author: Mr. Chief Justice TANEY

text:
    John Maxwell, Administrator de bonis non of Robert Maxwell, deceased, Appellant, v. Joseph S. Kennedy, Jesse Carter, Mary L. Carter, his Wife, Daniel E. Hall and Delphine Hall, his Wife, and Martha Kennedy.
    A lapse of forty-six years is a bar to relief in equity, although the creditor, during all that time, supposed the debtor to be insolvent and not worth pursuing, where it appears that for a considerable portion of that time he was in a condition to pay, and the creditor might, by reasonable diligence, have discovered it, and recovered the money by a suit at law.
    Where, upon the case stated in the bill, the complainant is not entitled to relief by reason of lapse of time and laches on his part, the defendant may demur.
    This was an appeal from the Circuit Court of the United States for the Southern District of Alabama.
    The bill was filed in the court below by Maxwell, the appellant, against the above-named defendants, as the heirs of William E. Kennedy. Joseph and Martha Kennedy were his children, and Jesse Carter and Daniel E. Hall had married his daughters.
    As the sole question whjch came up to this court was the correctness of a judgment of the Circuit Court in sustaining a demurrer to the bill, it is only necessary to state the substance of it.
    The bill averred, that on the 10th of November, 1797, Robert Maxwell, the intestate of the complainant, recovered, a judgment in South Carolina, against William E. Kennedy, the ancestor of the present defendants. The judgment was for £1,000 sterling, and costs, £114 9s. 2d., no part of which was ever paid.
    That immediately after the rendition of the judgment, in order to avoid the service of a capias ad satisfaciendum which had been issued, and also to avoid being apprehended for the murder of the said Maxwell, for which he had been indicted, Kennedy fled from South Carolina. Two or three years after-wards he was apprehended in Georgia, brought back to South Carolina, tried and .acquitted. At this time he wag stated in the bill to have been insolvent. Immediately afterwards, he returned to Georgia, where he remained for four or five years, still insolvent, so that no effort could have been successfully made to collect the above-mentioned judgment.
    That after the expiration of that time Kennedy left Georgia, without its being known to any one in that part of South Carolina where he had gone, until 'about three years before his death, when, some time in the year 1822, it was ascertained that he was living in'Mobile. ■ That he was then residing with his brother, one Joshua Kennedy, qnd apparently dependent upon him for support. That when Kennedy went to Mobile,v it was in a foreign country, and little or no intercourse existed between it and South Carolina; nor was there for a long time after it had been ceded to the United States.' That while Florida was yet a Spanish province, viz. in the year 1806, the said Kennedy acquired an imperfect title to a considerable estate in land, of which, however, the complainant was entirely ignorant. That on the 13th of December, 1824, he conveyed this estate to his brother, Joshua Kennedy, for the consideration of $ 10,000, which, the bill averred, had never been paid.
    That it was not until after the date of this deed, that the complainant discovered that William E. Kennedy was living, and he was then wholly without property.
    That in the year 1805, he had married a female subject of the crown of Spain, who owned considerable real and personal estate ; all of which was settled upon her previously to the marriage.
    * That on the 9th of April, 1825, William E. Kennedy died. Joshua Kennedy administered upon the estate, and returned an inventory to the Orphans’ Court, amounting in value to-$267. Up to the time of Joshua’s death, which took place in 1839, he constantly represented his brother William to have died insolvent, and these representations prevented the complainant from attempting to enforce the long-standing judgment.
    That on or about the 22d of April, 1839, the heirs of the said William E. Kennedy, viz. the defendants in the present suit, filed a bill in the Court of Chancery of the First Chancery Division and Southern District of the State of Alabama, against the heirs and executors of Joshua Kennedy, and obtained a decree against them, which, on an appeal to the Supreme Court of Alabama, was confirmed. This decree adjudged that the deed of 13th December, 1824, was not made upon any consideration valuable in law, but for the purpose of securing an adequate provision for the children of the said William. It therefore further adjudged, that the heirs of William were entitled to one half of the unsold lands, and one half of the proceeds of all which had been sold.
    The bill then proceeded to aver, that a compromise had been made by the heirs and representatives of these two brothers, a discovery of which was prayed; and that, when made known, the share of the lands so conveyed to the heirs of William E. Kennedy might be held bound to satisfy the judgment obtained by the intestate of the complainant. It concluded with a general prayer for other and further relief.
    One of the exhibits attached to the bill was a copy of the decree just mentioned, in the case of Joseph S. Kennedy and others, Heirs of William E. Kennedy, Complainants, v. The Executors and Heirs of Joshua Kennedy, which decree was passed on the 28th of November, 1840.
    To the bill filed by Maxwell in the' Circuit Court of the United States against the heirs of William E. Kennedy, the defendants demurred.
    In May, 1845, the cause came up for argument upon the demurrer, when the Circuit Court sustained the demurrer and dismissed the bill.
    From that’ decree the complainant appealed to this court.
    The case was argued by Mr. Dargan and Mr. Bibb, for the appellant, and by Mr. Sherman, for the appellees.

      Mr. Dargan, for appellant.
    The only question that can be successfully raised to the bill' is the statute of limitations.
    The idea of staleness is rebutted by the allegations of the bill. On this I -will offer no remarks other than those contained in the bill itself.
    If I can overcome the statute of limitations, the decree must be reversed. And I contend that the claim is not barred, because it is not within the statute. It is not every action of debt that is barred by our statute. But, on examination, it will be found that actions of debt, founded on lease under seal, bill single, and penal bill for the payment of money only, awards under seal shall be barred, if not sued within sixteen years. See Clay’s Digest, p. 327, 4 81. And in section 82, page 327, it is enacted, that scire facias in debt on a judgment rendered in the State of Alabama shall be barred after twenty years. In neither of these sections, nor in any part of the act, is a bar created to an action of debt founded on a judgment rendered in a sister State, or a foreign country.
    I think the rule of construing statutes of limitations is well settled, and is this, — .that all actions of • debt founded on the grounds, or cause of action, named in the statute, are barred. But that a statute that bars an action of debt on a foreign judgment only would not bar an action of debt on a domestic judgment ; and vice versa,. To this distinction, Pease v. Howard, 14 Johns. 479, is a strong case. The court here say, — “ It is not every action of debt that is barred by the statute ; but those actions of debt alone, founded on the grounds named in the statute.” Hence, if a statute should bar an action of debt founded on a bond, this statute would be no bar to an action on a judgment; or if the statute created a bar to an action of debt founded on a judgment, this-act would not bar debt on a bond or lease ; nor will an action of debt founded on a statute be barred by a statute barring debt on a lease, &c. 2 Har. & McHen. 154; 1 Mason, 289.
    In 2 Saunders’s Reports, p. 64, we find this case: — Debt on award; plea, statute of limitations; and demurrer to the plea. The court held, that debt on award was named in the statute, and therefore not barred. So in 2 Mod. Rep. 212, we find: — Debt on a sheriff’s return of fieri facias. The court say, — . “ This is an action of debt founded on the breach of a legal duty as an officer of the court, and not on a contract. The statute, therefore, that bars debt on a contract,-does not embrace or bar this action, founded on breach of a legal duty.”
    This distinction is supported by so many adjudged cases, and seems to be so well founded on reason, — that is, that a bar created, by statute to debt on one' cause of action, named in the statute, does not bar debt on another or different cause of action, not named in the statute, — that I submit it with some confidence it will be sustained by the court.
    Now’courts adopt, but do not create, statutes of limitations. If a demand is not barred at law by statute, it cannot be barred in equity. If, then, there is no statutory bar, is there any other bar to a recovery ? Staleness of demand, when .the demand is clear and definite, and it has not been asserted because of acts of defendant, (in running off, covering his property, and superinducing the belief of insolvency,) I do not think will be sustained by this' court. . What circumstance is there alleged in the bill that will take away the right of recovery, in the absence of any bar by statute? It was on this ground that the decree proceeded.

