text:
    Lucius W. Stockton and Daniel Moore, Plaintiffs in error, v. Harriet Bishop.
    Where a count in a declaration is defective on account of dates being left blank, but the party has pleaded and gone to trial, the presumption, is that the proof supplied the defect.
    In an action on the case for injury sustained by the oversetting of a stagecoach, although the declaration does not set out the payment of any passage money, nor any promise or undertaking on the part of the defendants to carry the plaintiff safely, yet if it states that the plaintiff Decamé" a passenger for certain rewards to the defendants, and thereupon it was their duty to use due and proper care that the plaintiff should be safely conveyed, and if the breach was well assigned, and the cause went on to plea, issue, trial, and verdict, the defect in the declaration ■ is cured by the 32d section of the Judiciary Act of 1789.
    The “ right of the cause and matter in law ” being with the plaintiff in the court" below, the judgment of that court must be affirmed.
    This case was brought up, by writ of error, from the Circuit Court of the United States for West Pennsylvania.
    There was no bill of exceptions signed by die judge, and the record presented the following appearance.
    Among the rolls, records, and judicial proceedings of the Circuit Court of the United States, in and for the Western District of Pennsylvania, in the Third Circuit, may be found the following wotds and figures, to wit: —

      Copy of Docket Entries.

    McCandless, and ) Harriet Bishop, a citizen of the' McClure & Biddle. ) State of Ohio,

      vs.

    18
    Darragh, Loomis, ) Lucius W. Stockton and DanMahon & Washington, j iel Moore, citizens of Penn.
    Summons case, exit September 17th, 1842.
    1842, November 4th, returned. Served by leaving a copy at. the dwelling-house of. D. Moore, November 1st, 1842, and personally on L. W. Stockton, November 2d, 1842. '

      1843, Jan. 12th. Narr. fíléd.
    . 1843, February 6th. On motion of Mr. .Dárragh, rulé for se-, curity for costs.
    1843, February 7th. Rule for security for costs, returned, “ Served on Mr. McClure, February 7th, 1843.”
    1843, April 5th. Consent of attorney for defendants,, that a commission issue forthwith to take testimony on part of plaintiff, and declension to file cross interrogatories. (See.paper filed.)
    1843, April 5th. Interrogatories on part of plaintiff filed, and commission issued to Albert G. Westgate, Esq., of McConnellsville,'Morgan county, Ohio, commissioner named by plaintiff.'
    1843, April 10th. Stipulation of John Sarber, as security for costs, filed.
    1843, April 18th. Commission, with depositions taken before Albert'G. Westgate, Esq.,'returned and filed.
    1843, May 10th. Plea of defendants filed.
    1843, May 10th. Agreement of attorneys filed.
    .1843, May 17th. Continued.
    1843, October 5th. Subpoena on part of defendants to Dr. Kennedy.
    1843, October 28th. Subpoena on part of defendants to Dr. Campbell.
    1843, October 30th and 31st. Subpoenas bn part of plaintiff to Dr. A. H. Campbell, James Corbin, James Smith, James Snyder, and Daniel Brown.
    1843, November 20th. Above subpoenas returned.
    1843, November 22d, 23d, 24th, and 25th. Tried by jury, and, 25th, Verdict for plaintiff for six thousand five hundred dollars ($6,500), with costs of suit.
    1843, November 24th. Defendants’ points filed.
    1843, November 25th. Motion in arrest of judgment, and for a new trial.
    1843, November 27th, Plaintiff’s, bill of costs filed.
    .1843, November 30tb. Reasons'in arrest of judgment, and for a new trial, filed.
    1843, December 1st. . Argument for a new trial commenced:
    1843, Decembér 7th. Argument of motion for new trial continued and concluded by Messrs. Mahon and Loomis, for defendants, and Mr. Biddle, contra, for plaintiff.
    Samé day. Affidavit of Jacob Murphy filed.
    Same day. ■ After argument, defendants’ points overruled, and judgment on the verdict; stay of execution for thirty’days.
    Same day. Plaintiff’s counsel desired the'sanction of the court to the following amendment to the verdict, objected to by defendants’ counsel. Objections filed by order of the court; after argument, objections overruled, and verdict amended as follows, viz.: — “ Anfi. now, to wit, December 7th, 1843, inasmuch as the plaintiff, on the trial of the cause, offered proof of but a single disaster, and its injurious consequences, as set forth in the second count of the declaration, the verdict is amended accordingly, and judgment entered for 'the plaintiff on the said second count, and for the defendants on the first count.”
    1843, December 15th. Defendants enter into a bond, which is approved by Judge Irwin, in the sum of thirteen thousand dollars, and sue out their writ of error.
    1843, December 15th. Citation issued.
    1843, December 15th. Writ of error allowed and issued.
    1843, December 16th. Citation returned ; served by copy on R. Biddle, Esq., attorney of defendants.

      Copy of Declaration.

    In-the Circuit Court of the United States for the Western District of Pennsylvania.
    Lucius W. Stockton, a citizen of Pennsylvania, and Daniel Moore, also a citizen of Pennsylvania, were summoned to answer Harriet Bishop, a citizen of Ohio, in an action on the case. Whereupon the said Harriet Bishop, by McCaiidless & McClure, her attorneys, complains, for that whereas.the said defendants, before and after the time of committing the grievance hereinafter mentioned, were owners and proprietors of a certain line of stagecoaches for the carriage and conveyance passengers from Baltimore, in the State of Maryland, to Wheeling, in the State, of Virginia, for hire and reward, to the said defendants in that behalf; and the said defendants being such owners and proprietors of the said line of coaches so as aforesaid, thereupon heretofore, to wit, at the special instance and request of the said defendants, became and was a passenger in the said line of coaches, to be safely and securely carried and conveyed thereby on a certain journey, to wit, from Baltimore aforesaid to Wheeling aforesaid, for a certain fare and reward to the said defendants in that behalf; and the said defendants then and there received the said plaintiff as such passenger as aforesaid ; and thereupon it then and there became and was the duty of the said defendants to use due and proper care that the said plaintiff should'be carefully and securely carried and conveyed by and upon the said line of coaches on the said journey ; yet the said defendants, not regarding their duty in that behalf, did not use due and proper care that the said plaintiff should be safely and securely' carried and conveyed by and upon the said stagecoach, on the said journey from Baltimore aforesaid to Wheeling aforesaid, to the damage of the plaintiff twenty thousand dollars.
    And whereas also, heretofore, to wit, on the day and year aforesaid, at Baltimore aforesaid, the said plaintiff, at the said special instance and request of thé said defendants, became and was a passenger by a certain other coach, to be safely and securely carried and conveyed thereby on a certain journey, to wit, from Baltimore aforesaid to Wheeling aforesaid, for certain rewards to the said defendants in that behalf; and thereupon it then and there became and was the duty of the- said defendants to use due and proper care that the said plaintiff should be safely and securely carried and conveyed, by the said line of coaches, on the said journey from Baltimore aforesaid to Wheeling aforesaid ; yet the said defendants, .not regárding their duty in this behalf, did not use due and proper care that the said plaintiff should be safely and sectíre.ly carried and. conveyed, by the last mentioned coach, on thé said journey from Baltimore aforesaid to Wheeling aforesaid ; but wholly neglected to do so, and by reason whereof one of the legs, one of the arms, two of the ribs, [and] the collar-bone of the said plaintiff then and there became and were fractured and broken, and the' said plaintiff was then and there otherwise greatly bruised, "wounded, and injured; and also by means of the premises the said plaintiff became and was sick, sore, lame, and disordered, and so remained and continued for a long space of time, to wit, hitherto j during all which time the . said plaintiff suffered, and underwent, and endured great pain, and was hindered and prevented from transacting and attending her necessary and lawful affairs and business by her during all that time to be performed and transacted, and lost and was deprived of divers great gains, and advantages, and profits, which she might, and otherwise would, have derived and acquired from the same ;. and thereby also the said plaintiff was forced and obliged to pay, layout, and expend divers other large sums of money, amounting, in the whole, to the sum of one thousand dollars, in and about the endeavouring to be cured of the last mentioned bruises, fractures, and injuries received as last aforesaid, to the damage of the said plaintiff twenty thousand dollars; and therefore she brings suit.
    McCANDLESS & McCLURE,

      Plaintiff’s attorneys.

    (Then followed a summons, and a commission to take testimony, under which several witnesses were examined, and the record proceeded.)

