author: Mr. Justice CATRON

text:
    Francis Surgett, Appellant, v. Peter M. Lapice and Edward Whittlesey.
    Where an “ action of jactitation ” or “ slander of title ” was brought in a State court of Louisiana and removed into the Circuit Court of the United States by the defendant, who was a citizen of Mississippi (the persons who brought the action being in possession of the land under a legal title), and the defendant pleaded in reconvention, setting up an equitable title, and the court below decreed against the defendant, it was proper for him to bring the case to this court by appeal, and not by writ of error.
    This case distinguished from that of the United States v. King, 3d and 7th Howard, 773 and 844.
    Before the transfer of Louisiana to the United States, the Spanish government was accustomed to grant lands fronting on the Mississippi Biver, and reserve the lands behind those thus granted for the use of the front proprietors, who had always a right of preemption to them.
    After the transfer, Congress recognized this right of preemption by several laws.
    In 1832, Congress passed an act (4 Stat. atLarge, 534) giving to the proprietors of any tracts bordering on a river, creek, bayou, or water-course, the right of preference in the purchase of any vacant tract of land adjacent to and back of his own tract, provided that the right of preemption should not extend so far in depth as to include lands fit for cultivation bordering on another river, creek, bayou, or watercourse, and provided that all notices of claims shall be entered, and the money •paid thereon, at least three weeks before such period as may be designated by the President of the United States for the public sale of the lands in the township.
    This last proviso cannot be construed to apply to a township where the lands had already been exposed to sale by order of the President in 1829. The act having been passed in 1832, a compliance with it was impossible, and it must, therefore, be construed as applying prospectively to those lands which had not been exposed to public sale.
    The first proviso related only to a river, creek, bayou, or water-course which was a navigable stream. The bayou in question was not so, as is shown by the evidence • in the ease, and also by the fact that the sections of land, as laid out by the public surveyor, cross it. When the surveyor comes to navigable streams, he bounds nnon the shore, and makes fractional sections.

      In order to bring land within the exception, it must be 'fit for cultivation, and also border on another river, &e. The two circumstances are coupled together, and both must concur, or else the exception does not apply.
    This was an appeal from the Circuit Court of the United States, for the District of Louisiana. ■
    It was a possessory action in the sense of the Code of Practice of that State, originally commenced by Lapice and Whittlesey, in the Ninth District Court of the State of Louisiana, in and for the parish of Concordia, against Surgett, who was a citizen and resident of the State of Mississippi; and at whose request it was removed into the Circuit Court of the United States.
    On the 21st of November, 1829, Surgett purchased several lots, from number 28 to number 35 inclusive, in township 5, range 9, east, in the Ouachita district in Louisiana, which lots fronted on the Mississippi River.
    On the third Monday of November, 1829, the President of the United States issued a proclamation, offering the public lands in this township for sale.
    On the 15th of June, 1832, Congress passed an act (4 Stat". at Large, 534), entitled “ An act to authorize the inhabitants of the State of Louisiana to enter the back lands.” This act provided that every person who, by virtue of any title derived from the United States, owns a tract of land bordering on any river, creek, bayou, or water-course, in the said territory, and not exceeding in depth forty arpens, 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 arpens, 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 State, &.c., <fcc. 1. 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 or 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 State, the time of his delivering the notice aforesaid being considered as the date of the purchase. 2. Provided, also, that all notices of claims shall be entered, and the money paid thereon, at least three weeks before such period as may be designated by the President of the United States, for the public sale of the lartds in the township in which such claims may be situated, and all claims not so entered shall be liable to be sold as other public lands, &c. And if any such person shall fail to deliver such notice within the said period of three years, or to make such 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 State.
    On the 14th of July, 1834, a part of the land lying back of the lots owned by Surgett was entered at the land office by Whittlesey and one Sparrow, whose interest was afterwards purchased by Lapice.
    On the 24th of February, 1835, Congress passed another act (4 Stat. at Large, 753), extending the time given by the former act to one year from the 15th of June next.
    On the 17th of March, 1836, Whittlesey entered the remaining portion of the lands back of Surgett’s lots.
    On the 20th of May, 1836, Surgett made application to enter the lands in controversy, which had been taken up by Whittlesey and Sparrow, and by Whittlesey. At the same time, he made a tender of the purchase-money-, which was refused by the receiver, in consequence of the following indorsement upon the application by the register : —-
    “ By reference to the official township map, it will be seen that the land "called for in the above application is such as is exempted from the right of back concession (so called) by the first proviso of the act under which the applicant claims, which reads, (‘meaning the right to the back land,’) shall not extend so far in depth as to include lands fit for cultivation bordering on another river, creek, bayou, or water-course. Now, from the evidence in this office, the land embraced in the rear of the above lots or fractional sections is fronting on another bayou, and that the same is fit for cultivation, the fact of a part being good land, above or during high-water mark, is on file herewith. Under the circumstances of the case, the land called for in part has been entered by other persons as public land, subject to private entry, and the application is rejected; so far as the action of-this office can decide, subject to the decision of the department.”
    .On the 10th of April, 1840, Lapice and Whittlesey filed a petition in the Ninth District Court of the State of Louisiana, which is known by the laws of that State as an “ action of jactitation,” or “slander of title.” The petition “shows, that one Francis Surgett, residing in Adatas county, in the State of Mississippi, has heretofore, at various times, and on divers occasions, slandered the title of your petitioners to the aforesaid tracts of land,'and still continues to do so, by giving out in speeches and otherwise, and public proclaiming, that he the said Surgett is the rightful and true owner of said tracts of land, and not'your petitioners; alleging that the said Whittlesey and .Sparrow-acquired from the United States no legal and valid right thereto, and threatening the said Sparrow and your petitioners with a suit to recover the same; that your petitioners aud the said Sparrow, while part owners, have frequently requested said Surgett to desist from the slandering their said title, or to bring suit to establish his own title thereto, if any he has; but he has refused, and still refuses, either to desist or to bring suit as requested; that said acts of the said Surgett have damaged your petitioners five hundred dollars.”
    The petition-then prays, “That, after due proceedings had, the said Surgett be ordered to set forth his title to the tracts of land described in the aforesaid petition, if any he has, and establish it contradictorily with your petitioners; that unless he produces a good title paramount to your petitioners, that judgment be rendered in their favor, quieting them in their title and possession of said land, and that the said Surgett may be for ever enjoined from setting up any claim or pretensions, to the same ; that your petitioners recover five hundred dollars damages against the said Surgett, and the costs of suit to be taxed, and for general relief in the premises, &c.”
    On the 10th of June, 1841, Surgett, being a citizen and resident of Mississippi, removed the cause to the Circuit Court of the United States for the District of Louisiana.
    On the 3d of December, 1841, Surgett filed his answer, in which he denied altogether that the petitioners had any title to the lands, but claimed that the title was in himself. The answer then proceeds thus : — “ Respondent pleads in reconvention that he himself is the true and lawful owner of so much of the said lands claimed by the plaintiffs, as are embraced in the aforesaid back concessions claimed by him, and prays- that he may be decreed to be the legal owner thereof; that the certificates granted by the commissioners of the land office to Sparrow and Whittlesey, or either of them, may be avoided and annulled; and that, if patents have already issued in their favor for said lands, the plaintiffs may be decreed to convey all their right, title, and interest, by virtue of said patents, to your respondent ; that he may be quieted in his title and possession thereof, and may recover judgment against said plaintiffs for the sum of one thousand dollars damages, sustained by him in consequence of their illegal pretensions, and for general relief in the premises.”
    Under commissions to take' testimony, thirteen witnesses were examined, as to the nature and character of the bayou called Mill Bayou, in the rear of Surgett’s lots. It is impossible to insert all this evidence.
    On the 7th of April, 1845, the Circuit Court passed the following decree: —
    “ The court, having duly considered the law and the evidence in this case, doth now order, adjudge, and decree, that the plaintiffs Lapice and. Whittlesey be quieted in their title to, and possession of, the land set forth and described in their petition, and that the defendant, Francis Surgett, be for ever enjoined from setting up any claims or pretensions to the same. It is further ordered, adjudged, and decreed, that the said defendant do pay the costs of this suit.”
    From this decree Surgett appealed to this court.
    The case was argued by Mr. Lawrence and Mr. Jones, for the appellant, and Mr. Brown and Mr. Johnson (Attorney-General), for the appellee.
    The points raised by the counsel for the respective parties were the following: —
    For the appellant.
    1; As to jurisdiction.