      Mr. Charles E. Sherman, for defendants.
    This case presents, in a striking point of view, the wisdom of the rule of chancery as to the effect of lapse of time in barring demands. Half a century has passed away since the judgment sought to be now recovered was rendered. The. parties are long since dead, as well as those who administered-their estates. The complainant and defendants in the present suit were not born till long after the remote times spoken of in the bill, and can know nothing of what was then done. An entire generation has gone,- and with it the evidences of its transactions. In such cases, courts of chancery refuse to interfere. The bill, indeed, admits this, but relies on certain circumstances stated in it, to avoid the conclusions arising from lapse of time, and to "expuse the delay and neglect which have occurred. But from the allegations and admissions appearing on the face of the bill itself, and in the exhibits, they will not avail the complainant. The b-ill admits the fact that Dr. Kennedy’s place of residence in Georgia was known; that he was brought back to South Carolina to be tried, no,doubt at the instance of the family of Maxwell, and that he was there with an execution against him for this debt in the hands of the sheriff of the district where he was tried and acquitted. He was thus completely within the power of complainant’s predecessor for the enforcement of the execution.
    It was two or three years before he was brought back from Georgia, and when he returned there, he remained for four or five years more. Here are seven or eight years, during all which time his residence was known, and also during which he was subject to an action of debt on the judgment in the courts of Georgia, which' it was the duty of complainant’s predecessor to have brought, if he wished, to keep the debt alive. The poverty of a debtor presents no legal excuse for the failure of a creditor to take the means necessary for the preservation of his rights.
    There is no distinct or specific allegation as to the time when Dr. Kennedy left Georgia, and none that any pains whatever were taken to discover or ascertain his residence. However, it is admitted that he was discovered to be living in Mobile in 1822; and that he had'no property or means is contradicted by the complainant himself, for he admits that he had, as early as 1805, married a Spanish lady, the owner of considerable real and personal estate, which, however, he had settled upon her before marriage; and that he, Kennedy himself, had <( acquired an imperfect title to a considerable amount of real, estate.” And by turning to one of the exhibits annexed to and made a part of the bill, it will be found that, on the 6th of May, 1814, he had acquired, along with his brother, a certain Spanish grant , made to one McVoy, and in his own name two other Spanish grants, made to one Price and one Baudain. By the chancellor’s decree in the suit by his heirs against the heirs of his brother Joshua, among the exhibits, the same thing is established'. The decree also declares, that he had the reputation ' of being a physician of some eminence; that he was fond of ease, careless of wealth, and generous; and that, after the death of his wife, he went- to live with his brother, depending upon him for every thing, although he had means enough of his own. Having discovered his residence, it would have been but reasonable diligence to have taken the means to ascertain his ability to pay, and to have enforced the judgment against him.
    How-long Dr. Kennedy lived under the dominion of Spain will best be shown by a reference to the historical facts con-' nected with that part of the country where he lived. From the treaty for the cession of* Louisiana, the • United States claimed the Perdido as the eastern boundary of that cession. In 1810, Mr. Madison, by his proclamation, declared it a part of the United States. And by an act of Congress of 14th May, 1812, all that portion of country lying east of Pearl River, west of the Perdido, and south of the thirty-first degree of latitude, was annexed to the Territory of Mississippi, embracing the city of Mobile. And on the 12th of February, 1813, Congress passed an act authorizing the President to take possession of the same. In the same year, the Spanish officers finally retired. At this date, therefore, Dr. Kennedy ceased to be under the dominion of Spain, and became subject to the laws of the Territory of Mississippi, and liable to be sued in her courts. In 1817 the Territory of Alabama was created; and in. 1819 it was admitted as a State into the Union. As to the deed made by Dr. Kennedy to his brother Joshua, in 1824, the exhibits show the object for which it was made. There is no charge of fraud against Dr. Kennedy in the bill, for acting as he did. The decree of the chancellor shows the reasons and motives in which the deed originated; and that it was secret is contradicted by the same decree, which says, that, “ very soon after the deed was executed, Joshua Kennedy declared to many of those very friends whom he had consulted before, and to others at various times, that he had succeeded, in his purpose; that the Doctor had made over his property to him, and that now his, the Doctor’s, children would have plenty; that they would soon be rich.” The decree also shows, that, in the spring of 1829, Joshua caused an advertisement to be inserted in a public newspaper in: Mobile, offering for sale and lease, some of the lands, in which, speaking of the land to be leased, he states, — “At the expiration of which period, the property shall revert to the legal heirs.and representatives of William E. Kennedy deceased, and to the undersigned in equal proportions.”
    One portion of the lands conveyed by that deed — the McYoy claim — was, as appears by the deed itself, acquired by Dr. Kennedy in 1814, when, beyond all question, the country was part of the United States, and when there could*have been no impediment to the acquisition of the property by Joshua in his own name. But what is still more remarkable, the conveyance was made to the two brothers jointly. As to the other claim, the chancellor says: “ Whether Joshua Kennedy originally had any interest on the Price claim or not, does not seem to be clear from the evidence; but about the year 1818 or 1819 there seems to have been a deed of partition, which is now lost, by which an equal interest on that claim was recognized between the brothers.”
    The bill is full of contradictions. In one place it admits that Dr. Kennedy’s residence in Mobile was discovered in 1822, •whilst it says in another that it was not until after the deed of 1824. It says in one place that Joshua, who became the administrator of his brother, never settled the estate, and in consequence the personal assets remained in his hands at the time qf his death; whilst in another, exactly the contrary is stated.
    It will be observed there is no allegation in the bill, that either the complainant or his predecessor ever presented this claim to Joshua as administrator, or took any measures to enforce payment out of the personal estate, which,’ by the laws of Alabama, required to be exhausted before resort can be had to the realty. And there is no charge of fraud whatever, either against Dr. Kennedy or his heirs, but that its whole scope and tendency is to offer excuses for the delay and neglect of the complainant and his predecessor. No exemplification of the judgment was produced.
    The defendants have demurred to the bill, and under the state of facts apparent on its face and in the exhibits, it is contended that the claim .is barred by lapse of time. In South Carolina, the payment of a judgment is presumed after the lapse of twenty years. This is the common law presumption, and is the rule in most of the States of the confederacy. In the State of Alabama, the statute of limitations bars domestic judgments in twenty years. Nothing is said as to judgments of sister States. It cannot be pretended they should be placed on a better footing than domestic. The bill admits a knowledge of the residence of Dr. Kennedy for a period of seven- or eight years in Georgia, immediately after the judgment was obtained; and also a knowledge of his residence, and that of his administrator and heirs, in Alabama, from 1822; so that the complainant has’ slept upon his rights for a period of more than thirty years, even if the time during which it is alleged the residence of Dr. Kennedy was unknown is deducted. The fact, that a creditor is ignorant of the domicile of his debtor, is not regarded in the courts of the country where the debtor resides ; they make no presumptions in favor of strangers. The highest effort of legal comity is to place the stranger in the same situation as the citizen. Statutes of limitation and presumptions arising from lapse of time belong to the lex fori. The citizen of another State is not to be placed on a better footing than citizens of the State 'where suit is brought. McElmoyle v. Cohen, 13 Pet. 327.
    The well-recognized doctrine of courts of equity, as to the effect of lapse of time in barring judgments and other claims,as well in analogy to statutes of limitation as where no such statutes exist, will be found laid down in 2 Story’s Equity, § 1520; and by this court in McKnight v. Taylor, 1 Howard, 167; and in Bowman v. Wathen, Ibid. 189. See, also, Cholmondeley v. Clinton, 2 Jac. & Walk. 141, 151; Foster v. Hodgson, 19 Yes. 184, 186; Smith v. Clay, Amb. 645; Carr v. Chapman, 5 Leigh, 164; Hayes v. Goode, 7 Leigh, 452.
    The objection of lapse of time, apparent on the face of the bill, may be taken on demurrer. Story’s Eq. PL, §§ 484, 503, 751, and cases there cited. Where there is no relief, there is no discovery. McClanahan v. Davis, decided at the present term.

