filed their answers, denying the allegations of Several exceptions were taken to the rulings It does not appear that any questions were raised on the chancery side of the court, growing out of these exceptions. And this not having been done, it is proper to inquire whether the exceptions can be considered in this court. It is contended that as the same judges sat in the court of law as in the Court of Chancery, that it could not be necessary to bring before them as chancellors what they had decided in a court of law. Had the court of law been held by different persons from those who sat as chancellors, it is admitted that it would have been necessary to bring before the a master the rents received by the defendants, and other matters of account pertaining to the estate. And to some of the items allowed by the master, objections are made before this court. But it does not appear that these objections were brought before the lower court by exceptions to the master's report. The seventy-third chancery rule is decisive on this subject. It provides that "the parties shall have one month from the time of filing the master's report, to file exceptions thereto, and if no exceptions are within that period filed by either party, the report shall stand confirmed on the next rule day after the month is expired." No exceptions having been filed in the Circuit Court to the report of the master, none can be heard in this court. The verdict and the report of the master, which constituted the basis of the decree of the court below, not having been objected to in that court, cannot be objected to here, and consequently the decree of the Circuit Court is affirmed with costs. ror, latter the points ruled in the trial of the issue. JOHN MCDONOGH, Plaintiff in [*693 In V. LAURENT MILLAUDON et al., Defendants. Acquisition of Louisiana-treaty between U. S. and France-title to lands-delay waiver of irregularity in issuing certiorari. The treaty by which Louisiana was ceded to the United States recognized complete grants, issued anterior to the cession, and a decision of a State court against the validity of a title set up under such a grant, would be subject to revisal by this court under the 25th section of the Judiciary Act. But if the State court only applies the local laws of the State to the construction of the grant, it is not a decision against its validity, and this court has no jurisdiction. recommended for a judgment at law is entered by a court which A decision of a State court, therefore, which may be in opposition to one of these surveys, is not against the validity of a title existing under an act of Congress, and this court has no jurisdiction in such a case. Where a cause has been pending in this court for two terms, a writ of certiorari sent down at the inrecord, and the defendant in error then moves to stance of the defendant in error, to complete the dismiss the case upon the ground that the clerk of a State court issued the writ of error, and one of the judges of that court signed the citation, the mo tion comes too late. This case was brought up by writ of error, under the 25th section of the Judiciary Act, from the Supreme Court of the State of Loui siana. The decision of this court being against its jurisdiction, it seems best to give the opinion of the Supreme Court of Louisiana, as the facts in the case and the points decided by that notice of the inferior court. And we think in sisted on in this court. Being satisfied of the legitimacy and consequent heirship of the complainants, from the verdict of the jury, the court below referred to "Supreme Court of the State of Louisiana. に A. Morphy, E. Simon, His Honor Judge Martin of indisposition. "Laurent Millaudon et. al., appellees, บ. and Rice Garland. | likely to arise out of both these claims, in is absent on account which persons not now before us may be interested. We shall not anticipate the points that may hereafter be made, and will now only de cide what is indispensable to the adjustment of the difficulty between the parties before us. Appeal from the District Court for the First Judicial Dis trict. John McDonogh, appellant. "The plaintiffs (Millaudon et al., who were plaintiffs in the original action) allege that they, with Henry T. Williams and Charles F. Zimpel, purchased a large tract of land of A. F. Rightor, being a portion of a claim or grant generally known as the Houmas, in the parish of Ascension. They took possession with the intention of dividing it into smaller tracts and selling them at auction, to effect a partition; but were prevented from doing so by the acts and conduct of the defendant, who publicly declared that he was the owner of a large portion of the land, and slandered their title. They say they have requested him to desist his slanders, or to bring suit to assert his title, which he declines. They pray that he be compelled to set forth his title, if he has any, and 694*] if he fail to do so, that they be quieted in their possession against his claims and pretensions; that he be enjoined and ordered to desist therefrom; and further, that they have judgment for fifty thousand dollars damages for the tortious acts of the said defendant. "The defendant pleads a general denial; then specially that the plaintiffs have no title; he further avers he is the true and lawful owner of the land by good and sufficient titles, and concludes by a demand in reconvention, in which he prays the plaintiffs may be cited to answer; that they be compelled to produce and exhibit