    A motion has been made to dismiss this case for want of jurisdiction, because (it being an action at law, and not a suit or proceeding in equity) it should have been brought here by writ of error and not by appeal.
    This was a petitory action originally commenced by the appellees in the State court of Louisiana, in the manner authorized by the laws of that State, and removed at the instance of the appellant into the Circuit Court of the United States. It is known in the Loúisiana Code as an “ action of jactitation,” or “slander of title,” and may be brought by any one having.a colorable title to, or possession of, land or other property, against any person claiming title to the same, to compel the latter to establish his title, or else to punish him for the slander. If the fact of claiming title is denied, and no title is asserted, the trial is upon that issue alone, and would undoubtedly be a trial at law. But if the fact of the supposed slander is admitted, and the defendant sets forth his title, the original action is at an end; the answer becomes the ground of another suit; the former defendant becomes the actor, the plaintiff, and the trial becomes one as to the respective titles of the parties to the thing in controversy. And.it makes no difference, according to the Louisiana practice, whether the defendant in the suit for slander commences a new suit by petition founded on his title, or whether he does it by his answer in the same suit. In either case, it is in substance a new suit and another trial. Livingston v. Hermann, 9 Martin, 656, 700, 722; Hewit v. Seaton et al., 14 Louis. 160 ; Millaudon et al. v. McDonough, 18 Louis. 106; Proctor v. Richardson et al., 11 Louis. 188.
    When, however, the answer is made the groundwork of a new suit in the Circuit Court of the United States, where the distinction between suits at law and suits in equity is established, the character of the suit will be determined by the subject-matter and the general character of the proceedings. If the controversy is one appropriate exclusively to equity jurisdiction, and if the proceedings partake mostly of the character of equity proceedings, the suit is one in equity, so far at least as to entitle it to be brought up to this court by appeal rather than by writ of error. McCollum v. Eager, .2 How. 61; Parish v. Ellis, 16 Pet. 454; Parsons v. Bedford et al., 3 Pet. 447.
    The equity jurisdiction of the courts of the United States is the same in one State as in another, and wholly independent of the local law of every State, without distinction.
    Accordingly, the extension of a common law remedy to an equitable right, by the local law. of any State, does not take away the equitable remedy proper to the courts .of the United States. 1 Story’s Equity, 57, 58; 3 Story on the Constitution, 506, 507, 644, 645, and cases there cited.
    The remedies in the courts of the United States must be at common law or in equity, not according to the practice of the State courts, but according to principles of common law or equity, as distinguished and defined in that country from which we derive our knowledge of those principles. Robinson v. Campbell, 3 Wheat. 222.
    Being a case which, upon general principles, is a peculium of equity, its jurisdiction in the Circuit Courts.,of the United States was not taken away by a law of Massachusetts giving the common law courts jurisdiction of the same matter. United States v. Howland, 4 Wheat. 115.
    By parity of reason, in Pennsylvania the legal remedy by ejectment, although extended by State law and practice to equitable titles, cannot be sustained on such title in the Circuit Court of the United States in that State; but the plaintiff must still show a paramount legal title. Swayze v. Burke, 12 Pet. 23. See Vatier v. Hinde, 7 Pet. 274 ; Golden v. Prince, 3 Wash. C. 0. 313; Pratt v. Northam, 5 Mason, 0. C. 95.
    All these principles have been extended and applied in their utmost latitude, and with additional illustrations, to Louisiana. See Livingston v. Story, 9 Pet. 655; S. C., 13 Pet. 368; Ex parte Poultney, 12 Pet. 474 ; Ex parte Myra Clarke Whitney, 13 Pet. 404.
    And see all these reviewed, and the doctrine reasserted, in Gaines et ux. v. Relf et al., 15 Pet. 9; Gordon v. Hobart, 2 Sumner, C..C. 401.
    Lastly, this court has decided, in effect, that the United States, in conferring chancery jurisdiction on the courts - in Louisiana, have imposed no foreign law on the State, nor introduced any foreign or new principle of jurisprudence. The whole innovation went no further, in that State, than' a mere change in the mode of obtaining a judicial end, for which the local law is there supposed to afford an adequate remedy in another form. Gaines et ux. v. Relf, Chew, et al., 2 How. 650.
    Although in Louisiana, as in many other of the United States, there are no distinct forums of law and equity, yet an equity jurisprudence (not materially distinguishable, either in its principles, in its practical ends, or in the means of accomplishing its ends, from that which other States have borrowéd from the equity system of England) is incorporated with the general jurisprudence of the State, and is administered by the same courts and the same remedies.
    Those remedies, in their practical forms, in their processes, and in their reach and effect, (though not precisely conformed in all respects to the rules of equity practice prescribed to the courts of the United States,) are fashioned after the same model as those of the equity side of the English Chancery styled the Forum Romanum; and are quite appropriate to all the most comprehensive heads of equity cognizable in the courts of the United States. Civil Code of Louisiana, Art. 21, 1958 to 1962, recognitions of equity eo nomine.

    Actions whereby contracts, &c., may be set aside by the active interference of the court, (over and above the universal right of defence on equitable grounds,) as effectually and extensively as by any form of procedure in any court of equity.
    C. Code, Art. 1854 to 1874, 2567 to 2578, 2634 to 2636, Lesion; 2496 to 2518, Redhibition; 1841 to 1843, Nullity resulting from Fraud ; 1876, Contracts vitiated by Fraud, &c., may be avoided either by exceptions or actions.

      Code cf Practice, Louisiana, sections treating of Petition and Citation, Art. 170 to 207; of Conservatory Acts, 208, 209.; of Sequestration, 269 to 283 ; of Injunction, 296 to 309 ; of Appearance and Answer, 316 to,329 ; of Exceptions, 330 to 346; of Interrogatories, 347 to 356 ; of Incidental Demands, 362 to 364 ; of Intervention, 389 to 394; of Parties to Suits, 1Ó1; of Amendments, 419 to 440; of Trial which is regularly on hearing before the court and only allowed by jury sub modo, 476 to 492 and 493 et seq.

    1st. The subject-matter of this suit was one of exclusive-equity jurisdiction. Surgett had an equitable title to the land in controversy, his opponents had a colorable legal title and possession. In no State, (except Pennsylvania,) where law and equity'jurisdictions are distinct, could he stand for one moment in a court of law. 'His equitable title could be asserted only in a court of equity against the legal title of his adversaries.
    2d. The forms of proceeding were more nearly allied to proceedings in chancery than to proceedings at common law. They commence by petition, in which the ground of complaint and relief sought are set forth. The defendant is ruled to answer. The answer admits, denies, or avoids the facts in the petition, or sets forth new matter upon which the defendant may recover if sustained. Interrogatories are filed. The case is heard by the court on the facts and the law, and ends by a decree. See Justice McLean’s opinion- in Parsons v. Bedford, 3 Pet. 450. '
    Now it is not incumbent on us, who appeal from these proceedings, to show that they are perfectly regular chancery proceedings in all their parts. On the contrary, we contend that they are not so, and that, on the .principles adopted by this court in Livingston v. Story, 9 Pet. 632, the decree should be reversed. All that it is incumbent on us to show is, that, whatever these proceedings may be denominated in the Louisiana State practice, and however generally they may be. used, they partake sufficiently of the character of chancery proceedings to render an appeal rather than a writ of error proper, the subject-matter being one of equity jurisdiction.
    2. As to the merits.

