Governor of Florida granted to John Forbes a of each of the lots heretofore fronting on the tract of land immediately adjacent to what is river Mobile, except in cases where such pronow the city of Mobile, and, indeed, coustitut-prietor or occupant has alienated his right to ing a part of it. The grant was founded upon, any such lot now designated as a water-lot, or and confirmatory of, an older one issued to the Spanish government has made a new grant Richardson in 1767, by the British government, or order of survey for the same during the then in possession of the country. The land time at which they had the power to grant the was upon the west side of the river Mobile. In same; in which case the rights and claims of 96*] the document issued by the surveyor- the United States shall be, and is hereby vested general, it is said to be "bounded on the east in the person to whom such alienation, grant, or by said river;" and in that issued by the intend- order of survey was made, or in his legal repreaat, to be "terminated by the bank of said sentative. river on the east side:" in both, there is a reservation of a "free passage on the bank of the river." On the 2d of March, 1819, Congress passed “An Act to enable the people of the Alabama territory to form a constitution and State gov ernment, and for the admission of such State into the Union, on an equal footing with the original States," by the sixth section of which it was enacted, "That the following proposi tions be, and the same are hereby offered to the convention of the said territory of Alabama, when formed, for their free acceptance or rejection, which, if accepted by the convention, shall be, obligatory upon the United States." After enumerating many articles, the section concludes with this: "and that all navigable waters within the said State shall forever re main public highways, free to the citizens of said State and of the United States, without any tax, duty, impost, or toll therefor, imposed by the said State." By the original plan of the town a street was laid off, called Water Street, on the margin of the river, running nearly north and south, which was afterwards filled up, and by the improve ment the water, at high tide, was confined to the eastern edge of the street. On the 26th of May, 1824, Congress passed "An Act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city," which is as follows: 1. " That all the right and claim of the United States to the lots known as the hospital and bakehouse lots, containing about three fourths of an acre of land, in the city of Mobile, in the State of Alabama, and also all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by this or any former act, and to which no equi table title exists in favor of any individual, under this or any former act, between high water-mark and the channel of the river, and between Church Street and North Boundary Street, in front of the said city, be, and the same are hereby vested in the mayor and aldermen of the said city of Mobile, for the time being, and their successors in office, for the sole use and benefit of the said city forever. "Provided, that nothing in this act contained shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate.” (7 vol. Laws of the United States, 318; 1 vol. Land Laws, ed. 1838, 398.) On the 8th of July, 1835, the mayor and aldermen of the city of Mobile brought an action of trespass to try title against Emanuel and Gaines in the State Circuit Court of Alabama, claiming several lots bounded on the west by Water Street, and running eastward to the channel of the river. On the trial of the cause, the jury, under the instructions of the court, found the defendants "not guilty" of the trespass. The court charged the jury that if the place in controversy was, subsequent to the admission of this State into the Union, below both high and low watermark, then Congress had no right to grant it; and if defendants were in possession, the plaintiffs could not oust them, by virtue of the act of Congress. That the grant to Forbes extended to high water-mark, and that if the place claimed was between high water mark and the channel, in front of the grant, and had been reclaimed by the defendants, then the plaintiffs could not recover in virtue of the act of Congress, and this, notwithstanding the reservation of the right of way specified in the confirmation of the grant to Forbes." *Upon this charge a bill of exceptions [*98 was founded, and the case carried to the Supreme Court of the State of Alabama, where the judgment of the court below was affirmed. It is necessary to refer to the opinion of the Supreme Court of the State of Alabama, in order to understand the ground upon which the dissentient opinion of Mr. Justice Catron is placed. The Supreme Court of Alabama did not decide the first point raised in the bill of exceptions, viz.: "that Congress had no right to grant the land to the city of Mobile." But being of opinion that the grant to Forbes conveyed to him the intervening space between high water mark and the channel of the river (covering the property in dispute), and thus precluded the plaintiffs from ever recovering it; and "That all the right and claim of the United being moreover of opinion that a judgment 97*]States to so many of the lots of ground east ought not to be reversed for a misdirection of of Water Street, and between Church Street and the judge to the jury, if it appears that the North Boundary Street, now known as water-party complaining could not have been injured, lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water-lots, in the said city of Mobile, whercon improvements have been made, be, and the same are hereby vested in the several proprietors and occupants that court waived all examination into the correctness of the first point, and contented itself with affirming the judgment of the court below. Mr. Test for the plaintiffs in error. Mr. Justice MCLEAN delivered the opinion of the court: This cause is brought to this court by a writ of error to the Supreme Court of Alabama. An action of trespass to try the title to a certain lot or piece of ground in the city of Mobile, was commenced by the plaintiffs against the defendants, in the Circuit Court of the State. Issue being joined, a jury were impaneled, who rendered a verdict of not guilty. As the right of the plaintiffs was asserted, exclusively, under an act of Congress, and the decision being against that right, the plaintiffs, having except ed to certain rulings of the court on the trial, prosecuted this writ of error, under the 25th section of the Judiciary Act of 1789. The bill of exceptions states that it was proved the defendants were in possession of the premises described in the declaration, at the time the suit was brought. 