text:
Mining Company v. Tarbet/Opinion of the Court

This was an action in the nature of trespass quare clausum fregit, brought in the District Court of the Territory of Utah for the third district, by Alexander Tarbet, and continued by his assignee, Helen Tarbet, against the Flagstaff Silver Mining Company of Utah (limited), and other persons. The action having been dismissed as to the other persons, judgment was rendered for $45,000 damages upon the verdict of a jury against the company. The latter carried the case to the Supreme Court of the Territory, where the judgment was affirmed on the third day of June, 1878. The company thereupon sued out this writ of error.

The controversy relates to the working of a mine in Little Cottonwood Mining District in the county of Salt Lake. The defendant in error claims to own, and to have been in possession of, a mining location on a lode called the Titus lode, the location including three claims, and extending six hundred feet westwardly from the discovery, with a width of two hundred feet, and including ten feet on the east side of the discovery belonging to the South Star mine. The plaintiff in error owned and had a patent for another mining location, called the Flagstaff mine, one hundred feet in width and two thousand six hundred feet in length, running in a northerly and southerly direction, and crossing the Titus claims near the west end thereof, and nearly at right angles therewith. In working from the Flagstaff mine the plaintiffs in error worked around subterraneously, to a point some three hundred feet to the east of their location, and on the north side of the Titus mine, and within about one hundred feet of the Titus location. It is for this working that the suit was brought; and the principal question is, whether the plaintiff in error had a right thus to work outside of its location on the east, and whether, in doing so, it interfered with the rights of the defendant in error.

It is conceded that both parties are working on the same lode or vein of ore. The Flagstaff discovery, to which the location of the plaintiff in error relates as its starting-point, is situated nearly due west from that of the South Star and Titus, and about five hundred and fifty feet therefrom. The lode crops out at the two points of discovery, but is not visible at intermediate points. These croppings, however, show that the direction or course of the apex of the vein, at or near the surface, is nearly east and west. The location of the Titus, claimed by the defendant in error, nearly corresponds with this surface course of the vein. The location of the Flagstaff, belonging to the plaintiff in error, crosses it nearly at right angles.

The principal difficulty in the case arises from the fact that the surface is not level, but rises up a mountain in going from the Titus discovery to the Flagstaff. The dip of the vein being northeasterly, it happens that, by following a level beneath the surface, the strike of the vein runs in a northwesterly direction, or about north 50° west. In other words, if by a process of abrasion the mountain could be ground down to a plain, the strike of the vein would be northwest instead of west, as it now is on the surface; or, at least, as the evidence tended to show that it is. In that case, the location of the defendant in error would leave the vein to its right, and the location of the plaintiff in error would not reach it until several hundred feet to the north of the Flagstaff discovery.

Evidence having been given pro and con in reference to the condition and situation of the vein, both at and below the surface, and to the workings thereon by both parties, the judge charged the jury as follows:--

'If you find that Alexander Tarbet, during the time mentioned in the complaint, to wit, from Jan. 1, 1873, to Dec. 14, 1875 (being a period of 2 years, 11 months, and 14 days), was in possession of the whole or an undivided interest of Nos. 1, 2, and 3 of the Titus mining claim, and ten feet off No. 1 of the South Star mining claim, holding the same in accordance with the mining laws and the customs of the miners of the mining district, and that the apex and course of the vein in dispute is within such surface,-then, as against one subsequently entering, he is deemed to be possessed of the land within his boundaries to any depth, and also of the vein in the surface to any depth on its dip, though the vein in its dip downward passes the side line of the surface boundary and extends beneath other and adjoining lands, and a trespass upon such part of the vein on its dip, though beyond the side surface line, is unlawful to the same extent as a trespass on the vein inside of the surface boundary. This possession of the vein outside of the surface line, on its dip, is limited in two ways,-by the length of the course of the vein within the surface; and by an extension of the end lines of the surface claim vertically, and in their own direction, so as to intersect the vein on its dip: and the right of a possessor to recover for trespass on the vein is subject to only these restrictions.'

Again: 'The defendant (plaintiff in error) has not shown any title or color of title to any part of the vein, except so much of its length on the course as lies within the Flagstaff surface, and the dip of the vein for that length; and it has shown no title, or color of title, to any of the surface of the South Star and Titus mining claim, except to so much of No. 3 as lies within the patented surface of the Flagstaff mining claim.'

The court refused to give the following instructions propounded by the plaintiff in error, to wit: 'By the act of Congress of July 26, 1866, under which all these locations are claimed to have been made, it was the vein or lode of mineral that was located and claimed; the lode was the principal thing, and the surface area was a mere incident for the convenient working of the lode; the patent granted the lode, as such, irrespective of the surface area, which an applicant was not bound to claim; it was his convenience for working the lode that controlled his location of the surface area; and the patentee under that act takes a fee-simple title to the lode, to the full extent located and claimed under said act.'

Secondly, 'In the very nature of the thing, a lode or vein in its unworked and undeveloped stage cannot be known and surveyed so as to plat it and make a diagram of it; the law does not require impossibilities, and must receive a reasonable construction. The diagram required to be filed by the applicant for a patent under the act of 1866 was a diagram of the surface area claimed; and this diagram might be extended laterally and otherwise, as convenience in working this claim might suggest to the applicant.'

These instructions and refusals to instruct indicate the general position taken by the court below; namely, that a mining claim secures only so much of a lode or vein as it covers along the course of the apex of the vein on or near the surface, no matter how far the location may extend in another direction.

The plaintiff in error has made the following assignment of error, which indicates the position which it contends for:--

'The plaintiff in error assigns for error the charge of the court and the refusal to give its requests, that is, that the judge instructed the jury that the defendant below had shown no title or color of title to any part of the vein except so much of its length on its course as lies within the surface ground pattented; and that he refused to direct the jury that by the act of Congress it was the vein or lode of mineral that was located and claimed, and that the patent granted the lode irrespective of the surface area, which was merely for the convenience of working the lode; that the diagram required to be filed by an applicant for a patent was of the surface claimed, and might be extended laterally or otherwise, as convenience in working the claim might suggest; that the surface ground patented does not measure the grantee's right to the vein or lode in its course, or control the direction which he shall take; and, lastly, that the Flagstaff company have the right to the lode for the length thereof claimed in the location notice, though it runs in a different direction from that in which it was supposed to run at the time of the location.'

Both parties agree in the general rule that the owner of a mining right in a lode or vein cannot follow the course of the vein beyond the end lines of his location extended perpendicularly downwards, but that he may follow the dip to an indefinite distance outside of his side lines. This is undoubtedly the general rule of miners' law, and the true construction of the act of Congress. The language of the act of 1866 (14 Stat. 251) in relation to 'a vein or lode' is, 'that no location hereafter made shall exceed two hundred feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, together with a reasonable quantity of surface for the convenient working of the same as fixed by the local rules,' & c. The act of 1872 (17 id. 91) is more explicit in its terms; but the intent is undoubtedly the same, as it respects end lines and side lines, and the right to follow the dip outside of the latter. We think that the intent of both statutes is, that mining locations on lodes or veins shall be made thereon lengthwise, in the general direction of such veins or lodes on the surface of the earth where they are discoverable; and that the end lines are to cross the lode and extend perpendicularly downwards, and to be continued in their own direction either way horizontally; and that the right to follow the dip outside of the side lines is based on the hypothesis that the direction of these lines corresponds substantially with the course of the lode or vein at its apex on or near the surface. It was not the intent of the law to allow a person to make his location crosswise of a vein so that the side lines shall cross, it, and thereby give him the right to follow the strike of the vein outside of his side lines. That would subvert the whole system sought to be established by the law. If he does locate his claim in that way, his rights must be subordinated to the rights of those who have properly located on the lode. Their right to follow the dip outside of their side lines cannot be interfered with by him. His right to the lode only extends to so much of the lode as his claim covers. If he has located crosswise of the lode, and his claim is only one hundred feet wide, that one hundred feet is all he has a right to. This we consider to be the law as to locations on lodes or veins.

The location of the plaintiff in error is thus laid across the Titus lode, that is to say, across the course of its apex at or near the surface; and the side lines of the location are really the end lines of the claim, considering the direction or course of the lode at the surface.

As the law stands, we think that the right to follow the dip of the vein is bounded by the end lines of the claim, properly so called; which lines are those which are crosswise of the general course of the vein on the surface. The Spanish mining law confined the owner of a mine to perpendicular lines on every side, but gave him greater or less width according to the dip of the vein. See Rockwell, pp. 56-58, and pp. 274, 275. But our laws have attempted to establish a rule by which each claim shall be so many feet of the vein, lengthwise of its course, to any depth below the surface, although laterally its inclination shall carry it ever so far from a perpendicular. This rule the court below strove to carry out, and all its rulings seems to have been in accordance with it.

The plaintiff in error contended, and requested the court to charge, in effect, that having received a patent for two thousand six hundred feet in length and one hundred feet in breadth, commencing at the Flagstaff discovery, on the lode at the surface, it was entitled to two thousand six hundred feet of that lode along its length, although it diverged from the location of the claim, and went off in another direction. We cannot think that this is the intent of the law. It would lead to inextricable confusion. Other localities correctly laid upon the lode, and coming up to that of the plaintiff in error on either side, would, by such a rule, be subverted and swept away. Slight deviations of the outcropping lode from the location of the claim would probably not affect the right of the locator to appropriate the continuous vein; but if it should make a material departure from his location, and run off in a different direction, and not return to it, it certainly could not be said that the location was on that lode or vein farther than it continued substantially to correspond with it. Of what use would a location be, for any purpose of defining the rights of parties, if it could be thus made to cover a lode or vein which runs entirely away from it. Though it should happen that the locator, by sinking shafts to a considerable depth, might strike the same vein on its subterranean descent, he ought not to interfere with those who, having properly located along the vein, are pursuing their right to follow the dip in a regular way. So far as he can work upon it, and not interfere with their right, he might probably do so; but no farther. And this consequence would follow irrespective of the priority of the locations. It would depend on the question as to what part of the vein the respective locations properly cover and appropriate.