    On the 21st of November, 1829, Francis Surgett purchased lots 28 to 35 inclusive, in township 5, range 9 east, in the Ouachita district, Louisiana; said lots fronting on the Mississippi River.
    On the 15th of June, 1832, Congress passed, an act (4 Stat. at Large, 534), giving to the proprietors of any tracts “.bordering on any river, creek, bayou, or water-course ” in the territory, the right of preference in the purchase of any vacant tract of land adjacent to and' back of his own tract, not exceeding forty arpens, French measure, nor in quantity of land that contained in his own tract: “ Provided, 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.” The act required that, to entitle a person to its benefits, he should, within three years from the passage thereof, make application to the register and receiver, and make payment for the land. It also required, that when any public offering of the township for sale should be made under proclamation of the President, the preemptioner should, at least three weeks prior thereto, give notice of his claim.
    On the 24th of February, 1835, (4 Stat. at Large, 753,) Congress passed an act, extending the time given by the act just cited to the 15th of June, 1836.
    Before the expiration of the last-mentioned act, to wit, on the 20th of May, 1836, Mr. Surgett made application to enter the lands now in controversy, lying immediately back of his river lots, at the same time making tender of payment therefor; which application and tender were refused, on the ground that the land sought to be entered bordered on a bayou, and was fit for cultivation, was consequently subject to private entry, and had actually been entered by others. By reference to the receiver’s receipts, it will be seen that a portion of this land had been entered on the 14th of July, 1834, by Edward Sparrow and Edward Whittlesey, jointly, and the remainder by Edward Whittlesey on the 17th of March, 1836. It also appears from the petition, that P. M. Lapice, one of the appellees, had purchased the interest of Sparrow in the land.
    From this state of facts the question arises, whether the lands so entered by Sparrow and Whittlesey were subject to private entry, by reason of their being fit for cultivation and bordering on a “ bayou,” or whether, on the contrary, Mr. Surgett had not a full right of preemption to these lands, and his application ought not to have been received.
    For the appellant it will be maintained, that the decree below was erroneous, for the following reasons : —
    • 1. Because the evidence contained in the record does not show that the land in controversy bordered on any “river, creek, bayou, or water-course,” within the meaning of the act of Congress, dated 15th June, 1832.
    It is especially to be remarked, that most of the witnesses who describe this “ bayou ” as of any considerable length, depth, or width, speak of it from a single visit in the spring of the year 1828, during a freshet, and give both its width and depth as measured from the embankments that inclose it.
    It is variously described as from-1 to 2| miles long, 30 to 80 feet wide, and from 7 to 17 feet deep from the embankments. There is not a particle of evidence that it is navigable, or a perennial stream. On.the contrary, the evidence shows that for. the greater part of the year it is dry; that it is at no time a running stream, except, from overflows of the Mississippi, or heavy rains.
    This was not a “ bayou ” within the 'meaning of the law. In the Roman civil law, it is laid down, that, to constitute a river or running stream, as contradistinguished from torrents and temporary water-courses, the flow of water must be perpetual; though, if a stream which usually runs throughout the year should happen to be dried up during summer, it would not cease to be perennial, any more than a stream which usually flows only during winter would be perennial because of an extraordinary flow during summer. (Digest, lib. 43, tit. 12.)
    Again, the act of Congress speaks of a tract of land “ bordering.” on a river, &c. It is contended that a fair construction of this law does not apply it to any small and insignificant stream which may pass through a tract of land, making no difference either in the figure of the tract or the computation of its area; but that “bordering” on a stream has reference to a stream which makes one of the “ confines,” outer "edges, or exterior limits, of the tract. A “tract .of land,” as that expression is used in acts of .Congress in relation to public lands, means some legal subdivision, bounded by lines run in the mode prescribed for public surveys. So the word “ lands,” as used in this act of 1832, must mean some legal subdivisions known to the law. If, then, a stream of water should run through such “ tract of land ” or “ lands ” without constituting a “ border ” or limit to the same, it would not be within the act in question. The'law of Congress obviously had reference to such bodies of water as controlled the shape of the tract.
    Again, the history of this anomalous rñode of surveying authorized by the act of 15th June, 1832, its object, and the geographical peculiarities of the State of Louisiana, all show that the purpose of the act was to deal with something of more importance than mere swamps or drains.
    2 White’s Recopilación, 228, 235, 240, 276, 277, State papers, Public Lands, vol. 3, p. 557. Ib: 2, paragraph 2, col. paper 380, memorial of Louisiana.
    2. If there were proof in the record derived from the examination of witnesses, it would not be admissible for the purpose of showing that Surgett had not the .right to take these tracts as back preemptions, in view of the fact that the Surveyor-General (to whose discretion it was committed) had laid them out in square sections, had not noted on the official plat the existence of any such body of water as is within the meaning of the law, as he was required to .do if any such existed, but had merely indicated by a line the existence of some nameless and insignificant swamp or slough. Act March 3d, 1811, sec. 2 (2 Statutes at Large, 662).
    3. Supposing the swamp or slough described in the evidence, and delineated on the plat, to be a “ bayou ” within .the meaning of the act of Congress, still the decree of the Circuit Court was wrong, because some of the tracts "in' controversy, (lots Ño. 1 and 2 of sec. 61) did not border on this “ bayou,” taking,them even to .be entire tracts as they were surveyed and patented. (See plat A.) •
    ■ But we are not bound to treat them as entire tracts, as they have been surveyed and patented, because the law of the 15th June,.1832, (4 Stat. at Large, 534,) itself makes provision for a resurvey of the back lands, in order to enable the front pro,-prietors to avail themselv.es of the privilege of preemption. Now if these back lands were resurveyed, and the front lots extended back in the manner exhibited in plat B, not one of them (except lot 28) could be said to include lands bordering on, this “ bayou,” or through which this bayou runs, unless the bare touching at a singlé point would exclude the land back of lot 29. As to all the rest, 'they hvould be entirely clear of this “bayou.”
    4. The title which the appellees set up is not good, inasmuch as the original patents to Whittlesey and Sparrow do not cover the land in controversy, there being no such sections, under the laws of the United States, as sections numbered 58, 59, 60, and 61.
    The first law, and that which laid the foundation of the land system, was the - ordinance of 20th ,May, 1785. 1 Birchard’s Compilation, Land Laws, Opinions, <fcc., p. 11.
    This ordinance pointed out the mode in which the townships should be surveyed, each six miles square ; that the plats should be marked by subdivisions of one mile square, containing 640 acres, the lines thereof ‘ to b.e parallel to the ■ external' lines of the township, and numbered from 1 to 36, beginning each succeeding range of the lots with the number next to that with which the preceding one concluded; and where a fractional township should be surveyed, the lots protracted thereon should bear the same numbers as if the township had been entire.

      The 2d séction of the act of 18th May, 1796, (1 Stat. at Large, 467, 468,) prescribes the precise manner in which the sections in townships shall be numbered, beginning with the number one in the northeast section, and proceeding east and west, alternately, through the townships, with progressive numbers, till the thirty-sixth be completed.
    The 10th section of the act of 3d March, 1803, (2 Stat. at Large, 233,) made it the duty of the surveyor, appointed to survey the lands south of Tennessee, to cause the same to be surveyed, as far as was practicable, into townships, and subdivided in the manner authorized and directed in relation to lands lying northwest of the River Ohio.
    The 7th section of the act of 2d March, 1805, (2 Stat. at Large, 329,) extends the powers of the surveyor of lands south of Tennessee over the Territory of Orleans, and directs him to survey and divide the lands thereof in the same manner, (as near as the nature of the country will admit,) as the lands northwest of the River Ohio.
    Thus far the mode of surveying and numbering was uniform and precisely marked out. The section at the northeast corner of every township was to be numbered one, and all the other sections were to be numbered in regular progression from right to left, and left to right, alternately, to the thirty-sixth, which would always and of necessity be the southeast section of the township.
    The 2d section of the act of 3d March, 1811, (2 Stat. at Large, 662,) authorized a different mode of surveying those lands which lay on rivers, creeks, &c., but did not authorize any change in the other portions of the townships, and such has been the construction of the land office. See 2 Birchard’s Comp. 495; Brown’s Lessee v. Clements, 3 How. 650; Jourdan et al. v. Barrett et al., 4 How. 169.
    5. As to the objection made by the judge of the Circuit Court, namely, that the act of 1832 was not applicable to lands which had at that time been already offered for sale, it is submitted, —
    1st. That the enacting portion of the law is of the most general and comprehensive character.
    2d. That the proviso, requiring a notice of claim to be filed three weeks before offering of the land at public sale, was not intended as an exclusion of lands which had been already offered from the operation of the law, but simply as a facility for ascertaining before any public sale what lands tvere claimed as back preemptions, and what were not, so that it could be known beforehand what lands were legally subject to sale and what were not. This reason not applying to lands already offered at the date ’ of the act, the proviso requiring three weeks notice did not apply to them. All the preemption laws contain a similar proviso. Such was the construction of the land office. 2 Birchard’s Compilation, 573.
    The enacting clause applied to all public unappropriated land. The proviso in question was applicable only to such lands as had not been offered.
    If this be so, then Mr. Surgett had a right, under the act of 16th June, 1832, at any time prior to the 16th of June, 1835, to file his application to enter the land in controversy.
    This right having been extended to the 16th of June, 1836, by the act of 24th February, 1835, (4 Stat. at Large, 753,) Mr. Surgett, having made, his application on the 20th of May, 1836, was consequently within the time prescribed by law, and his application ought to have been admitted.
    Points on the part of the appellees.
    1. That this cause involves legal rights, for which a plain and adequate remedy is provided by the ordinary process of the common law.
    2. That the character of this action, which is essentially an action at law, is not, and could not be, changed by the laws of Louisiana into a proceeding in equity, in the United States Circuit Court in Louisiana, or in this court.
    3. That this cause was tried in the Circuit Court as a court of law, and not according to the forms of a court of equity.
    4. And as a consequence of the above propositions, the appellees will contend, that, this being a cause at common law, should have been brought up to this court by writ of error, and not by appeal, and that this appeal should be dismissed.
    5. At the trial below, and after it had commenced, the appellant applied for a continuance of the cause, which was refused by the court. To this refusal the appellant excepted. The appellees will contend that the court decided correctly in refusing the continuance, and that such á refusal is not a ground for an exception or appeal.
    6. The appellees will contend that the diagram marked B, offered in evidence by the appellant, and mentioned in the second bill of exceptions, was rightly rejected by the court.
    7. That there is no error in the opinion of the court in the third bill of exceptions.
    8. That the only questions open on this appeal are those raised by the bills of exception.
    9. That the appellant, not having shown that he had any title to the sections 28, 29, 30, 31, 32, and 33, at the time (to wit, the 26th of May, 1836)’when he claimed to purchase the property in dispute from the register of the land office, as back concessions to said sections, and not having shown that he acquired any title to said sections until the 15th of June, 1837, his application was rightly rejected by the register of the land office. $
    10. That the application of the appellant to purchase the back concessions, being indefinite, and not showing the extent of the land which he claimed to purchase, was not such as is required b^ law, and was rightly rejected by the register.
    11. That the right to purchase back concessions is confined to owners of front tracts which do not exceed forty arpens, French measure, in depth, and the appellant, not having shown what is the depth of his front tract, has not established his right to any back concessions.
    12. That the register of the land office, having decided against the claim of the appellant, his decision is conclusive, so far, at least, as this case is concerned, or, if not conclusive, is correct.
    14.That the appellant did not, at the time of his application, make payment or a legal tender for the back concessions claimed by him.
    14. That the land in controversy is fit for cultivation, and borders on the Mill Bayou, which is sufficiently large and deep to drain the adjoining country, and render it fit for cultivation, and that said land therefore cannot be claimed as a back concession.
    15. That the land in controversy was offered at public sale, in pursuance of a proclamation of the President, on the third Monday of November, 1829, and was therefore not liable to be claimed as a back concession.
    Additional point of the appellees: —
    16. A part of the land in question, was purchased by the appellees, or those under whom they claim, on the 14th of July, 1834. They will therefore contend, that they had obtained a vested title thereto at the time of the passage of the act of 24th February, 1835, ch. 24, (4 Stat. at Large, 753,) which could not be divested by the application of the appellant made on the 20th of May, 1836.
    See Thompson v. Schlatter, 13 La. R. 119, and Act of 15th June, 1832, ch. 140 (4 Stat. at Large, 534); 2 Birchard’s Land Laws, 727.
    The appellees will cite the following authorities in support of the first fifteen points made by them: —