      Mr. Bibb, for the appellant, in reply; laid down the following propositions: —
    I. The frame of the bill, and the equity thereof, apart from the length of time or the statute of limitations.
    II. That the statute of limitations of Alabama does not apply to the case.
    III. That the length of time, when no statute of limitations can be applied as a positive bar, and when compared with the facts stated in the bill and confessed by the demurrer, is no bar to the discovery and relief prayed.
    Upon the first head, Mr. Bibb proceeded to show that, upon the averments- of the bill, confessed by the demurrer, the appellant was without remedy at common-law; but although the remedy was gone, the right remained. '
    Upon the second point, he relied upon the argument of Mr. Dargan.

    Upon the third point, he contended that length of time, without any statute of limitation, was no reason for a demurrer. In this case it admitted all the causes stated in the bill, why the judgment was still unsatisfied. 3 Bro. Ch. Rep. 646 ; 3 Atkyns, 225; 2 Ves. sen. 109.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

The facts stated in the bill are admitted by the demurrer, arid' the only question is whether the complainant is entitled to relief in a court of equity, when so many years have elapsed, since the judgment was obtained against the father of the defendants.

The judgment was rendered- in South Carolina on the 10th of November, 1797, and this bill was filed against the appellees in Alabama on the 22d.of February, 1844. A period of more than forty-six years had therefore elapsed, during which neither- the plaintiff who obtained the judgment, nor his administrator, nor the present complainant, who is administrator de bonis non, made a demand of the debt, or took any step to procure its payment.

It is not alleged in excuse for this delay, that his residence was, during all the time, unknown. On ,the contrary, it is admitted that it was known for some six or eight years after the judgment was obtained; and although he'was afterwards lost sight of for a long .time, and supposed to have gone beyond sea and died in parts unknown, yet he was again discovered in 1822 residing in the State of Alabama, where for three years afterwards he was accessible .to the creditor, and amenable to judicial process.

Neither is it alleged that he designedly and fraudulently concealed his place of residence from the creditor; nor that the conveyance of his property was. made for the purpose of hindering or preventing the recovery of this debt. The delay is accounted for and sought to be excused altogether upon the ground, that, when his place of residence was known, he was always in a state of poverty and insolvency, which made it useless to proceed against him.

It is, however, not necessary, in deciding the case, to inquire whether .even this state of poverty would justify the delay of so many years without some demand upon the party, or some proceeding on the judgment, to show that it was still regarded as a subsisting debt, and intended to be enforced whenever the debtor was able to pay. The facts stated in the bill, and those which appear in the exhibits filed with it by the complainant, do not show this continued condition of utter destitution and want which the complainant relies upon. For when he was discovered in 1822, in Alabama, his situation as to property was such as to make it highly probable that the debt might then have been recovered by an action at law, — if it was not already barred by the act of limitations of that State.

This appears from the decree of the Chancery Court of the State, in á controversy between the heirs of William E. Kennedy, the debtor, and the heirs of his brother Joshua, which decree is one of the complainant’s exhibits. It shows that in 1818 or 1819 the debtor held in his own right an undivided moiety of the real estate, which he conveyed to his brother, Joshua Kennedy, in 1824, as mentioned in the bill. And this conveyance upon the face of it purported to-be in consideration of the sum of ten thousand dollars ; a sum sufficient to pay the principal of the judgment, and a large portion of the interest. It is true that the complainant, in that part of the bill in which he speaks of this conveyance, states that he did not discover that the debtor was living and residing at Mobile until after the conveyance was made. If this allegation was consistent with the other statements in the bill, and could be regarded as a fact in the case, admitted by the demorrer, still, as he died in 1825, reasonable diligence required that the creditor should have taken some measures to ascertain whether the ten thousand dollars had been paid ; and to compel his administrator, who was also the grantee in the deed, to account for it. The creditor had no right to presume, "without inquiry, that his debtor, who had sold property for so large a sum of money, had within a year afterwards died utterly insolvent and almost penniless, so as to make it useless to investigate the state of his affairs, or to take any step towards the recovery of his debt. There is reason for believing, from the facts stated in the decree above mentioned, that, with proper' efforts, he would at that time have learned the trust upon which the conveyance was made, and discovered that the debtor had left property of sufficient value to be at all events worth pursuing.