We do not mean to say that a vein must necessarily crop out upon the surface, in order that locations may be properly laid upon it. If it lies entirely beneath the surface, and the course of its apex can be ascertained by sinking shafts at different points, such shafts may be adopted as indicating the position and course of the vein; and locations may be properly made on the surface above it, so as to secure a right to the vein beneath. But where the vein does crop out along the surface, or is so slightly covered by foreign matter that the course of its apex can be ascertained by ordinary surface exploration, we think that the act of Congress requires that this course should be substantially followed in laying claims and locations upon it. Perhaps the law is not so perfect in this regard as it might be; perhaps the true course of a vein should correspond with its strike, or the line of a level run through it; but this can rarely be ascertained until considerable work has been done, and after claims and locations have become fixed. The most practicable rule is to regard the course of the vein as that which is indicated by surface outcrop, or surface explorations and workings. It is on this line that claims will naturally be laid, whatever be the character of the surface, whether level or inclined.

If these views are correct, the Titus claims, belonging to the defendant in error, were located along the vein or lode in question in a proper manner; and the Flagstaff claims, belonging to the plaintiff in error, were located across it, and can only give the latter a right to so much of the vein or lode as is included between their side lines. The court below took substantially this view of the subject, and ruled accordingly.

As this is really the whole controversy in the case, it is unnecessary to examine more minutely the different points of the charge, or the instructions asked for by the plaintiff in error. The question was presented in different forms, but all to the same general purport.

Judgment affirmed.


text: Talk:Mining Company v. Tarbet/Opinion of the Court

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text:
Amy v. Dubuque

ERROR to the Circuit Court of the United States for the District of Iowa.

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. James Grant for the plaintiff in error, and by Mr. O. P. Shiras for the defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Amy v. Dubuque


text: Talk:Amy v. Dubuque

title: Talk:Amy v. Dubuque


text:
Amy v. Dubuque/Opinion of the Court

The question of limitation presented for our consideration upon this writ of error depends for its solution upon the statutes of Iowa. 'It is not to be questioned,' said this court in Hawkins et al. v. Barney's Lessee (5 Pet. 457), 'that laws limiting the time of bringing suit constitute a part of the lex fori of every country: they are laws for administering justice, one of the most sacred and important of sovereign rights.' McElmoyle v. Cohen, 13 Pet. 312.

It as is little to be questioned that 'the courts of the United States, in the absence of legislation upon the subject by Congress, recognize the statutes of limitations of the several States, and give them the same construction and effect which are given by the local tribunals.' Leffingwell v. Warren, 2 Black, 599; Green v. Lessee of Neal, 6 Pet. 291; Harpending v. The Dutch Church, 16 id. 455; Davie v. Briggs, 97 U.S. 628.

Guided by these established rules, we proceed to the consideration of the question before us, in the light both of the statutes of Iowa and of the construction given to them by the highest court of that State.

Our first inquiry is as to the cause of action set out in the petition. The plaintiff in error seeks to recover the amount of sundry interest-coupons annexed to bonds issued by the city of Dubeque in 1857, in payment of a subscription to the capital stock of a railroad company. The bonds are in the usual form of municipal securities, and were made payable on the 1st of January, 1877, at a bank in the city of New York, together with interest thereon at the rate of ten per cent per annum, payable semi-annually on each first day of July and January, on the presentation and surrender of the coupons at such bank as they should respectively become due by the terms thereof. Each bond was secured by a pledge of the shares of stock received in exchange therefor; and the stock pledged was placed in the hands of authorized trustees, who were empowered and required, at the request of the holder of the bond, and when the city was in default in the payment of either principal or interest, or any part thereof, to sell it, at public or private sale, in discharge of the unpaid principal or interest. The coupons sued on had not, at the institution of this action, been severed from the bonds to which they were annexed. Judgment is asked for the several instalments of interest, with interest on each instalment from the time it became due. The city contends that the action is barred by the Iowa Statute of Limitations. In that view the circuit judge concurred, and judgment was rendered for the city.

The code of Iowa declares that actions 'founded on written contracts' may be brought within ten years 'after their causes accrue, and not afterwards.' Code of 1873, sect. 2529. Such had been the law of that State for many years prior to the adoption of the code of 1873. We find the same provision in the code of 1851. Code of 1851, sect. 1659. What actions are founded on written contracts, and when causes of action accrue, within the meaning of the Iowa code, may be gathered from decisions of the Supreme Court of that State. The earliest decision to which we are referred is Bahr v. Arndt, 9 Iowa, 39. That was the case of a mortgage executed to secure a note payable ten years after date, with interest, at the rate of ten per cent per annum from date, payable annually. The court held that a foreclosure could be had before the maturity of the note for an instalment of interest due. In Mann v. Cross (9 id. 327), which was a suit to foreclose a mortgage, given to secure a note bearing ten per cent interest, payable annually, the court said: 'Was he [the mortgagee] entitled to six per cent interest upon the interest annually due? We think he was. The respondent was under a legal obligation to pay this interest at the end of the year; it was a sum of money then due, without a contract fixing the rate of interest upon it, and for which he might have been sued. He was, therefore, bound to pay its legal value, which by our law, in the absence of a written agreement reserving more, is fixed at six cents on the hundred.' Hershey v. Hershey (18 id. 24) was the case of a written agreement to purchase an interest in mill property at a valuation by appraisers, and 'to pay the principal sum of such purchase on or before five years from the date of the appraisement, and in the mean time to pay interest for the full sum at the rate of seven per cent per annum, the interest to be paid semi-annually.' It was held that an action at law could be maintained for any unpaid semi-annual instalment of interest. Said the court: 'The payment of interest periodically is expressly stipulated for, and for a breach of this contract plaintiff may recover, just as clearly as for the non-payment of an instalment of principal. By their agreement the parties have made this interest, when it matures, not simply an incident of the debt, but pro tanto the debt itself. And plaintiff was not, therefore, bound to wait the expiration of the five years from the date of the award to recover for the semi-annual instalment of interest.' The court said further: 'The plaintiff sues at law for the interest precisely as if he had separate notes for the same, and as he might do in case of an ordinary bond.' To the same general effect is Preston v. Walker, 26 id. 205. In the subsequent case of Baker v. Johnson County (33 id. 151), the inquiry arose as to the time when limitation commenced to run upon a contract whereby Baker was employed to render services in behalf of the county in connection with its claim against the general government for swamp-land money and land scrip. The court held that Baker had a right of action from the date when his services were completed, and that his cause of action accrued at that date. Callanan v. The County of Madison (45 id. 561) was an action to recover back taxes which had been improperly exacted. The defence of limitation being interposed, the court said that 'the cause of action accrues at the very moment of payment of the taxes, if at that time the tax was erroneous or illegal. The right of the plaintiff and the liability of the county do not depend upon the future acts to be done or suffered by either; their relation as creditor and debtor is fixed by the illegality of the tax.'

It seems from these authorities to be the settled law of Iowa: 1st, That where interest is, by contract, made payable at stated times, an action may be maintained therefor in advance of the maturity of the principal debt, and legal interest upon such interest recovered. 2d, That within the meaning of the Iowa Statute of Limitations the cause of action accrues when suit may be commenced for the breach of such contract. Both of these propositions are in line with the former decisions of this court. We have held in numerous cases not only that suit may be maintained upon unpaid coupons, in advance of the maturity of the principal debt and without producing the bonds, but that the holder of such coupons is entitled to recover interest thereon from their maturity. Commissioners of Knox County v. Aspinwall et al., 21 How. 539; Gelpcke v. City of Dubuque, 1 Wall. 175; The City v. Lamson, 9 id. 477; City of Lexington v. Butler, 14 id. 282; Clark v. Iowa City, 20 id. 583; Town of Genoa v. Woodruff, 92 U.S. 502. This court has also had occasion to consider the question as to when, upon principle, limitation commences to run. In Wilcox v. Plummer's Executors (4 Pet. 172), it was said: 'The ground of action here is a contract to act diligently and skilfully; and both the contract and the breach of it admit of a definite assignment of date. When might this action have been instituted is the question; for from that time the statute must run.' Angell, Limitations, sect. 42; 2 Saunders, Pl. and Evid. 309.

This action is, beyond question, founded upon written contracts. The coupons in suit matured more than ten years prior to its commencement. Upon the non-payment, at maturity, of each coupon, the holder had a complete cause of action. In other words, he might have instituted his action to recover the amount thereof at their respective maturities. From that date, therefore, the statute commenced to run against them. The premises conceded, as they must be, there is no escape from the conclusion stated.

