negligence do apply. negligence, and as the most skilful care," but has no case.

[Boyce vs. Anderson.]

The facts in this case do not establish gross carriers of the boat were not bound for "the only for "usual care," the plaintiff in error

The proposition in the second instruction is, that the owners of the steamboat Washington might have received a compensation for carrying the slaves from the shore to the boat. It is contended that there was no contract, and Lord Mansfield has said, that no compensation is due for a voluntary courtesy. Upon the Mississippi no compensation is ever given for carriage from the shore to the boat; and in this case, the obligations of humanity alone prompted those acts, from which the plaintiffs demand of this Court that the owners of the Washington shall be made liable for the slaves lost by the performance of gratuitous kindness. Such a decision would be against policy as well as against justice.

Mr. Chief Justice MARSHALL delivered the opinion of the Court. This was an action brought in the Court of the United States, for the seventh Circuit and district of Kentucky, against the defendants, owners, &c.

There being no special contract between the parties in this case, the principal question arises on the opinion expressed by the Court, "that the doctrine of common carriers does not apply to the case of carrying intelligent beings, such as negroes.

That doctrine is, that the carrier is responsible for every loss which is not produced by inevitable accident. It has been pressed beyond the general principles which govern the law of bailment, by considerations of policy. Can a sound distinction be taken between a human being in whose person another has an interest, and inanimate property?

A slave has volition, and has feelings which cannot be entirely disregarded. These properties cannot be overlooked in conveying him from place to place. He cannot be stowed away as a common package. Not only does humanity forbid this proceeding, [*155 but it might endanger his life or health. Consequently this rigorous mode of proceeding cannot safely be adopted, unless stipulated for by special contract. Being left at liberty, he may escape. The carrier has not, and cannot have, the same absolute control over him that he has over inanimate matter. In the nature of things, and in his character, he resembles a passenger, not a package of goods. It would seem reasonable, therefore, that the responsioility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods.

There are no slaves in England, but there are persons in whose service another has a temporary interest. We believe that the responsibility of a carrier, for injury which such person may sustain, has never been placed on the same principle with his responsibility for a bale of goods. He is undoubtedly answerable for any injury VOL. II.-L

16

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[Boyce vs. Anderson.]

sustained in consequence of his negligence or want of skill; but we have never understood that he is responsible farther.

The law applicable to common carriers is one of great rigour. Though to the extent to which it has been carried, and in the cases to which it has been applied, we admit its necessity and its policy, we do not think it ought to be carried farther, or applied to new cases. We think it has not been applied to living men, and that it ought not to be applied to them.

The directions given by the Court to the jury informed them, that the defendants were responsible for negligence or unskilful conduct, but not otherwise.

Sir William Jones, in his Treatise on Bailments, p. 14, says, "When the contract is reciprocally beneficial to both parties, the obligation hangs in an even balance; and there can be no reason to recede from the standard: nothing more, therefore, ought in that case to be required than ordinary diligence, and the bailee should be responsible for no more than ordinary neglect." In another place (p. 144) the same author says, "A carrier for hire ought, by the rule, to be responsible only for ordinary neglect; and in the time of Henry VIII., it appears to have been generally holden, *156] that a common carrier was chargeable in case of a loss by robbery, only when he had travelled by ways dangerous for robbing, or driven by night, or at any inconvenient hour."

This rule, as relates to the conveyance of goods, was changed as commerce advanced, from motives of policy. But if the Court is right in supposing, that the strict rule introduced for general commercial objects, does not apply to the conveyance of slaves, the ancient rule that the carrier is liable only for ordinary neglect," still applies to them.

If the slaves were taken on board the yawl to be conveyed in the steamboat, solely in consequence of their distress, and from motives of humanity alone, no reward, hire, or freight being to be paid for their passage, as the first prayer of the plaintiff and the prayer of the defendant suppose, the carrier would certainly be responsible only in a case of gross neglect; and the qualification annexed to this construction was correct.

We think that in the case stated for the instruction of the Circuit Court, the defendants were responsible for the injury sustained, only in the event of its being caused by the negligence or the unskilfulness of the defendants or their agents, and there is no error in the opinion given.