But the complainant cannot put his claim upon the grourld that the residence of the debtor was not known until after he had made the conveyance and parted from this property. For in a previous part of his bill he admits that this information was obtained in 1822, which was two years before the deed was executed. And whatever might have been the wasteful and dissolute habits of the debtor, he yet at that time owned the land which at this late period the complainant is seeking to charge with this debt; and continued to hold it until the conveyance to his brother in 1824. And if the creditor chose to rest satisfied with information as to his Habits and manner of living, instead of using proper exertions to find out his situation as to property, his want of knowledge in this respect was the fruit of his own laches. The fact that he held the title to these lands could undoubtedly have been ascertained with ordinary exertions on his part. And he moreover might have learned, according to the statement in his exhibit before referred to, that after the death of Wm. E. Kennedy, his brother, the grantee in the deed frequently spoke of this conveyance as intended-merely to prevent the property from being wasted by the careless habits of his brother, and to preserve it for his family. And as late as 1829, in an advertisement in a newspaper of the place, offering some of this land for- sale or lease; he described it as property of which the children of Wm. E. Kennedy were entitled to one half. With all these means of information open to him from 1822 to 1829, the creditor cannot be permitted to excuse his delay in instituting proceedings upon the ground that he supposed the debtor to have lived and died hopelessly insolvent, until he obtained information to the contrary about the time this bill was filed. If he remained ignorant, it was because he neglected to inquire. If he has lost his remedy at law by lapse of time, or the death of the debtor, it has been lost by his own laches, or that of the administrator who preceded him.

It is the established rule in a court of equity, that the creditor who claims its aid must show that he has used reasonable diligence to recover his debt, and that the difficulties in his way at law have not been occasioned by his own neglect. A delay of twenty years is considered an absolute bar in a court of equity, unless it is satisfactorily accounted for. But here there has been a delay of more than forty-six years; and under circumstances, for a part of that time, which evidently show a want of diligence.

Indeed, if the court granted the relief asked for, the complainant would not only be protected from the consequences of his own neglect, but would derive a positive advantage from it. For if, when the debtor was discovered in Alabama in 1822, the complainant had then brought an aetion at law against him and recovered judgment, and then suffered that judgment to sleep until the time when this bill was filed, his claim would have been barred by the statute of limitations of that State. And if he could now avoid that bar, upon the ground that the act of limitations of Alabama applies only to domestic judgments, and could obtain the aid of a court of equity to enforce the judgment rendered in South Carolina, upon the ground that it is not within that, act, he Would derive an advantage from his omission to proceed against the debtor when he discovered, in 1822, the place of. his residence. He would obtain relief, because he neglected to sue 'at law when the debtor appears to have been in a .condition to pay the debt; and when that fact could have been ascertained by reasonable exertions on his part. In the'eye of a court of equity, laches upon a judgment of South Carolina cannot be entitled to more favor than laches upon a judgment in Alabama, and both must be visited with the same consequences. Relief in a court of equity, under the circumstances stated in the bill and exhibits, would be an encouragement to revive stale demands, which had been abandoned for years. The property, now sought to be charged might not, in the lifetime of the original parties, have been thought worth pursuing; and in the changes in value continually occurring in this country, it may, after the lapse of so many years, have become of great value in the hands of the heirs of the debtor. And if under such circumstances it could be made liable, an old and abandoned claim, with the accumulated interest of near half a century, might become a tempting speculation. Sound policy, as well as the principles of justice, requires that such claims should not be encouraged in a court of equity.

It is unnecessary, in this view of the case, to determine whether the statute of limitations of Alabama does or does not apply to this judgment. For the reasons above stated, wé think the lapse of time, upon the facts stated in the bill and exhibits, is, upon principles of equity, a bar to the relief prayed, without reference to the direct bar of a statute of limitations.

Another question has been made in this case; and that is, whether the objection arising from lapse of time, apparent on the bill and exhibits, can be taken advantage of on demurrer. Undoubtedly the rule formerly was that it could not; and that doctrine was distinctly laid down by Lord Thurlow, in the case of Deloraine v. Browne, 3 Bro. Ch. R. 646. The rule was perhaps followed for some time afterwards. It was placed upon the* ground, that this defence was founded upon the presumption that the debt must have been paid, and as a demurrer admits the fact stated in the bill, it admits- that the debt is still due ; and if admitted to be due, the debtor in equity and good •conscience is bound to pay it.

But the presumption of payment is not the only ground upon which a court of chancery refuses its aid to a stale demand. For there must appear to have, been reasonable diligence, as well as good faith, to call its powers into action; and if either is wanting, it will remain passive and refuse its aid. This is the principle recognized by this court in Piatt v. Vattier, 9 Pet. 416; McKnight v. Taylor, 1 How. 168; and in Bowman et al. v. Wathen et al., 1 How. 189. If, therefore, the complainant by his own showing has been guilty of laches, he is not entitled to the aid of the court, although the debt may be still unpaid.

Upon this principle, the proper rule of pleading would seem to be, that, when the case stated by the bill appears to be one in which a court of equity will refuse its aid, the defendant should be permitted to resist it by demurrer. And as the laches of the complainant in the assertion of his claim is a bar in equity, if that objection is apparent on the bill itself, there can be no good reason for requiring a plea or answer to bring it to the notice of the court. Accordingly, the rule stated by Lord Thur-low has not been always followed in later cases. In Hovenden v. Annesley, 2 Sch. & Lefr. 638, Lord Redesdale says, — “ If the -case of the plaintiff as stated in the bill will not entitle him to a decree, the judgment of the court may be required on demurrer whether the defendant ought to be compelled to answer the bill.” And in Story’s Eq. Pl., § 503, and the note to it, he states the rule as laid down by Lord Redesdale to be now the established one. In the opinion of the court, it is the-true rule. It is evidently founded upon sounder principles of reason than the one maintained by Lord Thurlow,’ and is better calculated to disembarrass a suit from unnecessary forms and t'echnicalities, and to save the parties from useless expense and trouble in bringing it to issue, and applies with equal force to a case barred by the lapse of time, and the negligence of the complainant, as to one barred by a positive act of limitations. In the case before us, therefore, the demurrer was proper, and must be sustained, and the decree of the court below affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.