But it is insisted that this conclusion is in conflict with the former decisions of this court in The City v. Lamson, supra; City of Lexington v. Butler, supra; and Clark v. Iowa City, supra. In this counsel are mistaken. They misapprehend altogether the doctrines settled in those cases. The first arose under the Wisconsin Statute of Limitations, while the second involved the construction of a Kentucky statute. The decisions in those cases, as we declared in the third case, only established the doctrine that coupons were not mere simple contracts, but, under the local statutes of particular States, were to be regarded as specialties and separate contracts, like the bonds to which they are attached. After an examination of the preceding cases, we said that 'it was not the intention of the court to decide that an action upon a coupon, detached from the bond, and negotiated to other parties, was not subject to the same limitations as an action upon the bond itself; much less to hold that the coupons remained a valid and subsisting cause of action not only for the period prescribed for actions on the bond after its maturity, but for the additional period intervening between the maturity of the coupon and the maturity of the bond, however great that might be. The question before the court in those cases was only whether the time the statute ran against the coupon was the longest or shortest period;-was it six or twenty years in the Wisconsin case, or was it five or fifteen years in the Kentucky case;-and the court held that the statute ran for the longest period, because the coupons partook of the nature of the bonds, and the statute ran for that period as to them.'

The case of Clark v. Iowa City arose under the same Statute of Limitations which is invoked by the city of Dubuque for its protection in this case. It is cited by counsel for plaintiff in error in support of the proposition that limitation, under the Iowa statute, does not commence to run against a coupon until it is detached from the bond. There are some expressions in the opinion in that case which, standing alone, would seem to sustain that construction of the statute. But it is quite obvious, from the whole opinion, that the conclusion reached, upon the point necessary to be decided, did not rest upon the isolated fact that the coupons sued on had become severed from the bond. It did rest, mainly, upon the ground that the coupons sued on were specialties, separate written contracts, capable of supporting actions after their maturity, without reference to the maturity or ownership of the bonds. We distinctly held that all statutes of limitation begin to run when the right of action is complete. We said: 'Every consideration, therefore, which gives efficacy to the Statute of Limitations, when applied to actions on the bonds after their maturity, equally requires that similar limitations should be applied to actions upon the coupons after their maturity.' Our answer to the specific question certified to us was, 'that the statute of Iowa, which extends the same limitations to actions on all written contracts, sealed or unsealed, began to run against the coupons in suit from their respective maturities.' So far, then, as that case bears upon the defence of the city, it is an express authority for the position that the limitation of ten years prescribed by the Iowa statute applies equally to bonds and their coupons. The only material respect in which this case differs from that, is that the coupons in suit here have never been severed from the bonds, and are held by the owner of the latter, while in that case they were severed from bonds which had been previously paid off. But this difference cannot logically, or in view of the Iowa decisions, affect the construction of the statute under examination. The right of the plaintiff in error to sue upon the coupons was complete after their non-payment at maturity, whether they had been previously severed or not from the bond. Upon principle, his failure or neglect to detach the coupon and present it for payment at the time when, by contract, he was entitled to demand payment, could not prevent the statute from running from that date. Such a construction of the statute would defeat its manifest purpose, which was to prevent the institution of actions founded upon written contracts after the expiration of ten years, without suit, from the time 'their causes accrue;' that is, from the time the right to sue for a breach attaches. We adhere, therefore, to our decision in Clark v. Iowa City, that the Statute of Limitations began to run, under the Iowa statute, from the time the coupons respectively matured.

Judgment affirmed.

title: Amy v. Dubuque/Opinion of the Court


text: Talk:Amy v. Dubuque/Opinion of the Court


text:
Harkness v. Hyde

ERROR to the Supreme Court of the Territory of Idaho.

The facts are stated in the opinion of the court.

Mr. George H. Williams for the plaintiff in error.

Mr. R. P. Lowe for the defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Harkness v. Hyde


text: Talk:Harkness v. Hyde

title: Talk:Harkness v. Hyde


text:
Harkness v. Hyde/Opinion of the Court

This was an action to recover damages for maliciously and without probable cause procuring the seizure and detention of property of the plaintiff under a writ of attachment. It was brought in September, 1873, in a district court of the Territory of Idaho for the county of Oneida. The summons, with a copy of the complaint, was soon afterwards served by the sheriff of the county on the defendant, at his place of residence, which was on the Indian reservation, known as the Shoshonee reservation.

The defendant thereupon appeared specially by counsel appointed for the purpose, and moved the court to dismiss the action, on the ground that the service thus made upon him on the Indian reservation was outside of the bailiwick of the sheriff, and without the jurisdiction of the court. Upon stipulation of the parties, the motion was adjourned to the Supreme Court of the Territory, and was there overruled. To the decision an exception was taken. The case was then remanded to the District Court, and the defendant filed an answer to the complaint. Upon the trial which followed, the plaintiff obtained a verdict for $3,500. Upon a motion for a new trial, the amount was reduced to $2,500; for which judgment was entered. On appeal to the Supreme Court of the Territory, the judgment was affirmed. The defendant thereupon brought the case here, and now seeks a reversal of the judgment, for the alleged error of the court in refusing to dismiss the action for want of jurisdiction over him.

The act of Congress of March 3, 1863, organizing the Territory of Idaho, provides that it shall not embrace within its limits or jurisdiction any territory of an Indian tribe without the latter's assent, but that 'all such territory shall be excepted out of the boundaries, and constitute no part of the Territory of Idaho,' until the tribe shall signify its assent to the President to be included within the Territory. 12 Stat. 808.

On the 3d of July, 1868, a treaty with the Shoshonee Indians was ratified, by which, among other things, that portion of the country within which service of process on the defendant was made in this case was set apart for their 'absolute and undisturbed use and occupation;' and such other friendly tribes or individual Indians as they might be willing, with the consent of the United States, to admit amongst them; the United States agreeing that no persons except those mentioned, and such officers, agents, and employees of the government as might be authorized to enter upon Indian reservations in discharge of duties enjoined by law, should ever be permitted 'to pass over, settle upon, or reside' in the territory reserved, and the Indians relinquishing their title to any other territory within the United States. 15 id. 674, art. 2. No assent was given by this treaty that the territory constituting the reservation should be brought under the jurisdiction, or be included within the limits, of Idaho. Any implication even of such an assent is negatived by the terms in which the reservation is made, and it is not pretended that any such assent has been signified to the President. The territory reserved, therefore, was as much beyond the jurisdiction, legislative or judicial, of the government of Idaho, as if it had been set apart within the limits of another country, or of a foreign State. Its lines marked the bounds of that government. The process of one of its courts, consequently, served beyond those lines, could not impose upon the defendant any obligation of obedience, and its disregard could not entail upon him any penalties. The service was an unlawful act of the sheriff. The court below should, therefore, have set it aside on its attention being called to the fact that it was made upon the defendant on the reservation. The motion was to dismiss the action; but it was argued as a motion to set aside the service; and we treat it as having only that extent. The code of Idaho considers an action as commenced when the complaint is filed, and provides that a summons may be issued within one year afterwards. Had the defendant been found in Idaho outside the limits of the Indian reservation, he might during that period have been served with process.

There can be no jurisdiction in a court of a Territory to render a personal judgment against any one upon service made outside its limits. Personal service within its limits, or the voluntary appearance of the defendant, is essential in such cases. It is only where property of a non-resident or of an absent defendant is brought under its control, or where his assent to a different mode of service is given in advance, that it has jurisdiction to inquire into his personal liabilities or obligations without personal service of process upon him, or his voluntary appearance to the action. Our views on this subject are expressed at length in the late case of Pennoyer v. Neff (95 U.S. 714), and it is unnecessary to repeat them here.

The right of the defendant to insist upon the objection to the illegality of the service was not waived by the special appearance of counsel for him to move the dismissal of the action on that ground, or what we consider as intended, that the service be set aside; nor, when that motion was overruled, by their answering for him to the merits of the action. Illegality in a proceeding by which jurisdiction is to be obtained is in no case waived by the appearance of the defendant for the purpose of calling the attention of the court to such irregularity; nor is the objection waived when being urged it is overruled, and the defendant is thereby compelled to answer. He is not considered as abandoning his objection because he does not submit to further proceedings without contestation. It is only where he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is deemed to be waived.

The judgment of the Supreme Court of the Territory, therefore, must be reversed, and the case remanded with directions to reverse the judgment of the District Court for Oneida County, and to direct that court to set aside the service made upon the defendant; and it is

So ordered.

title: Harkness v. Hyde/Opinion of the Court


text: Talk:Harkness v. Hyde/Opinion of the Court


text:
Railroad Company v. Varnell

ERROR to the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. Enoch Totten for the plaintiff in error.

Mr. Thomas T. Crittenden and Mr. Glen W. Cooper, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Railroad Company v. Varnell


text: Talk:Railroad Company v. Varnell

title: Talk:Railroad Company v. Varnell


text:
Railroad Company v. Varnell/Opinion of the Court

Owners of vessels engaged in carrying passengers assume obligations somewhat different from those whose vehicles or vessels are employed as common carriers of merchandise. Obligations of the kind in the former case are in some respect less extensive and more qualified than in the latter, as the owners of the vehicle or vessel carrying passengers are not insurers of the lives of their passengers, nor even of their safety; but in most other respects the obligations assumed are equally comprehensive, and perhaps even more stringent.

Common carriers of merchandise, in the absence of any legislative regulation prescribing a different rule, are insurers of the goods and are liable at all events and for every loss or damage, unless it happened by the act of God or the public enemy, or the fault of the shipper, or by some other cause or accident expressly excepted in the bill of lading, and without fault or negligence on the part of the carrier. Propeller Niagara v. Cordes et al., 21 How. 23.