This cause came on to be heard on a transcript of the record from the Circuit Court of the United States for the district of Kentucky, and was argued by counsel. On consideration whereof, it is considered, ordered, and adjudged by this Court, that the judgment of the said Circuit Court in this cause be and the same is hereby, affirmed, with costs.

*JULIA THOMPSON, TENANT, APPELLANT, US. ALICE TOLMIE AND OTHERS, APPellees.

It was assumed on the argument by the counsel on both sides, that the Circuit Court of the county of Washington, in the district of Columbia, is vested with the same power in relation to intestate's estates in that county, that is possessed by a county Court in Maryland over lands lying within the county. [162]

When the proceedings of a Court of competent jurisdiction are brought before another Court collaterally, they are by no means subject to all the exceptions which might be taken to them on a direct appeal. The general and well settled rule of law in such cases is, that when the proceedings are collaterally drawn in question, and it appears on the face of them that the subject matter was within the jurisdiction of the Court, they are voidable only. The errors and irregularities of any suit are to be corrected by some direct proceeding, either before the same Court to set them aside, or in an appellate Court. If there is a total want of jurisdiction, the proceedings are void, and a mere nullity, and confer no right, and afford no justification, and may be rejected when collaterally drawn in question. [163]

The act of the legislature of Maryland, relative to a devise of the real estate of intestates in certain cases, in directing the commissioners when to give deeds to purchasers, has this general provision; that the commission and proceedings thereon shall be recited in the preamble of the deed. It certainly could not have been intended that the commission, and all the proceedings, should be set out in hæc verba. If the substance of the proceedings is recited, it is sufficient. [167]

The law appears to be settled in the states, that Courts will go far to sustain bona fide titles acquired under sales made by statutes regulating sales made by order of Orphans Courts. Where there has been a fair sale, the purchaser will not be bound to look beyond the decree, if the facts necessary to give the Court jurisdiction appear on the face of the proceedings. [167]

The decision of this Court in Elliott, vs. Peirsol, (1 Peters, 240,) was not intended to decide any thing at variance with the principles established in this case. [168] When the jurisdiction of the Court on the subject under whose authority lands have been sold, appears on the face of the proceedings; its errors or mistakes, if any were committed, cannot be corrected or examined when brought up collaterally. [169]

THIS case came up by appeal from the Circuit Court for the county of Washington, in the district of Columbia; where a verdict was taken for the appellees, subject to the opinion of the Court upon the following agreed case.

"The plaintiff, to prove title to the premises, (Lot No. 14 in Square No. 290, in the city of Washington,) showed a title in Robert Tolmie, regularly deduced by sundry admitted mesne conveyances from David Burnes, one of the original proprietors of city property, duly executed and acknowledged and recorded [*158 to the said premises, accompanied by possession thereof and payment of taxes thereon, by the several grantees, according to the titles, down to the year 1805; when the said Robert Tolmie, the last grantee in whom the said title had vested, departed this life intestate, leaving Margaret, Alice, and James Tolmie, his only three children and heirs at law, infants at the time of his death, under the age of 21 years; that the said infants continued in possession of said premises until some time in the year 1814; that Margaret was the eldest of said infants, and that in the year 1812 she intermarried with one Francis Beveridge, and has since died, leaving three child

[Thompson vs. Tolmie.]

ren, to wit: Margaret Beveridge, Hannah Beveridge, and James Beveridge, who are named among the lessors of the plaintiff; that James Tolmie aforesaid also died after the death of said Margaret, his sister, intestate, under age and unmarried, prior to the commencement of this suit, leaving Alice aforesaid his sister and the said three children of Margaret his heirs at law. And the plaintiff also proved that the said Margaret Tolmie was 17 years of age at the time of her said marriage, which was in 1812, and was an infant under the age of 21 years at the time of the sale made by the commissioners hereinafter named; that her husband, the said Francis Beveridge, some time in the year 1814 or 1815, went away, leaving his family residents of the city of Washington; that after some time he returned and lived with his family, and again went away and has never since returned, and is generally believed to be dead by his family and friends; about three or four years ago he was heard of and was then sick, and has never been heard of since. "The defendant has had possession of the premises since 1814, when she became the purchaser thereof (by her then name Julia Kean) at a public sale made by certain commissioners appointed under the act of the assembly of Maryland of 1786, c. 45, to direct descents. She entered in pursuance of that sale, claiming the lot under it, and produced in evidence the proceedings of the commissioners, which are made part of the case agreed."

