author: Mr. Justice WAYNE

text:
    Samuel Davis, Plaintiff in error, v. The Police Jury of the Parish of Concordia.
    The treaty of St. Ildefonso, by which Spain ceded Louisiana to France, became operative to transfer the sovereignty upon the day of its date, viz. the 1st of October, 1800.
    The executive and legislative branches of the government of the United States have always maintained this position, and this court concurs with them in its correctness.
    The preceding case, p. 127, of The United States v. Eeynes referred to.
    By the laws of nations, all treaties, as well those for cessions of territory as for other purposes, are binding upon the contracting parties, unless when otherwise provided in them, from the day they are signed. The ratification of them relates back to the time of signing.
    Where territory is ceded, the national character continues for commercial purposes, until actual delivery; but between the time of signing the treaty and the actual delivery of the territory, the sovereignty of the ceding power ceases, except for strictly municipal purposes, or such an exercise of it as is necessary to preserve and enforce the sanctions of its social condition.
    The power to grant land or franchises is one of thos.e attributes of sovereignty which ceases.
    The Spanish Governor of Louisiana had, therefore, no right to grant a perpetual ferry franchise on the 19th of February, 1801; and, consequently, it is not property which was protected by the treaty between France and the United States.
    This case was brought up from the Supreme Court of the State of Louisiana, by a writ of error issued under the twenty-fifth section of the Judiciary Act.
    As.the decision of the court turned upon the single point when the treaty of St. Ildefonso became operative, so far as to extinguish the right of the Spanish governor to grant a perpetual franchise, it is not necessary to give a detailed statement of the facts in this case, nor of the arguments of counsel upon the points which were not included in the decision of the court.
    The -following summary will sufficiently explain the case.
    Davis, the plaintiff in error, filed his petition in the Ninth District Court of the State of Louisiana, in and for the Parish of Concordia, on the 7th of February, 1840, in which he sets fofth, that the Marquis de Gasa Calva, then Governor-General of the Province of Louisiana, on the 19th of February, 1801, granted to one Thomas Thompson, then of said parish, the privilege of a ferry at the post of Concordia, in said parish, opposite to the then town, now city, of Natchez, as a privilege to be attached to the plantation of said Thompson, which .he then possessed, in order that from that place he might have and enjoy the exclusive privilege, &c., for reasonable and customary toll, as it might be established; and on condition that he, the said Thompson, would clear a certain public road.or highway from the said post of Concordia to the Bayou Cocadelle (Cocodrillo), in said parish. That Thompson fully performed the said condition, as appears by the certificate of Joseph Vidal, the commandant at said post of Concordia. That Thompson entered upon the privilege aforesaid, and performed the duties, and enjoyed the profits of said ferry, until the 16th of October, 1803, when he conveyed to Joseph Vidal all his-right, title, and interest in and to said ferry and said tract of land. That the tract of land to which the privilege was attached was sold by Thompson to Vidal for the sum of four thousand dollars ; when the land without the ferry would not at the time have been worth more than eight hundred, dollars. That said. Vidal entered into possession of said ferry and plantation, and continued to keep and enjoy the same until the year 1817, when he sold and delivered the same to petitioner. That petitioner thus became the owner of the said tract of land, and the lawful proprietor of the exclusive privilege of keeping said ferry.. That by the laws, usages, and customs of the Spanish government-at the date of said grant, said grant operates to the exclusion of any other ferry, for the distance of one league above and one league below. That the title of petitioner, acquired from the Spanish government, has also a prescriptive right, founded on the possession and enjoyment thereof by himself and vendors since 1801.
    The petitioner then set forth that the Police Jury of the Parish of Concordia, in April, 1839, established a ferry across the Mississippi, from the town of Vidalia, in the parish of Concordia, to the city of Natchez, which conflicted with his right.
    The answer admitted the establishment • of the ferry by the Police Jury, averred their right to do so, and contested the-plaintiff’s claim upon grounds which it is not necessary here to mention. Evidence was taken on both sides.
    On the 14th of June, 1841, the Ninth District Court gave judgment for the defendants.
    The case was carried to the Supreme Court of Louisiana, which, at October term, 1841, reversed the judgment of the District Court, upon matters of evidence. It is reported in 19 Louisiana Reports, 533.
    Upon the second hearing before the Ninth District Court, judgment was'- rendered for the. petitioner Davis, which, upon being again carried to the Supreme Court, was again reversed, and judgment rendered for tíre defendants. This last case is reported in 1 Louis. Ann. Rep. 288.
    The petitioner, Davis, sued out a writ of error, and. brought the case up to this court.

      It was argued by Mr. Coxe and Mr. Gilpin, for the plaintiff in error, and Mr. Jones, for the defendant in error.
    The counsel for the plaintiff in error contended, —
    1. The plaintiff contends that the grant under which he claims originated in a contract by which the exclusive privilege of keeping a ferry in front of his plantation was given to Thomas Thompson, in consideration for making a road, which he did make.

      2. That the words con exclusion,, in the grant, mean that the sovereign or • his agents- shall not establish another ferry trithin a reasonable distance of. his own.
    3. That' the feriy attempted to be established at Yidalia by the. defendant is on the same line of travel, and in the immediate vicinity of his grant; and, if it goes into operation, the obligation of the contract which he holds will be impaired, and his benefit greatly diminished, contrary to the true intent and' meaning of the grant.
    Recognizing the supervising authority- of this eourt, and yielding to the supposed exposition of law by this-tribunal, the Supreme Court of Louisiana decided that the words con exclusion were susceptible of an interpretation different from that given to them by complainant’s counsel; and therefore it was incumbent, on that court to give to that expression this narrow and restricted meaning. On the part of the plaintiff in error, it will be contended that this court erred.
    This case, on the same pleadings, has been twice before the Supreme'Court of Louisiana ; on the first occasion, reported in 19 Louisiana, 533, it came up on bill of exception taken on -the trial on sundry rulings of the District Court as to the admission' or rejection of testimony. The plaintiff’s title was, however,' then exhibited, as it now is, and sustained by the same documentary evidence which is now produced.' The validity of this title was then denied by defendant, as it now is, and rvas then at issue. Yet, throughout the entire argument of counsel, and the opinion of the court, no doubt .is breathed as to the extent of the privilege embraced in the grant. The cause was remanded, with instructions to the District Court as to the competency of testimony alone.
    ■ On-the second trial, the District Court did conform to these directions, and a verdict was rendered for the plaintiff.
    On a second appeal to the Supreme Court, every point which was decided in the District 'Court directly was affirmed ; but a new point-was gratuitously taken by that court, on which its-decision was adverse to plaintiff; and this point is that which is alone presented on this’writ of error. -1 Louisiana Ann. Rep. 288-292.
    The Louisiana court appeared to think this case closed, by the Charles River Bridge case, in 11 Peters, 423, and understood it as asserting, “ that, if any other meaning can be given to a grant besides that which would surrender for ever a'franchise, and a part of the sovereign power, that meaning must be preferred.” We contend that the language and- meaning of this court in the case cited have been misunderstood; and that no such doctrine ought to govern the present case.
    .We shall further contend, —
    1. That the mere grant of a ferry privilege across the Mississippi, by competent authority, implies, ex vi termini, an exclusion of all. other ferry rights, not only by private unlicensed individual's, but operates to exclude the sovereign from making a similar grant, or one which will conflict with it, and impair or destroy its value to another.
    2. That the grant in this case, con exclusion, is such an express recognition of such exclusive right.
    3. That this is a case of express contract, by which, for a valuable consideration, Thompson became the purchaser of an exclusive ferry privilege.
    4. That the uninterrupted arid uncontested right thus claimed, having been exercised and enjoyed by himself, and those under whom he claims title, for a period of thirty-eight years, furnished the most conclusive evidence of title against defendants.
    The authorities ■ relied upon to sustain these positions are those referred to in the cases already cited from the Louisiana Reports, and 11 Peters; with the opinion of this court, pronounced during the present term, in the Illinois Ferry case, — confirming the views here taken of the Charles River Bridge case, West River Bridge v. Dix, 6 How. 507; 25 Wend. 631; 12 Pet. 435; 1 How. 194; Partidas, 3, 18, 28, 37, 39, 5, 7, 20; Just. Dig., 8, 1, 20, 42, 9, 1; 1 Louis. Dig. 448, 476; 2 ib. 241; 2 White’s New Rec. 190, 194, 516; 2 Martin’s Treat. 329; 2 Stat. at Large, 245, 283, 324; 8 ib. 202; Louis. Code of Practice, 6, 296.
    The sovereignty of Spain existed in full force at the time of the .grant, and the property derived under it was protected by the treaty with France. Treaty of St. Ildefonso of 1st October, 1.800, 2 White’s Ne_w Rec. 516. Treaty of Madrid, 21st March, 1801, 2 Martin’s Treat. Sup, 329. Royal Order of Delivery, 15th October, 1802, 2 White’s New Rec. 190. Treaty of Paris, 30th April, 1803, 8 Stat. at Large, 202.

