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Neil v. State of Ohio. 3 H.

that a denial to the contractor of the privilege now contended for,

might enhance the price of transporting the mails, the ques[ * 749 ] tion still very properly arises, whether this effect * (were the

language of the law even doubtful) would justify the extension to him of such a privilege? A just view of the legislation of both the state and federal governments, and of the obvious purposes of that legislation, must compel a negative answer to this question. The

purposes designed by this legislation were the preservation and repair of the national road. Such are the objects announced, not only in the titles of the laws themselves, but provided for in all their enacting sections; and the quo modo declared by these enactments is the levying of tolls. Is it then reasonable or logical, or rather is it not inconsistent and contradictory, to attempt to deduce from them conclusions which fall not within their terms, but which go to defeat every end which must have been within the contemplation of the parties; for which indeed these enactments all profess to have been made. Is not this attempt in violation of all rules for the construction either of statutes or contracts, which always preserve the main and obvious intentions of legislators or of contracting parties, to the exclusion of minor though seemingly contradictory considerations ? But the language of these laws is by no means equivocal. Except for the exemption contained in the second proviso of the 4th section of the Ohio statute of 1831, all mails and the carriages in which they are transported, the troops, arms, and property of the United States of every description, would have been subject to the payment of tolls; and the exemption can be extended no further than the plain and natural import of the language of that proviso will justify.

Again, it has been said, that the exaction of tolls from travellers in the mail stages would be a violation of the contract, because by such a demand travellers would be excluded from those stages, and that the safety of the mails would be endangered by this exclusion; it being assumed by this argument that the travellers are to constitute a guard to the mails. To this seemingly strange and far-fetched argument, it might be sufficient to answer, as was done to the former, that no stipulation for the transportation of such a guard, (if by any violence to language ordinary casual wayfarers could be so denominated,) is contained in the contract; and that the attempt thus to introduce any such stipulation or ingraft it upon that contract, is a palpable and unwarrantable interpolation upon its terms and its objects. In the next place, the propounders of this argument may be challenged to show either the duty or the willingness of such travellers, to take upon themselves the hazards, the trouble, or the

Hickey's Lessee v. Stewart. 3 H.

responsibilities of guarding the United States mails. With equal cogency may those who thus reason be called



that amongst the promiscuous multitudes who travel in stages, there may not be comprised those who roam the country with the view of committing depredations, and from whose designs the safety of the mails may be most endangered.

Upon a full consideration of this case, I am brought to conclude, * that the acts of the legislature of Ohio, subse- 1 * 750 ) quent in date to the 2d of March, 1831, and the proceedings of the board of public works of that State, founded upon those statutes, are in violation of no principle or right guaranteed by the constitution of the United States, nor of any acts of congress passed in pursuance thereof; nor of any contract at any time existing between the State of Ohio and the federal government. I am further of opinion, that the aforesaid laws of Ohio were on the contrary designed, and are of a tendency, fairly, and justly, to distribute the tolls collectable within her limits, on the road in question, so as to make them properly subservient to the views of the federal government and of the government of Ohio, at the times of passing of the state law, of February 4, 1831, and the act of congress of the 2d of March, 1831; and in conformity with the express language of those laws; and to prevent unwarrantable monopoly, and serious if not fatal detriment to the road. I think that the decision of the supreme court of Ohio, being a correct exposition of the laws designed to effect these important objects, ought therefore to be affirmed.

7 H. 283; 12 H. 293.

LESSEE OF Philip HICKEY et al., Plaintiff in Error, v. JAMES A.

STEWART, et al.
3 H. 750.

! A decree of a court of equity declaring that the complainant is the equitable owner of land,

and ordering the defendant to convey it, though in part executed by a writ of habere facias, putting the complainant in possession, does not confer a legal title, and is not a bar to an

action of ejectment. The supreme court of Mississippi had not jurisdiction to examine and declare the validity 124 2

of an inchoate Spanish title, and its proceedings in that behalf were merely void.

3n 71 6h Ah 5 9h 1 9h 1 10h 6 18wa 4 123


The case is stated in the opinion of the court.

Coxe and Walker, for the plaintiffs.

Henderson, and Jones, contrà.

* M'KINLEY, J., delivered the opinion of the court.

[ * 756 ]

Hickey's Lessee v. Stewart. 3 H.

This case is brought before the court by a writ of error to the circuit court for the southern district of Mississippi.

The plaintiffs brought an action of ejectment against the defendants in the court below; and upon the trial, the plaintiffs read in evidence, to the jury, the copy of a plat and certificate of survey, signed by Charles Trudeau, royal surveyor of the province of Louisiana, for two thousand acres of land, French measure; and a patent, issued

by the Spanish governor of that province, thereupon, to [ * 757 ] James * Mather, dated the 3d of April, 1794; and a deed of

conveyance from James Mather to George Mather, dated the 26th day of April, 1803, for the same tract of land; and they also read in evidence a certificate, dated the 10th day of April, 1806, signed by the commissioners, appointed by the President of the United States, under the act of congress, of the 3d of March, 1803, and the act, supplemental thereto, of the 27th of March, 1804, confirming to George Mather the said tract of land, by virtue of the articles of agreement and cession between the United States and the State of Georgia. It was also proved that George Mather died, about the year 1812, and that James Mather was his heir; and that James Mather had died pending the suit; and it was admitted by the defendants, that the plaintiffs were the heirs of James Mather, “and whatever title he had at his death vested in them or any others, his heirs, to be shown.”