      Copy of Plea.

    Bishop v. Stockton et al. Circuit Court of the United States for .the Western District of Pennsylvania.
    The defendants, by Cornelius Darragh, their attorney, come and defend the wrong, when, &e., and for plea say, that they are •not guilty of the matters and • things alleged against them in the plaintiff’s declaration, and of this they put themselves upon the country.

      May 10, 1843. • C. DARRAGH, for defendants.

      Copy of Defendants' Points.

    Harriet Bishop v. Stockton & Moore.
    . The counsel of the defendants respectfully request the court to instruct the jury as follows : —
    1 st; That the proprietors of a stagecoach do not warrant the safety of their passengers, in the character of common carriers ; and that they are not responsible for mere accidents to the persons of passengers, but only for the want of due care. ■ (Given.)
    2d. That they do not warrant the safety of passengers ; their undertaking, as to them, goes no further than this ; that as far as. human wisdom and vigilance can go, they will provide for the safe conveyance of their passengers. (Given.)
    3d. That if the jury believe that the accident in this case was caused by the intoxication of James Corbin the driver, but that he was not only not in the habit of drinking intoxicating liquors, but was intoxicated, on this occasion, for the first time in his life ; that, in this event, the defendants will have exercised due care in the selection and employment of James Corbin as a driver4, and will not be liable in this action. (Refused.)
    4th. That if the jury believe that the accident was caused by the intoxication of James Corbin, yet if they also believe that a long course of previous habitual good conduct through a series of years, from his boyhood to the time of this accident in question, had satisfied the defendants, the tavern-keepers with whom James Corbin boarded, and his associates, that he was a temperate and an abstemious man, that then the defendants, as far as ordinary wisdom and vigilance could go, did provide for the safety of their passengers in the selection and employment of James Corbin as a driver, and that they are not liable iii this action. (Refused.)
    5th. If the jury believe that, at the time of the accident, the coach was on the upper and safer portion of the road, and that the accident occurred in the effort of Corbin to take up his horses after descending the hill, that the defendants are not liable in this action. (Refused.)
    6th. That although the jury may believe that Corbin was, at the time of the accident, partially intoxicated, still, if he was not so much intoxicated as to be incapable of the management and control of this team, and the accident did not arise from that cause, but from the state of the weather, obscurity of the night, and the condition of the roads, that the defendants are not liable in this action ; especially if the jury believe that the said Corbin had heretofore sustained an unexceptionable charactér for skill, care, and sobriety. (Refused.)
    7th. If the jury believe that the driver was a person of competent skill, of good' habits, and in every respect qualified and suitably prepared for the business in which he was engaged, plaintiff cannot recover, unless they were clearly satisfied that, on this occasion, the disaster was attributable to the fault .of the driver, and not to the darkness of the night, or other accidental cause, and that said accident would not have occurred but for the fault of the driver. (Given.)

      JQ'efendants'’ Exceptions.

    Harriet Bishop v. Stockton & Moore. In the Circuit Court of the United States.
    The counsel for defendants respectfully except to the refusal of the court to instruct the jury as prayed for on all the' points presented by them,-except the first, second, and seventh.
    MAHON & WASHINGTON,
    METCALF & LOOMIS,

      25th November, 1843. Attorneys fcr defendants.

      Copy of Reasons for a New Trial, and in Arrest of Judgment.

    Harriet Bishop v. Stockton' & Moore.
    The counsel for defendants move the court for a new trial, for the following reasons, viz. —
    1'. The verdict is agai ist the weight of. evidence.

      2. It is rendered for vindictive damages.
    3. It is not the result of the deliberate opinions of the jurors, or of comparison of. their several opinions, but the amount was fixed and determined by the average of different sums named by the jurors.
    They -move in arrest of judgment, because,—
    1. No sufficient cause of action is set forth in plaintiff’s first count of narr., and the verdict is general on both counts.
    2. No sufficient cause of action is set forth in either count; there being no allegation that the amount charged for fare, or passage money, had in. fact been paid by plaintiff.
    \3. General errors.
    MAHON & WASHINGTON,

      Attorneys for defendants.

      November 27th, 1843.

      Copy of Affidavit of Jacob Murphy.

    Personally appeared before me, a justice of the peace in and for the county of Fayette., Jacob Murphy, who, being sworn, doth depose and say, that he was a juror in the Circuit Court of the United [States] for the Western District of Pennsylvania, for November term, 1843, and that he was one of the' panel who tried the case of Harriet Bishop v. L. W. Stockton and Daniel Moóre, for damages accruing from the upsetting of a stagecoach, and that the method adopted by the jury by which they settled on the .amount of the verdict was this : it was agreed that each juror should mark the sum he found, and that the total amount, divided by twelve, should, without alteration, be the amount of the verdict; in accordance with their agreement, each juryman put down the amount he thought proper ; they then added the whole together, and divided the amount by twelve, and the product was six thousand five hundred dollars, which was reported as the verdict of the jury.
    JACOB MURPHY.
    Sworn and subscribed before me, the 5th December, 1843.
    CLEMENT WOOD, J. P.

      The verdict as ordered to [he] entered by the Court.

    And now, to wit, December 7th, 1843, inasmuch as the plaintiff, on the trial of the cause, offered proof of but a single disaster,, and its injurious consequences, as set forth in the second count of the declaration, the verdict is amended accordingly, and judgment entered for the plaintiff on the said second count, and for the defendants on the first count.

      Copy of Defendants’ Objections.

    In the Circuit Court of the United States, Western District of
    Pennsylvania.
    Harriet Bishop v. L. W. Stockton et al.
    The counsel for- the plaintiff having moved the court to make the following entry of record in the cause, to wit: — “ And now, to wit, November, 1843, inasmuch as the plaintiff, on the trial of the .cause, offered proof of but a single disaster, and its injurious consequences, as set forth in the second count of the declaration, the verdict is amended accordingly, and judgment entered for the plaintiff, on said second count, and for the defendant on the first count.”
    The defendants, by their counsel, now, to wit, November 7th,
    1843, appear in court, and object to the allowance of said motion by the court, and to any permission by the court that such entry as is above indicated should be made in the cause, and in support of their objection assign the following causes, to wit: that the issue, if any, joined by the pleadings between the parties, was upon the whole declaration ; that the jury were sworn to try the issue, if any, joined upon the whole declaration ; that the jury returned their verdict in writing ,in the following words : —
    Harriet Bishop v. Stockton, Moore, & Co.
    We, .the jurors sworn and empanelled in this cause, do find for the plaintiff six thousand,five hundred dollars, with costs of suit, this 25th day of November, A. D. 1843.
    Which said verdict was received by the court; and thereupon an entry was made of record in the cause, in the following words, to wit: —
    “Harriet Bishop v. Stockton & Moore.
    “ Jury find for the plaintiff six thousand five hundred dollars, with costs of suit.”
    That the verdict so found by the jury was found by them upon the entire issue or issues, if any, between the parties, and upon the whole declaration, embracing both the first and second counts thereof; that said verdict is general; that the testimony given in the cause was as applicable to the. first as to the second count cf the declaration ; that the defendants have as good a right to claim that the verdict of the jury should be amended, by entering it upon the first count of the declaration for the plaintiff, and judgment thereon for the plaintiff, and judgment on the second count for the defendants, as the plaintiff has to claim that the proposed entry should be made. That the jury having given a general verdict for. entire damages on both counts of th§ declaration, which verdict was received by the court, and entered of record without objection from the plaintiff, and the jury having separated, the court have not the legal right, anil if they possess die legal right, ought not, in the exercise of a sound discretion, to modify the verdict of the jury in the manner proposed by the plaintiff’s counsel; which objections, and reasons in support thereof, are respectfully submitted by the defendants, to be filed and entered of record in the cause.
    METCALF & LOOMIS,
    MAHON & WASHINGTON,

      ,Attorneys for defendants.

      United States, Western District of Pennsylvania, ss.:

    I, Edward J. Roberts, clerk of the Circuit Court of the United States in and for the Western District of Pennsylvania, do hereby, certify, that the foregoing is a full, true, and complete* exemplification of the record in the case of Harriet Bishop, a citizen of the State of Ohio, against Lucius W. Stockton- and Daniel Moore, citizens of Pennsylvania.
    . In testimony whereof, I have hereunto set my hand, and affixed the seal of the said court, at Pittsburg, this twentieth day [L. s.] of December, A. D. 1843, and in the sixty-eighth year of the independence of the said United States.
    E. J. ROBERTS, Clerk.