their titles, and that he be quieted and maintained in his possession of the land. "The plaintiffs, for answer to this reconvention demand, pleaded the general issue, and called on A. F. Rightor, as their warrantor, to maintain and defend their title against that of McDonogh. Rightor answers the call in warranty by a plea of the general issue; second, that the plaintiffs are not entitled to the remedies against him, which they claim; third, that they had a perfect knowledge of the character and extent of the defendant's claim when they purchased, and, therefore, have no right to call on him as warrantor. He further says the plaintiffs have a good and sufficient title; that McDonogh had none at all; and if he has, he is bound to sue the plaintiffs to establish it, or abandon his claim. He prays that McDonogh be compelled to exhibit his title; that it be rejected; and he concurs in the prayer of the plaintiffs against him (McDonogh). "It is further prayed that the cause be tried by a jury; but, subsequently the parties agreed to submit the question of titles to the court, reserving the damages to a trial before the jury. "The issues in this case are somewhat complicated; it has been argued at great length and with eminent ability. A variety of questions have been raised by bills of exceptions, which, with the evidence, have swelled the record to a great size; and both plaintiffs and defendant evidently desire the court to go much further into an investigation of, and decision upon, their respective titles, than is necessary for the settlement of the controversy between them. We think we can see difficulties enough "The first question is, upon which party lies the burden of proof as to the title of the land? The defendant says it rests upon his adversaries and their warrantor. We think differently. The reasons given by the district judge, in his judgment, have not been refuted, and are, in our opinion, unanswerable. He says the demand of the plaintiffs in their original petition does not constitute a petitory action. It is destitute of the first requisite of that action, not being brought against a party alleged to be in possession. (Code of [*695 Pract., art. 43.) On the contrary, the plaintiffs allege they were in possession, and are disquieted and prevented from making a legitimate use and profit out of their possession and title by the words and acts of the defendant; for which cause they ask for damages, and that he be enjoined from setting up any claim for the future, unless he do it at once, either in the present action or by another suit. It is true, the defendant says he is in possession also; and had he rested his case upon that allegation, it is possible the question would have been limited to that inquiry, according to art. 49 of the Code of Practice. But the defendant has gone further; without excepting to the form of the action, he comes up to the mark, sets up title in himself, and institutes a reconventional demand, asking that the property be adjudged to him. This reconventional or cross action, which is by the Code of Practice consolidated with the principal or original suit, is clearly petitory, and imposes on McDonogh the obligation of making the proof requisite to sustain his demand. So fully does this seem to have been understood by the parties originally, that all the subsequent proceedings are in accordance with the idea of the original defendant having become pro hac vice the plaintiff. The Plaintiffs cite their vendor, Rightor, in warranty to defend their title, according to the Code of Practice, article 379, et sequitur. Every provision of that code assumes that the warrantor is a defendant in the issue. "There are various decisions of this court, and we hold it well settled, that the last warrantor is the real defendant in a suit against his vendees-not only against the party who cites him, but more particularly against the original actor. That person in the present suit, so far as Rightor is concerned, both in substance and form, is McDonogh, whose pretensions he is called upon by his vendees to resist. The question has been heretofore decided by this court, in 9 Martin, 556, and 11 La. Rep., 188; and we see no reason for changing the precedents. "McDonogh, holding the affirmative of the issue, offered in evidence a certified copy from the register or record of complete grants in the land office in New Orleans, by which it appeared that on the 3d of April, 1769, the French Governor of Louisiana granted to Pierre Joseph Delille Dupard, pére, a tract of land having thirty arpents front on the Mississippi River, with all the depth which might be found to Lake Maurepas, of the land where formerly stood two villages of the Collapissa | province of Louisiana. The lines drawn seem Indians, situated about sixteen leagues above to be experimental or provisional. None of the city, on the same side; to take from the those running out from the river have any plantation of a person named Allemand, length marked, and out of fifteen lines drawn and join that of a free mulatto named Joseph or dotted, but six have any bearing indicated, Lacomb. The usual stipulations and reservations are made in this grant. To its reception in evidence various objections were made, which were overruled, and bills of exceptions taken by Rightor, and the grant attached after it 696*] was received as being a nullity *on various grounds. It is not necessary in the present case to decide any of these questions. and that is different on each of