source: Caselaw Access Project

author: Mr. Justice CATRON

license: Public Domain

text:
    Samuel Marsh, William E. Lee, and Edward C. Delavan, Plaintiffs in error, v. Edward Brooks and Virginia C., his Wife, formerly Virginia C. Reddick, Charles P. Billou and Frances E., his Wife, formerly Frances E. Reddick, Walter J. Reddick and Dabney C. Reddick by Eliza M. Reddick, their Guardian, Heirs at Law of Thomas F. Reddick, deceased, Defendants in error.
    The plaintiff in a writ of right produced a patent from the United States, dated in 1839, which contained sundry recitals, referring'to titles of anterior date derived from acts of Congress for the adjustment of claims to lands. But the patent itself was issued under an act of Congress in 1836.
    The defendant, in order to show an outstanding title, gave in evidencé a treaty between the.United States and the Sac and Pox Indians, in which this, with other lands, was reserved for the half-breeds, and an act of Congress passed in 1834 relinquishing the reversionary interest of the United States to these half-breeds.
    This was sufficient to show an outstanding title.
    The recitals in a patent are not enough to show that the title is of an earlier date than the patent itself, although they are evidence for some purposes. Nor was it necessary for the defendant to show that any of the half-breeds were in existence at the time of the trial.
    This case was brought up, by writ of error, from the Supreme Court of Iowa. It was a proceeding in the nature of an ejectment, to recover 640 acres on the right bank of the Mississippi River. The suit was brought by the heirs of Reddick against one Kilbourn, who was the tenant in possession. By agreement of counsel filed after the suit was brought, it was admitted that the defendants in error were the heirs of Thomas F. Red-dick, and the plaintiffs in error were substituted in the place'of Kilbourn.

      The facts were these.
    On the 4th of August, 1824, a treaty was made between the United. States and ,the Sac and Fox Indians, by the first article of which the Indians ceded to the United States the lands described as follows, viz.: — “ Within the limits of the State of Missouri, which are situated, lying, and being between the Mississippi and" Missouri Rivers, and a line running ■ from the Missouri at the entrance of Kansas River north one hundred miles to the northwest corner of the State of Missouri, and from thence east to the Mississippi. It being understood, that the small tract of land lying between the Rivers Des Moines and the Mississippi, and the section of the above line between the Mississippi and Des Moines, is intended for the use of the half-breeds belonging to the Sac and Fox nations, they holding it, however, by the same title and in the same manner that other Indian titles are held.”
    . On the 30th June, Í834, Congress passed an act (4 Stat. at Large, 740,) entitled, “An act relinquishing the half-breed lands.” It relinquished all the right, title, and interest which might accrue to the United States in the above reservation, arid vested the land between the rivers Des Moines and Mississippi, above mentioned, in the half-breeds of the Sac and Fox tribes of Indians, who were, at the passage of the act, entitled by the Indian title to the same, with full power and authority to transfer their portions thereof, by sale, devise, or descent, according to the laws of the State of Missouri.
    Both of these documents covered the land in dispute.
    On the 1st of July, 1836, Congress passed an act, (6 Stat. at Large, 661,) relinquishing to the heirs of Thomas F. Reddick all the right, title, claim, and interest which the United States had to a certain tract of land (understood to be the land in dispute), with the following proviso : —
    “ Provided, nevertheless, if said lands shall be taken by any older or better claim not emanating from the United States, the government will not be in any wise responsible for any remuneration to said heirs; and provided, also, that, should 'said tract of land be included in any reservation heretofore made, under treaty with any Indian tribe, that the said heirs be, and they hereby are, authorized to locate the same quantity in legal subdivisions on any unappropriated land of the United States in said territory, subject to entry at private sale.”
    On the 7th of February, 1839, a patent was issued by the United States to ■Thomas F. Reddick, for the land in controversy, which contained the following recital, viz.: —

      “ The United States of America, to all to whom these presents shall come, greeting:
    “ Know ye, that Thomas F. Reddick, assignee of the estate of Joseph Robidoux, assignee of Louis Honoré Tesson, has deposited , in the General Land Office, a certificate numbered one thousand one hundred and fifty-seven, of the recorder of land titles at St. Louis, Missouri, whereby it appears - that, in pursuance of the several acts of Congress for the adjustment of titles and claims to lands, the said Thomas F. Reddick, assignee of the estate of Joseph Robidoux, assignee of Louis Honoré Tesson, has been confirmed in his claim to a tract of land containing six hundred and forty acres, bounded and described as follows, to wit,” &c., &c.
    On the 10th of July, 1839, the defendants in error brought a writ of right (a proceeding recognized by the statutes of Iowa, in the nature of an ejectment) against the tenant in possession under Marsh, Lee,' and Delavan. After sundry proceedings, which it is not necessary to state, the cause came on for. trial at September term, 1843, of the District Court, when the jury, under the instructions of the court, found a verdict for the plaintiffs.
    A bill of exceptions was taken, which set out the evidence offered by the parties respectively, as follows, viz.: —
    The plaintiffs offered in evidence the above patent; proved that the land claimed was included within it; the heirship of the plaintiffs ; and that the defendant was in possession when the suit was brought, and then vested.
    The defendants, in order to prove an outstanding title, offered in evidence, —
    1. The treaty of 1824.
    2. The Act of Congress of June 30, 1834.
    3. The Act of Congress of July 1, 1836.
    And also offered parol testimony to prove that the northern line of said half-breed reservation was an actually marked line, in accordance with said plat, and called by the neighbourhood, along and on each side of said line, the half-breed line: and thereupon prayed the court to instruct the jury as follows, to wit: —

      Refused.

    1st. That if the jury believe, from the evidence, that the land described in the patent lies within the reseryation for the Sac and Fox half-breeds, then the plaintiffs are not entitled to recover under said patent, as authorized by the said act of 1st of July, 1836. ■

      Given.

    2d. That under the report of the recorder of land titles, dated February 2d, 1816, offered by plaintiffs in evidence, plaintiffs are not entitled to recover, unless the same has been confirmed by an act of Congress.

      Given.

    3d. That the true construction-'of the act of 29th of April, 1816, does not confirm the plaintiffs’ title to the land sued for in this action, if the Indian title was not then extinguished in said land.

      Given.

    4th. That the treaty of 1824, with the Sac and Fox Indians, is a recognition by the United States of the Indian title to the land in controversy at the date of said treaty of 1824.