Carriers of passengers even in street-cars are bound to a higher degree of care, skill, and vigilance in the preparation and management of their vehicles of conveyance than were required of the owners of the stage-coaches, as well on account of the greater number transported at the same time as the constant ingress and egress of the persons entering or leaving the car. Travellers must take the risk necessarily incident to the mode of travel which they select; but those risks in the legal sense are only such as the utmost care, skill, and caution of the carrier in the preparation and management of the vehicle of conveyance is unable to avert. Pendleton v. Kinsley, 3 Cliff. 420.

Prepayment of the usual fare having been made by the plaintiff, he entered the car of the defendants, as he alleges, for a passage from Washington to Georgetown, and on arriving at the depot of the latter place, and when being in the act of getting off from the car, was thrown from the same upon the ground by the carelessness and negligence of the defendants, and was thereby greatly injured, so that he could not perform the usual duties of his employment; that in consequence of the injuries so received he was compelled to employ a physician at great expense, and was confined to the house for a long time, during which he suffered great pain and anguish. Suitable indemnity being refused, the plaintiff instituted the present suit to recover compensation for the alleged injuries and the consequent expenses. Service was made, and the defendants appeared and pleaded the general issue, which was subsequently joined by the plaintiff. The preliminary proceedings being closed, the parties went to trial, and the verdict and judgment were for the plaintiff in the sum of $4,000, with costs of suit. Exceptions were filed by the defendants, and they sued out the present writ of error, and removed the cause into this court for re-examination.

Since the case was entered here, the defendants have assigned for error the following causes, for which they claim that the judgment should be reversed: 1. That the instructions of the court set forth in the first three exceptions are erroneous as to the supposed contributory negligence of the plaintiff. 2. That the court erred in the instruction given to the jury as to the measure of damages. 3. That the court erred in refusing the two prayers for instruction presented by the defendants, and in the instructions given in lieu of those prayers. 4. That the instructions given by the court to the jury were incoherent, contradictory, and incomprehensible, and must necessarily have confused and misled the jury to the disadvantage of the defendants.

Evidence was introduced by the plaintiff tending to show that he, on the day and at the place alleged in the declaration, entered one of the cars of the defendants, and that he, having first paid his fare to the conductor, rode in the car to the terminus of the route in Georgetown, at the intersection of High and Bridge Streets; that the car was then stopped at the usual place for passengers to leave and pass out; that several passengers had got off from the car, and that plaintiff started for that purpose, and having passed out of the rear end had stepped on the lower step of the car and was about stepping to the ground when the car was suddenly started with a jerk, which threw him to the ground, his left hip striking the paved street, and that the thigh bone of his hip at the socket was dislocated and fractured by the fall; that the plaintiff was carried to his home, where he was confined to his bed for several weeks, and that he has ever since been compelled to walk with a cane, and has been unable to perform any labor, and that the injured leg is considerably shorter than the other; that he was sixty-four years of age at the time of the accident, and that up to that time he had always been healthy.

Witnesses were examined by the defendants, and they gave evidence tending to show that the plaintiff, just before the accident, was standing upon the rear platform of the car, and that he jumped from the car before it stopped, and that in jumping from the car he fell and was injured; that at the time of the accident the car had almost reached its usual stopping-place, and that the plaintiff, if he had waited a short time, could have alighted from the car in safety.

Rebutting evidence contradicting that given by the defendants was also introduced by the plaintiff, and the bill of exceptions shows that in cross-examining one of the defendants' witnesses he laid the foundation to admit proof that the witness had made contradictory statements out of court. Proof to that effect was subsequently offered by the plaintiff; and in examining the witness called for that purpose the questions put were leading in form, to which the defendants objected on that account, but the court overruled the objections, and having admitted the answers the defendants excepted. Three or four exceptions of the kind were taken; but inasmuch as the rulings of the court are not assigned for error, it will be sufficient to say upon the subject, that if they had been assigned as error, it could not have benefited the defendants.

More difficulty arises in disposing of the exceptions to the charge of the court, for two principal reasons: 1. Because the instructions are so framed as to render it somewhat uncertain what the principle of law is that the presiding justice gave, or intended to give, to the jury. 2. Because the exceptions are so general and indefinite, that it is impossible to determine with certainty to what part of any one of the instructions any one of the exceptions refers.

Three exceptions are embraced in the first assignment of error, and the complaint is that the court erred in failing to give the defendants the full benefit of their evidence as to the contributory negligence of the plaintiff.

Turning to the record, it appears that the first exception to the charge of the court is addressed to nearly a page of the remarks of the presiding justice, with nothing to aid the inquirer in determining what the complaint is, beyond what may be derived from the exception, which is in the following words: 'To which instruction the counsel for the defendants then and there excepted.'

Much less difficulty would arise if the assignment of error contained any designation of the precise matter of complaint; but nothing of the kind can be obtained from that source. Certain portions of those remarks appear to be unobjectionable; as, for example, the judge told the jury that they must first determine whether the plaintiff was a passenger on the railroad of the defendants, and he called their attention to the testimony of the conductor, that the plaintiff was not in the car in which it seems he claimed that he had been riding just before he received the injury.

Comments were made upon the testimony bearing upon that point, and the judge next stated to the jury to the effect that they must then determine from the evidence whether he fell off or got off, and was hurt in getting off, remarking, that probably there was no dispute that he got hurt in falling from the car, but that the question was whether he, the plaintiff, was in fault, or whether the driver or conductor of the car caused the injury; adding, that if it was the fault of the conductor, the company was responsible. If you come to the conclusion, said the judge, that the plaintiff acted in a neglectful manner in getting off from the car, or that he was in fault, he cannot recover; but if you come to the conclusion that it was the fault of the driver in starting too soon, or in not properly observing that the plaintiff was about to get off, and that the accident occurred in consequence of the too sudden starting of the car, the company is liable, if it was the fault of the driver or conductor.

Inaccurate language and, in some instances, incomplete sentences were employed by the judge; but the court is not able to see that any error of law was committed, or that the errors of language committed were of such a character as to warrant the conclusion that the jury were misled in respect to the legal rights of the parties; nor is the court here able to see that any remarks of the judge were of a character to withdraw any of the evidence from the proper consideration of the jury. Instead of that, he submitted it all to their determination, and then remarked, that if they found that the injury received by the plaintiff was by the neglect of the railroad, then it would be their duty to ascertain the extent of the injury from the evidence, to which no objection can properly be made.

Reference was then made to the evidence, and comments of a general character followed; and at the close of the judge's remarks upon that subject is another exception, in the words following: 'To which instruction the counsel for the defendants then and there excepted.' Discussion of that exception may well be omitted, as the remarks made in respect to the preceding exception are believed to be sufficient to show that it is not sufficiently explicit, and that it must be overruled.

Expert witnesses were called and examined in the case, and the third exception has respect to the remarks of the judge upon that subject. Neither the exception nor the assignment of error designates any particular remark of the judge as erroneous, and in view of the fact that the exception is addressed to the entire remarks as an instruction, the court is of the opinion that it requires no further examination.

Extended remarks were made by the judge upon the subject of damages, in case the jury came to the conclusion that the plaintiff was entitled to recover, to which two exceptions are appended, to the effect that the defendants then and there excepted to the remarks which preceded the note of exception. Exceptions put in that general form are certainly not entitled to favor; but it is proper to remark that those under consideration stand in a worse condition than those previously examined, for the reason that the attention of the judge after the charge was concluded was directed to many passages in his remarks as objectiononable, every one of which the judge either corrected as requested, or, where the suggestion of error was in respect to the testimony, he referred the question to the recollection of the jury. Such corrections must, of course, be considered in connection with the antecedent remarks of the judge; and when that part of the charge is viewed in that light, the court is of the opinion that the exceptions must be overruled.

Two prayers for instruction were presented by the defendants: 1. That the court should instruct the jury that the plaintiff is not entitled to recover any thing for the services of the physicians or other expenses, as there was no testimony to show the amount of money, if any, he paid on that account. 2. That the court should instruct the jury that in estimating the damages of the plaintiff they must take into consideration his advanced age as lessening his capacity for earning money.

Responsive to the first request, the judge remarked to the jury that there being no evidence on the subject of the specific amount of the physician's bill, 'you will not take that into consideration, unless there is doubt,' evidently leaving the sentence incomplete; but his attention was not called to the omission, and the court here is of the opinion that the defendants have no cause to complain of that part of the charge as an error of law.

Both requests were refused, and in response to the second the judge remarked to the effect that the jury acting reasonably must ascertain the proper amount of the damages; that if they found damages, they must be reasonable, as they could not tell whether a man would live one, two, or five years. Probably no one will think that these remarks of the judge were very instructive to the jury; but it is not possible to hold that they show any legal error for which the judgment should be reversed.

Where the charge of the judge to the jury is of a character to mislead the jury, the error is one of law, and may be corrected in an appellate court; but in every such case the part of the charge to which the exception is addressed ought to be distinctly pointed out. Unless that be done, the exception cannot be sustained as a ground for reversing the judgment, as that can only be done for error of law.

For these reasons, the court is of the opinion that there is no error in the record.

Judgment affirmed.


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United States v. Thompson (98 U.S. 486)

ERROR to the Circuit Court of the United States for the District of Minnesota.

The United States sued, Dec. 6, 1875, Clark W. Thompson, and his sureties on his official bond, as superintendent of Indian affairs in Minnesota. The breach alleged was that he, as such officer, had, prior to March 30, 1865, received $10,562.27 of the moneys of the United States, which he had neglected and refused to account for, and had converted to his own use.