    A writ of error, sued out on behalf of Stockton & Moore, brought up the record in the form in Which it is stated above.
    The case was argued by Mr. Bledsoe and Mr. Coxe for the plaintiffs in error, and Mr. Richard Biddle (in a printed argument), for .the defendant in error.'

      Mr. Bledsoe for plaintiffs in error.
    Perhaps no record ever came up to this court in such an imperfect state. There appears to be no issue, no venire, no jury empanelled or sworn, no verdict, except where it is incidentally mentioned, no bill of exceptions signed, no judgment of the court for a specific sum. It is trué, that there is a verdict spoken of in the docket entries, but these are only to refresh the memory of the' clerk. 10 Ohio Rep. 200.
    Nothing, is a part of the record except the pleadings, or what is referred to in the opinion of the court. 5 Peters, 254.
    There is no regular judgment of the court for a specific sum. How could an action of debt or a scire facias be maintained upon such a record ? 5 Dane’s Abr. 221 ; 1 Arkansas Rep. 346, 347 ; 2 Arkansas Rep. 390 ; 1 Robinson’s Practice, 390 ; 6 Randolph, ,30 — 32 ;. 4 Munford, 262 ; Yelverton, 107 ; 4 Leonard, 61 ; 1 Chitty’s Plead. 356.
    The declaration is radically defective. The first count was abandoned, and judgment entered on the second count. This must therefore stand alone, and, taken by itself, it discloses no cause of action. Two reasons exist for this. 1. There is nothing stated from winch an implied undertaking can be inferred to carry safely. 2. There is no such express undertaking averred.
    1. In order to raise the implication, the fact must be averred, that the other party were common carriers. This is necessary, as a foundation for the implied assumpsit. 1 Wendell, 272 ; 6 J. B. Moore, 158 ; 2 Chitty’s Plead. 356, note. See also Story on Bailments, 374, 591.
    The declaration was designed, to he in tort. It is not averred that any reward was to be paid by the plaintiff, or that there was any promise at all. Lawes on Pleading, under the head of “ Promise.”

      Mr. Biddle, for defendant in error.
    Under the 40th Rule of Court, the following remarks are respectfully submitted on behalf of the defendant in error.
    , No specification of errors having been filed, the points which will be pressed are left to be inferred from what took place in the court below.
    First. As to the declaration. It may be alleged that the first count is bad, and that the verdict, being general bn both counts, is thereby vitiated. The reply is : — 1. The count is not bad. It provides for the event of no special damage being made out. It i would, at least, justify nominal damages. It alleges that the defendants were engaged it) a duty to the public as carriers of passengers ; that they undertook to carry the plaintiff safely, and failed to do so.
    Further, it is to be remembered that there was no demurrer to the count,, and the objection therefore comes after verdict. Now it is a familiar rule, that a cause of action defectively or inaccurately set forth is cured by the verdict, because, to entitle the plaintiff to recover, all circumstances necessary, in form or in substance, to make out his cause of action, so imperfectly stated, must be proved at the trial. (9 Wheat. 595 ; 1 Peters’s C. C. R. 482.) But, 2. This inquiry is unnecessary, as the judgment is entered on the second count. The recent case of Matthewson’s Administrators v. Grant’s Administrator, in this court (2 Howard, 263), renders superfluous any argument as to the right and the duty of the court to permit the amendment prayed for. The second count is th8 familiar one in case, not requiring any averment of the payment of money,, found in 2 Chitty’s Pleadings, 647 (ed. of 1840), and in 2 Chitty’s Precedents, 506, a (ed. of 1839), and was pursued in Curtis v. Drinkwater, 2 Barn, and Adolph. 169 (22 English C. L. Rep. 51). Had such averment been necessary, the omission would be cured after verdict, on the principle heretofore noticed.
    Second. As to any irregularities committed by the jury in making up their verdict, they are not examinable in a court of error.
    1 Peters’s C. C. R. 159. All these matters are referred to the sound discretion of the court below. The refusal to grant a new trial is not the subject of a writ of error. 4 Wheat. 223 ; 6 Wheat. 547.
    Nothing, however, can be- better settled, than that the Circuit Court was right in refusing to act upon the affidavit of a juror. 2 Tidd’s Pr; 709 ; Vaise v. Delaval, 1 T. R. 11 ; Owen v. Warburton, 4 Bos. & Pull. 326 ; 4 Wash. C. C. R. 32 ; 4 Binn. 150 ; 5 Conn. R. 348 ; 3 Gill and Johns. 473 ; 2 Greenleaf, 41 ; 2 Tyler’s Verm. R. 13.
    That the process resorted to by the jury is not open to just exception, even if established by unexceptionable evidence, see Grinnell v. Phillips, 1 Mass. R. 541; Commonwealth v. Drew, 4 Mass. R. 399; Goodwin v. Philips, Lofft, 71; Lawrence v. Boswell, Sayer, 100.
    Third. As to the instructions prayed, for by the counsel of the defendants below, and refused by the court. The late lamented Judge Baldwin delivéred in this case an elaborate and compreheh‘sive charge to the jury, in which the law, as settled by this court in Stokes v. Saltonstall, 13 Peters, 181, was clearly laid down and enforced. Unfortunately it cannot now be found. To this charge no exception was taken. It covered the whole ground, and the learned judge might well, therefore, have refused to notice any of the points submitted by defendants’ counsel. This course was pursued by the circuit judge in the trial of Stokes v. Saltonstall (see 13 Peters, 185). Judge Baldwin, however, thought proper to yield his assent to the points submitted, so far as he could do so with propriety. His answers to these points, apart from the general charge, established the following rules for the guidance of the jury: —
    1. That the proprietors of a stagecoach do not warrant the safety of their passengers in the character of common carriers ; and that they are not responsible for meré accidents to the persons of passengers, but only for the want of due care. ' (Jury so instructed in conformity to the first proposition submitted by the defendants below.) . '

      2. That they do not warrant the safety of passengers ; their undertaking as to them goes no further than this, that as far as human wisdom and vigilance can go, they will provide for the safe conveyance of their- passengers. (Jury so instructed in conformity to the sécond proposition submitted by defendants below.)
    3. If the jury believe that the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in which he was engaged, plaintiff cannot recover unless they were clearly satisfied that, on this occasion the disaster was attributable to the fault of the driver, and not to the darkness of the night or other accidental cause, and that said accident would not have occurred but for the fault of the driver. (Jury so instructed in conformity.to the seventh proposition submitted by the defendants below.)
    The other propositions submitted are either inconsistent with what was conceded by the defendants themselves to be correct doctrine, or present parts of the subject in a detached, isolated form, calculated to mislead rather than enlighten the jury. Thus -the third and fourth propositions ask the court to declare, that although the grossest negligence and incapacity existed on this particular occasion, yet if the driver’s past conduct and character had been good, the proprietors were not liable. To have so held would have been in defiance of the decision of the Supreme Court in Stokes v. Saltonstall (13 Peters, 181), and would have 'been inconsistent with the court’s assent to the defendant’s seventh proposition, where good conduct on the particular occasion is conceded to be indispensable.
    The fifth proposition presents a hypothetical statement of facts, and asks the court to instruct the jury that théir existence would free the defendants from liability. It is denied that any right exists to force upon the court teasing and endless repetition of points favorable to one or the other side, where the law has been once correctly stated. But here, to have answered the question affirmatively would have been palpably wrong, for all the circumstances mentioned might be true, and yet the disaster have.been occasioned by the intoxication of the driver.
    So of the sixth proposition. It is to be borne in mind that the court instructed the jury that plaintiff could not recover, “ unless they were clearly satisfied that on this occasion the disaster was at

      tributable to the fault of the driver, and not to the darknéss of the night, or other accidental ca/use, and that said accident would not have occurred but for the fault of the driver.” The question, therefore, was fully answered, without entering into an idle and unseemly dissertation on the several stages of drunkenness.

      Mr. Coxe, for plaintiffs in error,
    in reply and conclusion.
    As to the errors in pleading which will lead to a reversal, see 9 Wheat. 720.
    In this case there is no plea, and of course no replication; docket entries are no part of the record. 10 Ohio Rep. 200 ; 5 Peters, 254 ; 12 Wheat., 118, 119.