them. The *statement in writing, on the face of [*697 the sketch, indicates its true character. It is not in the form of a procès verbal, but is stated. to be a note which says that the land belonging to the succession having been asserted to have thirty-five arpents front, according to the declarations of the parties interested, and conformably to the writing and sales passed by the heirs in favor of Henry Fonteneau, Gelar Pedro Le Bourgeois, Alexandre Lange, mulatto, and Don Francisco Dupard, the son, the only one who had not sold his portion; but from the verification that was had in the month of March, 1787, repeated this day, the 10th of August, in the current year, the same was found to contain forty arpents and twenty-three toises front, on the Mississippi, measured upon the lines marked (punteas) A, B, C, &c., &c. This is dated the 10th of August, 1790, and signed by Carlos Trudeau. In no part of this note or statement does he assume any official character. If this plan or sketch was of any validity at all, it would perhaps prove more for the defendant than he wishes, as it fixes this claim in the Parish of St. John the Baptist, instead of the County of Arcadia. In connection with this plan, we find another in the record, which is authentic, that differs from it in various particulars. It appears that Henri Fonteneau in 1784, purchased of Mad'e Macnamora, one of the heirs of Delille Dupard, her portion of the land, being one fifth. In the act of sale, made in presence of the commandant of the port or parish of St. John the Baptist, the land is described as a tract in that parish, having "The counsel for Rightor, on whom devolved the whole defense of this case (the plaintiffs not appearing at all, further than to join issue with McDonough), insists that, supposing the grant to Delille Dupard to be genuine, given by competent authority, and all the rights of the grantee vested in his opponent (all of which he specially denies, however), that then this action cannot be maintained; because, he says, it being for a certain front and depth, and it not being specified that the lines are to open or close in any manner, it must be located by parallel lines; and the evidence shows conclusively that, if so located, it will not touch any portion of the land claimed by the plaintiffs. But the counsel for McDonogh insists the lines should open upwards of twenty degrees, and endeavor to prove that it has been located, and should so continue, as to let the lower line touch the western shore of Lake Maurepas, and the upper running westerly strike the Amite River at a distance of about nineteen miles from the Mississippi, and nearly that distance from the point where the lower line touches the lake. Nothing is said in the grant about the Amite River, nor is it shown that the lines should open in this manner, so as to include the sites of the two Indian villages mentioned in it. If this location were to be sanctioned, the Du-seven arpents front on the river, by the ordinary pard claim would cover somewhere about one hundred thousand arpents of land. depth (profondeur ordinaire). Not a word is said about the lines extending to the lake, or "To sustain their position, the counsel for the year 1790, Trudeau makes a survey of this their opening. On the 24th of September, in McDonogh insist strenuously on what they call land, places it in the parish aforesaid, gives a plat made by Don Carlos Trudeau, in 1790, it a front of eight arpents, four toises, and which they say indicates the partition of the three feet front, and states the lower side line tract among the heirs and legal representatives to run north eight degrees and fifty minutes of Delille Dupard, as on it it is said the lines east, and the upper, north ten minutes west, open in the rear as claimed. This document was objected to as evidence by the counsel of according to the needle, without attending to Rightor, but received by the court, with the minutas este de la actual aguja sin attendes a the variation. Norte ocho grados cinquenta exception of a written memorandum upon it, la variacion. and a bill of exception taken, which we con- plans and surveys submitted to us; it in fact This varies widely from other sider it unnecessary to decide on, as we think differs from any other plat that we see in the the paper does not prove what is alleged, nor record, and it is the only authentic one of the is it entitled to any weight as evidence. It is lower portion of the Dupard claim made by neither a survey, or plat, or a copy properly authority of the Spanish government. authenticated, showing how the partition was We have no other evidence of any well founded claim made. On the face, it is apparent a partition to an opening towards the rear, until McDonogh had been made previously, and there is evidence and Brown became interested in the land. They in the record showing it must have been made purchased upwards of eighteen arpents front, several years previous, as one of the heirs by eighty in depth, of Pierre Le Bourgeois, the sold her portion to Fonteneau, in 1874. This 3d of March, 1806; and in the act of sale there plan is evidently nothing more than a sketch is nothing said of the lines extending beyond made by Trudeau to represent the front of the that depth, or opening in any manner; but it tract, which it seems had increased from thirty is mentioned that two plats of survey exist, and arpents front, in 1769, to upwards of forty ar- were delivered by the vendor to the purchasers, pents, in 