The defendants pleaded that the cause of action did not accrue within ten years next preceding the commencement of the suit. The United States demurred. The demurrer was overruled, and judgment rendered for the defendants. The United States has brought the judgment here for review.

The statutes of Minnesota (c. 66, tit. 11, sect. 6) provide that an action upon a contract, express or implied (unless it be founded upon some judgment or decree of a court), shall be barred if not commenced within six years after the cause of action accrues. 2 Minn. Stat. at Large, 782.

The twelfth section of that title further provides that 'the limitations prescribed in this chapter for the commencement of actions shall apply to the same actions when brought in the name of the State, or in the name of any officer, or otherwise, for the benefit of the State, in the same manner as to actions brought by citizens.' Id. 783.

While a Territory, the following statute was in force in Minnesota: 'The limitations prescribed in this chapter apply to actions brought in the name of the United States, in the same manner as to actions by private parties.' Rev. Sts. of 1851, c. 70, sect. 13, p. 331; Revision of 1858, p. 533, sect. 13.

This statute was first passed by the territorial legislature of Wisconsin, and was continued in force over that portion of it which, in 1848, became the Territory of Minnesota. It was modified, several years after Minnesota became a State, to read as it now does. When Wisconsin became a State, its legislation underwent the same change.

Mr. M. S. Wilkinson in support of the judgment below.

The real question here is, not whether the Statutes of Limitations bar the State, where she is not designated, but whether, when they extend and apply to actions brought by her, they are 'rules of decision' in the Federal courts, where the United States is a party. It is submitted,--

First, That the terms of the thirty-fourth section of the Judiciary Act of 1789 (1 Stat. 92, Rev. Stat., sect. 721) give the same efficiency to the State statutes of limitations in the Federal courts that they have proprio vigore in the State courts.

Second, That the Statute of Limitations of the State of Minnesota bars in her courts all plaintiffs, including the sovereign; and it therefore, in the Federal courts sitting within that State, operates to bar all plaintiffs, including the sovereign.

There has never been a time since it became possible to institute a suit in Minnesota, when, by the express words of the Statute of Limitations, it did not apply to actions brought by the government to the same extent that it applied to private parties.

The statutes of the Territory had within its limits the force of acts of Congress, because its legislative power was delegated to it by Congress. All its laws were required to be submitted to Congress, and, if not disapproved, were to be in force and effect. Organic Act of Wisconsin, sect. 6, 5 Stat. at Large, p. 12; Organic Act of Minnesota, sect. 6, 9 Stat. at Large, p. 405.

The Statutes of Limitations of the Territory were not disapproved by Congress; and afterwards Minnesota was admitted into the Union, with a constitution which continued those statutes with others in force until repealed. Const. of Minnesota, sect. 2 of schedule.

It is elementary principle that the Statutes of Limitations constitute a part of the lex fori, and this court, in construing them, conforms to the exposition given by the courts of the State.

Third, If the United States is not amply protected by the present exceptions in the Judiciary Act, Congress can at any time remedy the evil by an amendment.

Mr. Assistant Attorney-General Smith for the United States.

MR. JUSTICE SWAYNE, after stating the facts, delivered the opinion of the court.

title: United States v. Thompson (98 U.S. 486)


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User:Geo Swan/Abdul Ghani Ghani

Senator Al-Haj Abdul Ghani Ghani, son of Al-Haj Ghulam Muhammad, was born in 1960 in the village of Aaqak Barak in Kishand district of Balkh province. He received a religious education in private schools from 1968 to 1979.

When the Communist regime was established, he left the country and lived in Peshawar, Pakistan from 1981 until 1983. In February 1983, he returned to the country but by June 1983 he left for Iran, where he lived until 1986. He returned in March 1986 and attended a medical course organized by an American organization. After a year of study, he graduated in second place and began providing basic health care and first aid services.

During the occupation by terrorists, Sen. Ghani lived in the Saudi Arabian cities of Makkah and Medina. He returned to the country in 2001 and started serving his people. He obtained an agreement from the Ministry of Education to establish 17 schools in Kishand. He enrolled 2,500 students and recruited 70 teachers, including himself, along with other staff.

Meanwhile, he strove to promote peace by encouraging armed fighters to trade in their weapons for work tools. As a result of his efforts, 700 former mujahideen fighters handed in all their weapons to the government in 2002. He received a DDR medal and letter of appreciation from the President. He also received a silver medal for his participation in the Constitutional Loya Jirga.

Sen. Ghani was indirectly elected to the Meshrano Jirga through Provincial Council elections in Balkh. He is married and has ten children.

title: User:Geo Swan/Abdul Ghani Ghani


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United States v. Thompson (98 U.S. 486)/Opinion of the Court

This case turns upon a statute of the State of Minnesota which bars actions, ex contractu, like this, within a specified time, and the same limitation is applied by the statute to the State. The United States are not named in it. The court below held that the statute applied to the United States, and rendered judgment against them.

There is no opinion in the record, and we are at a loss to imagine the reasoning by which the result announced was reached. The Federal courts have been in existence nearly a century. The reports of their decisions are numerous. They involve a great variety of questions, and the fruit of much learned research. We have been able to find but two cases in the lower Federal courts in which it appears the question was raised. They are United States v. Hoar, 2 Mas. 311, and United States v. Williams, 5 McLean, 133. In both it was held, without the intimation of a doubt, that a State statute cannot bar the United States. The same doctrine has been several times laid down by this court; but it seems always to have been taken for granted, and in no instance to have been discussed either by counsel or the court. United States v. Buford, 3 Pet. 12; Lindsey v. Miller's Lessee, 6 id. 666; Gibson v. Chouteau, 13 Wall. 92.

This state of things indicates a general conviction throughout the country that there is no foundation for a different proposition. There are also adjudications in the State reports upon the subject, but they concur with those to which we have referred. Among the earliest of them is Stoughton et al. v. Baker et al., 4 Mass. 521. In that case, Chief Justice Parsons said: 'No laches can be imputed to the government, and against it no time runs so as to bar its rights.' The examination of the subject by Judge Story, in United States v. Hoar (supra), is a fuller one than we have found anywhere else. He and Parsons are in accord. So far as we are advised, the case before us stands alone in American jurisprudence. It certainly has no precedent in the reported adjudications of the Federal courts.

The United States possess other attributes of sovereignty resting also upon the basis of universal consent and recognition. They cannot be sued without their consent. United States v. Clark, 8 Pet. 436. If they sue, and a balance is found in favor of the defendant, no judgment can be rendered against them, either for such balance or in any case for costs. United States v. Boyd, 5 How. 29; Reeside v. Walker, 11 id. 272. A judgment in their favor cannot be enjoined. Hill v. United States, 9 id. 386. Laches, however gross, cannot be imputed to them. United States v. Kirkpatrick, 9 Wheat. 720. There is no presumption of payment against them arising from lapse of time. United States v. Williams (supra). They can maintain a suit in their own name upon a non-negotiable claim assigned to them. United States v. White, 2 Hill (N. Y.), 59.

The rule of nullum tempus occurit regi has existed as an element of the English law from a very early period. It is discussed in Bracton, and has come down to the present time. It is not necessary to advert to the qualifications which successive parliaments have applied to it.

The common law fixed no time as to the bringing of actions. Limitations derive their authority from statutes. The king was held never to be included, unless expressly named. No laches was imputable to him. These exemptions were founded upon considerations of public policy. It was deemed important that, while the sovereign was engrossed by the cares and duties of his office, the public should not suffer by the negligence of his servants. 'In a representative government, where the people do not and cannot act in a body, where their power is delegated to others, and must of necessity be exercised by them, if exercised at all, the reason for applying these principles is equally cogent.'

When the colonies achieved their independence, each one took these prerogatives, which had belonged to the crown; and when the national Constitution was adopted, they were imparted to the new government as incidents of the sovereignty thus created. It is an exception equally applicable to all governments. United States v. Hoar, supra; The People v. Gilbert, 18 Johns. (N. Y.) 227; Bac. Abr., tit. Limitation of Actions; id., tit. Prerog. E. 5, 6, 7; 5 Com. Dig. Parliament, R. 8; Chitty, Law of Prerogatives, 379.

Congress, like the British Parliament, has made a number of specific limitations both in civil and criminal cases. They will be found in the Revised Statutes, and need not be here repeated.

The only argument suggested by the learned counsel for the defendants in error is that the Judiciary Act of 1789, re-enacted in the late revision of the statutes, declares 'that the laws of the several States, except where the Constitution and treaties of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.'

It is insisted that the case in hand is within this statute. To this there are several answers.

The United States not being named in the statute of Minnesota, are not within its provisions. It does not and cannot 'apply' to them. If it did, it would be beyond the power of the State to pass it, a gross usurpation, and void. It is not to be presumed that such was the intention of the State legislature in passing the act, as it certainly was not of Congress in enacting the law of 1789. United States v. Hoar, supra; Field v. United States, 9 Pet. 182.

The Federal courts are instruments competently created by the nation for national purposes. The States can exercise no power over them or their proceedings, except so far as Congress shall allow. This subject was considered in The Farmers' & Mechanics' National Bank v. Dearing (91 U.S. 29), and we need not pursue it further upon this occasion.