      (Mr. Cjoxe then went into a critical examination of the record.) Whatever would be fatal in the court below is also fatal in the court above. 6 Cranch, 221; 15 Johns. 403.
    If the first count be taken away, the second, standing by itself, does not afford sufficient foundation for the judgment. For example, it speaks of a “ day and year aforesaid,” but no day is named. It speaks of “ passengers in a coach,” but it is not averred to be a public coach. If the contract is to be implied, the fact that the stages were public must be averred. The declaration says that the defendants did not perform their duty. How? Was the plaintiff left behind ? Or was the driver negligent ? The second count does not say.
    When the cause of action is inaccurately set out, the defect is cured by verdict; but a mere allegation of omission of duty is not enough. The case must show the facts. 2 Cranch, 389.
    Title to property must be alleged. Stephens, 304; 2 Fenwick, 134.
    The allegation in this case should have been, that the defendants were common carriers ; there is none of a contract for hire. 2 Wash. 187 ; 2 New Hamp. R. 289.
    Mutual promises must be averred. 1 Cain. 583; 5 Serg. & Rawle, 358.
    Every material fact must be averred with precision. 9 Johns. 291.
    Will the verdict cure these defects of pleading ? The general rule is, that nothing is to be presumed after verdict, except what is stated in the declaration, or necessarily implied. 1 T. R. 145 ; 7 T. R. 521 ; 2 Tidd’s Prac. 82.
    It is not alleged here that the defendants were owners of the coach, nor that it was a public coach. Douglas, 679.
    Whatever the law will not imply must be stated in the declaration. 1 Chitty, 365, 368.
    The declaration must aver a consideration, and here there is no averment of any contract whatever. 5 T. R. 150 ; Latch’s Rep. 177.
   Mr. Justice CATRON

delivered the opinion of the court.

This cause comes here by a writ of error to the Circuit Court of the District of Western Pennsylvania. There is no bill of exceptions in the record ; although instructions said to have been given by the court to the jury are certified up as part of the proceedings. These of course we cannot notice. Other supposed errors are therefore relied on as sufficient to reverse the judgment.

1. That the judgment below was rendered for the plaintiff, on, the second count of the declaration ; and it is insisted that this count is so defective, that no judgment could be rendered on it; and therefore on error the judgment must be reversed. If the assumption be true, the consequence must follow.

The second count refers to the first for the dates of the circumstances, and the injury complained of, and as nó time is given in the first count, neither has this any.

The plaintiff in error having pleaded not guilty and gone to trial, the presumption is that the proof supplied the defective statement. Such, we - suppose, is the uniform rule, where material dates are left blank.

2. It is insisted that the declaration does not set out the payment of any passage money; nor any promise or undertaking on the part of the defendants below to carry the plaintiff safely. The allegation is, that the plaintiff, at the special instance and request of the defendants, became and was a passenger,in a certain coach, to be carried safely, &c., for certain rewards to the defendants ; anthereupon it was their duty to use due and proper. care, that the plaintiff should be safely conveyed. The breach is well assigned, as it shows the neglect and consequent injury sustained. No demurrer was interposed, for want of form ; and this brings the 32d section of the JudiciaryAct of 1789 to bear oirthe proceeding. Not guilty, was pleaded; a trial had on the issue, on which the jury returned a verdict in these words : —“ Harriet Bishop v: Stockton, Moore, & Co. We, the jurors sworn and empanelled in this cause, do find for the plaintiff six thousand five hundred dollars, with' costs of suit, this 25th day of November, A. D. 1843.” The verdict was, received by the court, and ■ stands recorded as found; and afterwards, on motion, it was amended so as to apply to the second count only.

Who the jurors were, or how many found the verdict, does not appear ; nor does it appear that they were sworn to try the issue, further than the jury say in their verdict. Still we are bound to presume in favor of proceedings in a court having jurisdiction of the parties and subject-matter, that justice was administered in the ordinary form, when so much appears as is found in this imperfect record.

The declaration, plea, and finding must be taken together; and from these, we are bound, by the 32d section, above cited, to ascertain whether, according to the right of “ the cause and matter in law,” the plaintiff is entitled to her damages ; and in so doing, defects of form must be disregarded. Why Congress so provided, in 1789, is obvious. No modes of proceeding were prescribed by the act, in civil causes, at common law, and the modes observed in the English courts left to apply as general rules. These were formal and technical; and forasmuch as by the 35th section all parties to causes in courts of the United States might plead and . manage their own causes personally, if they saw proper, technicalities could not be required. That the practice under this privilege has not corresponded to the theory tolerating it may be conceded ; yet we cannot for this reason disregard the clause covering jeofails, intended for its protection ; and if proceedings, as recorded, in the courts in any part of the Union were as loose in 1789 as this record indicates them yet to be, in one .circuit court at least, where the two acts of 1789 continue to govern, it must be admitted that Congress acted wisely in declaring that no litigant party should lose his right in law for want of form ; and in going one stép further, as Congress unquestionably has done, by declaring, that, to save the party’s rights, the substance should be infringed on to some extent, when contrasted with modes of proceeding in the English courts, and with their ideas of what is substance.

According to “ the right of the cause and matter of law.” appearing to us on the pleadings and verdict, we think the plaintiff is entitled to her damages, and that judgment below ought to have been rendered for her.

But the judgment there given is also assailed, and justly, as being less formal than what precedes it. It is either no judgment, or binding. ■ If it amounts to nothing, then, by the 22d section of the Judiciary Act, no writ of error lay (as one can only be prosecuted on a final judgment), and the case must be dismissed for want of jurisdiction, and the plaintiffs in error be sent to the court below, to quash the execution. We think, however, there was a judgment on the verdict, that warranted an execution for the damages found; and consequently the prosecution of a writ of error. And this being so, for the reasons above stated, such judgment must be affirmed.


source: Caselaw Access Project

author: Mr. Justice CATRON

license: Public Domain

text:
    Noel Jourdan and Joseph Landry, Plaintiffs in error, v. Thomas Barrett et al.
    Under the former government of Louisiana, the regulations of O’Reilly, Gajoso, and Morales recognized the equitable claim of the owners of tracts or land fronting on rivers, &c., to a portion of the public lands which were back of them, and after the cession, the United States did so also.
    The act of Congress passed on the 3d of March, 1811 (2 Lit & Brown’s ed. 662), extended to the front owner a preference to enter the land behind him. That act also provided, that where, owing to a bend in the river, each claimant could not obtain a tract equal in quantity to the tract already owned by him, the principal deputy surveyor of each district, under the superintendence of the surveyor of the public lands south of the State of Tennessee, should divide the vacant land amongst' the claimants in such manner as to him might seem most equitable.
    The act of March 2d, 1805, had extended the power of the surveyor of lands south of Tennessee over the Territory of Orleans, and the act of April 27th, 1806, had directed him to appoint two principal deputies, one for each district of the Territory of Orleans.
    The act of March 3d, 1831, directed the appointment of a surveyor-general of public lands in Louisiana, after the 1st of May, 1831. '
    In March, 1832, therefore, the surveyor of public lands south of Tennessee' had no power to approve a survey.
    The act of 1811 reserved for the public all such back lands as were not correctly taken up under that act by the proprietors of river-fronts; and those who did'not enter their claims in time did not lose whatever equity they may have had before the passage of the act.
    An unauthorized survey by. one of the claimants did not confer upon him any additional rights.
    In executing the acts of 1820 and 1832, claimants were allowed to pay for the largest amount which they claimed, but the precise amount due on the exact quantity of land to which they were entitled could not appear until the final survey.
    When the land was laid out into ranges, townships, &c., the survey of township No. 11, approved by H. S Williams, surveyor-general of Louisiana, settled the rights of parties in that township.
    A possession of any part of these back .lands,-anterior to this survey, cannot be set up as a defence under the laws of Louisiana, because the lands belonged to the' United States, and those persons in possession were trespassers.
    This case was brought up from the Supreme Court of Louisiana for the Eastern District, by.a writ of error, issued'under the 25th section of the Judiciary Act.
    They were petitory actions, according to the practice of Louisiana, brought by the plaintiffs in error against Barrett, to recover some land, and as they involved the same questions of law, they were consolidated in the courts of that State.
    By referring to the diagram (which will be found on the next page), it will be seen that Jourdan and Landry were the owners of land fronting on the Mississippi River, and running back about forty arpents. There were nearly forty other proprietors similarly situated, between a and c, whose location it is not necessary to insert. Their lands were all bounded in the rear by a line running nearly parallel with the river, so as to include the quantity called for in their respective grants.

