United States v. Ferreira. 13 H. vided another mode for taking testimony, and deciding upon the validity of claims to the pensions granted by the former law; and by the 3d section it saved all rights to pensions which might be founded " upon any legal adjudication,” under the act of 1792, and made it the duty of the secretary of war, in conjunction with the attorneygeneral, to take such measures as might be necessary to obtain an adjudication of the supreme court, on the validity of such rights, claimed under the act aforesaid, by the determination of certain persons styling themselves commissioners." It appears from this case, that Chief Justice Jay and Justice Cushing acted upon their construction of the act of 1792, immediately after its passage, and before it was repealed. And the saving and proviso, in the act of 1793, was manifestly occasioned by the difference of opinion upon that question which existed among the justices, and was introduced for the purpose of having it determined, whether under the act conferring the power upon the circuit courts, the judges of those courts, when refusing for the reasons assigned by them to act as courts, could legally act as commissioners out of court. If the decision of the judges, as commissioners, was a legal adjudication, then the party's right to the pension allowed him was saved; otherwise not. In pursuance of this act of congress, the case of Yale Todd was brought before the supreme court, in an amicable action, and upon a case stated at February term, 1794. The case was docketed by consent, the United States being plaintiff, and Todd the defendant. The declaration was for $172.91, for so much money had and received by the defendant to the use of the United States; to which the defendant pleaded non assumpsit. *The case as stated, admitted that on the 3d of May, 1792, the defendant [ * 53 ] appeared before the Hon. John Jay, William Cushing, and Richard Law, then being judges of the circuit court held at New Haven, for the district of Connecticut, then and there sitting, and claiming to be commissioners under the act of 1792, and exhibited the vouchers and testimony to show his right under that law to be placed on the pension list; and that the judges above named, being judges of the circuit court, and then and there sitting at New Haven, in and for the Connecticut district, proceeded, as commissioners designated in the said act of congress, to take the testimony offered by Todd, which is set out at large in the statement, together with their opinion that Todd ought to be placed on the pension list, and paid at the rate of two thirds of his former monthly wages, which they understood to have been eight dollars and one third per month, and the sum of $150 for arrears. The case further admits, that the certificate of their proceedings and opinions, and the testimony they had taken, were afterwards, on the 5th of May, 1792, transmitted to the secretary of war, and that by means thereof Todd was placed on the pension list, and had received from the United States $150 for arrears, and $22.91 claimed for his pension aforesaid, said to be due on the 2d of September, 1792. And the parties agreed that if upon this statement the said judges of the circuit court sitting as commissioners, and not as a circuit court, had power and authority by virtue of said act so to order and adjudge of and concerning the premises, that then judgment should be given for the defendant, otherwise for the United States for $172.91, and six cents cost. The case was argued by Bradford, attorney-general for the United States, and Hillhouse for the defendant; and the judgment of the court was rendered in favor of the United States for the sum above mentioned. Chief Justice Jay and Justice Cushing, Wilson, Blair, and Paterson, were present at the decision. No opinion was filed stating the grounds of the decision. Nor is any dissent from the judgment entered on the record. It would seem, therefore, to have been unanimous, and that Chief Justice Jay and Justice Cushing became satisfied, on further reflection, that the power given in the act of 1792 to the circuit court, as a Barrow v. Hill. 13 H. court, could not be construed to give it to the judges out of court as commissioners. It must be admitted that the justice of the claims and the meritorious character of the claimants would appear to have exercised some influence on their judgments in the first instance, and to have led them to give a construction to the law which its language would hardly justify upon the most liberal rules of interpretation. The result of the opinions expressed by the judges of the supreme court of that day in the note to Hayburn's case, and in the case of The United States v. Todd, is this: 1. That the power proposed to be conferred on the circuit courts of the United States by the act of 1792 was not judicial power within the meaning of the constitution, and was, therefore, unconstitutional, and could not lawfully be exercised by the courts. 2. That as the act of congress intended to confer the power on the courts as a judicial function, it could not be construed as an authority to the judges composing the court to exercise the power out of court in the character of commissioners. 3. That money paid under a certificate from persons not authorized by law to give it, might be recovered back by the United States. The case of Todd was docketed by consent in the supreme court; and the court appears to have been of opinion that the act of congress of 1793, directing the secretary of war and attorney-general to take their opinion upon the question, gave them original jurisdiction. In the early days of the government, the right of congress to give original jurisdiction to the supreme court, in cases not enumerated in the constitution, was maintained by many jurists, and seems to have been entertained by the learned judges who decided Todd's case. But discussion and more mature examination has settled the question otherwise; and it has long been the established doctrine, and we believe now assented to by all who have examined the subject, that the original jurisdiction of this court is confined to the cases specified in the constitution, and that congress cannot enlarge it. In all other cases its power must be appellate. ROBERT R. BARROW, Plaintiff in Error, v. NATHANIEL B. HILL. 13 H. 54. An exception having been taken to the refusal of the court below to continue the case, the judgment was affirmed with ten per cent. damages, on the ground that the writ of error was sued out merely for delay. THE case is stated in the opinion of the court. Venable, for the defendant. No counsel contra. [*55] * TANEY, C. J., delivered the opinion of the court. This case is brought up by a writ of error, directed to the circuit court of the United States for the eastern district of Louisiana. [*56] *No counsel has appeared in this court for the plaintiff in error. The case has been called in its regular order for Bradford v. The Union Bank of Tennessee. 