The exemption of the United States from suits, except as they themselves may provide, rests upon the same foundation as the rule of nullum tempus with respect to them. If the States can pass statutes of limitation binding upon the Federal government, they can by like means make it suable within their respective jurisdictions. The evils of such a state of things are too obvious to require remark.

But viewing the subject in the light of considerations ab inconvenienti, we need not look beyond the consequences of the ruling, if sustained, of the court below. The doctrine is alike applicable to civil and criminal actions. There are thirty-eight States in the Union. The limitations in like cases may be different in each State, and they may be changed at pleasure, from time to time. The government of the Union would in this respect be at the mercy of the States. How that mercy would in many cases be exercised it is not difficult to foresee. The constitutional relations of the head and the members would be reversed, and confusion and other serious evils would not fail to ensue.

The judgment of the Circuit Court will be reversed, and the cause remanded with directions to proceed in conformity with this opinion; and it is

So ordered.


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Airhart v. Massieu

ERROR to the Circuit Court of the United States for the Western District of Texas.

The facts are stated in the opinion of the court.

Mr. John H. Reagan for the plaintiff in error.

Mr. John D. McPherson, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Airhart v. Massieu


text: Talk:Airhart v. Massieu

title: Talk:Airhart v. Massieu


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Airhart v. Massieu/Opinion of the Court

This is an action of trespass to try title to land, being equivalent, in Texas, to an action of ejectment. The defendants in error were the plaintiffs below, and judgment being given in their favor, the case is brought here by writ of error. The petition in the action was filed on the 3d of June, 1872, and sets out that the plaintiffs are citizens of the Republic of Mexico, residing in the city of Mexico, and that on the 1st of July, 1869, they were seised in fee and possessed of a certain tract of land (containing eleven leagues), situated in the counties of Anderson and Freestone, on the right and left banks of Trinity River, stating the metes and bounds thereof; and that on that day the defendant, Airhart (now plaintiff in error), illegally ousted them, and continues to hold possession of the tract, to their damage.

The defendant demurred, and pleaded, 1st, not guilty; 2d, the Statute of Limitations for three years, in virtue of possession under regular title from the sovereignty of the soil, as to a certain portion of the land, containing 1,855 acres, giving the metes and bounds thereof, being the south part of E. C. Harris's survey; and the same plea as to another portion of the tract sued for (containing about 153 acres), giving the metes and bounds of the same; and disclaiming as to all the rest of the land sued for. The defendant further pleaded, 3d, the Statute of Limitations of five years, and payment of taxes as to the two tracts last named; 4th, the Statute of Limitations of ten years; and, 5th, adverse possession under an entry of title since 1850, and the erection of permanent improvements, for which he claimed compensation. Various amendments of the pleadings were subsequently added, which it is unnecessary to notice.

It appears from the various bills of exception taken in the case that the plaintiffs claimed title, 1st, under an eleven league grant, made by the government of Coahuila and Texas to one Jos e Ygnacio Aguilera, of the city of Mexico, on the 22d of March, 1830, and possessory title executed thereon by Commissioner Vicente Aldrete on the 26th of November, 1833; 2d, an act of sale of the said eleven leagues, passed on the twelfth day of March, 1836, in the city of Mexico, from the said Aguilera to Anna Matilda Massieu, a citizen of Mexico, then an infant, and who died in August, 1851, under age; and, 3d, descent to the plaintiffs as the heirs-at-law of said Anna Matilda, they being her mother and brothers and sisters, and all citizens of Mexico.

The defendant claimed title to the tract of 1,855 acres, mentioned in his pleas, under a grant from the State of Coahuila and Texas to Edward C. Harris, made Jan. 26, 1835, and through various mesne conveyances from said Harris to himself. He claimed title to the 153-acre tract (the other tract mentioned in his pleas), under a head-right grant made by the State of Texas to one Robert S. Patton, on the 4th of February, 1857, and through various mesne conveyances to himself.

The first question raised for the consideration of this court is that arising upon the alienage of the plaintiffs. This question was raised by the demurrer to the petition, so far as relates to their right to maintain an action for land. The subsequent proceedings raised the further question, whether, being aliens, they could inherit lands in Texas in 1851 from Anna Matilda Massieu, who was also an alien; and, if they could, whether they could continue to hold the title thereof without residing in Texas and becoming citizens. These questions may be conveniently considered together.

Texas, which, with Coahuila, had constituted a State of the Mexican Republic, declared her independence on the 2d of March, 1836; but the Mexican or Spanish law, except as to criminal cases, and except as modified by the congress, was continued as the law of the republic until the 16th of March, 1840, when the common law was adopted. By the common law an alien could indeed take land by purchase, but it would be liable to forfeiture to the king; and he could neither take nor transmit land by inheritance. Co. Litt. 2; 1 Bl. Com. 372; 2 id. 349; 3 Cruise, Dig. 365; Williams, Real Prop. 53; 2 Kent, Com. 53. It is conceded, however, by the counsel of the defendant, that important qualifications of this rule have always existed in the laws of Texas. The precise question is, whether a citizen of Mexico, not being a resident of Texas, but of some other Mexican State, owning lands in Texas at the time of the revolution, lost his title thereto, or his right to convey the same, or to transmit the same to his heirs, by means of the revolution, or by reason of subsequent legislation. The separation of Texas from the Republic of Mexico was the division of an empire. Up to the time of such division, all the citizens of the republic were citizens in every portion thereof, and had full right to hold property, movable or immovable, in every portion. If the revolution in Texas deprived the citizens of Mexico residing in other Mexican States of the right to hold and transmit their property situated in Texas, it amounted to confiscation. Did such confiscation take place by virtue of general international law, or by virtue of legislation adopted by Texas after its independence was declared? That such is not the general consequence of a division of empire, seems to be settled. Mr. Justice Nelson, delivering the opinion of this court in the case of Jones v. McMasters (20 How. 8), which related to a Texas title, says: 'The general principle is undisputed, that the division of an empire works no forfeiture of a right of property previously acquired.'

The original constitution of Texas, adopted March 17, 1836, fifteen days after the declaration of independence, did, indeed, provide as follows: 'All persons who shall leave the country for the purpose of evading a participation in the present struggle, &c., shall forfeit all rights of citizenship, and such lands as they may hold in the republic.' Gen. Provs., sect. 8. But this did not refer to Mexicans residing elsewhere. The tenth section, however, declared as follows: 'No alien shall hold land in Texas except by titles emanating directly from the government of the republic; but if any citizen of this republic should die intestate or otherwise, his children or heirs shall inherit his estate; and aliens shall have a reasonable time to take possession of and dispose of the same in a manner hereafter to be pointed out by law.' So that, although it was declared that aliens should not hold lands in Texas, a reasonable time was to be given to them to come in, or dispose of their lands,-the last clause evidently referring to aliens generally, and not merely to the 'children and heirs' just referred to.

By an act of the congress of Texas, passed Jan. 28, 1840, it was provided as follows: 'In making title to land by descent, it shall be no bar to a party that any ancestor through whom he derives his descent from the intestate is or hath been an alien; and every alien to whom any land may be devised or may descend shall have nine years to become a citizen of the republic, and take possession of such land; or shall have nine years to sell the same before it shall be declared to be forfeited, or before it shall escheat to the government.' Oldham & White, 699, 700.

This statute has continued in force to the present time, being re-enacted in 1848. The State Constitution of 1845 effected no change in rights of property, but expressly established existing rights. Art. 6, sect. 20. By an act passed Feb. 13, 1854 (Pasch. Dig., arts. 45-47), it was further provided, in favor of aliens, that they should have the same rights as are accorded to American citizens by the laws of the nation to which such aliens belong; including the right to take and hold property, real or personal, by devise or descent from any alien or citizen. This law being passed subsequent to the death of Anna Matilda Massieu, cannot affect the present case, but is cited for the purpose of illustrating the spirit and course of Texas legislation on the subject under consideration.

Aguilera became an alien to Texas by virtue of the separation of that State from the rest of the Mexican Republic. His title to the lands in question had been lawfully acquired before this forced alienage commenced, and whilst his rights of citizenship extended to Texas as a portion of the Republic of Mexico.

At that time, as before stated, the Spanish law, as modified by the local laws of Mexico and of the State of Coahuila and Texas, was the general law of the infant State; and in some of the early cases in Texas, as in the Heirs of Holliman v. Peebles (1 Tex. 673), and in Yates v. Iams (10 id. 168), it was argued, though not expressly decided, that by the general Spanish law, and if not by that law, at least by the colonization laws of Mexico, and of Coahuila and Texas, a non-resident alien could not hold real estate. The same views were expressed in the case of McKinney v. Saviego, 18 How. 235. But the laws referred to had respect to the case of aliens who, when they were such, acquired, or attempted to acquire, lands in Spain or her colonies, and not to the case of citizens or subjects who, on the division of an empire, happened to hold lands in the section in which they did not reside, and therefore had good title thereto when, by operation of law, they became aliens as to such section. It must be admitted that aliens of this class stand on a different footing, in equity at least, from those who, being aliens, attempt, against the law, to acquire real estate in a foreign country. It may be a wise policy to prevent the latter class from acquiring lands, whilst it would be extremely unjust to confiscate the lands of the former class,-lands which they had rightfully and innocently acquired, having only become aliens afterwards by force of law resulting from events beyond their control. This precise question came before this court in the case of Jones et al. v. McMasters (supra), and it was decided that the title of such persons is not divested by their forced alienage resulting from the division of an empire. In that case the plaintiff was a citizen of Mexico, and owned the land in controversy situated in Texas, at the period of the Texan revolution. The defendants claimed under patents from the State, and contended that the plaintiff must fail in her action. But it was sustained by the court below and by this court. Mr. Justice Nelson, in delivering the opinion of this court, said: 'Assuming that the plaintiff is an alien, and not a citizen of Texas, the next question is, whether or not she is under any disability that would prevent her from the assertion of her title to the premises in question; in other words, whether her absence and alienage worked a forfeiture of the estate. The general principle is undisputed, that the division of an empire works no forfeiture of a right of property previously acquired. Kelly v. Harrison (2 J. Cases, 29; 7 Pet. 87). And consequently the plaintiff's right still exists in full effect, unless the new sovereignty created, within which the lands are situate, had taken some steps to abrogate it. The title remains after the revolution, and erection of the new government, the same as before.' This case was decided in December Term, 1857, and it is believed that no case in Texas has held the contrary since that time. The same views were expressed, and many authorities cited in support thereof, in Kilpatrick v. Sisneros (23 Tex. 130-134), decided in 1859; also in Sabriego v. White (30 id. 581-584), decided in 1868,-all which cases are recognized in the late case of Andrews v. Spear, 48 id. 567.