*That record contains a petition in the usual form for par*159] tition of the real estate of Robert Tolmie, which purports to be the joint petition of Francis Beveridge and Margaret his wife, and of Alice Tolmie and James Tolmie, infants, by Margaret Tolmie, their guardian, mother, and next friend. It states that Robert Tolmie died seised, leaving Margaret his widow, and also the following children, his heirs at law, viz. "Margaret, since intermarried with Francis Beveridge, said Alice Tolmie and James Tolmie, which said Alice and James are infants under the age of 21 years." This petition was filed on the 15th of June, 1814, and a commission issued on the same day. On the 17th of June, 1814, the commissioners reported that the estate consisted of a single lot, and could not be divided without loss, &c., and valued the same at one thousand four hundred dollars. Whereupon, at June term, 1814, the Court ordered the property to be sold at public auction on ten days' notice, one-fourth part of the purchase money in cash, and the residue at three, six, and nine months, taking bond with good security to the heirs, according to their several interests. On the 5th of July, 1814, F. Beveridge and wife, and Alice and James Tolmie by their mother, gave notice in writing that they did not elect to take the property at the valuation. On the 3d of July, 1818, the commissioners reported that they had sold the property, on the 30th of July, 1814, to the appellant for one thousand one hundred and five dollars, on a credit of three, six, and nine months, one-fourth being paid in cash, and that she gave due security for the payment of the purchase money, all which has been duly paid; they therefore re

[Thompson vs. Tolmie.]

quested that the said sale might be ratified, and that they might be directed to distribute the proceeds, and make a conveyance to the purchaser. On the same 3d of July, the Court "ordered that the report of the commissioners returned and filed in this cause be, and the same is hereby ratified and confirmed, so soon as proper receipts of the parties are produced before one of the judges of this Court, and that then the said commissioners or a majority of them make a sufficient deed in fee to the purchaser." On the 13th of June, 1816, the majority of the commissioners made a deed to the appellant, which recites, that by a decree of the Circuit *Court, sit[*160 ting as a Court of Chancery, David Appler, &c. were appointed commissioners, and they or a majority of them were authorized and empowered to sell said lot, the real estate of Robert Tolmie deceased; and that in pursuance of said decree, the said Appler, &c. did, on the 30th of July 1814, sell the same to the appellant for one thousand and seventy dollars; that the said purchase money had been paid, and that the said Appler, &c. were authorized and empowered by said decree to execute a conveyance of the same, and accordingly the said Appler, &c. conveyed said lot to the appellant and her heirs.

The statutes are the acts of assembly of Maryland of 1786, c. 45, s. 8; 1797, c. 114, s. 6; and 1799, c. 49, s. 3, 4.

This ejectment was brought by Alice Tolmie, and by the three infant children of her sister, Margaret Beveridge; who, since the death of the said Margaret and of the said James Tolmie, have claimed to be entitled to the lot, as heirs of the said Robert Tolmie. The defendant entered under, and relied on the commissioners' sale above, which the lessors of the plaintiff contended was void. 1. Because none of the heirs of Robert Tolmie had arrived at age at the time of the sale; the act of 1786 expressly prohibiting a sale until the eldest was of age. 2. Because the sale was never ratified by the Court. 3. Because bonds for the purchase money were not taken payable to each representative, according to his proportionable part of the nett amount of sales. And, 4. Because the deed does not recite the commission and all the necessary proceedings thereon to show a good title.

Mr. Wilde and Mr. Jones, for the appellant, argued :

1. That the sale of the property of Robert Tolmie was a judicial proceeding; made in a Court of competent jurisdiction, acting as a Court of Chancery, and proceeding in rem, in the proper exercise of its authority; and was, therefore, conclusive upon all the world. Gelston vs. Hoyt, 3 Wheaton, 246. But if it were otherwise, the law is, that a sale made under an erroneous judgment is always deemed valid; and in Maryland it has been held, that a decree in equity for the sale of lands, to pay debts, or for distribution, is a *proceeding in rem, and cannot be questioned. 6 Harris & Johns. 23.

[*161 The principle of law is, that if the jurisdiction of the Court at