      The facts in the case were these.
    On the 3d of March, 1811, Congress paseed an act, entitled "An act providing for the final adjustment of claims to lands, and for the sales of public lands, in the Territories of Orleans and Louisiana, and to repeal the act passed for the same purpose, and approved February 16, 1811." (2 Lit. & Brown's ed. 662.)

      a b and b e are the township lines.

      d ef-g, land fronting on the river, belonging to Landry.

      h i'kl, land fronting on the river, belonging to Jourdan.

      refmnlks, the boundary-line of all the original grants, showing how far back they extended from the river.

      mno p, the land claimed by Barrett, under Bringier.
    By running the lines of Jourdan’s and Landry’s grants back from the river, it is to see how they would respectively clash with Barrett’s claim.

      The fifth section was as follows : —
    5th. “ That every person who, either by virtue of a French or Spanish grant recognized by the laws of the United States, or under a claim confirmed by the commissioners appointed for the purpose of ascertaining the rights of persons claiming lands in the Territory of Orleans, owns a tract of land, bordering on any river, creek, bayou, or water-course, in the said territory, and not exceeding in depth forty arpents, French measure, shall be entitled to a preference in becoming the purchaser of any vacant tract of land adjacent to, and back of, his own tract, not exceeding forty .arpents, French measure, in depth, nor in quantity of land that which is contained in his own tract, at the same price, and on the same terms and conditions, as are or may be provided by law for the other public lands in the said territory. And the principal deputy surveyor of each district, respectively, shall be, and he is, hereby authorized, under the superintendence of the surveyor of the public lands south of .the State-of Tennessee, to cause to be surveyed the tracts claimed by virtue of this section ; and in all cases where, by reason of bends in the river, lake, creek, bayou, or water-course bordering on the tract, and of adjacent claims of a similar nature, each claimant cannot obtain a tract equal in quantity to the adjacent tract already owned by him, to divide the vacant land applicable to that object between the several claimants, in such manner as to him may appear most equitable ; Provided, however, that the right of preemption granted by this section shall not extend so far in depth as to include lands fit for cultivation bordering on another river, creek, bayou, or water-course. And every person entitled to the benefit of this section shall, within three years after the date of this act, deliver, to the register of the proper land-office, a notice in writing, stating the situation and extent of the tract of land he wishes to purchase, and shall also make the payment and payments for the same at the time and times which are or may be prescribed by law for the disposal of the other public lands in the said territory ; the time of his delivering the notice aforesaid being considered as the date of the purchase. And if any such person shall fail to deliver such .notice within the said period of three years, or to make súch payment or payments at the time above mentioned, his right of preemption shall cease and become void ; and the land may thereafter be purchased by any other person in the same manner and on the same terms as are or may be provided by law for- the sale of other public lands in the said territory.”
    On the 11th of May, 1820, Congress passed another act (3 Lit. & Brown’s ed. 573), entitled, ‘‘An Act supplementary to the several acts for the adjustment of land-claims in the State of Louisiana,” the seventh section of which was as follows.
    “ That the fifth section of the act of the 3d day of March, 1811, entitled,£ An Act providing for the final adjustment,’ &c., &c., be, and the same is, hereby revived and continued for the term of two years from and after the passing of this act.”
    On the 12th of April, 1822, Bringier, under whom Barrett, the defendant claimed, filed the following application.
    To the ''Register of the Land-office for the Eastern District of Louisiana, at New Orleans.
    Sir, — In virtue of an act of Congress, dated 11th May, 1820, I apply to become, the purchaser of a tract of land adjacent to and back of a front tract already owned by me, which said front tract contains 27 arpents 13 toises and 2 feet front, and’ forty arpents in depth, bounded as follows, viz., front, on the left bank of the Mississippi, on the upper side by land of Baptiste Loviere, and below by lands of Paul Le Blanc. This land, composed of four tracts, confirmed in the name of .Alexis Cesar Bonremy, and in the name of James, Melanqon. Two arpents, on the lower side, have been sold. The said back land, now claimed by right of preemption, extends in depth arpents,
    beginning at the rear of the said front tract, and contains five hundred and ten superficial acres, not being a greater quantity than is contained in my front tract, and does not extend so far back as to include any land fit for cultivation, bordering on any river, creek, bayou, or water-course.
    (Signed,) ML. DORADON BRINOIER.

      New Orleans, Jlpril \2th, 1822.
    On the 13th of April, 1822, Bringier paid to the receiver $ 637*50, as the price of the land.
    On the 17th of May, 1822, Harper, the register, issued the following certificate.
    I certify, that from the records in my office, expressing the quantity of land contained in the applicant’s front tract (the surveys in this district not having been executed), and in virtue of the laws in this case made and provided, it appears the said applicant is entitled to the quantity of land for which he has applied, viz., five hundred and ten superficial acres, on paying the price of one dollar and twenty-five cents per acre.
    (Signed,) SAMUEL H. HARPER, Register.

    On the 17th of December, 1822, John Wilson, subscribing himself principal deputy surveyor for that district, surveyed the tract of land at the request of Bringier, who took possession of it. It is unnecessary to state the mesne conveyances by which the title was passed, through sundry persons, from Bringier to Barrett, who was in possession at the institution of the present suits.
    In 1829,' the township and sectional lines were run, for the first time, over this district, in the mode pursued in running out other public lands of the United States.
    On the.lOth of June, 1830, a survey was completed, under the authority and with the approbation of A. T. Rightor, principal deputy surveyor of the exterior boundaries of the township and of the lands in question, together with others, which survey was reexamined and approved by Gideon Fitz, surveyor of public lands south of Tennessee, on the 9th of March, 1832. This survey differed in some degree from the one previously made by Wilson, although agreeing with it in substance ; and being adopted by Bringier and his grantees as the basis of their title, has been followed in the preceding diagram.
    On the 15th of June, 1832, .Congress passed another act (4 Lit. & Brown’s ed. 539), entitled, “An Act to authorize the inhabitants of the State of Louisiana to enter the back lands.” It did not refer to either of the two preceding acts, but in substance, and nearly in the same words, reenacted the fifth section of the act of 1811, limiting the time of making application to three years from the date of the act.
    On the 9th of August, 1834, Jourdan, one of the plaintiffs in error, obtained from the receiver the following certificate.
    Receiver’s Office, So. East. Dist. La.

      New Orleans, August 9th, 1834.
    Received from Noel Jourdan, of the parish of St. James, the sum of three hundred and thirty-six |jj, dollars, being in full of the purchase money of his preemption rightly virtue of an act of Congress authorizing the inhabitants of Louisiana to enter their back lands, approved 15th June, 1832, to a tract of . land adjacent to and -ack of his front-tract, situate in township No. 11, range No. 3 east, and containing two hundred and sixty-nine superficial acres, at one dollar and twenty-five cents, as per register’s certificate, numbered No. 9.
    (Signed,) MAURICE CANNON,

      Receiver of Public Moneys.

    On the 8th of March, 1836, Landry, the other plaintiff in error, obtained the following certificate.
    No. 520. Receiver’s Office, So. East. Dist. La.

      New Orleans, 8th March, 1836.
    Received from Joseph Landry, of the parish of St. James, the sum of one hundred and ninety-two -gj, dollars, being in full of *he purchase money of his preemption rights, by virtue of an act of Congress, authorizing the inhabitants of Louisiana to enter their back lands, approved 15th June, 1832, to a tract of land adjacent to and back of his front.tract, situate in township No. 11, range No. 3 east; and containing one hundred and fifty-four ^ superficial acres, at one dollar and twenty-five cents, as per register’s certificate, numbered 520, and being described as section No. 19.
    ' (Signed,) MAURICE CANNON,.

      Receiver of Public Moneys.

    In February, 1838, Jourdan and Landry filed separate petitions in the District Court for the First Judicial District of the State of Louisiana, claiming their respective back lands. Barrett, who was then in possession of the tract surveyed for Bringier, answered the petition and called in warranty, according to the Louisiana practice, all the intermediate grantors between Bringier and himself and Bringier also. They all responded to the call, and various evidence was taken and filed in the causes, which, as has been already mentioned, were consolidated and prosecuted together.
    On the 22d of March, 1838, the court adjudged and decreed that judgment should be entered for Barrett, the defendant; an appeal being made to the Supreme Court of Louisiana, that court, on the 21st of January, 1839, affirmed the judgment, to review which, a writ of error brought the case up to this court.
    The case was argued by Mr. Coxe, for the plaintiffs in error, and Mr. Crittenden, for the defendant.