      The second point made by Mr. Jones, for the defendant in error, was as follows : —
    II. The grant in question, whatever the nature or extent of the interest intended to be conveyed by it, never, for an'instant, had any validity, as against the United States or the State of Louisiana.
    1st. Because it was not one of those complete and consummate grants, the validity, force, and effect of which were left by Congress to be determined by the general principles and rules of international law, but was executory in its nature; as being dependent, for its consummate force and effect, upon the performance of a condition by the grantee, and therefore within the purview of 'the laws of the United States making it necessary for all but consummate grants to pass through the regular process to confirmation by Congress, or to adjudication.under the authority of Congress. (Laws of United States and judgments of this court in execution of them, hereinafter cited to other points, and passim.)
    2d. Because the treaty of St. Ildefonso, as between the parties to it, operated from its date; and instantly transferred to France all the rights of municipal sovereignty and eminent domain then appertaining to the territorial sovereign; which Spain 'was bound to transmit undiminíshéd and intact to France. During the time that Spain occupied the province, between the date of the treaty (1st October, 1800) and the delivery of the province over to France (30th November, 1803), the possession and the dominion, remaining with her, were held in trust for France. The authority resulting from such possession and dominion was limited to the ordinary acts of local administration, the preservation of order and the due execution of the laws, and extended not even to the granting away of royal demesnes or crown lands, far less to the irrevocable alienation of any portion of the eminent domain, or to the diminution of any of the rights of ultimate sovereignty then enjoyed by the territorial sovereign.
    Even the United States are held to have taken the dominion of all the territories ceded to them, including whatever was ceded either by particular States or by France, under a strict trust for the new States intended.to be carved out of such territories ; and, as such trustees, bound to transmit all the rights of municipal sovereignty and emihent domain unimpaired .to the new States; and were therefore incompetent to grant away from the new States any navigable waters, or the soils under them, or the shores, or, in short, an}*- land below the ordinary high-water mark. Pollard v. Hogan, 3 How. 221 et seq.

      But all question of the disabling effect of the treaty qf. St. Ildefonso, from its date, upon Spanish authority to grant, or in any way to diminish, either the crown lands or any rights of territorial sovereignty, was completely closed in three months after the delivery of Louisiana to the United States, by an'act of- Congress positively repudiating all Spanish grants made after the 1st of Oetober, 1800, with an exception of actual set-r tiers before.that date; and this court, conforming to the rule so repeatedly laid down in its own adjudications, which binds the "judicial department to follow- the lead of the political department of the government in the practical construction, assertion, and execution of all such national rights as are acquired, and of all such national obligations as are incurred, by treaty stipulation, has repeatedly adjudged Spanish grants to be void, because made after that date. Act of Congress, 26th March, 1804, erecting Louisiana into two territories, 2 Stat. at Large; 283; Foster and Elam v. Neilson, 2 Pet. 253; Garcia v. Lee, 12 Pet. 515; Pollard v. Kibbe, 14 Pet. 63.
    If, therefore, the grant now in question be taken as going to. vest a perpetual and irrevocable franchise in the grantee, it bound neither France nor the United States. ■ The utmost extent of .jurisdiction then remaining in any Spanish authority over ferries, was to license .and regulate them; so as that the term of no license should go. beyond the duration of the temporary possession and-dominion held by Spain.
   Mr. Justice WAYNE

delivered the opinion of the court.

There is -enough upon the record of this case to give this' court jurisdiction, but not enough to give the appellant the re-r lief for which he has brought it here.

■ His complaint is, that the application of the law of Louisiana for the establishment of ferries (2 Mart. Dig. 142, 3 Mart. Dig. 292) to a ferry franchise claimed by him, from Concordia to Natchez, is an invasion upon a right of property secured by the third article of the treaty between the United States and the Republic of France, ceding Louisiana to the former; and that it impairs the obligation of a contract, which was entered into between the Marquis de Casa Calvo and one Thomas Thompson, .on the 19th of February, 1801, granting to Thompson a ferry' at the post of Concordia to Natchez, as a privilege to be attached to his plantation, on condition that Thompson would clear a public road from Concordia to the Bayou ■Coeodrillo. The appellant claims the franchise and land to which it was attached, as a purchaser of both from Joseph Vidal, who bought from Thompson the grantee, on the 16th of October, 1803. It is further said, that by the law, usages, and customs of Spain, in Louisiana, at the date of the grant, no other ferry could- be established within a league above or below its locality. The interference with the franchise is said to be the establishment of another ferry by the Police Jury -of Concordia, from the town of Vidalia, in that .parish, to the city of Natchez. The validity of this proceeding is called in question, on the ground, as we have already said, of its being contrary to a treaty and. the Constitution of the United.States. Both having been decided by the highest court in Louisiana against the rights claimed, the cause is before us, urider ,the provisions of the twenty-fifth section of the Judiciary Act, of 1789. .-

In support of the appellant’s case", his counsel urge, — 1st. That the grant of a ferry privilege across the Mississippi, by competent authority, implies, ex vi termini, an exclusion of all other ferry rights, not only by private, unlicensed individuals, but operates to exclude the sovereign from making a similar grant to another, which will conflict with it, or impair or destroy its value. ' 2d. That the grant in this case, con ex-, elusion, is an express recognition of such exclusive right; 3d. That this is a case of express contract, by which, for á valuable consideration, Thompson became a purchaser of an exclusive .ferry privilege. 4th. That the-uninterrupted right thus claimed, having been exercised and enjoyed by the appellant, and those under whom he claims, for thirty-eight years, is conclusive evidence of title'against the defendants.'

We have placed the point in the case upon which, the jurisdiction of this court attaches in near connection with the points just read, to show that three of them are not reexaminadle by this court, however they may have been- adjudicated by the ■coiirt below.

' The first, second, and fourth points involve questions of what the sovereign may do, or not do, in granting a second ferry ’ franchise which impairs the value of one previously granted; also, whether the words con exclusion, intb^ grant to Thompson, mean an exclusive and perpetual ferry franchise; and, lastly, whether its long úse by Thompson and those claiming from him is, or is not, conclusive proof of the franchise, and that they. may.claim it prescriptively. All of. these are questions depending upon the provincial- laws of Louisiana, when belonging either to France or Spain; upon its territorial law afterwards, when it became a part of. the United States; and upon such laws as may have been passed and continue to be in force in the State of Louisiana. > Neither of them involves the validity of e treaty or statute of, nor an authority exercised under, the United States; nor the validity of a statute or an authority exercised under a State, on the ground of being repugnant to the Constitution, treaties, or laws of the United States; nor do they, or- either of them, draw in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under, the United States.

What we have to decide in this case is, whether or not the franchise of a ferry given 'by the Marquis de Casa Calvo to Thompson is a property protected by the treaty by which Louisiana was ceded to the United States, or a contract bought by Thompson for a valuable consideration, which has been impaired by the action of the Police Jury of Concordia, under the laws of Louisiana. •

Now, in our view of the case, it matters not what merits Thompson may have had in getting his privilege of a ferry; whether he made, or did not make, the road from the post of Concordia to Cocodrillo; or how long he and those claiming under him have had the use of the privilege ; or what were the powers of the Governor of Louisiana to grant such a franchise, or to what extent other officers, acting temporarily as governors, could exercise the powers of sovereignty, delegated to one who was so by commission; or what were the usages in Louisiana, before it was ceded to the United States, in respect to ferry grants and the use of them, — if the sovereignty of Spain in Louisiana had been parted with when the Marquis de Casa Calvo gave this ferry right to Thompson. Had the Marquis, at the time it was done, supposing him to have been exercising the plenary power of a Governor of Louisiana, any official faculty to delegate to a subject of the king of Spain, as a franchise, a portion of the king’s royal privilege or prerogative ? ■

The contract must be tested, as all others are, whether they are national or private, by the competency of the parties to make it. If that does not exist, nothing can be claimed under it, except such equities as may have arisen to either from the conduct of one or the other of them in the transaction.

The .transaction in this case is, that the Marquis de Casa Calvo, Governor-General of the Province of Louisiana, granted-to one Thomas Thompson, on' the 19th of February, 1801, a ferry at the post of-Con.cordia, opposite to. the town of Natchez, as a privilege to be attached to the plantation he possessed, “in order that from that place,1 with exclusive privilege, he may carry on the ferry across the river, demanding and receiving only the prices most -equitable and customary which may be established with the accord of the commandant of the post of Concordia,” — “ que se fixavan con acuerdo del dicho contr mandante.'1'1

Four months before this privilege was given to Thompson, on the 1st of October, 1800, the treaty of St. Ildefonso Was made, by which Spain retroceded to .France the Province of Louisiana. The terms and conditions of that treaty we will speak of presently, as far as it may be necessary to do so, after we have shown the views taken by the different departments of the government of the United States of the obligations of it, when they began, and when the full sovereignty of Spain ceaséd over Louisiana.

Each of them has said officially, that the sovereignty of the king of Spain for granting lands in Louisiana ceased with the signatures of the treaty of St. Ildefonso, on the 1st of October, .1800. Within a year after the cession of Louisiana, Congress, having learned that concessions for lands had been made by the Governors of Louisiana, between the 1st of October, 1800, and the 30th of April, 1803, the date of our treaty with France, passed an act declaring all such concessions void, and of no effect in law or equity. .