      On the 1st'point. 1 Starkie on Slander (2d Am. ed.), marginal pages 2 and 191.'
    On the 2d point. Livingston v. Herman, 9 Martin, (La.) 713; 2 Cond. R. 40; Thompson v. Schlatter, 13 La. R.119; Mc-Donogh v. Millaudon, 3 How. 693; U. S. v. King, 3 How. 773; Code of Practice of La., p. 8, art. 30, p. 90.,art. 374, p. 10, art. 41 and -43, p. 12, art., 44; Tidal v. Duplamier, 7 La. R. 45 (8 N. S. 105); Poultney v. Cecil, 8 La. R. 422; 7 How. 846; Constitution of U. S., art. 3, sec. 2, and art. 7 of Amendments; Act of Congress of 24th Sept., 1789, ch. 20, sec. 16 (1 Stat. at Large, 82); Act of 26th May, 1824, ch. 181, sec. 1 (4 Stat. at Large, 62); Parsons v. Bedford, 3 Pet. 433, 446; Livingston v. Story, 9 Pet. 632; Minor v. Tillotson, 2 How. 392; Phillips v. Preston, 5 How. 278, 289.
    On the 3d point. Act of 24th Sept., 1789, ch. 20, sec. 12 (1 Stat. at Large, 79); Stat. of 13 Ed. I., ch. 31; 1 Saund. PI. and Ev. 317 and 318; Mayhew v. Soper, 10 Gill & Johns. 366; Phillips v. Preston, 5 How. 278, 289.
    On the 4th point. Act of 24th Sept., 1789, ch. 20, sec. 22 (1 Stat. at Large, 84); Act of 3d March, 1803, ch. 93, sec. 2 (2 Stat. at Large, 244); San Pedro, 2 Wheat. 132; Ward v. Gregory, 7 Pet. 633; Parish v. Ellis, 16 Pet. 451.
    On the 5th point. Sims v. Hundley, 6 How7. 1; 2 Chit. Gen. Pr. 572; Mellish v. Richardson, 9 Bing. 126 (23 E. C. L. R. 276).'
    On the 6th point. Act of 18th May, 1796, ch. 29, sec. 2 (1 Stat. at Large, 464); Act of 3d March, 1803, ch. 40, sec. 10 (2 Stat. at Large, 244); Act of 3d March, 1831, ch. 116, sec. 5 (4 Stat. at Large, 493); 1 Greenleaf’s Ev., 2d ed., >§>>§> 501, 502.
    On the 7th point. The acts cited under the 6th point, and I Greenleaf’s Ev., §§ 440, 441.
    On the 8th point. 38th Rule of Court; Armstrong v. Toler, II Wheat. 277; Pennock v. Dialogue, 2 Pet. 15; Carver v. Astor, 4 Pet. 1; Ex parte Martha Bradstreet, 4 Pet. 102; Magniac v. Thompson, 7 Pet. 348; Gregg v. Lessee of Sáyre and wife, 8 Pet. 244; Act of 24th April, 1820, sec. 2; Act of 10th May, 1800, sec. 7.
    On the 9th, 10th, and 11th points. Act of 15th June, 1832, ch. 140 (4 Stat. at Large, 534).
    On the 10th point, also, 9 La. R. 57.
    On the 12th point. Act of 15th June, 1832, ch. 140 (4 Stat. at Large, 534), and act of 24th Feb., 1835, ch. 24 (4 Stat. at Large, 753). The appellants will also rely on the decision of the Secretary of the Treasury affirming the decision of the register of the land office in this case, and will cite the decisión of the Secretary of the Treasury on the 18th of March,' 1839, in the case, of Robert Ford and others.. Bagnell v. Broderick, 13 Pet. 450.
    On the 13th point. Act of 15th June, 1832, ch. 140 (4 Stat. at Large, 534).
    On the 14th point. Act of 3d March, 1811, ch. 46, sec. 5 and 10 (2 Stat. at Large, 663, 665); Act of 15th June, 1832, ch. 140 ('4 Stat. at Large, 534); Act of 24th April, 1820, ch. 51, sec. 3 (3 S't'at'.' at Large, 566).
    On the 15th point. The same acts referred to in the preceding point, and Thompson v. Schlatter, 13 La. R. 119.
    17th. The appellees will- also contend that the petitory action instituted by the appellant i'n this case cannot be maintained on the equitable title set up by him. United States v. King, 7 How. 846; S. O., 3 How. 773.
    Authorities cited by the counsel for the appellants, in reply.
    The following acts of Congress were cited in reply to the twelfth point in the brief of the appellees, to show that, in those preemption laws where the decision of the register and receiver has been treated as conclusive, the power of decision has been expressly given to the registers and receivers to determine the fact of occupancy and cultivation, without any appeal from their decision.
    Act of 31st March, 1808, sec. 2 (2 Stat. at Large, 480). Act. of 29th May, 1830, (4 Stat. ,at Large, 420,) upon which the language of the court in Wilcox v. Jackson, 13 Pet. 498, was founded. Act of 22d June, 1838, (5 Stat. at Large, 251,) which was a continuation of the last-cited act. Act of 19th June, 1834 (4 Stat. at Large, 678); also a continuation of the act of 1830. Act of 4th Sept., 1841, sec. 11 (5 Stat. at Large, 456).
    In the laws granting back preemptions in Louisiana, there is no power of determination given to the register and receiver.
    The Circular issued from the Treasury Department, June 19th, 1801, (2 Birchard’s Compilation, 226,) will be cited to show that the abstract on page 53 and the extract from the Sales-book, page 54, of the record, were required by the instructions from' the General Land Office, and properly offered in evidence.
    Also, Commissioner’s Instructions to Register, New Orleans, ¡fee., 2 Birchard’s Comp., 374. Mr. Haywood to Registers and Receivers, 2 ib. 465. Circular to Registers and Receivers, June 15, 1821 (2 ib. 314). And especially the Circular of 7th June, 1S20, under the cash system. (Certified copy from General Land Office.)

      The letter of Land Commissioner to Registers and Receivers in Louisiana, in relation to the Act of 15th June, 1832, will be referred to. 2 Birchard’s Comp., 573.
    Reference is also made to the last paragraph of the Circular of 5th September, 1821, (2 Birchard’s Comp., p. 356,) to show that the certificates of the register and the receiver’s receipts were to bear the same numbers, and were to be issued in áll instances in regular numerical order.
   Mr. Justice CATRON

delivered the opinion of the court.

1. On the facts appearing in the record, a motion was made to dismiss the suit for want of jurisdiction, because it was brought here by appeal, .wdiich brings before the revising court all the evidence; whereas, had a writ of error been brought, such parts of the evidence only could have been considered as were presented by bills of exception. This motion has been held up for a length of time, and is now considered with the merits, and the inquiry standing in advance of the merits is,, whether the appeal shall be dismissed. The suit was commenced in a State District Court according to a prescribed form of practice in Louisiana, and removed by the defendant from the State court to the Circuit Court of the United States, where the same mode of pleading and practice was necessarily pursued that would have been, had the cause continued in the State court, and been there adjudged; it therefore comes here as an anomalous case.