      Mr. Coxe referred to the act of ’3 March, 1811, chap. 46, 2 Lit. & Brown’s ed. 662 ; 1 Land Laws, 196 ; the act of 11 May, 1820, chap. 87, 3 Lit. & Brown’s ed. 573; Land Laws, 331 ; the act of 15 June, 1832 ; Land Laws, 499 ; and the act of February 24,1835, and contended that the title claimed by the plaintiffs was not so far forfeited by nonclaim, under the first two statutes, as to become incapable of confirmation under the subsequent legislation of Congress.

      Mr. Crittenden, for defendant in error.
    This is a suit for land in the State of Louisiana. The controversy arises out of interfering claims, which originate in the acts of Congress granting to the proprietors of lands fronting on the Mississippi River, &c., a right of. preemption of the lands lying back of and adjoining their original or front tracts, and not exceed-, ing the quantity thereof.
    The acts of Congress, so far as they affect this case, are three in number; namely, an act of the 3d of March, 181 , 2 Lit. & Brown’s ed. 662 ; an act of the 11th of May, 1820, 3 Lit. & Brown’s ed. 573 ; and an act of the 15th of June, 1832, 4 Lit. & Brown’s ed. 534.
    The 5th section of the act of 1811, having expired by its own limitation of three years, was revived and continued in force for two years by the act of the 11th of May, 1820. M. D..Bringier, being of that class of proprietors embraced by the above acts, and owning land bordering on the Mississippi River, and not exceeding in depth forty arpents, French measure, was entitled to the right of preemption granted thereby ; and, intending to avail himself of the preference and privilege given to him, he did, on the 12th day of April, 1822, and within the two years allowed by the said act of 1820,. deliver to the register of the proper land-office a notice, in writing, of the situation and extent of the land he wished to. purchase, and did make payment for the same, as required by law, and did thereby become the purchaser of the land, namely, 510 acres.
    The land so purchased by Bringier was surveyed for him on the 17th of December, 1822, by John Wilson, principal deputy surveyor for that district. Afterwards, on the 10th of June, 1830, M. F. Rightor, then principal deputy surveyor for Louisiana, undertook to make, and did make, another survey of Bringier’s claim, variant but little from the survey of Wilson. This survey of Rightor’s was- approved by the surveyor-general of the public lands south of Tennessee, on the 9th of March, 1832. And to this later survey, Bringier and those claiming under him have submitted, and limited his claim and possession,, and the land in contest lies within its boundaries. Bringier took possession of the land at the period of his purchase, and the possession has ever since been continued in him and those claiming under him. Bringier sold and conveyed his plantation, called Whitehall, including, the land aforesaid, to the late General Wade Hampton, ori the 9th of February, 1825 ; who, on the 6th of April, 1829, sold and conveyed the same to Léroy Pope, who, on the 18th of March, 1833, sold and conveyed the same to the defendant, Thomas Barrett. At the time of Bringier’s purchase aforesaid,, no survey had been made of the land, nor was any general survey made of the public lands in that district till long after.
    Barrett was thus entitled and in possession under Bringier, and the act of 1820, under which his claim was derived, had long since expired, when the Congress passed the said act of the 15th of June, 1832, reenacting, in substance, the 5th section of the act of 1811, and extended its operation as well to all purchasers from the United States as to French and Spanish claimants, to whom all the previous acts had been confined. Under this act of 1832, Noel Jourdan and Joseph Landry, claiming severally .and respectively, under French or Spanish claims confirmed by the United States, lands bordering and fronting on the Mississippi River, and lying contiguous to .the aforesaid, claim of Bringier, asserted their right of preemption to the lands back of their original tracts,,.and pur-: chased, Noel Jourdan 269-44 acres, on the 9th of August, 1834, and Joseph Landry 154'21 acres, on the 8th of March, 1836.

      In his general survey and township map of the litigated and circumjacent lands, made in 1834, Mr. Williams, the surveyor-general for Louisiana, has undertaken to survey and apportion out to the plaintiffs and defendant, respectively, who are all contiguous and front proprietors, the lands lying back of them ;-and this he does by a prolongation-of the side lines of each front tract to the depth of forty arpents from the back line of the front tracts.
    These side lines are all perpendicular to the river, and converge as they recede from it, owing perhaps to their being situated within a bend.
    This mode of surveying and settling the claims of -these preemptioners, by a prolongation of the side lines of their original tracts, was adopted and acted upon by the surveyor (Williams) in his survey of 1834, and seems to have been approved of by the surveying department. The effect of it is, that the claim of Bringier (now held by Barrett) is curtailed, and the subsequent claims, of Landry and Jourdan are made to interfere, the former to the extent of 31 acres, the latter of- 33 acres, with the prior claim and survey of Bringier.
    For these interferences, Landry and Jourdan respectively brought suit against Barret', in the District Court for the First Judicial District of Louisiana. Pope, the heirs of Hampton, and Bringier, were, in the progress of the suit, cited in warranty, and made defendants.
    By consent of parties, the suits of Jourdan a. Barrett and Landry v. Barrett tyere consolidated, and were tried and decided together.
    The above statement contains the material and leading facts on which the rights of the parties depend.
    Upon the trial in the District Court, judgment was rendered in favor of Barrett; and, upon appeal by the plaintiffs *to the Supreme Court of Louisiana, that judgment was affirmed. And the pláintiffs now prosecute their writ of error in the. Supreme Court of the United States.
    The reasoning of the District and Supreme Courts of Louisiana, on which the..- judgment ’was founded, appears to me to be entirely satisfactory and unanswerable.
    If the conflicting claims of . the parties litigant had. been, contemporaneous, and connected by having a common origin from t( - same act of Congress, such an apportionment as that made by the last survey, (the survey of Williams), and now insisted or by the plaintiffs, might have been proper. But such a rule can have no application to a case like. the present. Bringier had made a legal appropriation of the land under the act of 1820. From the expiration of that act, which gave the right of preemption for two years only, until the passage of the act of the 15th of June, 1832, there was no right or title of any description conflicting with that of Bringier. It was not the intention or within the competency of Congress to impair, diminish, or take away, by this latter act, the previously acquired or vested rights of Bringier.
    The land appropriated by him under the act of 1820 was not “ vacant” at the passage of the act of 1832 ; and this latter act gives no more than the preemptive right to lands “ vacant ” at the time of its passage.
    It is therefore insisted, on the part of Barrett, that the judgment ought to be affirmed.
   Mr. Justice CATRON

delivered the opinion of the court.

The record brings before us two petitory actions; one of Landry against Barrett; and the other of Jourdan against the same defendant. The State District Court of Louisiana adjudged the title, of Barrett the better, and for this reason decided in his favor in both actions ; but in that of Landry it was also held, that the title to the land he claimed was invalid, because he produced no other evidence of claim than the receipt of the receiver above set forth, dated 8th March, 1836 ; that the act of June 15, 1832, limited his right to purchase to three years ; and not having filed his notice of claim, and paid his money, until the 8th of March, 1836, he came too late, and for this reason, also, the petition must be dismissed. The judgment being affirmed generally by the Supreme Court of Louisiana, and being opposed to the authority exercised by the officers of the United States, acting in virtue of acts of Congress, it becomes our duty to examine whether the judgment, below was. proper on this' ground. We find the District Court overlooked the act of February 24, 1835,'which extended the time to the 15th of June, 1836, to owners of front tracts to become purchasers by preference of the back tracts adjacent to those owned by them; so that the purchase made by Landry on the 8th of March, 1836, was in-time. It follows, the claims of Landry and Jourdan are alike ; and the opposing claim of Barrett, being the same as to each of the petitioners, the controversy, may he treated as one suit. It depends on mixed questions of law and fact; both having been submitted to the courts below for their judgment, without the aid of a jury ; and as the facts giving rise to the controversy call for construction- of acts - of Congress to give the facts effect, they come before this court for its action under the 25th section of the Judiciary Act. This is the settled doctrine here, as will be seen by the cases of Pollard’s heirs v. Kibbie (14 Peters, 353), The City of Mobile v. Eslava (16 Peters, 234), and Chouteau v. Eckhart (2 How. 372).