This act was passed coincidently with what had been the declaration of the executive department of the government. This court has said the same in several cases. In the case of the United States v. Joseph Reynes, decided at this term, it has been reaffirmed, with a'more extended examination than had been made before of the treaty of St. Ildefonso, that also between the French Republic and the king of Spain, signed in Madrid on the 21st of March, 1801,'with the order of Barcelona for the delivery of Louisiana to France in execution of both treaties, and of the treaty between France and the United States in connection with the actual delivery of the Province to the United States, on the 20th .of December, 1803, by Laussat, the commissioner of the French government appointed for that purpose. The treaty of St. Ildefonso may be found in 2 White’s Néw Rec. 516 ; that of Madrid of the. 21st-of March, 1801, in 2 Martin’s Treaties Sup. 329, and in 2 White, 501; the royal •order given at Barcelona, and the proceeding thereon, in 2 White’s Recop., from 190 to 196 inclusive ; the treaty between France and the United States, 2 White’s Recop. 196 ; and the act of delivery by France to the United States, 2 White’s Re-cop., from 225 to 228 inclusive.-

In Reynes’s case, the judgment of the District Court affirming his grant was reversed, on the ground that the treaty between Frarice and the United States gave to the latter all the rights acquired by France by the treaty of St. Ildefonso, and that the political, sovereignty of the king of Spain in Louisiana to grant lands ceased with the date of it, on the 1st of October, 1800.

We will now show, that the decision in that case accords with the received usages of nations in respect to rights acquired under treaties; that it is sustained by all that we now know of what were the relations between France and Spain at the time of the event, and the motives of. the two governments for entering into the treaty of St. Ildefonso.

All treaties, as well those for cessions of territory as for other purposes, are binding upon the contracting parties, unless when otherwise provided in them, from the day they are signed. The ratification of them relates back to the time of signing. Yattel, B. 4, c. 2, sec. 22; Mart. Summmary, B. 8, c. 7, sec. 5.

It is true, that, in a treáty for the cession of territory, its national character continues, for all commercial purposes ; but full sovereignty, for the exercise of it, does not pass to the nation to which it is transferred until actual delivery. But it is also true, that the exercise of sovereignty by the ceding country ceases, except for strictly municipal purposes, especially for granting lands. ' And for the same reason in both cases; — because, after the treaty is made, there is not in either the union of possession and the right to the territory which must' concur to give plenum dominium ei utile. To . give that, there must be the jus in rem and the jus-in re, or what is called in the common law of England the juris et seisinm conjnnctio. “ This general law of property applies to the .right of territory no less • .than to other rights, and all writers upon the law of nations concur, that the practice and conventional law of nations have been conformable to this principle.” Puffendorf par Barbeyrac, lib. 4, c. 9, sec. 8, note 2.

In this case, after the treaty wás made, and until Louisiana was delivered to. France, its possession continued in Spain.The right to the territory, though in France, was imperfect until ratified, but absolute by ratification from the date of.the treaty. Such was the manifest intention, from the promise and engagement of his Catholic Majesty, in-tflé third article of the treaty; — conditional upon the execution of,the stipulations of the treaty relative to the Duko of Parma; but becoming retro-, actively absolute from the time of the signature of the treaty, as soon as these conditions were performed, or when others for •the same end were substituted by the contracting parties.

The disability of Franco, or her refusal to perform the conditions for which the retrocession was'to be made, would have released the king of-Spain from-his promise and engagement!© 'make it. It may also be, that the conditions were to be performed by. France in the time mentioned in the first article, and that Spain was to keep possession of the territory as a security for that performance. But in either case, our conclusions that the rights of France attached, and that the sovereignty of Spain ceased from the signature of the treaty, would not be weakened; as the Republic of France and his Catholic Majesty entered into another treaty on the 21st of March, 1801, to-determine in a positive manner \vhat states were to be given to the infant Duke of Parma, as an equivalent for the Duchy of Parma. In which it is also declared, that this second treaty had its.origin in that in which the king cedes to France the possession of Louisiana". And further, that the contracting parties agree to carry into effect the articles of that treaty, and that, while the difficulties with regard to them are in process of arrangement, the present treaty shall not destroy the rights of either party under the first treaty. And if, as has been said, possession was meant to be held by Spain, as a security for the fulfilment of the treaty by" France, until the time when the de.livery was to be made, that purpose must be considered as exclusive of any larger intent. The order given by Spain for the delivery of the territory to France precludes all inquiry about the performance of the stipulations of the treaties by. either of the contracting parties. Its terms, as is said in Reynes’s case,, acknowledge that the right of France to the territory ceded was complete, and that' the sovereignty of Spain over it ceased with the signature of the treaty of St. Ildefonso.

This view of the subject is confirmed by the subsequent conduct of Spain. When her relations with France had become less amicable than they had been, and it was rumored that France was negotiating a sale of Louisiana to the United States, the Secretary of State of Spain, Don Pedro Cevallos, wrote to our Minister, Mr. Charles Pinckney, remonstrating against the proceedings of France in disposing of Louisiana. He declared, also, if the United States bought it, that it would be an absolute nullity, as France had formally and positively engaged not to sell it'. . No other complaint was then or after-wards made in respect to the right of France to Louisiana, or when those rights began. 2 White’s Recop. 546.- Of course, as there was nothing of the kind in the treaty, the remonstrance was disregarded,' and .the purchase was made.

There will be. found also, in the order given for the delivery of Louisiana to-France, a further confirmation that the king of Spain had not his former sovereignty over it after the treaty of St. Ildefonso Ava.s signed, and that his ministers did' not think he had in the interval until the delivery was made.

. The order-does not vary* except as to the thing, to be done, from the usual formula-for such'a purpose. It is in fact a copy of the order which was given by France when Louisiana was ceded to Spain in 1762. That had'bepn preceded by others like it for more than - a hundred years, when the monarchs of Europe ceded to each other by treaty distant territories, either in India or America. This which, we are now considering must have the same meaning which international usages have uniformly given to the whole of them. '

There is always, in such an order, a commendation of the inhabitants, their, interests generally, and- of their possessions or property, perfect and inchoate, to the kind consideration of their new monarch,, in the sense in which, presumptively, they would have been treated by the ceding sovereign. The. ¡language of it is hope, —- not right, or the assertion of power. If it was not so, the order for delivery might-impose larger obligations upon the nation who receives the territory-than the . treaty does. The relations as to the value and suitableness of the ceded- territory fot the purposes of colonization might be changed. Instead of having lands for gratuitous distribution to new colonists, or Upon such terms of purchase as the policy of a new sovereign might make desiralde, that policy might be controlled by grants after the treaty for a cession has been signed. . Indeed, before the signature of a treaty, but after negotiations have begun for a cession of territory, grants of land cannot be made in it without being subject to confirmation by the sovereign to whom the transfer shall be made. The inceptive equity of grants made by the governors of remote territories, who do not know that á cession of it has been made, or that negotiations have been begun for siich an end, may be recommended to the, kind consideration of the sovereign who receives the transfer.; but no more can be claimed. When, then, the king of Spain gave his order at Barcelona for the delivery of Louisiana to France, and said, in royal terms, “ meanwhile we hope ” that all grants óf property, of whatsoever denomination, made by my governors may. be confirmed, although not. confirmed by myself, he admits that he had not the sovereignty to confirm them; that he had no power to do then what he might have done before the. treaty, and what he ought to have done if he had power afterwards to confirm them, —r that which, in fairness to his former subjects and to his own honor, it may be presumed he would' have done, but from, being conscious that the power to confirm- such- grants had been transferred to France. Such orders for the delivery of ceded territories, though usual, axe not always gi-ven, whether there is or is not a.provision in the treaty for it to be done-. Without them, however', treaties could not be consummated in already settled territories, with a due regard to the respective rights of the contracting parties, or with the peaceable transference, meant by them. They prevent-violence, are the best proof of a change of national character, preserve the commercial rights of the inhabitants, give to them in the eyes of all the world the new rights and relations they may have acquired, and establish, in the most notorious way it can be done, that the ceded territory has become a part of another dominion, partaking with it all those relations which nations can have with each other in commerce, in peace, and in war,

Sir William Scott, .in his opinion in the case of the Fama, 5 Robinson’s Admiralty Reports, — given as early as February, 1804-, upon the treaty of St. Ildefonso, retroceding Louisiana to France, (though the reporter cites it as of the date of the previous treaty of St. Ildefonso of 1796,) — coincides with opr views respecting sovereignty over a ceded territory, and the commercial character, in which a people of a distant settlement are placed, by a treaty of - the state to which they belong, and by which they are stipulated to be transferred to another power, before the'delivery of the territory has been made.

The Fama sailed from New Orleans in April, 1803, for Havre de Grace, with Spanish property on board. She was taken on the way by a British cruiser, and her cargo libelled, it being alleged to be enemy’s or French- property only upon the ground that Louisiana had been ceded by Spain to France before the Fama sailed. The points stated in the words of Sir William Scott are, whether the treaty did not in itself confer full sovereignty and right of dominion to France, and whether the inhabitants were not so ceded by that treaty as to become immediately French subjects. The cause was fully argued on both sides by as able counsel as were in that day or since in the admiralty courts of England. The cargo was restored to the Spanish claimant, on the ground that the national character of a place agreed to be surrendered by treaty, but not actually delivered, continues as it was under the character of the ceding country.