The proceeding was commenced by Lapice and Whittlesey; they asked to have .a cloud removed from their title, which they alleged was embarrassed by a pretended and illegal claim' of Surgett to a back concession, of anterior date to their title, and for the same land. Surgett came in, and set forth his' claim; it was purely equitable in its character, in the sense of the term. equity,” as denominated in the Constitution and acts of Congress; this claim Surgett, (by a petition in his' answer,) by way of reconvention, asked to have enforced against Lapice and Whittlesey. He thereby became complainant. The character of Lapice and Whittlesey’s title is not in controversy; both sides admit that it is a legal and valid title on its face, and as against the United States indisputable; but Surgett sets up a right of preference to entry of the same land at the time when the entries were made under which Lapice and Whittlesey claim, and the question is, how was the Circuit Court to deal with the matter when an appeal or writ of error was demanded, as the one or the other the judge was compelled to allow; he was called on for a decree by each party, as on bill and cross-bill in an ordinary chancery proceeding, and did decree that Lapice and Whittlesey should be quieted in their title to, and possesion of, the land in controversy, and that Surgett should be for ever enjoined from setting up any claim or pretension to the same; and so he might have decreed the other way; and although, by the laws of Louisiana, a jury might have been called in a State court to aid in ascertaining the facts, yet as none' was required by the parties in the Circuit Court, and the cause was heard by the court alone, and a decree rendered, we think the mere fact that a State court might employ a jury does not affect the character of the proceedings actually had in the Circuit Court. In other States, juries are frequently employed by the chancellors when hearing causes, as in Kentucky, where it is required by a statute; yet if an ordinary suit in equity was removed from a State court to the Circuit Court (Unjted States), in a district where, by the State statutes, a jury was required to find contested facts; still the Circuit Court would not be required to resort to a jury, nor could it do so. And we take occasion here to say, that, had the Circuit Court submitted the cause to a jury in this instance, we should have deemed it improper, although demanded by either side. Our opinion, therefore, is, that there was litigated in the Circuit Court a mere equitable title, in a form impressed on the proceeding in a State court, and a decree pronounced as a court of equity would have done in a regular course of proceeding in chancery; and that the merits of the cause could only be reviewed on appeal.

But as several cases have been dismissed from this court because they were brought here by appeal instead of a writ of error, it 'is insisted that this rests on. the same grounds of those that have been dismissed, and the case of the United States v. King (3 and 7 How. 773 and 844) has been much relied on to show that this cause cannot be brought here by appeal. But that was not an action of title to quiet the plaintiff in possession of his land, but was a petitory action brought by the United States to recover land which was in the possession of the defendant, and to which the United States claimed a legal title. The suit was in the nature of an ejectment in a court of common law, and was therefore strictly an action at law, and in no respect analogous to a proceeding in equity to remove a cloud from the title of a party who not only holds the legal title, but is also actually in possession of the land in dispute; and as the United States cannot be sued in reconvention, if the defendant had claimed an equitable title in that case, it would have been no defence, because he could not make the United States a defendant, and himself a plaintiff, by a suit in reconvention. The whole proceedings were necessarily proceedings at law, and could therefore be removed by writ of error only, and not by appeal. And substantially of the same character were all. the cases relied on by counsel to dismiss this appeal; none of them resembled the case before us in any material degree, — certainly not enough to govern it, — and the jurisdiction is consequently sustained.

•2. We come in the next place to discuss the merits ; and here some general considerations present themselves. Ou the first settlement of Lower Louisiana, the nature of the country imposed on the governments who successively held it a peculiar policy in granting land to individual proprietors ; the Mississippi River overflowed its banks annually, and to overcome this impediment to cultivation, and to’ reclaim the back lands, heavy embankments had to be thrown up on the sides of the river, so as to keep the water at flood-tide within the channel ; and these embankments had to be connected and continuous for a gre_at distance, otherwise the' whole country would be submerged ; and the king’s domain was resorted toms a means of securing the country from overflow, aird of reclaiming it to a great extent; and individual proprietors-were relied on to do that which, in other countries at all similarly situated, was a great national work: and it is matter of surprise how much the policy accomplished with such feeble, and questionable means. The grants were not large, find fronted on the river only to the extent of from two to eight arpens as a general rule, and almost uniformly extended' forty arpens back; to these front gi-ants the Spanish government reserved the back lands, to another depth of forty arpens; and although few if any grants were made of back lands in favor of front proprietors, still they were never granted by the Spanish government to any other proprietor, but used for the purpose of obtaining fuel and for pasturage by the front owners, so that, for all practical purposes, they were the beneficial proprietors; — subject to the policy of levees, and of guarded protection to front owners. We took possession of Lower Louisiana in 1804. In 1805, commissioners were appointed, according to an act of Congress, to report on the French and Spanish claims in that section of country, and by the act of April 21st, 1806, it was made a part of their duty to inquire into the nature and extent of the claims which may arise from a right, or supposed right, to a double or additional concession on the back of grants or concessions heretofore made,” previous to the transfer of government, “and to make a special report thereon'to the Secretary of the Treasury, which report shall be by him laid before Congress, at their next ensuing session. And the lands which may be embraced by such report shall not be otherwise disposed of, until a decision of Congress shall have been had thereoii.”

. The commissioners were engaged nearly six years in the various and complicated duties imposed on them, and then reported, that, by the laws and usages of the Spanish government, no front proprietor by his own act could acquire a right to land farther back than the ordinary depth of forty arpens, and although that government 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 they rejected claims for the second depth, as not having passed as private property to the front proprietor under the stipulations of the treaty by which Louisiana was acquired. As by the Spanish policy and usages the front owner had reserved to him a preference to become the purchaser of the second depth, Congress by the fifth section-of the act of March 3, 1811, provided that every person who “ owns a tract of land bordering on any river, creek, bayou, or water-course,” in the Territory of Orleans, “ and not exceeding' in depth forty arpens, 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 arpens, 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 inasmuch as the country had not to any material extent been prepared for sale in the ordinary mode by public surveys, it was made the duty of the principal deputy surveyor of each of the two districts in the Orleans Territory, to cause to be surveyed the preference rights claimed under the act; and where, by reason of bends in the river, bayou, creek, or water-course on which a front tract bordered, and where there were similarly situated tracts, so that each claimant could not obtain a quantity equal to his front grant, it was made the duty of the surveyor to divide the vacant land between the several claimants in such manner as to him might appear most equitable. To gratify preemption claims secured by the act, no township surveys in advance of an entry were contemplated, as they could not be regarded did they exist; and as the act was limited to three years’ duration, little of the country was likely to be surveyed before the time for making entries expired. By the seventh section of the act of May 11, 1820, the fifth section of the act of March 3, 1811, was renewed, and continued in force until May 11, 1822: and by the'Set of June 15, 1832, the act of 1811 was again renewed for three years, with some slight amendments; and by the act of February 24, 1S35, the time was further extended to June 15, 1836.

The township where the land in dispute is situated was offered for sale, according to the President’s proclamation, in November, 1829 ; and as Surgett first offered to make his entry in 1836, it is insisted that, after the lands in the township were offered at public sale, no entry founded on a preference right was allowable at the land office ; and such was the opinion of the court below, and is one of the reasons assigned for rejecting Surgett’s claim. The act of 1S32 provides, that the claimant shall deliver his notice of claim to the register of the proper land office, stating the extent and situation of the tract he wishes to purchase, and shall make payment; but it has this proviso, — that all notices of claim shall be entered, and the money he paid thereon, at least three weeks before such period as may be designated by the proclamation of the President for the sale of the public lands in the township where such claim may be situated; and- all claims not so entered shall be liable to be sold as other public lands. The proviso was an exception to a general law giving a right of entry; it was prospective, having reference to future public sales, and not to lands that had' been previously offered, and remained unsold ; Surgett could not comply with the condition, nor had it any application to such a case as his claim presents.

The manifest object of Congress was to disembarrass public sales by barring preference rights that would be a cloud on the-title of lands thus offered.

The foregoing construction being tin* one adopted by the departments of public lauds soon aftet tin act of 1832 went into operation, we should feel ourselves restrained, unless the error of construction was plainly manifest, from disturbing the practice prescribed by the Commission!-: of the General Land Office, acting in accordance with the opinion of the Attorney-General, and which had the sanction of the Secretary of the Treasury and of the President of the United States.

The court below rejected SurgctCs claim to enter the back land on another ground. The acts of -Congress securing the preference contain an exception,— 'Ghat the right of preemption shall not extend so far in dc” s-i a-i ¡o include lands fit for cultivation bordering on another river, creek, bayou, or watercourse.” And the question is, To what' description of watercourse did the legislature refer? The enacting clause provides that every person who owns a tract of land “bordering” on any river, creek, bayou, or water-course, shall have the right of preemption to the back land. The act of 1811 has been construed, in the department of public lands, for nearly forty years, to mean that those owner¿-whose lands fronted on a navigable stream were only provided for; and that the word “border,” both in the enacting clause and in the exception, meant to front on a navigable water-course; that -is to say, such waters as are described in the third section of the act of February 20, 1811, by which Louisiana was authorized to form a State constitution and government, by which act the River Mississippi, and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, were declared to be common highways, and for ever free, as well to the inhabitants of the said State, as to other citizens of the United States.