Neither party has a patent; and each comes before us asserting a superior equity to the lands in dispute. Barrett insists that the entry under which he claims title, dated April 12,' 1822, was made for a specific quantity of 510 superficial acres, and designated by survey and side lines ten years and more before the opposing claims originated, and therefore his possession cannot be disturbed by their assertion.

On the other hand, it is insisted that Bringier, under whom Barrett claims title, had no preference extended to him by the act. of May 11, 1820, to enter so much as 510 acres as back land to the Whitehall tract; that it fronted on the.inside of a bend of the Mississippi River, and conformed to Spanish and French forty arpent concessions made on fronts, in concave bends, in the extension of side lines ; which uniformly converged in proportion to the greater or less ' circle of the bend ; that the Whitehall tract was much narrower on the back than on the front side ; that the act of Congress did not permit Bringier to enter any other back land than that within his direct side lines, produced from the river eighty arpents deep ; and that Barrett’s equity is limited to the “ back land,” in quantity to forty arpents deep within these lines, although much .less than 510 acres. And that, as this mode of surveying the double concession will not include the land entered by either of the petitioners, they are entitled to recover ; furthermore, that in this form has Barrett’s claim been surveyed by public authority, and in no other.

In December, 1832, Bringier caused Wilson, a surveyor, to run out his claim of 510 acres, in the same form of the front tract; that is, he began at the back terminus of each side' liné of the-old tract, and ran diverging lines so as to make the opposite side of his new survey of the same width with the- front on the river, thus making á tract of 1,020 acres, little more than half as wide in the middle as it is at either end. This survey was neither returned to, nor -recorded in, the surveyor-general’s office ; nór recognized by the officers of the United States as a public survey. Bringier, and those claiming under him, however, took and held possession of the land surveyed, and improved the same, assuming that it covered the land entered in 1832, and that it was lawfully made ; at least, as against any claim the petitioners can be permitted to set up. This we suppose mainly, to depend on the true construction of the act of 1811, which was renewed from time to time.

The surveys of township No. 11, including the lands in dispute, were not made until thb’fall of 1829 and spring of 1830, and then only in part, both as to the ordinary extension- lines, and as regarded the private grants and back lands subject to be attached by preference of entry to front grants. Until these latter were surveyed, they could not be acted on as to specific quantity. By the act of March 2, 1805, section 7, the powers of the surveyor of lands south of Tennessee were extended over the Territory of Orleans. And by the 9th section of the act of April 21, 1806, he was directed to appoint two principal deputies,'one for each of the districts into which the. Orleans Territory was divided ; who were to keep separate offices of their own, and to execute public surveys in their respective districts, in conformity to the regulations and instructions of their principal.

By the act of March 3, 1831, ¡a surveyor-general of public lands lying in the State of Louisiana was ordered to be appointed ; and on whom, within thá .. State, were devolved the duties formerly imposed on the surveybn of lands south of Tennessee ; that is, after the 1st of May, 1831 ; and also the duties of the two principal deputies authorized by the act of 1806. The latter offices were abolished, and the duties appertaining to them merged in the surveyor-general’s office of Louisiana. That officer took charge , of the official records and papers ; and on him was imposed the duty of doing equity among those entitled to back concessions under the acts of 1820 and 1832, where it had not been previously done. His own deputies did the 'field work not done on his coming into office ; and in his time were the surveys in township No.. 11 completed; and by him were they first approved after their completion. This the government recognizes as the legal survey of the township, by which the United States are bound, and on extracts from which patents and certificates can be founded ; and to this end the approved plan of .it was filed in the register’s office of the Southeastern District of Louisiana, on the 8th of August, 1834 ; by it all those purchasing from the United States, either by preference of entry, or otherwise, are bound to abide, unless legal alterations have been made, or there were existing legal and sanctioned surveys, laying off back lands to particular front owners, independent of the general survey. None such was made for the Whitehall tract, as we think, and its back land, as to extent and form, is governed by the general plán 'above named. The one made by Rightor’s direction, approved by Gideon Fitz, surveyor of public lands south of Tennessee (March 9, 1832), received no additional value from such approval, as the act of 1831 superseded bis authority in this respect. Rightor deposes, that at no time had the surveyor south of . Tennessee any power of approval or supervision of the surveys made by him, Rightor, as principal deputy ; and that the surveys made by Foster and Walker in the spring of 1830, and approved by Rightor, as principal deputy, June 10, 1830, in his judgment bound the United States, as to the form and extent of the land attached to the Whitehall tract. The commissioner of the general land-office thought the survey on its face an unwarrantable proceeding, as it cut off the back lands of Bringier’s neighbours, and violated the act of 1811. 2 Land Laws, No. 950. • And we think the commissioner was right in his conclusion. Claims of double concessions in Louisiana were not new in practice ; surveys of such claims were common, and the direct extension of the side lines of the front tract was the equity, as a general rule, accorded to them, as we apprehend ; and so gross a violation of it as is found in Bringier’s survey could not be sanctioned.

In April, 1822, when Bringier’s entry was made, there can be no fair pretence to say he acquired by the entry an equity to the extent of Wilson’s or Rightor’s survey, as against others having at that time equal rights to enter back land, which rights the survey assumed to defeat. By his entry Bringier acquired an equity to certain land*, to be laid off in a form not to interfere with his neighbours having equal rights under the law. They did not enter, probably because his unjust, pretended claim deterred them ; and failing to do so until the time expired, Bringier assumed that his equity might be enlarged, and was enlarged, to the extent that Rightor’s or Wilson’s survey goes.

We think this .assumption cannot be- sustained; what equity Bringier acquired took date with his entry, and his survey ought to have beeii the same, had no one claiming front lands interfered, as the act of Congress reserved for future sale all the back lands not entered in time; a provision that would have been altogether defeated in this instance, if the assumption wras true. For nearly •twenty years after the act-of 1811 was passed, the government failed to survey the back lands, so as to afford an opportunity to front owners to acquire woodland in the rear (most necessary in a sugar-growing country), and it would be strange had the power to make back concessions been parted with, in so plain a case, by permitting sweeping surveys like that of Bringier.

We say above, claims for double concessions were not new. O’Reilly’s regulations of 1770 provide for narrow front grants on rivers,'by forty arpens in depth ; for embankments in front for the exclusion of high water ; for ditches to carry off the water.; for roads and bridges. The 17th article of Gayoso’s regulations confirms those of O’Reilly. These were made by governors-general, who had. the distribution of lands from 1770 to October, 1798 ; then the authority was restored to the General Intendant of Louisiana and West Florida, Morales ; and in this officer the power remained up to the change of governments, in 1804. All the regulations. will be found in 2 White’s Recopilación, 228, 244. In article 3d of Morales’s, especial duties are prescribed to the owners of front grants, but nearly the same of O’Reilly’s. The syndics were bound to enforce the making of such embankments, ditches, roads, and bridges, and the clearing in the three first years, in addition, a certain quantity of land, and putting it into cultivation. The grants were not to exceed six or eight arpens in front; usually not so much was granted; and the lands were to adjoin. Annually the Mississippi overflows, and to prevent an inundation of the country, heavy and expensive embankments are required, and they must be continuous; and are so, for hundreds of miles, on the-batiks of the river. The country would he worthless without them. It had been reclaimed from the water by this means and the ditches, by the French and Spanish front proprietors : and on the keeping up of the levees the value of the back lands depended ; the • great expense, and constant watchings, during a part of the year, to guard against inundation, and that of the whole country, by á break in the levee at any one place, involve public considerations to Louisiana of the highest magnitude ; and those whose duty ánd interest it was to prevent.it — the front owners — had extended to them, by the Spanish government, peculiar privileges, and which the United States at an early day recognized;

A board of commissioners was established'by the act of March 2, 1805, whose duty it was to examine and .report'to Congress on French-and Spanish claims to lands in that section of country ; and by the .supplementary act of April.21, 1806, section 5, it was made their further duty, among other things, “to inquire into the nature and extent of claims which may arise'from a right to a double or additional'concession on the back of grants or concessions, heretofore made,” “and to make a special report thereon to. the Secretary of .the Treasury, which report sháll be by him laid before Congress at their next session. Ahd the lands which may be embraced in such report shall not be otherwise disposed of until a decision of Congress shall have been had thereupon.”