1790. There is not about it that par- paraphed by the notary, neither of which are ticularity and neatness which marks the opera-produced. tions of the former Surveyor-General of the "When the inventory of Delille Dupard's es11 L. ed. *ate was made in 1775, the land is represented pn favor of Delille Dupard, under whom they plete French title for the whole quantity claimed, as extending to Lake Maurepas, but not a 698*] *word said of there being an opening claim, dated the 3d of April, 1769.' His claim towards the rear. Sometime after McDonogh is placed by the register and receiver in the first and Brown purchased of Le Bourgeois, they class; which, they say, comprehends such presented the claim for confirmation to the com- claims as stand confirmed by law. It will be missioners of the United States, in the eastern observed that the grant to Delille Dupard is district of Louisiana, and represented it as hav- now spoken of for the first time; his claim, ing a front of eighteen arpents, three toises, whenever mentioned previously, was described and three feet front, by eighty arpents deep, as one derived from the Collapissa Indians, yet and having an opening of twenty degrees and no mention is made in this report of its having seventy-one minutes towards the rear; and with any opening in the rear. That difficulty is met the exception of a small portion, it was con- by the defendant by the production of a paper firmed to that extent. (2 Am. State Papers, which he says is a survey and plat of his claim Public Lands, 332.) This claim was based made by F. V. Potier, a United States surveyor, upon a grant of land of the Spanish government which it is certified was offered as part of the to Le Bourgeois, nothing being said about a evidence in support of the claim, when last grant to Dupard. presented for the action of the United States commissioners; and it is alleged that as the claim was confirmed, it must necessarily be so to the extent mentioned in the plat, it being a portion of the evidence. Admitting for a moment that this plat is valid, we are not prepared to say that the proposition is true to the extent stated. One piece of evidence does not fix the extent and character of a decision, but we must look to all that is offered, and the amount demanded. There is nothing in what is said by the register and receiver which authorizes a belief that any opening was claimed, or any was intended to be confirmed. McDonogh & Co. simply say they claim a 'front of thirty-two arpents, with a depth extending as far as Lake Maurepas,' under a complete title to Dupard, and the commissioners say it is a claim that stands confirmed by law. "Another portion of this claim was derived from Dupard, through L. H. Guerlain, agent of the Eastern Shore of Maryland Louisiana Company. We have carefully examined this branch of the title, and find nothing to prove the claim had any opening, until sometime after it was recognized by the United States. In 2 American State Papers, relating to public lands, p. 297, this claim was presented for confirmation, and described as 'situate on the east side of the Mississippi River, in the County of Arcadia, containing ten arpents and seven toises in front, and a depth extending to Lake Maurepas, bounded on one side by McDonogh and Brown, and on the other by land of Antoine Tregle.' Not a word is said about an opening. The claim is confirmed for a depth of forty arpents, and rejected for the remainder. On pages 300 and 343 of the same volume, it will be seen these claims were again under the consideration of the commissioners, and rejected. An examination of the title of the remaining portion of this claim, which comes through Tregle, establishes the fact that the idea of the Dupard grant opening towards the rear was of modern origin. It is certain that McDonogh did not consider it as extending to the Amite River previous to 1806, as he was himself established on that stream some years previous, under a different title, or as a trespasser. "We have been thus particular in the examination of all these circumstances, to show that the effects of the subsequent action on the claim are not such as contended for by the defendant. "In 3 American State Papers, relating to the public lands, p. 254, and from the record, we ascertain that McDonogh & Co. again applied to the register of the land office and receiver of public moneys in New Orleans, to report on this claim, under the provisions of the Act of Congress, passed the 27th January, 1813, entitled 'An Act giving further time for registering claims to land in the eastern and western district of the territory of Orleans, now State of Louisiana.' It is described as 'a tract of land situated in the County of Acadia, on the east shore of the Mississippi, sixteen leagues above New Orleans, containing thirty-two arpents front, with a depth extending as far as Lake Maurepas. This tract has formerly been claimed before the board of commissioners, and the 699*] depth extending *beyond forty acres rejected by them for want of evidence of title; but the claimants have since produced a com "The omission to mention anything about the plat goes to show it was not regarded, or had but little weight, and we can scarcely suppose that so important an opening as is claimed would have been passed over in silence if it had been seriously pressed. "We are of opinion that the plat, even if admissible as evidence, is not entitled to any weight as establishing the extent of the claim. Although Portier says he is