Similar provisions as respects navigable waters are common to other States where there are public lands, aud the practice has been uniform to survey and sell the lands “ bordering ” on navigable streams as fractional sections; nor is the channel ever sold to a private owner. Of necessity, it had to be left almost exclusively to the department of lauds executing the public surveys to ascertain what stream was navigable, and should be bordered by fractions and reserved from sale; and, on the other hand, what waters were not navigable, and should be included in square sections, and the channel sold. The registers and receivers were bound by recorded returns of the surveyors, (as a concluded fact,) to- sell according to the surveys, nor could the register and receiver be allowed to hear evidence contradicting the surveys, as to-whether the waters included by them were or were not navigable. Subject to this state of the law, Surgett offered (20th May, 1S36) to enter the back land to front numbers 2S, 29, 30, 31, 32, and 33 ; making 989y-|}o- acres, which lots adjoin, and were included in one patent, together with two other lots, Nos. 3-1 and 35, also adjoining on the south, to which he did not claim any back laud ; that is to say, ho claimed 989x'j-u- acres as a back concession to a patent of l,30Sr-fro acres, so as to extend the six lots first named ; and if neither the bayou, nor the existence of previous entries, stood in the way, he had a clear right to enter. Sparrow and Whittlesey’s entries were in part fractions, not, however, produced by having bordered on a stream, but because they adjoined front lots on the Mississippi River not surveyed in squares, but according to the second section of the act of March 3, 1811.

In surveying township number five, the Mill Bayou was entirely disregarded, and the surveys of sections and quarter-sections were made in rectangular figures, and laid down and sold across that water, the channel of which was granted in part to Sparrow and Whittlesey, and in part to others. According to the rules, therefore, by which the register and receiver were governed, they had no right to refuse Surgett’s entry for the reason that the land bordered on another navigable stream.

How far the powers of. the court below extended to contradict the public surveys and records of the land office, we refrain from discussing in this case,-as the parties on the one side and on the other affirmatively appealed to a court of justice to decide the fact, whether the bayou was of the description contemplated by the acts of Congress, and a water-course on which lands could front. It is between two and three miles long, and drains swamps, and a shallow pond, or rather lagoon; its greatest width is from seventy to eighty feet from bank to bank, and the channel in part is gome fifteen feet deep from the top of its banks; but at no time of the year has it any claims to be a navigable stream, being nearly dry for a greater portion of the year, having no running water, or any water in it, except stagnant pools; it is an ordinary drain of the Mississippi swamp, and of shallow ponds. Near its mouth, at the Mississippi River, there is a levee, — and so there-is one-near to the pond, at its farther end from the fiver; both levees being on lands granted to Surgett. Before the lower levee was constructed, there had been a mill for grinding erected on the bayou, which gave it the name it bears; the flow of water was then from the Mississippi River through this outlet to the swamp, in times when the river was high. But it was never fit for any purpose, as a channel through which commerce c'ould be carried on by water. The ground of defence must therefore fail, that the lands entered by Sparrow and Whittlesey bordered on a bayou, and were within the exception of the act of 1832.

The Circuit' Court also held that the back land was proved to be fit for cultivation, and being so, was excepted from the enacting clause giving a preference of entry. The exception is, “ that the right of preemption shall not extend so far in depth as to include lands fit for cultivation bordering on another river, creek, bayou, or water-course.” There is no break in the sentence, and we hold that Congress clearly intended to make a single exception, whereas the court below divided the clause cited into two exceptions; excluding a preference right, first, if a bayou, &c. intervened; and, secondly, if the land was fit for cultivation, whether there was a navigable water in its rear, or not.

We only deem it necessary on this head to say, that, from 1811 to this time, the general land office has construed the exception as being single, requiring that the back land should border on another navigable stream; and also, that it should be fit for cultivation, before the preference of entry could be denied ; and we take occasion here to declare, that, unless this uniform construction for so long a time by the land department was most manifestly wrong, we should not feel ourselves at liberty to disturb it, as, by doing so, titles might be shaken, and confusion produced.

For the reasons stated, it is ordered that the decree of the Circuit Court be reversed, and that the cause be remanded to that court, with directions to enter a decree for the plaintiff in reconvention, Surgett; and that court is directed to cause a survey to be made under its supervision, laying off the back land to lots Nos. 28, 29, 30, 31, 32, and 33, according to the practice in use in like cases in the surveyors’ offices in Louisiana. And it is further ordered, that said Surgett may be decreed to be the legal owner of said land, to the extent that the lands of said Peter M. Lapice and the heirs of Edward Whittlesey interfere with a survey legally made of said back lands; and that said Lapice and the representatives of said Whittlesey be decreed to convey to said Francis Surgett such parts of the lands included in the survey as are embraced by any of the entries or patents set forth in the original petition of said Lapice and Whittlesey ; and that said Surgett may be quieted in his title and possession of the lands hereby decreed. And it is further ordered, that said Lapice and Whittlesey’s representatives recover from said Francis Surgett after the rate of one dollar and twenty-five cents per acre, for all the land that they are deprived of by this decree, with interest on said sum after the rate of five per centum per annum from the 10th day of May, 1836, until paid; and that said amount shall be ordered to be paid forthwith into court, subject to the order of said Lapice and Whittlesey’s representatives; nor shall said decree be executed until the money is paid. And it is further ordered, that said Lapice and Whittlesey’s representatives shall pay the costs of the appeal to this court; but that the costs of the Circuit Court, which have already accrued, aud such as may hereafter accrue, shall be adjudged by the court below, on a future hearing, as law and justice may require. And it is further ordered, that in all matters that may arise in said canse, and in respect to which no special directions are given by this decree, the Circuit Court shall proceed according to the law and equity of the various matters presented, without being restrained by this decree.

Order.

This cause came on to be heard on the transcript of the record of the Circuit Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is ordered, that the decree of the Circuit Court be reversed, and that this cause be remanded to that court, with directions to enter a decree for the plaintiff in reconvention, Surgett; and that court 'shall cause a survey to be made under its direction, laying off the back land to lots Nos. 28, 29, 30, 31, 32, and 33, according to the practice in use in like cases in the surveyors’ offices in Louisiana. And it is further ordered, that said Surgett may be decreed to be the legal owner of said land, to the extent that the lands of said Peter M. Lapice and the heirs of Edward Whittlesey interfere with a survey legally made of said back lands, and that said Lagice and the representatives of said Whittlesey be decreed to convey to said Francis Surgett such parts of the lands included in the survey as are embraced by any of the entries or patents set forth in the original petition of said Lapice and Whittlesey ; and that said Surgett may be quieted in his title and possession of the lands hereby decreed. And it is further ordered, that said Lapice and Whittlesey’s representatives recover from said Francis Surgett after the rate of one dollar and twenty-five cents per acre for all the land that they are deprived of by this decree, with interest on said sum after the rate of five per centum per annum, from the 10th day of May, 1S36, until paid; and that said amount shall be ordered to be paid forthwith into court, subject to the order of said Lapice and Whittlesey’s representatives ; nor shall said decree be executed until the money is paid. And it is further ordered, that said Lapice and Whittlesev’s representatives shall pay the costs of the appeal to this court; but that the costs of the Circuit Court which have already accrued, and such as may hereafter accrue, shall be adjudged by the court below, on a future hearing, as law and justice may require. And it is further ordered, that in all matters that may arise in said cause, and in respect to which no special directions are given by this decree, the Circuit Court shall proceed according to the law and equity of the varkms matters presented, without being restrained by this decree.


source: Caselaw Access Project

author: Mr. Justice McLEAN

license: Public Domain

text:
    Asher M. Nathan, Plaintiff in error, v. The State of Louisiana.
    A tax imposed by a State upon all money or exchange brokers is not void for repugnance to the constitutional power of Congress to regulate commerce.
    Foreign bills of exchange arc instruments of commerce, it is true; but so also are the products of agriculture or manufactures, over which the taxing power of a State extends until they are separated from the general mass of'property by becoming exports.
    A State has a right to tax its own citizens for the prosecution of any particular business or profession within the State.
    Banks deal in bills of exchange, and this court has recognized the power of a State to tax banks, where there is no clause of exemption in their charters.
    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.
    On the 26th of March, 1842, the State of Louisiana passed an act to increase the revenue of the State, the ninth section of which provided that “ each and every money or exchange broker shall hereafter pay an annual tax of $ 250 to the State, in lieu of the tax heretofore imposed on them.”
    On the 3d of February, 1845, Isaac T. Preston, the Attorney-General of the State, filed a petition in the District Court of the first judicial district, stating that A. M. Nathan was justly indebted to the petitioner in the sum of $ 250, for pur■suing or having lately pursued, within the year 1843, the business of a money and exchange broker. The petition then prayed that he might be cited to appear and answer, and he condemned to pay: also that he might answer the following interrogatories under oath, viz.: —
    “ Were you a broker, as above stated, in 1843 ?
    “Did you or not receive brokerage or commissions?
    “ State clearly the nature of the same; whether received in money transactions.”
    The same process was pursued to collect the tax for 1844.
    Op the 19th of April, 1845, the two suits were consolidated and the defendant answered as follows.
    “ The defendant for answer denies generally all the allegations in the plaintiff’s petition contained. And further answering, lie says, that so much of such parts of ‘ An act to increase the revenue of the State,’ under and by virtue of which this suit is brought to recover of this defendant the tax thereby imposed upon the business of a money and exchange broker, and especially the ninth section thereof, particularly referred to in the plaintiffs petition, so far as the said section and act impose a tax on that part of the business of a money and exchange broker which consists in baying and selling exchange, the same is contrary to and in violation of so much.and such parts of the Constitution of the United States as give to Congress the exclusive power to regulate commerce, and prohibit to the States all interference with the power so granted, and forbid them to impose, without consent of Congress, any duty on imposts or exports.