We think, therefore, it may be regarded as settled that the severance of Texas from the Republic of Mexico did not divest the title of Aguilera to the lands in dispute.

This conclusion disposes of another point in the case,-the question as to the validity of the act of sale passed on the twelfth day of March, 1836, from Aguilera to Anna Matilda Massieu. Notwithstanding the existence of hostilities between Texas and Mexico, it was competent for one citizen of Mexico to convey to another, both residing and being in Mexico, lands situated in Texas. This point was settled by the late decision of this court in the case of Conrad v. Waples, 96 U.S. 279. We may assume, therefore, that at the time when the Constitution of Texas was adopted, on the 17th of March, 1836, the lands in dispute rightfully belonged to Anna Matilda Massieu, who was then an infant, and a citizen of Mexico residing in the city of Mexico.

Then did the Constitution which was adopted on the 17th of March, 1836, divest the title which Anna Matilda Massieu had acquired? We have already quoted its language, and have seen that whilst it declared that aliens should not hold lands in the republic, a reasonable time should be given to them by law to become citizens or to dispose of their lands.

It seems clear, therefore, that the Constitution itself did not, proprio vigore, divest the titles of aliens, especially the titles of those Mexican citizens who had become aliens by the course of events. It was left to future legislation to provide the mode and manner in which such divestiture should take place. This view is sustained by the cases already referred to, and by many others that might be cited on the subject. We may assume, therefore, that Anna Matilda Massieu continued to hold the title to the lands in question after, as well as before, the adoption of the Constitution on the 17th of March, 1836.

Then came the act of Jan. 28, 1840, already quoted, removing the bar of alienage in descents, and giving to aliens, and alien heirs, nine years to become citizens of the republic, and take possession of their land; or nine years to sell the same 'before it shall be declared to be forfeited, or before it shall escheat to the government.'

This law being passed whilst Anna Matilda Massieu was lawful owner of the land, gave her nine years to become a citizen, or dispose of the same before it could be forfeited by proceedings at the suit of the government. Of course, after the nine years should expire, namely, after Jan. 28, 1849, the land would be forfeitable if the legislature should, in the mean time, provide a proceeding to be taken for declaring such forfeiture. The common law, so far as not inconsistent with the Constitution or the acts of Congress, was adopted as a rule of decision in Texas on the 20th of January, 1840, to take effect on the 16th of March thereafter. But it is not perceived how this could materially affect the case under consideration, which was already provided for. The common-law doctrine respecting alienage as affecting title to land was superseded by the Constitution of the republic and the statute referred to.

The next modification of the law was made by the State Constitution of 1845, which by art. 13, sect. 4, provided as follows: 'All fines, penalties, forfeitures, and escheats, which have accrued to the Republic of Texas, under the Constitution and laws, shall accrue to the State of Texas; and the legislature shall, by law, provide a method for determining what lands may have been forfeited or escheated.'

This provision only renders it still more clear that the legislature must first act before any proceedings can be taken to annul the title of an alien, or any other escheatable titles. Under this provision, it has been held that, since its adoption, no locations can be made upon lands held by aliens on the ground of their title being void, since no law has been framed to provide the means for declaring forfeitures for alienage. Hancock v. McKinney, 7 Tex. 384; Swift v. Herrera, 9 id. 263; Johnson v. Smith, 21 id. 722; Luter v. Mayfield, 26 id. 325.

The only law which has been passed relating to proceedings for enforcing forfeitures and escheats is that of March 20, and which went into effect April 29, 1848. But this only relates to the case of escheat when a person dies without heirs, and cannot apply to the plaintiffs if they were capable of inheriting from Anna Matilda Massieu in August, 1851, at the time of her death.

As to this point, we have seen that the act of January, 1840, declared that, in making title by descent, it should be no bar to a party that any ancestors through whom he derives his descent from the intestate is or hath been an alien. This law would seem to be the legitimate result of the status of aliens with regard to title to lands in Texas; the prohibition to hold lands being provisional only, not operative, unless they failed to become citizens, or to dispose of their lands, within nine years; and not even then, until regular proceedings should be provided for, and should be had, to annul the title. The later cases in Texas have fully established this doctrine. We refer particularly to the cases of Sabriego v. White, 30 id. 576; Settegast v. Schrimpf, 35 id. 323; and Andrews v. Spear, 48 id. 567.

From this review of the law of Texas, it would seem indubitable that the title of the plaintiffs to the land in question is free from objection on the score of alienage.

Then, have the plaintiffs a right to vindicate their title in the courts of justice? Several cases have undoubtedly decided that an alien cannot sue for lands in Texas. The last case referred to is that of White v. Sabriego (23 Tex. 243), which presented the naked question of alienage as a bar. The court, however, stated that under special circumstances aliens may sue; that is, under circumstances which entitle them to hold land; as, where they have a title emanating directly from the government, or where they acquired land by descent or purchase before the division of the empire and the change of government. In the subsequent case of Sabriego v. White (30 id. 576), involving the same title, the plaintiff showed that the land was granted to her mother before the revolution; and that her mother (with herself) removed to Matamoras during the revolution, and her mother died there in 1842; and that the plaintiff had ever since continued to reside in Matamoras, remaining a Mexican citizen. The court held that the plaintiff lawfully succeeded to her mother's rights, and retained her title to the property, no office having been found to forfeit it; and hence that she was entitled to maintain her action. The case of Jones v. McMasters (supra) is also a case in point on this question, it being there held that alienage was no bar to an action, if the title of the alien was good; and the title was held good as against third persons until office found, and a judgment of forfeiture.

Our conclusion, therefore, is that the objection to the right of the plaintiffs to vindicate their title in the courts, as well as the objection to the title itself, was properly overruled.

The next question is whether the plaintiffs succeeded in proving the title by which they claimed the lands in dispute.

To prove the original grant from the government of Coahuila and Texas to Aguilera, the plaintiffs, at the trial, offered in evidence a certified copy from the general land-office of the Spanish title, consisting of Aguilera's petition for eleven leagues of land on Trinity River or elsewhere, the act of concession, dated March 20, 1830, the petition for possession in September, 1833, the reference for a survey, the notes of survey, and the title of possession, dated Nov. 26, 1833, executed by Vicente Aldrete, commandant at Nacogdoches and general commissioner of the government, in the presence of two witnesses.

The imperfect condition of the record does not enable us to understand clearly whether or not, in addition to this certified copy, a testimonio of the title was also offered in evidence. From a translated copy, and the fact that the Spanish original thereof was waived by the parties and not inserted in the record, we infer that such a testimonio was offered. From the translation referred to it appears that this testimonio was verified by the signature of Aldrete, and two assisting witnesses, named Rodriguez and Perez.

This paper purported, by certificates thereon, to have been recorded in August and October, 1870, in the counties of Anderson and Freestone, where the land lies. The only authentication of the instrument at the time of recording consisted of an affidavit made by one R. D. Johnson, at Galveston, in 1857, that the residence of the subscribing witnesses was unknown to him; and a joint affidavit of one Taylor and one Edwards, made at Nacogdoches in 1857, deposing to the genuineness of Aldrete's signature.

The defendant objected to the admission of this evidence of the title as an authenticated and recorded instrument. The objection was overruled.

The admission of this evidence forms the basis of one of the errors assigned. If the accessary circumstance of the title having been recorded in the proper counties in 1870 had been a material fact in the determination of the cause, its admission as a recorded title would have made it necessary for us to examine the sufficiency of the affidavits in virtue of which the recording was made. But from the view which was taken of the case by the court below the recording of the instrument became immaterial; the learned judge holding that the defendant could claim no benefit from the fact that the plaintiffs' title was not properly recorded, inasmuch as both parties claimed the principal tract in question under titles emanating from the Mexican government, and therefore as between them the recording acts did not apply. If this position was correct, the recording of the plaintiffs' title was certainly immaterial; if not correct, the judgment should be reversed. It is unnecessary, therefore, to consider the question whether that title was properly authenticated for recording or not, a question which might give us some embarrassment. The correctness of the ruling made by the court will be considered further on.

Whether the testimonio was sufficiently authenticated to make it competent evidence of the title, as contradistinguished from its registry, it is also unnecessary to decide. It is clear that the certified copy of the title from the land-office was prima facie evidence of its existence; for it would be presumed that the original was an archive of the land-office. For the mere purpose, therefore, of proving title only, without clothing it with the privileges of registry, the certified copy was sufficient.