a sworn surveyor, commissioned by the Surveyor-General of the United States, we know of no right that gives him to run out claims under the direction of individuals merely, and fix the boundaries of those not recognized by the government. It is not pretended he acted under any authority from his superior in making what is called a survey; it never was presented to the SurveyorGeneral for his approval, nor does it seem to have had the legal sanction of any one authorized to act in the premises. Potier does not pretend it is a regular survey; he calls it 'plan extrait des minutes de nos opérations d'arpentage faite dans les années 1806, 1808, et 1812 lesquelles lignes en divers tems ont été parcourues jusqu'à la rivière Amite et demarqué conforcé ment aux lignes du plan.' He then goes on to say, Delille Dupard had described his title from the Collapissa Indians, and sold it to various persons. *He does not seem even to [*700 have heard of a grant from the French government in 1769, or attempted a location in conformity to it. "The defendant further states that his claim has been located by the United States since its confirmation, and surveyed in the manner claimed by him. To establish this, he offered in evi opening, or, from the peculiar position of the claim, it shall be necessary to give the superficial quantity. That does not appear necessary in the case before us. "We repeat, that it is not our purpose to decide in any manner upon the validity of the Humas grant, under which the plaintiffs claim, nor do we decide anything more in relation to that alleged to be in favor of Delille Dupard, under which the defendant claims, than to say, whether it is for thirty or forty arpents front, and is eighty arpents or more in depth, it must be located by parallel lines, unless the confirmation to McDonogh and Brown for eighteen arpents, three toises, and three feet front, by eighty in depth, should for that quantity authorize the opening mentioned in the report on the claim, but it cannot extend beyond it. "It is clear from the evidence before us, that the claim of the defendant, if located in the manner specified, cannot in any way interfere with the land claimed by the plaintiffs as shown by the plats laid before us. dence copies of three township plats, to wit: | "The judgment of the District Court is therefore affirmed, with costs." To review this opinion, under the 26th section of the Judiciary Act, a writ of error was sued out, by which the case was brought up to this court. Messrs. Jones and Meredith for the plaintiff in error. Messrs. Core and William Cost Johnson for the defendants in error. A motion had been previously made and argued on the part of the defendant in error to dismiss the case upon three grounds. 1. That the writ of error had been irregularly 2. That no jurisdiction was shown by the record to exist under the 25th section of the Judiciary Act. 3. That the judgment of the court below was not final. The writ of error was issued by A. Cuvillier, clerk of Supreme Court of Louisiana, Eastern District. 22; 9 Peters, 602; McCollum v. Eager, 2 Howard; 7 Wheat., 164; 12 Wheat., 117; 2 Peters, 380; 3 Peters, 392; 10 Peters, 368; 9 Peters, 224; 7 Peters, 41; 11 Peters, 167.) "Although we are of opinion these plats were improperly received in evidence, we have examined them with a view to see if the pretended survey would justify the claim of the de- Mr. Coxe, in support of the motion to disfendant. We do not find in the record the miss, referred to 2 Dallas, *401, and [*702 slightest evidence of authority from any officer said that in consequence of this decision, an of the United States to locate this claim in any act of Congress was passed in May, 1792 (1 manner. The acts of Congress of the 12th of Story, 260). In 8 Wheat., 312, 324, it was held April, 1814, and the 3d of March, 1831, direct that the 9th section of the Act of 1792 applied the mode of locating private claims. (1 Land to bringing up cases from the circuit courts of Laws, 652, secs. 3, 4; 2 Land Laws, 294, sec. 6.) the United States, and also from the highest There are also other acts of Congress in rela- | tribunal of a State, when this court can take 701*] tion to the location of particular class-jurisdiction under the 25th section. (4 Dallas, es of claims, but the defendant does not come within the provisions of any of them. "It has been decided that the court and jury will look beyond the confirmation of a claim by the land commissioners or Congress, emanating from the former governments of Louisiana, in order to ascertain the extent and boundaries of the land claimed. (11 La. Rep., 587.) We have acted on that principle in this case, and see no reason to depart from our previous decision, that when the expressions in a title only convey a certain front and depth, the grantee or purchaser cannot claim by diverging lines to the rear, and thereby obtain more than the superficies contained in a parallelogram unless there be something in the grant to authorize the Mr. Meredith, in reply, said that there was a difference, which must be borne in mind, between the English system and ours. In England the writ was an original writ, issuing out of the Court of Chancery, which had a double nature. It was a certiorari to remove the record, and a commission to the Superior Court to affirm or reverse the judgment. (2 Saund. Rep., 100, 101.) Under our judiciary system, it is nothing more than a certiorari to remove the record. It imparts no authority to this court. It gives |