' The commissioners were engaged for some six years in the Orleans Territory in pursuing their investigations, and their reports were laid before Congress by the Secretary of the Treasury early in 1812; But in the mean time it was well'known what course had been pursued by the board in regar-d to all descriptions' of claims, and among others oLhaftlr concessions." Instances in the report will be found in . 2 Am. State Papers, 297, 337. Of claim (p. 297). No. 101, the board says, — “ Benj. Babin claims a second depth of forty arpents, lying immediately back of a front or first depth, which we. have already confirmed to ..him among the confirmed claims.”

“ The claimant has no other foundation for his title to the second depth than having occupied the front and first depth, and having occasionally supplied himself with timber from this second depth.”

“ According to the laws,-customs, and usages of the Spanish' government, no front proprietor, by any act of his own, could acquire a right to lands, further back than the ordinary depth of forty arpents; and.although the Spanish government has invariably refused to grant the second depth to any other than the front proprietor, yet nothing short of a grant or warrant of survey from the governor could confer a title or right to the land; wherefore we reject the claim.” We give this as an instance of many similar ones reported.

The statement applies to all front tracts, where only the first forty arpents had been granted by France ór. Spain. Instead of granting the back lands as a donation, the government of the United States extended to the. front owner a -preference of entry, by the act of 1811; and if the entry was not-made, the land was reserved, as above stated. No question affecting the titles to lands in Louisiana was more interesting to the old inhabitants, than the one concerning the back lands ; and, although the former government had granted them in probably but few instances, yet this was quite immaterial to front owners at that time, as they had the privilege of getting wood and timber from them, and the lands were in no danger of being granted to another. That back lands at all times meant those in the rear between the extended front lines in the rear, to the distance of forty arpents (each line being a straight one throughout), we suppose to be undoubted, as a general rule, although there may have been exceptions to it.

Many tracts had no doubt been surveyed for the purpose of having them acted on by boards of commissioners ; but the record does not show that any of tire front tracts in township No. 11 had been surveyed by public authority ; which could only be done, after the passing of the act of February 28, 1800, under the superintendence of the surveyor-general, — and all other surveys were, .by the third section of that act, declared to be private surveys, on which no patent could issue for an incomplete claim, after it was confirmed by Congress. And this law applied equally to confirmations by the commissioners, under the act of March 3, 1807, whose adjudications were final, and authorized a patent to issue thereon.

When the first two acts of 1811 and 1820 were passed, it was known that no township surveys had been made in much the greater portion of the country to which the acts applied ; in reference to this state of the country Congress legislated, and therefore it was provided by the fifth section of the act of 1811, that the- principal deputy surveyor .of each district should be, and was, authorized, “ under the superintendence .of the surveyor of the public lands south of the State of Tennessee,” to cause to be surveyed the tracts claimed by virtue of that section, that is, preference rights ; ¿ñd in all cases where there were bends in rivers (as in the case before us), on which the granted tract bordered, and there were adjacent claims of a similar nature, and each claimant could not obtain a tract of equal 'quantity with the original front- tract, then it should be the duty of the surveyor to divide the vacant land be- . tween the several claimants, in such manner as to him might appear most equitable.

Three jfears were allowed from the date of the act for those entitled to give notice in writing, stating the situation and extent of the tract each wished to purchase ; and for which he was to make payment according to the then credit system. But if he failed in either, the right to preemption should cease and become void ; and the land might be purchased thereafter by any person, as other public lands. As no public surveys existed, from which it could be ascertained at the register’s offices what, the back lands of the numerous tracts were ; and as entries were contemplated in advance of the.public township surveys, some mode of ascertaining the quantity and form each front owner was entitled to was indispensable. And the mode adopted by Congress was to make the principal deputy-surveyor of the particular district the judge of form and quantity; subject, however, to the superintendence of his principal, thejsurveyor-in-chief of the lands south of Tennessee.

This officer (as well as the principal deputy) was, by the acts of 1812 (April 25th) and 1836 (July 4), subject to the direct control, and bound by the instructions, of the commissioner of the general land-office \ and so was the commissioner subject to the control of the President, through the Secretary of the Treasury, as will be seen by the opinion of the Attorney-general of July 4,1836 (2 Public Lands, Laws, Opinions, &c., 103). So that, in the end, it devolved on the President, by aid of the Secretary, as in other instances, to see the acts of Congress above set forth duly executed ; and this was done through the commissioner of the general land-office.

On the 18th of 'March, 1833 (2 Land Laws, 573, No. 516), the commissioner, by. an instruction to the registers and receivers of Louisiana, gave a construction to the act of June 15th, 1832 : — 1. That where the back lands had been offered for sale and sold, after the passing of the act, still the front owner was to be permitted to enter them. 2. Where the back tracts had not been surveyed and connected with the adjoining public lands, and the quantity could not be ascertained at the time of payment, the party claim-, ing should be required to pay. for the maximum quantity to which he could be entitled under the law ; and any excess of"payment found on actual survey should thereafter be refunded to the party, on instructions to that effect, to be'given from the general land-office.

The form of the receiver’s receipt for the payment is. there given ; showing.the land had not yet been surveyed. And the register was instructed not to transmit the certificate of purchase until the survey was completed, whereby the quantity would be ascertained. The commissioner also informed the registers and receive ers that the surveyor-general had been directed to. advise them as to the course to be pursued by the claimants in cases where the back tracts remained to be surveyed. ■ ,

In executing the act Of 1832, the foregoing instructions were of course pursued, and entries received on such notices of-claim as parties saw proper to file, subject to the risk of being curtailed by the proper public surveys, approved by the surveyor-general. And Mr. Harper proves that on. these terms notices of claim were received, under the'a'ct of 1820, in 1822, when Bringier’s claim was entered. Harper was then the register at New Orleans. It is manifest that in no, other way could the acts of 1820 or 1832 be executed, than by general surveys of the back lands, whereby the portion of each claimant was marked out. Nor could any survey in township No. 11 be recognized by the register after the appointment of the surveyor-general of Louisiana, and the extinguishment of the offices of the principál deputies (May 1st, 1831), other than such as were approved by the surveyor-general. None was made of Bringier’s claim, so far as we are informed, before that time, which received the sanction pf any department of the general land-office, and on which a patent certificate and patent could issue. Of Rightor’s survey, we have already spoken. Wilson’s wás á mere private act,' at the instance of Bringier, and not recorded anywhere. The instruction of July 25th, 1838 (2 Land Laws, No. 1009), applies to Bringier’s case as well as others ; the register and receiver are there directed to issue the certificate of purchase in cases where an over-payment has been made for back lands, by “ describing each tract by section, township, range, and' area, as returned by the surveyor-general,'" — assuming the plan approved by him to have settled the equities of parties claiming under the preemption laws, as to extent and boundary. And our opinion is, that the survey of township No. 11, approved by H. S. Williams, surveyor-general of Louisiana, on the 5th of August, 1834, was made in execution of the acts of Congress, and governs the rights of the parties before this court; that to the land there designated as “ back land ” of the Whitehall tract, Bringier’s equity attached, by his notice of claim and the payment of his money, in 1822, and to none other. And that< by the same survey, the equities of Landry and Jourdan, acquired by their entries, are established as the better title to the extent of “back land” attached to their respective tracts by the survey. And to that extent they are respectively entitled to recover, as against the claim of the defendant, set forth in the answers.

Some stress, in the argument, was laid on the fact, that possession had been held of the land in dispute, under Bringier’s claim, for more than ten years before the suits of Landry and Jourdan were brought, and therefore the petitioners were barred by prescription and limitation in Louisiana. Prescription of ten years’ possession is relied on in defence by a direct plea, and made up part of the defence.

To this ground of defence, it is a sufficient answer to say, that Jourdan’first acquired his interest in 1834, and Landry his, in 1836 ; up to that time the lands they claim belonged to the United States, as part of the public domain, and on which the defendant, Barrett, and those under whom he claims, were trespassers ; and that no trespass of the kind can give title to the trespasser, as against the United States, or bar the right of recovery ; nor had the operation of time any effect as against Landry and Jourdan, until they respectively purchased.

By the Constitution, Congress is given “ power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States ” ; for the disposal of the public lands, therefore, in the new States, where such lands lie, Congress may provide by law ; and having the constitutional power to pass the law, it is.supreme ; so Congress may prohibit and punish trespassers on the public lands. Having the power of disposal and of protection, Congress alone can deal with the title, and no State law, whether of limitations or otherwise, can defeat such title.

For the foregoing reasons, we order the judgment of the Supreme Court of Louisiana to be reversed, and that the cause be remanded, &c.