      Refused.

    5th. That if the jury believe, from the evidence, that the land described in the patent lies within the reservation for the Sac and Fox half-breeds, then the plaintiffs are not entitled to recover under said patent.

      Given.

    6th. That if the jury find for the plaintiffs, and that said plaintiffs are entitled to damages from defendants for withholding or using or injuring their property, the jury shall then set off the value of any permanent improvements defendants may have made on said land, at their fair value, against said damages.

      Refused.

    7th. That the plaintiffs cannot recover in this action, unless they show conclusively that the land in controversy is not within the Sac and Fox half-breed reservation.

      Given.

    8th. Instruct the jury, that, when it is proved that the land claimed by Reddick’s heirs was within the bounds of the map given in evidence in this case, as a survey of the half-breed tract, and that it has proved that such, a line does exist, and is recognized by persons residing on each side of the line as the true north line of said tract, that no'reputation or opinion of the citizens residing south of said line, or north of said line, that said line is incorrect, would be evidence to impeach the correctness of the line on the map, and proved to actually exist.

      Given.

    9th. That if the jury believe that Honoré Tesson had no marked or known boundaries, which included the land in controversy, the .jury must find for the defendant.
    The first, fifth, and seventh of which instructions the court refused to give to the jury; to which refusal and opinion of the court the defendants, by their counsel, except, and pray that this their bill of exceptions may be signed, sealed, and made a part of the record.
    Charles Mason, Judge, [seal.]
    The defendants sued out a writ of error, and carried the case up to the Supreme Court of Iowa, which, on the 26th of January, 1846, affirmed the judgment of the- District Court.
    The defendants in the District Court, viz. Marsh, Lee, and Delavan, then brought the case, by writ of error, up to this court.
    It was argued by Mr. Wood, for the plaintiffs in error, and Mr. May and Mr Geyer, for the defendants.

      Mr. Wood made the following points : —
    I. The possession of the defendants in the original suit was sufficient to entitle them to a verdict, unless the plaintiffs should show a title.
    II. An outstanding valid title, paramount to that of said plaintiffs, was sufficient to protect the possession of defendants below against the plaintiffs’ title. Schaub'er - v. Jackson,. 2 Wend. 12.
    III. The title of the Indian half-breeds, under the act of 1834 and the treaty of 1824, was valid and complete, and being prior in time to the patent 'of the plaintiffs of 1839, which issued in virtue of the act of 1836, is paramount thereto, and ought to prevail against it. 1 Doug. (Mich.) R. 555; Hoofnagle v. Anderson, 7 Wheat. 212 ; 2 Peters, 263 ; 9 Wheat. 673 ; 9 Peters, 715, 716.
    IY. Even if the plaintiffs below had shown a defective title prior to the treaty of 1824, such-defective title would not, as against the said title under the act of 1834, be made valid by the plaintiffs’ patent of 1839, because such patent passed only the title of the United States then existing; more especially, inasmuch as the act of 1836, under which it issued, reserved rights previously acquired under treaty with any Indian tribe. Lee v. Glover, 8 Cow. 189 ; Mitchel v. United States, 9 Peters, 748 ; Johnson v. M’Intosh, 8 Wheat. 578.
    The counsel for the defendants in error contended, —
    I. The court did not err in refusing the said prayers, because, —
    1. They are based on a part only of the evidence.- Green-leaf’s Lessee v. Birth, 9 Peters, 292.

      2. It appears on the plot, by the prayers of plaintiffs in error, and on the face of the patent, that the lpnd in dispute had been, by acts- of Congress, confirmed to Reddick prior to the treaty of August, 1824.
    The patent being founded on a confirmation, the facts recited may be considered. United States v. Clarke, 8 Pet. 448. A public grant, if admitted in evidence, must be received by court and jury as evidence both of the facts it recites and declares leading to the foundation of the grant, and all other facts legally inferable by either from what is so apparent on its face. United States v. Arredondo, 6 Pet. 729. See Act of March 2d, 1805, ch. 26 (2 Stat. at Large, 324); Act of April 21st, 1806, ch. 39 (2 Stat. at Large, 391); Act of February 15th, 1811, ch. 14 (2 Stat. at Large, 617); Act of June 13th, 1812, ch. 99, (2 Stat. at Large, 748,) authorizing Recorder to report on claims to land in Missouri; Reports of Recorder of November 1st, 1815, and February 2d, 1816, in favor of Reddick’s claim; 3 Am. State Papers,' 345; Act confirming Claims reported by Recorder, April 29th, 1816, ch. 159 (3 Stat. at Large, 328).
    The report of recorder adds to his approval of Reddick’s claim “ if Indian right extinguished.” As to the effect of this proviso, see Report of J. M. Clayton, Chairman 23d Congress, 2d Sess. Report, No. 31, Ho. Reps.; United States v. Fernandez et al., 10 Pet. 303 ; Chouteau v. Eckhart, 2 Howard, 374; Report of Solicitor of Land Office, MSS. vol., No. 75, dated June 9, 1837.
    Did not the act of April 29th, 1816, include Reddick’s claim ?
    It was approved by the recorder, acting as commissioner, as a valid claim, subject only to Indian rights, on the contingency that they are or may thereafter be extinguished. “ All grants of land by the government are to be understood as being subject to Indian rights.” Fletcher v. Peck, 6 Cranch, 87 ; Mitchel v. United States, 9 Peters, 711; Johnson v. M’lntosh, 8 Wheat. 574.
    If, before the confirmation to Reddick, the title was only inchoate and addressed itself to the political departments of government, (see Le Bois v. Bramell, 4 Howard, 449,) yet it was such an equitable title as the government was bound to protect. Mitchel pt al. v. United States, 9 Peters, 714.
    But what was the effect of the confirmation by the act of April 29th, 1816, if restricted by the proviso of the recorder, to wit, “if Indian right extinguished.” Did it not at least grant the ultimate fee, which was in the United States, subject to Indian right of possession ? Could the United States after-wards deal with the fee, and reserve or in any way dispose- of it ? Mitchel et al. v. United States, 9 Peters, 713 ,• Grignon v. Astor, 2 Howard, 344.
    Indians have only a right of occupancy, and no power to dispose of the soil. Johnson v. McIntosh, 8 Wheat. 543. Indians cannot sue on their aboriginal title in courts of the Unit-ed States. -Cherokee Nation v. Georgia, 5 Pet. 20. .
    Grants of land by the government are to be understood to convey a title ,to the granteés, subject only to the Indian right of occupancy. -When that is ended by cession to the government, or-otherwise, it' is to be enjoyed in full dominion by the grantee. Ibid.; Fletcher v. Peck, 6 Cranch, 87; Mitchel v. United States, 9 Pet. 711; United States-u. Fernandez, 10 Pet. 304.
    The act confirming Reddick’s title was passed in 1816. After this, by the treaty of August, 1824, the Indians cede all their title, reserving only- a small tract for the use of -their half-breeds, they holding it as “ other Indian titles are held.” Red-dick’s land was located before this,.and well known to the government by its metes and bounds. See additional article of Treaty with Sac and Fox Indians, dated November 3d, 1804 (7 Stat. at Large, 87).
    Was not the reservation subject, then, to his locations ? Otherwise would it not be a fraud on the part of the United States?
    The confirmation of the claim of Reddick, either by the recorder or Congress, was a location of the land. Les Bois v. Bramell, 4 Howard, 463.
    The grant, then, by act of April 29th, 1816, is prima facie a good legal title, and standing alone will support an ejectment.' Strother v. Lucas, 12 Peters, 454; Chouteau v. Eckhart, 2 Howard, 372. It is a higher evidence of title than a patent, and is a direct grant of the fee. Grignon v. Astor, 2 Howard, 344.
    But the plaintiffs below relied upon their patent, issued 7th February, 1839. It is the superior and conclusive evidence of legal title. Bagnell v. Broderick, 13 Peters, 436; Wilcox v: Jackson, Ibid. 499. It is conclusive proof that the act of granting is by authority of the United States. United States v. Arredondo, 6 Pet. 728 ; Patterson v. Winn, 5 Pet. 241. And is evidence that every prerequisite has been performed. United States v. Arredondo, 6 Pet. 730, 731; Polk v. Wendal, 9 Cranch, 87.
    It will not be presumed that the government has conveyed the same land twice. United States v. Arredondo, 6 Peters, 691.
    The court will not construe the patent as conflicting with other rights. Ibid.