He cites, in support of his conclusion, the treaty signed at Breda, on the 21st of July, 1667, between Louis the Fourteenth and Charles the Second, in which Nova Scotia was ceded to. France ; and the treaty of 1762, by which Louisiana was ceded by France to Spain. He might have found in the proceedings under the first, before the order for delivery was given, a confirmation of his conclusion, in the orders and passes which were given to merchant ships before the treaty was ratified. Such passes were given to renew at once the navigation arid commerce provided for in the fourth article of that treaty, and that French vessels might trade with Nova Scotia as a dominion of France before it was surrendered. His whole argument, too, for his conclusion shows that, when he says, “ until a delivery has been made, the former sovereignty must remain,” he did not mean sovereignty in the sense of the supreme power to govern and to dispose of the lands in a ceded territory, or for the exercise 'of. any sovereign power in it other than that sovereignty which was necessary to preserve and enforce the sanctions of its social condition, and which would protect its inhabitants in all of their existing national relations, conventional or otherwise, whatever they might be, until .they were actually surrendered. When delivery has. been made, these relations cease for the future from the time- it has been done, and those of the nation receiving the territory begin. That such was the extent and limit of Sir- William Scott’s use of the words “ sovereignty must remain,” is clear from the concluding words upon that point in the case. They are,- — “I am of opinion, therefore, that on all the séveral grounds of reason or practice and judicial recognition, until possession was actually taken, the inhabitans of New Orleans continued under the former sovereignty of Spain.” And when previously speaking of what passes full sovereignty in territory acquired by treaty, his test of union of possession and right to constitute full sovereignty excludes the idea of its entire continuance in a government which, having had both, had parted with its right to another, with a concomitant obligation to deliver the possession. In fact, the full sovereignty in such a case is not in one or the other of the contracting parties, but in both, for either to do whatever is essential to the preservation of the ability of each to consummate their contract, according to its terms.

■ Of course, what we have just said respecting sovereignty in cessions of territory is meant to be understood of treaties signed by plenipotentiaries having full powers to do so, and which have been afterwards ratified; and not of those,conventions entered into and signed conditionally sub sue rati, by a minister not furnished with orders to execute it- absolutely. Such was the treaty of Fontainebleau' executed on' the 3d of November, 1762, for the cession of Louisiana .to Spain, which is. cited in the opinion of Sir William Scott in the case of the Fama. In such a ease nothing passes until acceptance of it by the king to whom the cession has been offered. And not then, when it is as was the case in. that instance; tne cession of Louisiana having been promised by preliminary articles only, which.were to be followed by a convention stipulating the measures, and the time to be fixed by common accordvfor the execution of the first.

We have -thus shown, that the conclusion to which this court came in Reynes’s case respecting grants of land in Louisiana, after the treaty of St. Ildefonso had been signed, is in harmony with the usages and law of nations. They would have required it, if the documents attending the transaction had not led to the- same result. It has been shown before, that the' legislation of Congress would not permit a different conclusion. The executive department of the government has uniformly •acted under the same impression.

Finally, all of our proceedings respecting Louisiana have been done upon the principle, that the law of nations does not recognize in a nation ceding a .territory the continuance, of supreme power over it after the treaty has been signed, or any other exercise of sovereignty than that which is necessary for social order and for commercial purposes, and to keep the cession in an unaltered value, until a delivery of it has been made. Such being the extent of sovereignty under such circumstances, is not the grant of a perpetual ferry franchise attached to land as much prohibited as a grant of land ?

We cannot distinguish between them, as to the source from which they can only be made. They are only distinguishable from each other in this, that one of. them is exclusively for the grantee, and- the other for the use of the public, with a compensatory right of toll attached. If a ferry franchise could be given in such a case, every other franchise’ might be. When the extent of Spanish royal prerogative in-respect, to franchises-is considered, and especially such as the king of Spain could give in his foreign dominions under the Roman civil law, without any modification of it in the' Partidas, it will not be forgotten, that natural persons .and bodies corporate might have been invested with’monopolizing privileges and-.exemptions, both on the land and the water, — that charters could have been given to places, with licenses and exemptions which might have interfered seriously with the policy and institutions of a state coming into the possession of ceded territory. We will not mention-them in detail. Enough pas been said to show, that, if such a sovereignty could be exercised -after a treaty has been signed, it would be a power to change materially the relations which the people of a ceded territory had to each other; and to establish between them and a new sovereign a different condition than had been contemplated when they were transferred.

• Such being the law of this case, we must say that the appellant, under the privilege of a ferry right given by the Marquis de Casa Calvo, had no property in it secured by the third' article of the treaty by which Louisiana was ceded to. the United States, and that no contract arose from it, the obligation of which has been impaired either by the legislation of Louisiana, or the action of the Police Jury of Concordia, under it.

We will remark further, that nothing can be inferred from what we have said in favor of the validity of any franchise relating to the navigation of the Mississippi, if any such was granted whilst Louisiana was a province either of France or Spain.

. We will not enter minutely into the history of the retrocession of Louisiana to France, or into that attending our acquisition of it. There is much in both to confirm.thé views we have expressed concerning national rights arising under treaties signed, and afterwards ratified. We have now, too, other sources of information, contemporary with the transaction, which disclose more fully than was known until within a few years the policy of the' First Consul in acquiring Louisiana. Stimulated by the European desire for colonies, and to counteract the impressions which might be made upon his popularity, and the glory he had given to France, if .Egypt should be lost and St.-Domingo should become valueless from the revolt of its slaves, he determined to avail himself of his power to gratify the wishes of the king and queen of Spain, by making the infant Duke of Parma a king in and over a part of Italy, with all royal rights and honors, and to get Louisiana, in return. He meant to make it a permanent colony of France. He negotiated, as the treaties show, for an absolute retrocession of its people and' territory, without other limitation than that which the' law of nations secured to the former. It was to belong to . France as it had been, when the generous weakness of Lo.uis the Fifteenth, without either cause or consideration, ceded it to Spain. On the other hand, that portion of Italy which was to be given for it was to .be an unconditional transfer of people and territory, which, in the event of the failure of the issue of its new king, were-to become absolutely a part of the Spanish monarchy. Neither contemplated any thing else, or that Spain should exercise a-complete dominion in Louisiana, after having signed a treaty to cede it. There is not in the diplomacy of nations a more absolute surrender of dominion, than was made by the king of Spain in the treaty of St. Ildefonso of October, 1800.

From that time until the treaty of Amiens was made, and afterwards, when it was foreseen it would be but a short truce, and would be followed by wars of longer duration, and greater changes in the condition of European nations than had been made in the wars of the ten preceding years, the First Consul, amidst all of his grand contemplations, did not lose sight for a moment of the colonization of Louisiana. Troops were embarked to take possession of it. Plans were made to colonize it exclusively with Frenchmen. He saw what might become our pressure upon it from the West, and to guard against the chances of war, which were then in this hemisphere in favor of England, it was to have been in its beginning a military colony under a leader of marked character and renown. France looked for commercial advantages from it, and a commanding war position over the Gulf of Mexico. It was hoped, too, that it would give to France, in the foreseen wars of Europe, favorable influences over the United States. That such a power as France, between the United States and Mexico, would check us in our career in that direction, and would give to France the control of Mexico, and the continuance of her control over Spain itself. It was not in the order of Providence, that such intentions 'should be accomplished. The First Consul foresaw a war, in which all the resources of France would be wanted, and all that could be gathered from every source. The war came sooner than he anticipated, or meant that it should. It deprived him- of ail certain ability to take possession, or to retain Louisiana if he had done so. The navy of England was in his way. With his usual decision, and in opposition to his. counsellors, he • determined to sell Louisiana to the United States,-when we were then only negotiating for such a part of it as would secure to us the transit of our Western produce to the ocean. Our ministers, with promptitude never to be forgotten, without orders or powers from home to do so, secured the prize by the treaty of the 30th of April, 1803.

■ We shall direct this cause' to be remanded for such further proceedings in the court from which it has been brought as that court may deem necessary.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Louisiana, and was' argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court,, that the judgment of the said Supreme Court in this cause be, and the same is herebyj affirmed, with costs, and that this cause be, and the same is hereby, remanded for such further proceedings as the said Supreme Court may deem necessary.