      “ And so far as the said section and act impose a tax on that part of the business of a money and exchange broker which consists in buying and selling money or foreign coin, or other currency, the same is contrary to and in violation of so much and such parts of the Constitution of the United States as gives to Congress the exclusive power £to coin money, regulate the value thereof, and of foreign coin.’
    “ And so far as said section imposes a tax, not uniform in amount with other State taxes on occupations, respondent avers, that the same is contrary to so' much of the treaties, laws, and Constitution of the United States as reserve and guarantee to the inhabitants of Louisiana all the rights, advantages, and immunities of citizens of the United States, particularly that of uniform taxation; and to so much of said Constitution as reserves to the people of the several States all powers not delegated to the States respectively, or to the Union.

      “ Wherefore he prays, that the plaintiff’s demand be dismissed, with costs, and for all other and general relief which his case may require.
    (Signed,) Richard Henry Wilde,

      Defendant's Attorney.

    ££ A. K. Josephs.

      “ PI. H. Strawbridge.”
    A. M. Nathan, defendant, for answer to the interrogatories to him propounded in the above entitled suit, says: —
    ££ I was a money and exchange broker in 1843 and 1844 ; I received a brokerage or commissions on money and bills of exchange sold by my agency.
    “ I will state clearly the nature of the same. My business, like that of money and exchange brokers in general, consists exclusively in negotiating and effecting for others the purchase and sale of exchange on other States or foreign countries. During the thirty years that I have been a money and exchange broker, I believe, — nay, I am certain, — that I have never, as such, sold a single bill drawn from one point of Louisiana on another.

      “ I make myself acquainted with the current market value of exchanges. The purchasers and the sellers both resort to me for information on the state of the market of exchanges, and make me their common agent in the.purchase and sale of bills, which are purchased for the purpose of making remittances to foreign parts, and usually so remitted immediately. On and out of the price of each bill, I receive a percentage or commission, varying from one fourth to one eighth of one per cent., which is commonly paid on settlement. It is the same in money traiisactions.
    (Signed,) A. M. Nathan.”
    On the 7th of June, 1845, the District Court decreed that the State of Louisiana should recover of the defendant, A. M. Nathan, the sum of five hundred dollars, and costs of suit.
    An appeal was had to the Supreme Court of Louisiana, which, on the 15th of December, 1845, affirmed the judgment of the District Court. The defendant sued out a writ of error, and brought the case up to this court.
    It was argued by Mr. Wilde (in a printed argument), for the plaintiff in error, and Mr. Goxe, for the defendant.

      Mr. Wilde

    contended, that the law of Louisiana was repugnant to the Constitution of the United States, because it interfered with the exclusive power of Congress to regulate commerce.
    Congress has the exclusive power to regulate commerce. The power to regulate implies the power to preserve. An unlimited power to tax is a power to destroy. A State cannot have the power to impair or destroy that which Congress has the power to preserve and regulate: therefore, a State cannot tax the instruments whereby Congress exercises its constitutional powers. 4 Wheat. 428, 432.
    Exchange is a necessary instrument of commerce. 4 Wheat. 147; 13 Peters, 531, 548, 563, 606.
    The mind cannot conceive the possibility of carrying on commerce, in the present state of the world, without bills of exchange.
    A bill drawn in one State, on the citizen of another, is a foreign bill. Buckner v. Finley, 2 Peters, 586.
    The sole business of plaintiff in error, therefore, is buying and selling foreign exchange. See answer to interrogatories.
    There is not a particle of testimony that he deals in domestic exchange, or in money. The court, consequently, in adjudging against him, could only have proceeded, and did, in fact, proceed, upon the ground that, as a dealer in foreign exchange exclusively, he was subject to the tax; and that the act imposing it was constitutional.
    Now, there is no difference between taxing the article and taxing the faculty to sell it. 4 Wheat. 399; 12 Wheat. 444.
    . To tax the trade or faculty of selling bills of exchange, then, is the same thing as to tax the bills themselves.
    To tax bills of exchange is to tax a necessary instrument of commerce, and taxing that without which commerce cannot be carried on is imposing a tax on commerce, itself. It is no answer to say, that the impost is moderate, though in the present case it is, in fact, excessive, because, if the State can tax at all, it may tax indefinitely, and an indefinite power to tax is a power to destroy. 4 Wheat. 428, 432.
    Exchange is as necessary an instrument of commerce as ships or vessels.
    Could the State of Louisiana levy a tax, in the shape of a license, to every consignee or ship-broker in the city of New Orleans, prohibiting' captains of vessels, and all others, from acting as consignees without such license ?
    Would it avail the State to say, such an imposition is not a tax on commerce, nor a duty on ships and vessels, but only a license on the faculty of acting as consignee on the trade of ship-broker?
    All useful regulation does not consist in restraint or taxation. That which Congress, in the exercise of their constitutional power, think proper to leave free, is as much regulated by them, as that which they restrain or tax. 9 Wheat. 18. Were it not so, it would not be an exercise of the power to “ lay duties,” when certain goods are allowed to be imported duty free. Could a State tax the introduction of such goods?
    Where there is a repugnancy between the State power to tax, and the Federal power to preserve, regulate, and leave free, the State power must give way. If the State can tax in such a case, Congress is not supreme. 4 Wheat. 429, 432, 433.
    A State can have no concurrent power over that in regard to which the power of Congress is exclusive. What sort of concurrent powers would those be which cannot exist together? 9 WTeat. 15.
    Congress has no power of revoking State laws, as a distinct and substantive power. It legislates over subjects, and over those subjects which are within its constitutional province its legislation is supreme, and overrules all inconsistent or repugnant State legislation. 9 Wheat. 30.

      Its exclusive power to regulate commerce carries with it the power- to regulate exchange as an indispensable instrument of commerce, and the power being exclusive, a concurrent power in the State is a contradiction.

      “ Commerce in its simplest signification means an exchange of goods : but in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce; the subject, the vehicle, the agent, anti 'heir various operations, become the objects of commercial regulation.” — Mr. Justice Johnson, in Gibbons v. Ogden, 9 Wheat. 229, 230.
    Thus it has been resolved^ that a steamer employed in transporting passengers is as much engaged in commerce, as a sail vessel freighted with merchandise, and .as much exempt from State legislation obstructing her traffic. Gibbons v. Ogden, 9 Wheat. 215, 219.
    Congress have not only the exclusive power to regulate commerce, but to make all laws which shall be necessary for carrying into execution that power.
    (Mr. Wilde then proceeded to show that exchange was an essential part of commerce, and cited many decisions of this court to prove that a State could not retard, impede, or burden, by any device, the operation of the' constitutional laws enacted by Congress.)

      Mr. Coxe, for defendant in error.
    The power of taxing persons carrying on a particular business has been often exercised, and the constitutional power of the States so to act has heretofore not been questioned. In Pennsylvania, for instance, the venders of foreign merchandise are compelled to take out a license, for which they pay a sum graduated according to the amount of their business. Act of May 4, 1841; Purdon, 1153, 1154. A similar tax is imposed frequently by State legislatures, and even by the corporate authorities of cities, and is supposed to be unexceptionable as to its legality.
    The provision of the Louisiana statute, which is now called in question, is to be found in a.single section of a general revenue system act.
    It does not profess to, nor in fact does it, impose a tax upon a bill of exchange, either in the shape of a stamp duty or otherwise.
    It does not profess to, nor in fact does it, impose any restraint upon a party having funds in Louisiana, which he desires to remit abroad, from purchasing a bill of exchange as the instrument of remittance.