      The patent is prima, facie evidence of title, and also that any former grant of the same land by the government was extinguished. Hall v. Gittings’s Lessee, 2 Harr. & Johns. 112.
    This court has repeatedly decided that at law no facts behind the patent can be investigated. Boardman et al. v. Lessees of Reed and Ford, 6 Pet. 328, 342; Stringer v. Young, 3 Pet. 320.
    But it ought to be presumed, in cases of disputes about lands granted by government on Indian titles, that a patent carefully describing the lands does not interfere with other public grants, or specially with Indian reservations.
    Intercourse with the Indians should be carried on by .the government. Worcester v. State of Georgia, 6 Peters, 315.
    It is for the officers of government to say when land shall be reserved, and what is so reserved. Indian affairs belong to the political department. The United States »deal with Indian titles in their political and sovereign capacity.. It is for the land officers to decide on facts on which a patent is to issue. Cherokee Nation v. Georgia, 5 Pet. 1; Wiloox v. Jackson, 13 Pet.'499 ; Les Bois v. Bramell, 4 Howard, 461.
    Though grants are subject to Indian title, yet it is for the proper officers of government to say when such title is extinct by succession, or abandonment, by boundary, or rejection of claim, and the lands ^have reverted to public fund. United States v. Arredondo, 6'Pet. 747, 748.
    The officers of government have determined that the Indian right was extinguished to Reddick’s claim, if the act of April 29, 1816, had not already so determined; and, by issuing the patent, have at least put the burden of proving the contrary on those who dispute it. United States v. Arredondo, 6 Pet. 727, 728; Strother v. Lucas, 12 Pet. 437; 3 State Papers ; Report of Solicitor of the Land Office, MSS. vol., No. 113, dated September 21, 1837; also No. 209, dated October 30, 1838 ; Opinion of Attorney-General Grundy, dated January 2, 1839, Vol. of “ Opinions of Attorneys-General,” p. 1230; Order of Secretary Woodbury, dated February 6, 1839, to issue patent to Reddick’s heirs, “by command of the President without any further suspension,” and order of Commissioner of Land Office in'pursuance thereof (on the files of Land Office).
    Presumptions are in favor of the integrity and fidelity of public officers in fulfilling their duties. Bank of the United States v. Dandridge, 12 Wheat. 64; Martin v. Mott, Ibid. 19; Buller’s N. P. 298; 1 Greenleaf on Ev., <§> 40.
    If the patent is •prima, fade, evidence, and is not rebutted, it remains sufficient to maintain the title. Kelly v. Jackson,. 6 Pet. 632.

      II. The outstanding title set up by the plaintiffs in error in the court below, under the treaty and law of June 30, 1834, does not necessarily negative a title in the United States at the date of the patent.
    It must be a clear subsisting title outstanding in another, to defeat a plaintiff in ejectment, and that means such a title as the stranger could recover on in ejectment against either of the contending parties. Hall v. Gittings’s Lessee, 2 Harr. & Johns. 112.
    III. The act of June, 1834, does not necessarily include in the half-breed reservations the land in dispute.
    IV. The burden of showing that there was no title in the United States at the date of the patent, and also that the land is within the half-breed reservation, was upon the plaintiffs in error (defendants below). Greenleaf v. Birth, 6 Pet. 302; Hawkins v. Barney, 5 Pet. 468, 469.
   Mr. Justice CATRON

delivered the opinion of the court.

This case comes before us on a writ of error to the Supreme Court of Iowa, The suit originated in a writ of right issued by the District Court of Lee County, at the instance of the heirs of T. F. Reddick, to recover possession of certain lands wrongfully withheld from them, as they alleged, by the defendants, Marsh and others. The venue was 'subsequently changed to the county of Henry, where the cause was tried in September, 1843. The plaintiffs claimed possession, as owners, under a patent to their ancestor, signed by the President and issued from the General Land Office on the 7th of February, 1839, which they exhibited, and also proved the premises in question to be covered by such patent, and in possession of defendants.