source: Caselaw Access Project

author: •Mi. Justice GRIER

license: Public Domain

text:
    Benjamin G. Humphreys, Appellant, v. Leggett, Smith, and Lawrence.
    The laws of Mississippi limit the liability of the sureties in. the official bond of a sheriff to the amount of the penalty. ,
    Where the surety had been-compelled to pay the whole amount of his bond before a third party recovered judgment, the surety ought to have been relieved against an execution by this third party.
    Hot having been allowed to plead puis darrein continuance, and protect himself in this way by showing that he had paid the full amount of his bond, the surety ought to have been relieved in equity where he bad filed a bill for relief.
    ■ This was an appeal from the Circuit Court of the United States for the Southern District of Mississippi. It arose from a former case in this court, McNutt v. Bland et al., reported in 2 Howard, 9.
    The facts were these.
    On the 6th of November, 1837, Richard J. Bland was elected sheriff of the County of Claiborne, in the State of Mississippi, for the term of two years, prescribed in the constitution of that State.
    On the 10th of November, 1837, Richard J. Bland, Benjamin G.' Humphreys, and John Grissom, all of that county arid State, executed a penal bond, in the sum of $15,000, to Charles Lynch, Governor óf the State, conditioned for the faithful ex-, ecution by Bland of the duties of his office.
    On the 30th of December, 1837, a writ of capias ad satisfaciendum was issued, at the suit of Leggett, Smith, and Lawrence, on a judgment obtained by them, as they allege, in the Circuit Court of the United States for Mississippi, against George W. McNider, for $3,910.78, on the 17th of November, 1837; and the said writ was placed in the hands of the Marshal of the United States for Mississippi, who took McNider into custody by virtue thereof, and delivered him for safe-keeping to Bland, as the sheriff of Claiborne County.
    On the 12th of December, 1838, an execution was issued, at the suit of the Planters’ Bank of Mississippi, on a judgment obtained by the bank in the Circuit Court of Mississippi for Claiborne County, against Hoopes, Moore, and Carpenter, for $> 10,524.44, on the 4th of December, 1838, and the said execution was placed in the hands of Bland, as the sheriff of Claiborne County.
    On the' 21st of January, 1839, an execution was issued, at the suit of the Planters’ Bank of Mississippi, on a judgment obtained by the bank in the Circuit Court of Mississippi for Claiborne County, against Campbell, Pierson, and Moore,'for $ 3,718.78 on the 29th of November, 1836, and the said execution was placed in the hands of Bland, as the sheriff of Claiborne County.
    On the-28th of March, 1839, a suit was instituted and declaration filed in the Circuit Court of the United States for Mississippi, in the name of Alexander G. McNutt, Governor of the State of Mississippi,' to 'the use of Leggett, Smith, and Lawrence, against Bland, Humphreys, and Grissom, to recover damages for an alleged breach by Bland of his official bond, in setting McNider at liberty without lawful authority, while their judgment was in full force against him and unsatisfied.
    On the same day a summons, in that suit, was issued against Bland, Humphreys, and Grissom, to which the marshal made return, — “ Executed on R. J. Bland, personally, on the 5th April, 1839 ” ; no return being made as to Humphreys and Grissom.
    On the 20th of June, 1839, an alias summons, in the same suit, was issued against the same persons, with directions to be executed on Humphreys and Grissom only, to which the marshal made return, — “ Executed this writ on B. G. Humphreys, personally, on the l4th day of October, 1839; J. Grissom not found in my district. [Signed] W. M. Gwin, Marshal, per John Hunter, D. M.”
    ■ At November term, 1839, a plea was filed in the names of the defendants, Bland and Humphreys, in the same suit, deny-ing the plaintiff’s right of action, because Leggett, Smith, and Lawrence had failed to comply, in their proceedings against McNider, with the act of Mississippi, which required them to pay or give security for jail fees, and to- appoint an agent in the county of Claiborne to receive notice of matters touching the execution, in défault of which the prisoner was to be discharged ; and further, because, after his commitment, he was regularly discharged therefrom, by a warrant from the judge of probate, under the insolvent laws of the State of’Mississippi.
    At the same term a replication was filed by Leggett, Smith, and Lawrence, alleging that they had an agent in the County of Warren ; that no application was made to them for jail fees, or security therefor; that no notice was given to them of any intention or application to. discharge McNider; and, further, that McNider, being in custody under process from the Circuit Court of the United States, was not legally discharged.
    At the same term a demurrer to this replication was filed, in the names of the defendants.
    Oh the'26th of November, .1839, a discontinuance was ordered, as to the defendant Grissom -; the demurrer on behalf of the other defendants was sustained; and judgment was entered m their favor, with costs.
    On the 28th of November, 1839, a writ of error to the Supreme Court of the United States was issued by the clerk of the Circuit Court of Mississippi, at the suit of Leggett, Smith, and Lawrence.
    On the same day a citation, addressed to “ Richard Bland and Benjamin G. Humphreys, or Messrs. Winchester, Black, & Chaplain, Attorneys of Record,” was issued, signed by “S. J. Gholson,” one of the judges of the Circuit Court.
    On the 20th of May, 1840, a motion was made in the Circuit Court of Claiborne County, Mississippi, on behalf of the Planters’ Bank of Mississippi, for a judgment against Bland, as sheriff, and Humphreys and Grissom, as his securities, on the allegation that Bland had failed to return the execution issued at the suit of the bank against Hoopes, Moore, and Carpenter, and the judgment was granted for the sum of §11,775, with §526.22 damages.
    On the 25th of May, 1840, a similar motion was’ made in the same court, on behalf of the same bank, against the same defendants, on the allegation that Bland had failed to return the execution issued at the suit of the bank against Campbell, Pier-son, and Moore, and the judgment was granted against Bland and Humphreys for §2,674.75, “the balance,” it was stated, “of the said official bond” of Bland.
    On the 16th of July, 1840, writs of fieri facias, under each of these judgments, were delivered to the coroner against Bland' and Humphreys; that in the first case being indorsed, “No security of any kind is to be taken.” Under these writs, the estate, real and personal, of Humphreys was levied upon and sold; and the sum of § 15,160.39, the proceeds thereof, was paid over .by the coroner to the Planters’ Bank.
    On the 11th of December, 1840, the record in the case of McNutt to the use of Leggett, Smith, and Lawrence, against Bland and Humphreys, was brought into the Supreme Court of the United States, from the Circuit Court of the United States for Mississippi (January term, 1841, No. 43). It consists only of the record of the Circuit Court in the case of Leggett, Smith, and Lawrence v. Bland and Humphreys, together with the writ of error and citation. The citation is indorsed, “Service on the defendants, accepted, Nov. 28, 1839. Geo. Winchester, for defendants.”
    The appearance is general, — for defendants,-.— “Walker»”
    Nothing appears to have been done at that term with the case.
    At January term, 1842, the case was reached, and ordered to the foot of the docket.
    At January term, 1843, on motion of Mr. Jones, for the plaintiff in error, the court granted leave to submit it on printed arguments.
    At January term, 1844, the case was argued.
    • On the 30th of January, 1844, it was adjudged to be reversed, with costs, and remanded, with directions to enter judgment for the plaintiff.
    On the 31st of January, 1844, Mr. Jones suggested the death of R. J. Bland, and moved that the writ of error stand against the survivor.
    On the 12th of March, 1844, it was-ordered that the mandate should direct judgment to be entered against the survivor. -See 2 Howard, 28.
    On the, 1st of ——, 1844, -a mandate was issued reciting the. judgment; and also- that, “ whereas in the present term of January, 1844, the death of Richard J. Bland having been suggested, it was ordered by this court that this cause stand against Benjamin G. Humphreys' alone, as the survivor ”; on consideration thereof, it was “ ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that the said plaintiff recover against the said defendant. Benjamin G. Humphreys, $ 64.85, for his costs therein expended, and have execution therefor ”; and it was further “ ordered and adjudged that this cause be, and the same is hereby, remanded to the said Circuit Court, with .directions to that court to enter judgment for the plaintiff, against Benjamin G. Humphreys alone, as-the survivor.”
    On the 2d of November, 1844, the mandate of the Supreme Court having been filed in the Circuit Court of the United States in Mississippi,. the defendant, Humphreys, asked leave to file a plea, puis darrein continuance, in which he set forth the judgments obtained against him in the Circuit Court of Claiborne County, on account of the failure of Bland to execute the writs in the cases of the Planters’ Bank v. Hoopes, Moore, and Carpenter, and the' Planters’ Bank v. Campbell, Pierson, and Moore; and his own payment thereof, to the full amount of his bond-, as surety for Bland under executions issued by virtue of those judgments. The court, however, refused to.admit the plea, on the ground that it was not competent for it to do any thing in that action but obey the mandate of the Supreme Court.
    On the 17th of May, 1845, Humphreys filed a bill in equity, in the Circuit Court of the United States in Mississippi, against Leggett, Smith, and Lawrence, exhibiting the foregoing facts; and further averring, that, from the commencement of the suit in the Circuit Court by Leggett, Smith, and Lawrence, in the name of McNutt, as Governor of Mississippi, on the official bond-of Bland, until the judgment of reversal by the Supreme Court of the United States, he had no notice or knowledge whatever thereof, or of the proceedings therein; that no process was ever served, or, to his knowledge, attempted to be served, on him; that although the deputy marshal makes return to the summons, that it was “ executed on B. G. Humphreys, personally, on the 14th day of October, 1839,” this is absolutely untrue ; that he can prove that the return was so made,, at the instance of Bland, who wished the fact of the suit to be kept a secret from him, Humphreys; and that he never employed counsel, and never authorized any person to enter an appearance for him. He, therefore, prayed for an injunction to restrain proceedings at law under' the judgment; .and, upon final hearing, that the injunction might be made perpetual.
    On the 8th of July, 1845, Humphreys gave bond in the sum of $> 12,880.12, and the injunction issued.
    On the 11th of November, 1845, Leggett, Smith, and Lawrence filed a general demurrer to the bill, as exhibiting no case for equitable relief.
    On the 17th of November, 1846, judgment was given on the. demurrer against the complainant, Humphreys, and a decree entered dismissing his bill.
    On the same day, the appeal was prayed for, and allowed.
    The cause was argued by Mr. Gilpin, for the appellant, and Mr. Jones, for the appellees.