13 H. argument, and thereupon the counsel for the defendant has, under the 19th rule of the court, opened the record and argued the case, and prays an affirmance of the judgment, with ten per cent. damages, on the ground that the writ of error was issued merely for delay. Upon looking into the record, it appears that two exceptions were taken in the court below by the plaintiff in error; and both of them were taken to the refusal of the court to continue the case to the next term. It has been repeatedly decided in this court, that a motion for the continuance of the cause addresses itself to the sound judicial discretion of the court, and its decision, for or against the motion, cannot be assigned as error in this court. The rule is so familiar in practice, that it is unnecessary to refer to cases to prove it. The decision of the circuit court, therefore, upon the motions above mentioned, is no ground for reversing the judgment, and does not afford any reasonable foundation for suing out this writ of error. And, upon examining the statement in the exceptions, and the reasons assigned by the court for its refusal, the inference would seem to be irresistible, that the continuance was not asked for by the plaintiff in error, under the expectation that it would enable him to obtain testimony material to his defence, but to delay the payment of a just debt, and that the writ of error was sued out for the same purpose. The case, therefore, falls within the 17th rule of the court, and the judgment is accordingly affirmed, with ten per cent. interest on the amount, from the rendition of the judgment in the circuit court until paid. JOHN D. BRADFORD and BENJAMIN M. BRADFORD, Appellants, v. THE President, DIRECTORS, AND COMPANY OF THE UNION BANK OF TENNESSEE. 13 H. 57. A having purchased land from B, suffered it to be sold for taxes; afterwards C, who was A's surety for the price, obtained from B a new bond to convey, the first being surrendered; B was ignorant of the tax sale, received no new consideration, and intended merely to substitute C for A. On a bill by C to have the contract rescinded, and the judgment against him for the purchase-money enjoined; Held, 1. That the loss of the title was C's loss. 2. That the bond to C should be reformed, so as to accord with the real agreement. 3. That this might be done under the answer without a cross-bill; and a decree was made accordingly. THE case is stated in the opinion of the court. Volney E. Howard, for the appellants. Coxe and Carlisle, contrà. [ *61 ] [ *62] Bradford v. The Union Bank of Tennessee. 13 H. NELSON, J., delivered the opinion of the court. *The complainants in the court below, the appellants here, filed their bill for the specific performance of an agreement with the defendants for the conveyance of two sections of land in the Chickasaw cession. The land was to be conveyed for the consideration of the sum of $3,741, payable in instalments, the last payment to be made on the 12th of October, 1847, at which time the deed was to be delivered. The bill states that, at the time of the purchase, the defendants had no title to the land, as both sections, with the exception of the quarter of one of them, had been previously sold for taxes, and the time for redemption expired. That since then the defendants have redeemed one of the sections; but it is alleged that the purchase of the two sections was one entire contract, and that the main inducement was to obtain a title to the whole tract, and that the purchase would not have been made of either section separately on account of the situation and state of the improvements. That it was the duty of the defendants to have paid the taxes, and to have prevented the sale therefor. The bill further states, that a judgment had been recorded against the complainants for the amount of the purchase-money; and that the defendants were endeavoring to enforce the collection on execution. That they have tendered the amount of the judgment and interest, and have demanded a deed conveying a good and sufficient title to the land, which demand has been refused. That they are still willing to pay the judgment with interest and costs, and tendered the same in court, and to accept a complete title from the defendants if they can make one. The bill prays for an injunction enjoining the defendants from collecting the judgment, that they be compelled to exhibit their title, and to execute the contract specifically, and to account for the rents and profits. And that, if the defendants are unable to execute the contract specifically and entire, it may be delivered up and cancelled, and the injunction made perpetual. The defendants, in their answer, admit the execution of the contract for the conveyance of the two sections as stated in the bill; but deny that the transaction was intended as a purchase of the land; on the contrary, they insist it was intended as a substitution of John D. Bradford, one of the complainants, to the rights of one John L. Brown, who had previously purchased the same, and to whom the defendants had agreed to convey the title. Bradford v. The Union Bank of Tennessee. 13 H. The defendants allege that they entered into a contract with Brown for the sale of the land on the 20th of October, 1841; that he executed to them his four several notes for the purchase-money, payable in one, two, three, and four years, which notes were indorsed by John D. Bradford, one of the complainants, as [ *63] surety, and that the contract was conditioned to make to Brown a good and valid title on the payment of the purchase-money. That default was made in the payment, and a judgment recovered against Bradford as indorser, an execution issued, and about to be levied upon his property. And that thereupon an application was made to them on behalf of Bradford, for an arrangement by which he might have the benefit of the purchase of Brown, as he was insolvent, and there were old judgments standing against him, which would bind the land if the title was made to him. That in consequence of these representations they assented to the arrangement, simply on the ground of favor and indulgence to Bradford, not being disposed to coerce the payment of the money from a surety, and at the same time withhold from him the means of indemnifying himself. And that, at the suggestion on behalf of Bradford, and as the simplest mode of effecting the object of the arrangement, they took up the title bond previously given to Brown, and gave a new one to him; agreeing, at the same time, to a request for further indulgence in the payment of the purchase-money by extending it for the period of one, two, and three years. That it was under these circumstances, the contract in question was entered into by the defendants, on the 9th of January, 1845, to convey the title to the two sections to Bradford instead of to Brown, the original purchaser. The defendants admit they have been informed, and believe that both sections, with the exception stated, have been sold for taxes, prior to the date of this last arrangement; but aver that they had no knowledge of the fact at the time. They admit that they had not paid any taxes accruing after the purchase by Brown, 12th October, 1841, nor had they paid any attention to the same, as they considered it the duty of Brown. They admit that they have redeemed one of the sections, and would have redeemed the greater part of the other, had it not been for the interference of the complainants to prevent the purchaser from assenting to it. They also admit that they cannot make an unincumbered title to the east half and southwest quarter of section No. 12, if the taxsale is a valid one; but if the same is not, they can make a good valid title to the whole of both sections. |