The defendants produced in evidence, — 1st. An act passed by Congress on the 1st of July, 1836, relinquishing to the heirs of T. F. Reddick the right and interest of the United States in six Hundred and forty acres, being the land in controversy; which act contained the following provisos: — “Provided, nevertheless, if said lands shall be taken by any older or better claim, emanating from the United States, the government will not be in any wise responsible for any remuneration to. said heirs : and provided, also, that should said .tract of land be included in any reservation heretofore made under treaty with any Indian tribe, the said heirs be, and they hereby are, authorized to locate the same quantity, in legal subdivisions, on any unappropriated lands in said territory subject to entry at private sale.” 2d. The treaty of August .4, 1824, between the United States and the Sac and Fox Indians, and a plat showing the premises in question to be within the limits of a tract reserved by said treaty for the half-breeds belonging to the Sac and Fox nations. 3d. The act of June 30, 1834, relinquishing the reversionary or contingent interest of the United States in the reservation above mentioned to the. half-breeds, and authorizing them to sell and convey the same. The defendants then requested the court to give to the jury several instructions ; the first, fifth, and seventh of which were as follows: —

“ 1st. That if the jury believe from the evidence, that the land described in the patent lies within the. reservation for the Sac and Fox half-breeds, then the plaintiffs are not entitled to recover under said patent, as authorized by the act of 1st June, 1836.”

The fifth is to the same effect as the first.

“7th. That the plaintiffs cannot recover in this action, unless they show conclusively that the land in controversy is not within the Sac and Fox half-breed reservation.”

The court refused to charge the jury upon the above-mentioned points as requested, and a verdict was rendered for the plaintiffs; whereupon the case wqs carried by the defendants to the Supreme Court of Iowa, where the judgment of the District Court was affirmed.

From the foregoing statement it appears that, by refusing to give the first, fifth, and seventh instructions, the court below decided that the patent obtained from the United States by Reddick’s heirs was a better title than the reservation to the Sac and Fox half-breeds.

The patent of 1839, was, prima facie, a conclusive title; but by the treaty of 1824, with the Sac and Fox Indians, the land in dispute was admitted by the United States to lie within the .territory ceded by the treaty; and the Indian title, such as it was before the treaty, is reserved to the half-breeds. This Indian title consisted of the usufruct and right of occupancy and enjoyment; and, so long as it continued, was superior to and excluded those claiming the reserved lands by patents made subsequent to'.the ratification of the treaty; they could not disturb the occupants under the Indian title. That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question. This is the result of the decision in Johnson v. McIntosh, 8 Wheat. 574. and was the question directly decided, in the case of Cornet v. Winton, 2 Yerger’s Ten. Rep. 143, on the effect of reserves to individual Indians of a mile square each, secured to heads of families by the Cherokee treaties of 1817 and 1819. Here, however, in addition to the reserved Indian right, the act of 1834 vests the ultimate title remaining to the ■ United States in the half-breeds of the Sac and Fox tribes ; thereby giving them a perfect fee-simple, And this act of 1834, being older than the patent, must prevail, unless the plaintiffs below can go behind their patent; and on this assumption the controversy has been made to turn. No evidence of title was introduced in the District Court other than the patent itself; and its recitals are relied on to overreach the half-breed title. In the argument here, reports found in Congressional documents, and laws passed by Congress operating on such reports and documents, have been adduced and insisted on as confirming Reddick’s claim, long before the treaty of 1824 was made. The patent recites that Reddick (assignee of *Robidoux, who was assignee of Tesson) had deposited in the General Land Office a certificate (No. 1157) of the recorder of land titles at St. Louis, Missouri; and that, in pursuance of the several acts of Congress for the adjustment of titles and claims to land, said Reddick has been confirmed in his claim to a tract of land containing six hundred and forty acres, &c..

For the purpose of showing the consideration on which the patent is founded, and the authority by which it issued, the recitals are indisputable on a trial at law; but standing alone, they do not furnish sufficient evidence to establish that the title can take an earlier date than the patent, and thereby overreach an elder title, as that of the half-breeds. As another trial will probably bring out a different case from the one now presented to us, we refrain from making any further remarks on the extraneous matters adduced on the argument.

Nor can the act of 1836, in favor of Reddick’s heirs, help the patent, it being of later date than the treaty; and the confirming act to the half-breeds is, of course, (when standing alone,) inferior to the Indian title.

It was also insisted on the argument here, that, as it did not appear that any half-breeds, or their heirs or assigns, were in existence when the trial below took place, the outstanding title relied on could not be set up by the defendants. To which it may be answered, that it was necessary for the plaintiffs to show themselves to be owuérs of the land, and to recover on the strength of their own title ; and if. the lánd had been previously granted, nothing was left to pass by the second patent, unless there had been an escheat; or forfeiture of title to the United States, by the first grantees ; and certainly a court of justice could presume neither of these things to have taken place between 1834 and 1839, such being the respective dates of the confirming act to the half-breeds, and the patent of Reddick’s heirs. The general rule is, that, where the same land has been twice granted, the elder patent may be set. up in defence by a trespasser, when sued by a claimant under the younger grant, without inquiring as to who is the actual owner of the land at the time of the trial.

It is therefore ordered, that the judgment be reversed, and the cause remanded for another trial to be had therein.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the Territory of Iowa, 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, reversed, with costs, and that this cause be, and the same is hereby, remanded for further proceedings to be had therein in conformity to the opinion of this court.


text:
    Moses Wanzer, Plaintiff in error, v. Tullius C. Tupper and John H. Rollins, under the Firm of Tupper & Rollins.
    By the statutes of Mississippi, the holder of an inland bill of exchange is entitled to recover of an indorser the amount due on the bill, with interest, upon giving the customary proof of default and notice. A protest is necessary only for the purpose of enabling him to recover the five per cent, damages given by the act.
    The case of Bailey v. Dozier (6 Howard, 23) confirmed.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.
    It was an action brought by Wanzer upon a bill of exchange drawn by him upon Silverbury & Co., accepted by drawees, and indorsed by Tupper & Rollins to Wanzer.
    The cause was tried in the Circuit Court in November, 1846, when the court refused to permit the bill, although admitted to be an inland bill of exchange, to be given in evidence to' the jury, because there was no valid protest thereof.
    It is unnecessary to state any further facts in the case.
    It was argued in this court by Mr. Coxe, for the plaintiff in error, no counsel appearing for the defendants.
   Mr. Chief Justice TANEY

delivered the .opinion of the-court.

In this case, the .Circuit Court for the Southern District of Mississippi decided, that the holder of an inland bill of exchange drawn and accepted in that State was not entitled to recover against the indorser, unless the bill had been regularly protested for non-payment. This decision was made before the case of Bailey v. Dozier, reported in 6 Howard, 23, came before this court. In that case the court held, upon full consideration of the question, that, under the statute of Mississippi, the holder of an inland bill of exchange was entitled to recover of an indorser the amount due on the bill, with interest, upon giving the customary proof of default and notice; and that the protest was necessary only for the purpose of enabling him to recover the five per cent, damages given by the act. The case of Bailey v. Dozier must govern this, and the judgment in the Circuit Court is therefore reversed.

Order.

This cause came-on to be 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 and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.