And it was admitted by the plaintiffs, " that the defendants were in possession of the land in controversy, and were so at the time this suit was brought, under derivative titles from Robert Starke's heirs, valid so far as Starke's title was valid.” And the defendants in support of the issue, on their part, offered to read the record of the proceedings in a suit in chancery, in the supreme court of the State of Mississippi; in which the heirs of Robert Starke were complainants, and the heirs of James Mather, defendants. And by which record it appeared, that the complainants set up and claimed title to the land, here in controversy, under a warrant or order of survey, for two thousand acres of land, dated about the 29th day of December, 1791, and the survey thereon; and the defendants claimed title under the survey and patent of the Spanish government to James Mather. And by the order and decree of that court, the land, in controversy in this suit, was adjudged and decreed to the heirs of Robert Starke.

To the reading of which record and proceedings, as evidence to the jury, the plaintiffs objected, on these grounds: First. That it does not purport to be a record on its face, and in its context. Secondly.

1 2 Stats. at Large, 229.

2 2 Ib. 303.

Hickey's Lessee v. Stewart. 3 H.

That said record does not disclose, nor contain a final decree; neither the said record, nor the said decree therein being signed by the judges of the said supreme court of Mississippi. Thirdly. That the pleadings and context of said record show, that the chancery suit was entertained and treated by said supreme court as a matter of original jurisdiction; whereas the statutes of Mississippi expressly provide, that the opinion of the supreme court shall be certified to the court below, whose action and adoption alone can render the opinion of the supreme court final upon a question of law adjourned for its opinion. Fourthly. That the facts and the law of the case, did not give the chancery court jurisdiction, inasmuch as, after the treaty of 1783, a Spanish warrant or order was a mere nullity, and could only be rendered valid, by the holder bringing himself within the first section of the act of congress of 1803, by * residence [ * 758 ] and cultivation; whereas, as the record shows, that Starke was not within that act; nor, if he had been, could he have derived any equity against a title, confirmed by the articles of agreement and cession between Georgia and the United States, of the 14th of April, 1802. Fifthly. That jurisdiction, legal and equitable, was vested elsewhere, by the 6th section of the act of 1803; such investiture of jurisdiction in an inferior tribunal being exclusive of that of any other tribunal. Sixthly. That a record or decree out of chancery is not evidence of a legal, but an equitable title only, and is, therefore, not pertinent to the issue joined. Seventhly. That the decree, if read at all, must be read as an estoppel by the record, and subject to the rules as to estoppels. Eighthly. That a decree in chancery must be read on the same footing as a judgment at law; and unless carried out by a conveyance, can have no greater effect than a judgment in ejectment.”

The court overruled these objections, and permitted the record to go to the jury, as evidence of any fact decided by it. To which opinion of the court the plaintiffs excepted. The plaintiffs, among other instructions, some of which were refused and some granted, but which need not be noticed here, moved the court to instruct the jury, “ that the decree read in evidence, by the defendant's counsel, does not per se devest the plaintiffs, or the ancestors of the plaintiffs, of the legal title, but that said title remains unaffected at law by said decree, and is still in plaintiffs, if the jury believe them to be the heirs of said Mather."

There were several instructions moved by the defendants, some of which were granted, and some refused; but as they are either included in the ruling of the court, already noticed, or unnecessary to the de

Hickey's Lessee v. Stewart. 3 H.

cision of the points on which we think this case ought to be decided, they will not be noticed in the investigation of the subject.

Two questions are distinctly presented by the ruling of the circuit court. First. Whether the decree in the suit in chancery was a bar to the action of the plaintiffs. Secondly. Whether the court of chancery had jurisdiction of the subject matter in controversy before it in that case.

For the plaintiffs in error, it has been 'insisted, that the decree is not evidence of a legal title, even if it were otherwise valid, and, therefore, no bar to the action of ejectment; and that the possession of the defendants under the decree, without a deed of conveyance as directed by it, whether by the writ of habere facias possessionem or otherwise, gave no legal title to the defendants; and, therefore, opposed no legal bar to the plaintiffs' action. And, secondly, it was insisted, that neither the court of chancery, nor the supreme court of the State of Mississippi, had jurisdiction of the subjectmatter presented by the bill of the complainants. The whole power to confirm Spanish titles, protected by the contract of cession by the

State of Georgia to the United States, having been confer[759] red, by act of congress, on a board of commissioners, * whose

decision was by law made final, no other court could decide upon the validity of those claims.

The converse of these propositions was maintained by the counsel for the defendants. And it was insisted that the decree operated as a conveyance, and also as a judgment in ejectment, the court of chancery having the power by statute to award the writ of habere facias ; and, therefore, the decree, and possession under it, is a legal bar to the action of ejectment. And, upon the second point, it was insisted that the jurisdiction of the court over the subject-matter of the decree could not be inquired into by the court below, nor by this court, when brought before either collaterally. To arrive at the legal effect of the decree, we must inquire into the object and intention of the complainants in bringing the suit in chancery. They charge in their bill, that James Mather had obtained from the Spanish government the legal title to the land in controversy, in fraud of the rights of their ancestor, Robert Starke; and they pray that, by decree of the court, Mather may be compelled to surrender to them the full and entire possession of the land, together with the evidences of title which he has thereto, and that they may be quieted in their title; " and such other and further relief in the premises as to the court shall seem meet."

The court, by its decree, established the right of the complainants to the land in controversy, and ordered Mather's heirs, who were all non-residents of the State of Mississippi, to convey the land to the

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