But after the plaintiffs had rested, the defendant recurred to his attack upon their evidence of the grant to Aguilera. He called as a witness the translator of the land-office, who produced the protocol or original title of said grant, and showed that it had never been deposited in the land-office until July, 1873, after the commencement of this action. The defendant further proved by E. A. Mexia that he, as agent of the plaintiffs, had procured the said protocol in June or July, 1873, from the governor of the State of Coahuila in the Republic of Mexico, and had deposited the same in the general land-office of Texas in July, 1873. The defendant now moved to exclude the certified copy as evidence on the ground that the protocol was not an archive of the general land-office of Texas, but was an archive of the Mexican State of Coahuila, and was put in said office by a private individual without the authority or sanction of any law, and that there is no law of the State of Texas or of the United States authorizing the use of a copy thereof as evidence in any court or judicial proceeding. This motion was overruled, and the defendant excepted; and the question is again presented here as to the admissibility of the evidence.

We think the certified copy was admissible in evidence.

By an act of the congress of Texas, passed Dec. 14, 1837, it was declared 'that it shall be the duty of every person or persons who may have in his or her possession or control any titles or documents whatever which relate to lands, and which, by the laws now or heretofore existing in Texas, have been and are considered archives, to deliver the same to the Commissioner of the General Land-Office, on his order, within sixty days after the final passage of this act.' Pasch. Dig., art. 70. The sixth section of the same act constituted the land-office the proper depository of all books, records, papers, and original documents appertaining to the titles of lands denominated archives. Id., art. 71. There can be no doubt that the protocol of the title in question belonged to the class of documents here designated; and it does not appear that any law has ever been passed to prevent such documents from being deposited in the land-office at any time. It is true that a door is thereby left open for the perpetration of frauds; but fraud is always open to investigation, and if titles which have been long kept back from the proper public depository, and whose existence has thereby been unknown, are not allowed to disturb subsequent titles acquired bona fide in the mean time, the apprehended evil will be greatly diminished. This consideration renders it important that the position taken by the court below in reference to the question of registry as between persons holding under titles issued by the Mexican government should be carefully considered.

The next question to be considered, therefore, is whether a bona fide purchaser claiming under a Mexican title is bound to take notice of a prior Mexican title which is neither recorded in the proper county nor deposited in the land-office.

The defendant, in this case, claimed title to the 1,855-acre tract in question, under a grant of one league of land, dated June 26, 1835, from the government of Coahuila and Texas to one Edward C. Harris, and by the following intermediate conveyances from Harris to himself: 1st, a deed from Harris to one Hotchkiss, dated June 9, 1840; 2d, a deed from Hotchkiss to one Vail, dated April 24, 1844; 3d, a deed from Vail to one Mynott and his wife, dated June 1, 1855; 4th, a deed from Mynott and wife to one Kimbrough, dated Oct. 30, 1856, in pursuance of a title-bond executed in June, 1856; 5th, a deed from Kimbrough to the defendant and another person, dated Nov. 30, 1868,-all of which deeds were duly recorded. This chain of title was duly proved, and there was no evidence that the defendant or any of those through whom he deraigned title had, at the times they respectively acquired their titles, any actual notice of the existence of the said grant to Aguilera. Some proof was offered to show constructive notice, but the ruling of the court renders it unnecessary to consider it.

According to the view taken by the court below, none of the persons who thus acquired title under Harris could claim any benefit from the fact that Aguilera's title was totally unknown and unheard of, and that no trace of it was to be found in any public office of archives or records in Texas. If this be the law of Texas, the owners of lands in that State hold them by a very uncertain tenure.

But we cannot believe that this is a correct view of the law. However, the case may have stood between the original grantees of Coahuila and Texas, namely, Aguilera and Harris (and of this we express no opinion), we think that the subsequent bona fide purchasers and possessors under Harris acquired an unquestionable right to contest the unknown and dormant title ofAguilera, though antedating that under which they claimed.

The Texas recording acts are not so clear and explicit as they might be, it is true; but, in our judgment, their tenor and spirit are sufficient to prevent such great injustice and wrong as must necessarily follow if they do not apply to such a case as this.

The act of Dec. 20, 1836, 'organizing inferior courts,' &c., provided, amongst other things, as follows:--

'SECT. 37. Any person who owns or claims land of any description, by deed, lien, or other color of title, shall, within twelve months from the 1st of April next, have the same proven in open court, and recorded in the office of the clerk of the county court in which said land is situated; but if a tract of land lies on the county lines, the title may be recorded in the county in which part of said land lies.'

'SECT. 40. No deed, conveyance, lien, or other instrument in writing, shall take effect, as regards the interests and rights of third parties, until the same shall have been duly proven and presented to the court, as required by this act, for the recording of land titles. And it shall be the duty of the clerk to note particularly the time when such deed, conveyance, lien, or other instrument is presented, and to record them in the order in which they are presented.' Pasch. Dig., arts. 4980, 4983.

The limit of time prescribed in the thirty-seventh section was repealed in 1838.

As most original titles in Texas, originating before the revolution, like that of Aguilera in this case, were public archives, the parties holding only testimonios thereof, the following law was passed Jan. 19, 1839:--

'Copies of all deeds, &c., when the originals remain in the public archives, and were executed in conformity with the laws existing at their dates, duly certified by the proper officers, shall be admitted to record in the county where such land lies.' Id., art. 4984.

It seems to us that these provisions cover the case under consideration. And such is the judgment of the Supreme Court of Texas. In the case of Guilbeau v. Mays (15 Tex. 410), the plaintiff claimed under a grant of a league of land from the former government; the defendants pleaded prescription for three years, and that there was no record of the plaintiff's grant in the general land-office nor in the county where the land was situated; that they held by patents issued from the government of Texas and locations of valid certificates, without notice of the plaintiff's title. The proofs corresponded with this defence, and the court held it to be a valid one. After reviewing the laws above referred to, and the manifest policy by which they were dictated, they proceed as follows: 'In view of the legislation on this subject, it is believed not to be susceptible of a doubt that the grants upon which the plaintiff bases his right to the lands in question ought to have been recorded, and their failure so to be recorded, or delineated on the maps, or other notice, will postpone them to a junior title, derived from the government, and will place the defendants in the position before the court as innocent purchasers without notice, and in principle not distinguishable from the great class of cases of innocent purchasers without notice of any prior or superior titles.' This case is corroborated by the subsequent cases of Musquis v. Blake, 24 Tex. 461; Nicholson v. Horton, 23 id. 47; Wilson v. Williams, 25 id. 54.

Had the grant to Aguilera been deposited in the land-office, the case would have presented a question of very different consideration. It is generally conceded that an archive in the general land-office is entitled to all the privileges of an instrument recorded in the proper county. In the case just cited the court say: 'Now, in cases of title emanating from the government, where the patent or testimonio had not been recorded in the county where the land lies, the archives of the general land-office and the maps of survey, and the records and maps of the county surveyor, would be regarded as notice that the land was appropriated, and was not a part of the vacant domain of the republic.' See also Byrne v. Fagan, 16 Tex. 391; Chambers v. Fisk, 22 id. 504; Wilson v. Williams, 25 id. 54. But here all the transfers of the Harris tract took place before the Aguilera title was either recorded or deposited in the land-office. Under these circumstances, the plaintiffs should have been required to show that the defendant and those under whom he claimed had either actual or at least constructive notice of their title at the time when they respectively purchased; but the court required neither, holding in effect that the elder title was entitled to preference without any notice of its existence.

Of course, buying with actual notice of a previous title, or under circumstances which make it a duty to take notice, is a fraud, and deprives the purchaser of the immunity arising from the fact that such title is not recorded nor deposited in the land-office. Crosby v. Huston, 1 Tex. 203; Grumbles v. Sneed, 22 id. 565.

By a late law, passed Oct. 20, 1866, a title not deposited in the land-office, and not recorded, will no longer avail as against certain descriptions of title without actual notice. The act is as follows:--

'Titles to land which may have been deposited in the general land-office subsequently to the time when the land embraced by such titles had been located and surveyed, by virtue of valid land warrants or certificates, shall not be received as evidence of superior title to the land against any such location or survey, unless such elder title had been duly recorded in the office of the county clerk of the county where the land may have been situated, prior to the location and survey, or the party having such location and survey made had actual notice of the existence of such elder title before he made such location and survey.' Pasch. Dig., art. 5825.

Whether this law can properly be extended to protect any other titles than those based on 'land warrants or certificates' may be questionable. But it is not necessary for the defendant to invoke the aid of this law: he can stand on the fair construction of the laws of 1836 and 1839. The title which he is called upon to combat was not to be found either in the land-office or in the records of the counties, the only public depositories to which the people could resort to ascertain what lands have been granted, and what are vacant and free; and he may well insist that if he and his several grantors had not actual, they should at least have had constructive, notice of an elder title in order to be affected by it,-something beyond the mere fact of its existence; some legal indicia or evidence of that existence, deposited in some proper place, which he was legally bound to find, and which, in the exercise of ordinary diligence, he might have found and relied on.

Many other questions are made in the record; but as this is a controlling one, we have thought it unnecessary to discuss them. We are satisfied that the judgment must be reversed, with directions to award a new trial; and it is.

So ordered.

title: Airhart v. Massieu/Opinion of the Court


text: Talk:Airhart v. Massieu/Opinion of the Court