      Mr. Gilpin, for the appellant,
    contended that this decree was erroneous, and ought to be reversed.
    It appears by the foregoing statement of th.e facts, that, on the 16th of July, 1840, Humphreys paid, under executions issued upon judgments obtained against' him. on this bond, the whole penalty thereof. If, therefore, the present appellees are not restrained from proceeding to execution against him, upon the judgment they have subsequently obtained on the same bond, he will be compelled to pay the penalty thereof a second time.
    The questions, therefore, to be considered, are, whether he was legally bound to pay under the executions issued against him on the 16th of July, 1840; whether, notwithstanding such ■payment, the appellees can compel him also to pay the amount of the judgment they have obtained ; and whether he is entitled to the protection of a court of equity, against such compulsory payment, in the manner prayed for in his bill.
    I. The appellant, Humphreys, was compelled by law to pay the whole amount of the penalty of his bond; it was done by the sale, under execution, of his property, real and personal,— even his household furniture; he could not delay the payment even by giving security. The law of Mississippi, under which his bond was given, and by the provisions of which law his liability as security of the sheriff is regulated, compelled the payment under the judgments obtained by the Planters’ Bank of Mississippi, on the 20th and 25th of May, 1840, and the executions issued thereon, amounting to more than $15,000, the penalty of the bond.
    “ If any sheriff, under-sheriff, coroner, or other officer, shall collect, by virtue of an execution or executions, a part or the whole amount of money due by such execution or executions, such sheriff, under-sheriff, coroner, or other officer, shall,' immediately after the Collection of any such sum or sums of money, pay the same over .to the plaintiff in the execution, or his attorney, provided that the plaintiff or his attorney shall demand the same; and on failure to pay the same at the time of demand made, such sheriff, under-sheriff, coroner, or other officer, his and their sureties, shall be liable to pay to the plaintiff in the execution the whole amount of money so collected, together with twenty-five per cent, damages thereon, with interest at the rate of eight per cent, per annum ; to be recovered by motion before the court to which such execution is made returnable, after reasonable notice to such sheriff or other officer of such motion ; and the clerk of the court before which such motion is made shall indorse op-the execution issuing on the.judgment against such sheriff, coroner, .or other officer, and their securities, that ‘ no security of any kind shall be taken.’ Provided always, that if any sheriff shall have more executions than one in his hands, and shall have failed to make a sufficiency of-money to satisfy the whole amount of the several executions, and shall file an affidavit-of the fact with the clerk of the Circuit Court of the proper County, such sheriff shall hot be liable to the penalties hereby prescribed.”

      “ All sheriffs shall be liable, in the manner above prescribed, for moneys collected by their deputies on executions, whether the same shall have come to the hands of the sheriff or not.”
    “ If any sheriff, coroner, or other officer, shall fail to return any execution to him or them directed, on the return day thereof, the plaintiff in the execution may recover judgment against such sheriff, coroner, or other officer, and his and their sureties, for the amount of such,executions, with five per cent, damages; by motion before the court to which execution is returnable, with eight per cent, interest on the same until paid ; and the clerk shall indorse on the execution issuing on such judgment, that no security is to be taken. Provided that, after any sheriff, coroner, or other officer shall have paid the amount of money and damages received as aforesaid, then the original execution shall be vested in such sheriff, coroner, or other officer, for his or their benefit; and provided, also, that nothing in this section contained shall be so construed as to affect the remedy already existing against sheriffs, or other officers, for failing to return executions.” Howard & Hutchinson’s Miss. Digest, p. 296, § 25; Hutchinson’s Miss. Code, p. 447, art. 7, § 1.
    The facts stated, shown in the record, and admitted by the demurrer, bring within the stringent provisions of this law the liability of the appellant, as security of the sheriff.
    On the 12th of December, 1838, and on the 21st of January, 1839, executions had come into the hands of the sheriff returnable to the next term of the court; at this time, no suit had been instituted by the appellees against the sheriff or his sureties, on their official bond, on the ground of the alleged escape of McNider; these executions not being returned, judgments were recovered against the appellant, on his official bond, on summary motion, and in exact accordance with the law ; executions were thereon issued to the coroner against the appellant ; it was therein ordered that “ no security of any kind was to be taken ” ; no other executions were then in the coroner’s hands against the appellant; under these executions, the entire penalty of the official bond was compulsorily made, by the sale of the property of the surety.
    The first position, then, is established in law and in fact, that the appellant was legally obliged to pay, and did actually pay, under the writs delivered to the coroner on the 16th of July, 1840, the whole penalty of the bond, to recover which the present action was also brought by the appellees.
    II. Are the appellees then entitled, under their judgment subsequently recovered against Humphreys,'on the same bond, to issue an execution and levy its amount on his property ?

      . They are not (even if their judgment in this action werea legal and .perfect judgment, which it is not), because the pen-, alty. of the bond has already been paid, and the obligation of Humphreys is discharged; because the Planters’ Bank, being the first execution creditors, were entitled to be first paid ; and because it was the neglect of the appellees themselves, not to proceed in the same summary manner to recover their debt,.as they were enabled to do by the law of Mississippi.
    1. The law of Mississippi limits the liability of the surety to the amount of the penalty of his bond.
    “ The sheriff’s bond shall not be void on the first recovery, but may be put in suit and prosecuted from time .to 'time, at the costs and charges of any party injured, until the whole-amount of the penalty thereof be recovered.” Hutch. Miss. Code, p. 441, art. 3, § 1.
    “In all actions which shall be bi ought upon any bond or bonds for the payment of money, wherein the plaintiff shall recover, judgment shall be entered for thé penalty of such bond, to be discharged by the payment of the principal and the interest due thereon, and the costs of suit.” Howard and Hutch. Dig. p. 614, § 3; Hutchinson’s Miss. Code, p. 874, § 56.
    And the same principle has been repeatedly affirmed by judicial decisions. McGill v. U. States Bank, 12 Wheaton, 511; Harris v. Clapp, 1 Mass. 308; State v. Wayman, 2 Gill & Johns. 279; Glidewell v. McGaughey, 2 Blackf. 361.
    2. It -was-not possible for the appellant, Humphreys, to avoid the payment under the execution of the Planters’ Bank; no security pr stay of any kind was allowed; if thé appellees, as plaintiffs and judgment creditors, had acquired rights, they were rights to be enforced against the fund made by the execution, or as a prior lien on the property levied on; if their suit or judgment gave them priority,- it could not prevent the lévy and sale, under this execution, but must look for its enforcement to the property sold, the money made, or the officer who wrongfully appropriated it; the obligation of the surety, Humphreys, was not the less discharged.
    By the statutes of Mississippi, a judgment is a lien on all the defendant’s property; personal as well as real, from the time it is entered. “ In all cases, the property of the defendant shall be bound and liable to any judgment that may be entered up, from the time of entering such judgment-.” Howard & Hutch. Dig., p. 621, § 43; Hutchinson’s Miss. Code, p. 881, § 12.
    By repeated decisions, the • execution creditor is entitled to the proceeds of the sale, the prior judgment creditor, who has not levied an execution, being left to his lien on' the property. Robinson v. Green, 6 How. Miss. 223; Commercial Bank v. Yazoo, Ibid. 535; Goode v. Mayson, Ibid. 547 ; Andrews v. Doe, Ibid. 562; Bibb v. Jones, 7 ib. 400.
    3. .The statute of Mississippi gave to the appellees the same summary- mode of proceeding against the sheriff and his sureties on the escape of McNider, when in custody under their ca. sa.; if resorted to, notice would have been given to the surety, Humphreys, and his property would have been applied to their judgment; their neglect has been the cause of his property being applied, in his ignorance of any prior claim, to another debt.
    “ If any sheriff, under-sheriff, or other officer, shall 'make return upon any writ of capias ad satisfaciendum, or attachment for not performing a decree in chancery, for payment of any sum of money, that he hath taken the body or bodies of the defendant or defendants, and hath the same ready to satisfy the money in such writ mentioned, and shall have actually received, .such money of the defendant or' defendants, or suffered him, her, or them to escape, with the consent of such sheriff, under-sheriff, or other officer, and shall not immediately pay such money to the party to whom the same is payable, or his attorney, or shall make any other return upon any such execution as will show that such sheriff, under-sheriff, or other officer, hath voluntarily, and without authority, omitted to levy the same, or as would entitle the plaintiff to recover from such sheriif, or other officer, by action of debt, the debt, damages,.or costs in such execution mentioned, and such sheriff or other Officer shall not immediately pay the same to the party to whom it is payable, or to his attorney, it shall and maybe lawful, in either of the said cases, for the creditor at whose suit such ca. sa. or attachment shall issue, upon motion made before the court from which such writ issued, to demand judgment against such sheriff, under-sheriff, or other officer, and the sureties' of either of them and their legal representatives jointly, for the money mentioned in such writ, with interest thereon at the rate of thirty per cent, per annum from the return day of
    the execution.” How. & Hutch. Dig., p. 642, § 42; Hutchinson’s Miss. Code, p. 905, § 49.
    Viewed, therefore, in every light, the obligation of the appellee, Humphreys, under his official bond, has been discharged; it has been discharged involuntarily, by force, of law; if the appellants lose a recourse to his personal security, they yet retain it, if their judgment be valid, against his property which-was levied on; or, if they do not so retain it,vthenloss has arisen from their own failure to resort to remedies and modes of proceeding which the statutes of Mississippi gave them.
    III. But if this were not so, — if the appellant, Humphreys, would be liable to an execution on such a judgment, legally recovered against him as a surety on this bond, — still, in this case, the appellees, as judgment creditors, are not entitled to it, because the judgment they have entered against Humphreys, if even it be not illegal in form and substance, was without any notice to him, was obtained by fraud practised against him, and is altogether such a proceeding as a court of equity will protect an innocent party from the consequences of, if sought to be carried into operation against him, by the forms of law.
    1. So far as appears by the record, it is a general judgment entered in the Circuit Court against Humphreys for the sum óf $ 6,355.33, founded on the mandate of the Supreme Court, which merely reversed the previous judgment of the Circuit Court rendered on demurrer, and in favor of the defendant. All for which the appellees, being plaintiffs in that suit, were entitled to judgment, was the amount of damages they had sustained; and that amount should appear to be ascertained in due course of law. This the record nowhere exhibits ; it exhibits merely a ca. sa. against McNider, reciting a judgment-held by the appellees against him for ,f 3,910.78. That such a judgment cannot sustain an execution, is a proposition too well settled to require argument or authority for its support. Besides, it is clearly established by the statutes of Mississippi, under which the liability of the appellant, Humphreys, accrues, and by the provisions of which its extent-is to be ascertained. '

