of the said State, in the custody and keeping of the clerk of the Supreme Court of said State, and also' that said case was a case of Federal jurisdiction ; and he moved this court to allow a writ of error to remove said record and judgment into this court, with directions to the clerk of this court to direct the same to the. judges of said Supreme Court of said State, and to the clerk aforesaid having the custody of said record as aforesaid, in order that said record and judgment may be certified to this court, and a return to said writ of error made by said clerk of said Supreme Court of said State.”
   Mr. Chief Justice .TANEY

delivered the opinion of the court.

A motion has been made for process from this court to bring here for revision the record and proceedings of the late Territorial Court of Appeals of Florida, in the case of Hunt v. The Lessee of M. & S. Palao, in, which judgment was rendered in favor of the latter, at February term, 1844.

Since Florida ceased to be a Territory and became a State, a law has been passed by the State, directing the records and papers-of the above-mentioned Territorial Court to be placed in the custody of the clerk of the Supreme Court- of the State ; and under this law, the record in the case in question is now in his possession for safe keeping.

As Congress has made no special provision for a case of this. kind, the appellate power of this court, if exercised at all, must be exercised in the manner prescribed by the general laws, of Congress upon that subject. Under the act of 1832, writs of error to the Territorial Court of Appeals were to be prosecuted according to the provisions and regulations of the twenty-fifth section of the judiciary act of 1789. And assuming the case.in question to be one subject to revision in this court, according to these acts of Congress, yet the appellate power must be exercised in the-manner prescribed by these laws ; and under the act of 1789, the writ of error must be directed to the court which holds the proceedings as a part of its -own records, and exercises judicial power over them. But the court which rendered' the judgment in the case before us is no longer in existence; the proceedings are'not in the possession of any court authorized to exercise judicial power over them, but aré in the possession of an officer of another court, merely for the purpose of safe keeping. For the law of Florida does not. place these records in the custody of the State co.urt, but in that of the clerk; nor does it subject him to the control of the. court in any manner in regard to them. And indeed if it had placed them in the custody' of the court, it would not have removed the difficulty ; for the law of the. State could not have made,-them records of that court, nor authorized any proceedings upon them. The Territorial Court of Appeals , was a court of the United States, and the control over its records, therefore, belongs to the general government, and not to the State-authorities ; and it rests with' Congress to declare to what tribunal these records and proceedings shall be transferred ; and how these judgments shall be carried into execution, Or reviewed upon appeal or writ of error.

It has been suggested that a writ of error may issue, under the fourteenth section of the act of 1789, to the person having the actual custody of ¡he record, upon the ground that such a writ is necessary to the exercise of the appellate' powers of this .court. But if the language of that section would' justify such a construction, and the record and proceedings were brought here by a writ of error, either to the Supreme Court of the State or to the clerk, and the judgment of the Territorial Court found to be erroneous and reversed, still there is no tribunal to which we are authorized to send a mandate to proceed further in the case, or to carry into execution the judgment which this court may pronounce. Certain-' ly we could not send it to the Supreme Court of the State, for it is not their judgment or record, nor have they any power to execute the judgment given by the Territorial Court. Neither, for the same reasons, could we send such a mandate to the District Court of the United States, unless authorized to do so by a law of Congress. . And it would be useless and vain for this court to issue a writ of error, and bring up the record, and proceed to judgment upon it, when, as the law now stands, no means or process is authorized by which our judgment could be executed. We think, therefore, that no judgment or decree rendered by the late Territorial Court can be reviewed here by writ of error or appeal, unless some further provision on that subject shall be made by Congress. Consequently, the. motion in this case must be refused.