      It does not profess to, nor in fact does it, impose any restraint upon a party having 'funds abroad, which he desires to bring into the State, from drawing a bill of exchange or selling it at his own discretion.
    These operations are left wholly unaffected by this law. The section of the law which is objected to acts only upon' the persons employed in conducting a particular business, — the trafficking in exchange. They are not the drawers of bills of exchange, — as such, they are not taxed ; as buyers, they are not taxed ; but as dealing in them, purchasing and selling, they are. It is as their business consists in buying bills drawn by others, on which they make a profit, — as sellers of bills to others, who require them, on which they make a profit, — that they become subject to the law.
    That money and exchange brokers are a convenient machine in conducting an extensive commercial business may be true. But they are nothing more. A ship or a steamboat is not only a convenient, but an essential, means of importing foreign merchandise from abroad. Are they the less property, and taxable as such?
    Stages and other carriages are not less essentially necessary instruments for the transportation of passengers and commodities between the different States of the Union. Are they therefore exempted from taxation by the States ?
    Stores and warehouses, in which merchandise is deposited on its arrival in our country from abroad, are absolutely necessary for the transaction of commercial business. Are they therefore beyond the reach of the taxing power of the State in which this kind of property is found ?
    Mr. Hamilton (Federalist, No. 32) says : — “I am willing to allow, in its full extent, 'the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenue for the supply of their own wants; and, making this concession, I affirm that (with the single exception of duties on imports and exports) they would, under the plan of the Constitution, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the general government to abridge them in the exercise of it would be a violent assumption of power, unwarranted by any article or clause in the Constitution.”
    In this case, the law of Louisiana is not obnoxious to any of the objections which have been heretofore presented to the consideration of the court, growing out of the difficulty of giving a precise definition of the words “ imports and exports,” and “commerce,” or in drawing the almost shadowy lines which mark the boundaries of the exclusive powers of Congress. A bill of exchange is in no sense either an export or import. It is an instrument, rather than a subject of commerce. The dealing in bills of exchange constitutes no' part of the commerce with foreign nations or between the States, however convenient an instrument it may be found in conducting either. The article in which the plaintiff in error deals is a bill of exchange, originating, it may be, within the limits of the State, created and owned by a citizen of the State, and the entire negotiation of which, so far as he is concerned, conducted within the limits of the State.
    If this law is objectionable because it affects bills of exchange on the ground that they are the subjects of commerce, upon what principle, it may be asked, can the validity of those State laws be vindicated which regulate the protest of such instruments, or prescribe damages for their dishonor ? These are commercial regulations, affecting the interests of all parties to these instruments.
    Stress seems to be laid, in the argument submitted on behalf of the plaintiff in error, on the circumstance that the business of his client was exclusively confined to buying and selling bills of exchange drawn on foreign countries or upon other States. He refers to 4 Wheaton, 147, in which a learned counsel in his argument says, that the most important medium of foreign commerce is foreign bills of exchange, which are, therefore, important subjects of commercial regulation. The same gentleman, however, adds, that Congress having neglected the duty of legislating on the subject, “ the States may and do exercise it, and their rightful use of this power has been sanctioned by this court in innumerable instances.” If there was any argument in the first citation bearing upon the case at bar, the additional remark makes the authority a strong one in favor of the judgment under review. Indeed, it may be asserted as a general, if not a universal proposition, that the law on the subject of bills of exchange, whether domestic or foreign, is regulated not by Congress, but is dependent on the local law of the several States, which have adopted, with such modifications as were thought expedient, the general principles of the commercial law of Europe.
   Mr. Justice McLEAN

delivered the opinion of the court.

This suit is brought before us, by a writ of error to the Supreme Court of Louisiana.

By an act of the Legislature of Louisiana, of the 26th of March, 1842, entitled “ An act relative to the revenue of the State,” it is provided in the ninth section, that “each and every money or exchange broker shall hereafter pay an annual tax of $ 250 to the State, in lieu of the tax heretofore imposed on them.” The defendant below having failed to pay the tax for two years, a suit was 'brought against him in the District Court of the State, in which a judgment for five hundred dollars was rendered. That judgment, on an appeal to the Supreme Court of the' State, was affirmed. The defence made Was, that the sole business of the defendant was buying and selling foreign bills of exchange, which are instruments of commerce, and that the tax is repugnant to the constitutional power of Congress “ to regulate commerce with foreign nations and among the several States.”

This is not a tax on bills of exchange. Under the law, every person is free to buy or sell bills of exchange, as may be necessary in his business transactions; but he is required to pay the tax if he engage in the business of a money or an exchange broker.

The right of a State to tax its own citizens for the prosecution of any particular business or profession, within the State, has not been doubted. And we find that in every State money or exchange brokers, venders of merchandise of our own or foreign manufacture, retailers of ardent spirits, tavern-keepers, auctioneers, those who practise the learned professions, and every description of property, not exempted by law, .are taxed.

As an exchange broker, the defendant had a right to deal in every description of paper, and in every kind of money; but it seems his business was limited to foreign bills of exchange. Money is admitted to be an instrument of commerce, and so is a bill of exchange ; and upon this ground, it is insisted that a tax upon an exchange broker is a tax upon the instruments of commerce.

What is there in the products of agriculture, of mechanical ingenuity, of manufactures, which may not become the means of commerce ? And is the vender of these products exempted from State taxation, because they may be thus used ? Is a tax upon a ship, as property, which is admitted to be an instrument of commerce, prohibited to a State ? May it not tax the business of ship-building, the same as the exercise of any other mechanical art ? and also the traffic of ship-chandlers, and others, who furnish the cargo of the ship and the necessary supplies? There can be but one answer to these questions. No one can claim an exemption from a general tax on his business, within the State, on the ground that the products sold may be used in commerce.

No State can tax an export or an import as such, except under the limitations of the Constitution. But before the article becomes an export, or after it ceases to be an import, by being mingled with other property in the State, it is a subject of taxation by the State. A cotton-broker may be required to pay a tax upon his business, or by way of license, although he may buy and sell cotton for foreign exportation.

A bill of exchange is neither an export nor an import. It is not transmitted through the ordinary channels of commerce, but through the mail. It is a-note merely ordering the payment of money, which may be negotiated by indorsement, and the liability of the names that are on it depends upon certain acts to be done by the holder, when it becomes payable.

The dealer in bills of exchange requires capital and credit. He generally draws the instrument, or it is drawn at his instance, when he is desirous of purchasing it. The bill is worth more or less,' as the rate of exchange shall be between the place where it is drawn and where it is made payable. This rate is principally regulated by the expense of transporting the specie from the one place to the other, influenced somewhat by the demand and supply of specie. Now the individual who uses his money and credit in buying and selling bills of exchange, and who thereby realizes a profit, may be taxed by a State in proportion to his incpme, a§ other persons are .taxed, or in the form of a license. He is not engaged in commerce, but in supplying an instrument of commerce. He is less connected with it than the ship-builder, without whose labor foreign commerce could not be carried on.

In the case of Briscoe v. The Bank of the Commonwealth of Kentucky, 11 Peters, 257, this court held that a State has power to incorporate a bank; and this power has been exercised by every State in the Union, except where it has been prohibited by its constitution. And the banks established, it is believed, have been, without exception, authorized to deal m foreign bills of exchange. And this court held in Providence Bank v. Billings and Pitman, 4 Peters, 514, that a State had power to tax a bank, there being no clause in the charter exempting it from taxation. In the case of The Bank of Augusta v. Earle, 13 Peters, 519, it was decided that the bank established in Georgia, having a right in its charter to deal in bills of exchange, could, through its agent and the comity of Alabama, buy and sell bills in that State.

If a tax on the business of an exchange broker, who buys and sells foreign bills of exchange, be repugnant to the commercial power of the Union, all taxes on banks which deal in bills of exchange, by a State, must be equally repugnant.

The Constitution declares that no State shall impair the obligations of a contract, and there is no other limitation on State power in regard to contracts. In determining on the nature and effect of a contract, we look to the lex loci where it was made or where it was to be performed. And bills of exchange, foreign or domestic, constitute, it would seem, no exception to this rule. Some of the States have adopted the law merchant, others have not. The time within which a demand must be made on a bill, a protest entered, and notice given, and the damages to be recovered, vary with the usages and legal enactments of the different States. These laws, in various forms and in numerous cases, have been sanctioned by this court. Indorsers on a protested bill are held responsible for damages, under the law of the State where the indorsement was made. Every indorsement on a bill is a new contract, governed by the local law. Story’s Conflict of Laws, 314.

For the purposes of revenue, the Federal government has taxed bills of exchange, foreign and domestic, and promissory notes, whether issued by individuals or banks. Now the Federal government can no more regulate the commerce of a State, than a State can regulate the commerce of the Federal government ,• and domestic bills or promissory notes are as necessary to the commerce of a State, as foreign bills to the commerce of the Union. And if a tax on an exchange broker, who deals in foreign bills, be a regulation of foreign commerce, or commerce among the States, much more would a tax upon State paper, by Congress, be a tax on the commerce of a State.

The taxing power of a State is one of its attributes of sovereignty. And where there has been no compact with the Federal government, or cession of jurisdiction for the purposes specified in the Constitution, this power reaches all the property and business within the State, which are not properly denominated the means of the general government; and, as laid down by this court, it may be exercised at the discretion of the State. The only restraint is found in the responsibility of the members of the legislature to their constituents.

If this power of taxation by a State within its jurisdiction may be restricted beyond the limitations stated, on the ground that the tax may have some indirect bearing on foreign commerce, the resources of a State may be thereby essentially impaired. But State power does not rest on a basis so undefinable. Whatever exists within its territorial limits in the form of property, real or personal, with the exceptions stated, is subject to its laws; and also the numberless enterprises in which its citizens may be engaged. These are subjects of State regulation and State taxation, and there is no Federal power under the Constitution which can impair this exercise of State sovereignty.

We think the law of Louisiana- imposing the tax in question is not repugnant to any power of the Federal government, and consequently the judgment of the Supreme Court of the State is affirmed.

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 hereby, affirmed, with costs.