    If the plaintiff in any suit or action shall demur to the plea of the defendant, and the demurrer be sustained on joinder and argument, the judgment of the court shall be respondeat ouster ; but in such case the defendant shall be compelled to plead to the merits of the suit or action, and the plaintiff shall not thereby be delayed of-his trial.” Howard & Hutch. Dig., p. 616, § 8; Hutchinson’s Miss. Code,, p. 875, § 66.
    “ Every sheriff [failing to execute his duty] shall be liable to the action of the party injured by such default for all damages which he- or they may have sustained thereby.” Howard & Hutch. Dig., p. 292, §, 7; Hutchinson’s Miss. Code, p. 443, § 7.
    “ Where any sheriff or other officer shall have taken the body of any debtor in execution, and shall wilfully and’negligently suffer such debtor to escape, the person suing out such execution, his executors or administrators, shall and may have and maintain an action of debt against such sheriff or other officer, his executors or administrators, for the recovery of all such sums of money as are mentioned in the said execution, and. damages' for detaining the same.” How. & Hutch. Dig., p. 649, § 61; Hutchinson’s Miss. Code, p. 549, § 3.
    2. But the judgment itself is totally invalid, as against the appellant, Humphreys. It was obtained without notice to him ;, without opportunity.for defence; by a deliberate fraud practised -towards him; and, if followed by execution, must involve him in great and irremediable loss.
    The record shows, and the demurrer expressly admits, that, in the action which has resulted in this judgment, Humphreys never had any notice of the suit till the return of the mandate from the Supreme Court; never was served with process, directly or indirectly; and never authorized any one to appear for him. Under a judgment so obtained, no execution can legally issue against him.
    Personal notice to the defendant is indispensable to sustain the validity of á judgment, and to authorize subsequent proceedings under it. Mayhew v. Thatcher, 6 Wheaton; 130; Breedlove v. Nicolet, 7 Pet. 434; Haydel v. Girod, 10 Peters, 285; Kilborn v. Woodnorth, 5 Johns. 41; Robinson v. Ward, 8 Johns. 90; Borden v. Fitch, 15 Johns. 143; Kinderhook v. Claw, 15 Johns. 538; Corliss v. Corliss, 8 Verm. 389; Chase v. Hathaway, 14 Mass. 224.
    Nor is the necessity of such notice obviated by an entry of his appearance on the record, or' by the appearance of attorney for him without his knowledge or authority. Starbuck v. Murray, 5 Wendell, 161; Holbrook v. Murray, 5 Wendell, 162; Shumway v. Stillman, 6 Wendell, 449; Aldrich v. Kinney, 4 Conn. 382; Bonney v. Baldwin, 3 Missouri, 49.
    It is no answer to this to .say, that the appellant, Humphreys, is precluded from,alleging want of notice by the return of the. deputy marshal to the summons, in the words, —; “ Executed this writ ón B. G. Humphreys, personally, on the 14th day of October, 1839 ; (signed) W. M. Gwin, Marshal, per Jno. Hunter, D. M.” Because, in any event, the return could only be held to be evidence, not liable to contradiction by the appellant, of such execution, service, and notice ;. it could only be held to be such sufficient evidence as was necessary to entitle the plaintiffs to judgment in that suit. But here the demurrer admits the fact of service and notice to be otherwise; and it is not controverted in the suit, of which alone it forms part of the record. In a different suit; for different objects; in a different tribunal.
    •But this return would not be evidence of notice or service even in that suit; because it would be merely primó, fade evidence, and it has been disproved; because it does not appear that the execution was made according to law; and because there is no proof that the officer who executed it had legal authority'to do so.
    The return is only prima, fade proof of the fact it asserts. 7 Com. Dig. 287, Return, G; Jones v. Commer. Bank, 5 How. Miss. 43; Williams v. Crutcher, 5 ib. 71; Anderson v. Carlisle, 7 ib. 412; Patterson v. Denton, 1 Smedes & Marsh. Ch. 595; Boynton v. Willard, 10 Pick. 170; Butts v. Francis, 4 Conn. 424; Watson v. Watson, 6 Conn. 337; Waterhouse v. Gibson, 4 Greenl. 234. And the fact asserted in it is admitted to be untrue.
    The return does not show the writ was executed by leaving a copy with the person served, which is absolutely required by law, — a defect in the return fatal to it, even asprimó fade evidence. How. & Hutch. Dig., p. 577, § 5, p. 583, § 27; Hutchinson’s Miss. Code, p. 835, § 22; Smith v. Cohea, 3 How. Miss. 35, 39; Fatheree v. Long, 5 ib. 661; Eskridge v. Jones, 1 Smedes & Marsh. 596.
    Not is there any proof that the execution of the writ (if made) was by a legally constituted deputy; if not, it was absolutely void; that it was is not to be presumed in a case like this, — it must be proved. How. & Hutch. Dig., p. 292, § 6; Hutch. Miss. Code, p. 443, § 6.
    IV. It has been established, then, that the appellant, Humphreys, has already legally and compulsorily paid the whole penalty of the bond, on which the judgment of the appellees is founded.
    It has also been established, that the judgment so obtained does not legally authorize an execution against his property.
    It has also been established, that the judgment was obtained without notice to him, and by fraud practised against him.
    It is proved by the record, and admitted by the demurrer, that the appellant came to the knowledge of these facts only since .the mandate transmitted from the Supreme Court to the Circuit Court; that he was guilty of no laches ; that he prayed and was refused leave to plead them in the action at law; that the appellees have been decreed by the Circuit Court to be entitled to issue an execution against him; and that such execution is about so to issue.
    By the settled principles of equity he is entitled, in this state of facts, to the interposition of a court of equity, and to the perpetual injunction and relief prayed for in his bill. 2 Story’s Equity, §§ 887, 894; Fonblanque’s Equity, 6, 2, <§><§> 1, 2; Marine Ins. Co. v. Hodgson, 5 Cranch, 100; 6 ib. 206; 7 ib. 332; Lansing v. Eddy, 1 John’s Ch. 51; Simpson v. Hart, 1 ib. 98; Hawley v. Mancius, 7 ib. 182; King v. Baldwin, 17 Johns. 387; Blount v. Green, 3 Hayw. 89; Winchester v. Jackson, 3 ib. 305; Click v. Gillespie, 4 ib. 8; Goodrich v. Brown, 1 Chan. Cas. 49; Barnsley v. Powell, 1 Ves. sen. 299; Jarvis v. Chandler, 1 Turn. & Russ. 319; Johnson v. Harvey, 4 Mass. 483; Lovejoy v. Webber, 10 Mass. 103.

      Mr. Jones, for the appellees.
    The appellees present the following summary of the grounds upon which they hold the decree rendered in the court below irreversible.
    The bill, being framed in palpable violation of the fortieth,'forty-first, and forty-second rules of this court, was liable to dismission, with or without demurrer, upon motion, or demurrer, ore tenus,. at the bar; and, being already dismissed on demurrer, should stand dismissed, whatever title to relief in equity might have arisen from its allegations, had they been brought out in an admissible and competent bill.
    The reversal of the decree iyould, of course, be followed by a mandate to the court below, calling for an answer from the defendants ;■ when it is plain they can put in no answer that would not come within the danger of impertinence denounced in the fortieth rule.
    But, waiving all exceptions to the frame of the bill, the facts alleged in it lay no foundation for equitable interference to set aside the judgment recovered at law by the appellees.
    1st. Because the appellant, from conclusive evidence of his own showing, appears to have lost the benefit of his defence, if he ever had one that was available at law, by his own fault and negligence, continued down to the time of the rendition of the judgment against him in this court (2 How. 28), and during all the residue of that term, when he might, if he could have shown any ground of defence at once available and just, have moved the court to remand the cause, with instructions to permit him to plead de novo, as was done in Lloyd v. Scott, 4 Peters, 231.
    2d. Because, if the facts alleged by him were true, they lay no ground for the interference of equity to restrain the appellees from using and enforcing their judgment at law.
    3d. Because he never had any available defence at law; such as he pretends being inadmissible either at law or equity.
    This court has gone far to systematize the rules which should limit the interference of equity to restrain parties from using and enforcing judgments at law, upon the ground of having failed to avail themselves of some legal defence; a branch of equity jurisprudence about which rather. loose notions had prevailed, and no consistent course of procedure had been, followed.
    The concurrence and the clear proof of the following circumstances are held indispensable: — 1st. That the party seeking such relief really had a defence that was at once just in itself, and available at law. 2d. That he lost the advantage of it by accident, surprise, or fraud, unmixed with any fault or negligence in himself or his agents. 3d. That the circumstances of such accident, surprise, or fraud affected the opposite party so far as to make it obviously against conscience for him .to use and enforce his judgment. Mar. Ins. Co. v. Hodgson, 7 Cranch, 336, 338; Brown v. Swann, 10 Pet. 504-506; Truly v. Wanzer, 5 How. 141.
    The proximate cause of the accident by which the appellant pretends to have been ousted of his just defenpe is collusion between Bland, his co-obligor and co-defendant, and the sheriff ; by which the sheriff undertook to make a false and fraudulent return of the alias writ, of summons.
    To which W3 answer, —
    1st. That there is' nothing in all this to make it against conscience for the appellees to execute their judgment: if the appellant has been wronged by this misdemeanour in office, and innocent of all privity to it, it was no less a fraud upon the appellees and upon the law; and the appellees, certainly, were no less innocent of all privity. The equities being equal, a court of equity cannot shift the burden from the one to the other; but must leave each undisturbed in his legal rights.
    2d. But, in truth, the appellant was, in no sort, injured by the alleged collusion and fraud between Bland and the sheriff; every defence that the nature of the case admitted was taken, and urged with all practicable effect. .As to the defence, of the loss of which alone he complains,, it . was no defence to that action ;. but belonged to the other suits on the same bond in the Circuit Court of Claiborne County. So, if the. misdemeanour of the sheriff laid any foundation for relief in equity, it was against the judgments recovered in that court, not against the judgment recovered by the appellees.
    3d. That the sheriff’s return is absolutely conclusive.on the parties to the suit; .and, as between them, the truth of it cannot be drawn in question in any form of procedure at law or equity.
    This is the very first case, we believe, in which it was ever attempted by bill in equity; but in the courts of law it has been frequently tried in every form admissible in the practice of those courts, — by way of averment in pleading, — by way of motion to set aside on affidavits of fraud and falsehood; and the invariable answer of the English courts, from the days of Queen Elizabeth to the days of Queen Victoria, has been, that the return is conclusive between the parties to the suit, neither traversable in pleading, nor liable to contradiction by a motion to set it aside, or in any other form of procedure,.but an action against the sheriff.
    All the reasons that, forbid any question of the truth of the return in the courts of law, equally forbid it in the courts of equity. In fact, the equitable discretion exercised by courts of law in the modern practice of motions would be quite competent to administer relief, if the case were relievable on the principles of equity.
    The decisions of the courts of law are therefore conclusive against relief in the courts of equity.
    The sheriff’s return of rescous on mesne process is conclusive against the party charged, — equivalent to a conviction; he -is not put upon interrogatories, because he cannot traverse the return, and the fine is summarily imposed. Rex v. Elkins, 4 Burr. 2129; Rex v. Pember, Cas. Temp. Hardw. 112. So, on sci. fa. against terre-tenants, the return of sci. feci.- A. B., tenant of one messuage, &c., is conclusive, and he cannot plead non-tenure. Flud v. Pennington, Cro. Eliz. 872; Whitrong v. Blaney, 2 Mod. 10; Barr v. Satchell, 2 Str. 813. Though a strong case of collusion and. fraud betwéén sheriff and defendant be made out, the return of non est inventus is conclusive on plaintiff. Goubot v. De Crouy, 3 Tyrwhitt, 906; S. C., 1 Cromp. & Mees. 772. See Harrington v. Taylor, 15 East, 378; Lofft's Rep. 371.
   •Mi. Justice GRIER

delivered the opinion of the court.

The appellant, Humphreys, who was complainant below, filed his bill against the defendants, praying an injunction against the ssuing of an execution on a judgment they had obtained against him at law.

His bill sets forth, that he was one of the sureties of Richard Bland., late sheriff of Claiborne County, - in his official- bond. That in March, 1839, the .present defendants instituted a suit on the bond against Bland and his sureties, on which the Circuit Court rendered a judgment in favor of. the defendants. The cause was removed to this court by writ of error, where the judgment of the Circuit Court was reversed, and the case remanded to the Circuit Court, with directions to enter judgr xnent against Humphreys, the surviving surety. This was in-February, 1845. In the mean while, at May term, 1840, judgments were entered in the State Circuit Court of Claiborne County against the sheriff and his sureties on the same bond, and the whole amount of the penalty, collected, by levy and sale of complainant’s property.

The bill, moreover, avers, that complainant had no notice or knowledge whatsoever of the suit and proceedings against him by these defendants, till after the case was remanded by' 'this court; that the sheriff’s return of service of the writ on him was false, and made at the request of Bland, for the purpose of keeping the complainant in ignorance of .the pendency of the suit; that when the cause was remanded to the Circuit Court, he offered to plead his payment of the bond puis darrein continuance ; but the court refused to receive the plea, on the ground, that the mandate of the Supreme Court was imperative on them to enter a judgment for the plaintiff.

The defendants demurred to this bill for want of equity, and the court below sustained the demurrer, and dismissed the bill, and the complainant has appealed to this court.

Do the facts set forth in the bill, and admitted by the demurrer, entitle the complainant to the injunction prayed for?

According to the view entertained by the court of the true merits of this case, it will- be unnecessary to examine the question so much mooted on the argument, as to .the conclusiveness of the sheriff’s return, or whether equity would interfere, where a false return, has been made by the sheriff in collusion with a co-defendant, Without any fraud or fault of the plaintiff. We shall, therefore, consider the case as if the complainant had full notice of the suit at law, and the summons had been duly served on him.

The laws of Mississippi limit the liability of the sureties in the official bond of the sheriff to the amount of the penalty. Any person injured by a default of the sheriff in paying over money collected by him may have a judgment entered on the bond for the amount due to him, on motion, without service of process, , or stay of execution. This judgment is a lien on all the personal and real property of the defendants, and has a priority over all judgments subsequently obtained.

As the officer is liable to the extent of his defaults, and the surety only to the extent of the bond, difficulties will, no doubt, often occur as to the mode in which sureties may defend themselves, when judgments are demanded exceeding the aruount of the penalty. If the prior judgments should be paid out ..of the-property of the sheriff, the sureties might wrongfully escape, if the amount of prior judgments might be pleaded against subsequent 4emands. On the contrary, if it could not, the -surety might be compelled to pay more than the amount of -his bond, unless the court should protect him in some way.

In some .States, where a similar law prevails as to suits on sheriffs’ bonds, each suitor is permitted to take a judgment on the bond. for the amount of his claim, and when the. sureties have paid in the whole amount of the penalty, all further executions are.stayed by the court, and the money apportioned to the claimants according to their respective priorities. But, whatever may be the practice of the courts of Mississippi in such cases, it is clear, that, when the surety has paid the whole penalty of his bond, he should, at some stage of the proceedings, be suffered to plead this defence to further exactions. If he has had no such opportunity before judgment, the court, on motion, should permit it to be done after judgment, and order a stay of execution. - Formerly, courts of law gave a remedy in such cases, by a writ of audita querela, — “a writ,” it is said, of a-most remedial nature, and invented lest in any case there should be an oppressive defect of justice, where a party who has a good defence is too late in making.it in the ordinary' forms of law ” ; and although it is said to be in its nature a. bill in equity, yet, in modem practice, courts of law usually afford the same remedy on motion in a summary way. The. practice-in Mississippi seems to prefer a bill in equity for the same purpose.

And courts of equity usually grant a remedy by injunction against a judgment at law, upon the same principles. In Truly v. Wanzer, 5 Howard, 142, this court say, — “ It may be stated as a general principle with regard to injunctions after a judgment at law, that any fact which proves it to be against conscience to execute such judgment, and of which the party. could not have avaded himself in a court of law, or of which" he might have availed himself at law, but was prevented by fraud or accident, unmixed- .with any fault or negligence in himself or his agents, will authorize a court of equity to interfere by injunction to restrain the adverse party from availing himself of such judgment.” (See also -Story, Bq. Jur. § 887.)

In the case before us, the surety had been compelled to pay the whole amount of his bond by process from the State courts, before the present defendants obtained their judgment against him, but after the institution of their suit. This would have been a good defenc.e to the action if pleaded puis darrein continuance. The complainant tendered this plea, at the proper time, and was refused the benefit of it, not because it was adjudged insufficient as a defence, but because the court considered they had no discretion to allow it. The mandate from this court was, probably, made without reference to the possible Consequences that might flow from it. At all events, it operated unjustly, by precluding the complainant from an opportunity of making a just and legal defence to the action. The payment was made while the cause was pending here. The party was guilty of no laches, but lost the benefit of his defence, by an accident over which he had no control. He is, therefore, in • the same condition as if the defence had arisen after judgment, which Would entitle him to relief by audita querela, ox a bill in equity for an injunction.

. We are of opinion, therefore, that the complainant was entitled td the relief prayed for in his bill, and that the decree of the court below should he reversed.

Order.

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