999 An act of Congress, entitled "An Act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals 99*] *of said city," passed 20th May, 1824, was read; also "A resolution of the mayor and aldermen of the city of Mobile, passed the 23d day of April. 1834, in the following words: 'Resolved, That the map of the city as now shown to the board, be accepted and approved; and it is further resolved that the names of the streets be the same as heretofore established. It was also proved by the plaintiffs that the map referred to was one published by Goodwin and Haise, a copperplate copy of which was offered in evidence; a copy of such parts of said map as is necessary to refer to is annexed. It was also proved that there never had been a street in Mobile known as North Boundary Street. And also, that the premises in question were situate, in May, 1824, between Church Street, south of Adams Street, and below high water as well as low water-mark and the channel of the river. It was also proved that the premises were north of St. Louis Street, as laid out in said map, and that in 1824 Water Street did not extend to St. Louis Street, and that at that time buildings were few and scattered above St. Louis Street. The defendant offered in evidence a grant from the Spanish government, and proved that they claimed title to the premises under that grant. The court charged the jury that, if the place in controversy was, subsequent to the admission of this State into the Union, below both high and low water-mark, then Congress had no right to grant it; and if defendants were in possession, the plaintiffs could not oust them, by| virtue of the act of Congress. That the grant to Forbes extended to high water-mark, and that if the place claimed was between high water-mark and the channel, in front of the grant, and had been reclaimed by the defendants, the plaintiffs could not recover in virtue of the act of Congress, and this, notwithstanding the reservation of the right of way specified in the confirmation of the grant to Forbes." It appeared that on the 9th January, 1767, the English government, being then in posses sion of the country, had granted the land in controversy to William Richardson; and that a grant of the same land was made to John Forbes & Co., the assignees of Richardson, by the Spanish authority, the 26th September, 1807. In the British grant the land "was bounded east by the *river Mobile," and by the [*100 Spanish "by the bank of the river," "leaving a free passage on the bank," &c. The case was removed by writ of error from the Circuit Court to the Supreme Court of the State, in which judgment was affirmed. The first section of the Act of 1824, referred to in the bill of exceptions, vests in the mayor and aldermen of the city of Mobile, for the time being, and their successors in office, for the sole use and benefit of the city, forever, all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by that or any former act, and to which no equitable title exists in favor of an individual under that or any other act, between high watermark and the channel of the river, and between Church Street and North Boundary Street, in front of the city." And the second section of the act "excepts from the operation of the law, cases where the Spanish government had made a new grant or order of survey for the same, during the time at which they had the power to grant the same; in which case the right and claim of the United States shall be, and is hereby vested in the person to whom such alienation, grant, or order of survey, was made, or in his legal representative." In In principle this case is similar to that of The City of Mobile v. Hallett (16 Peters, 261). that cause the court say: "From the bill of exceptions, it appears that the defendant was in possession of the land in controversy under a Spanish grant, which was confirmed by the United States; and that the land extended to the Mobile River. It was then within the exception in the Act of 1824, and no right vested in the plaintiffs. We think, therefore, that the instruction of the Circuit Court to this effect was right." The same language is equally applicable to the case under consideration. And it appears that the judgment of the Circuit Court was affirmed by the Supreme Court of Alabama, on the ground that "there was no vacant space between high and low water-mark; ali having been sold and confirmed to Forbes," under his Spanish grant. The Spanish grant being an exception in the act, under which the plaintiffs claim, the in struction of the Circuit Court in favor of the defendant was correct. The judgment of the Supreme Court of Alabama is affirmed. *Mr. Justice CATRON dissented. [*101 The premises in controversy lie in front of the city of Mobile, and are claimed by the corporation, by virtue of the Act of Congress of May 20, 1824. They lie both below high and low water-mark. The court charged the jury that, if the place in controversy was subsequent to the admission of this State into the Union, below both high and low water-mark, then Congress had no right to grant it, and if defendants were in possession, the plaintiffs could not oust them, by virtue of the act of Congress. That the grant to Forbes extended to high water-mark, and that if the place claimed was between high water-mark and the channel in front of the grant, and had been reclaimed by defendant, then the plaintiffs could not recover in virtue of the act of Congress, and this, notwithstanding the reservation of the rights of way specified in the confirmation of the grant to Forbes. To all of which charge the counsel of the plaintiffs excepted. That the United States had the undoubted title before the adoption of the constitution of Alabama, has never been denied by anyone; and that the State acquired title by that event has not been proved, nor can it be, as I think; nor is it perceived how the question can be avoided in the cause before us, unless we look The jury found a general verdict of not beyond the record. I therefore believe the guilty. As Alabama was admitted into the judgment should be reversed because there was Union, December 14, 1819, the first instruc-error in the first instruction. For my reasons tion was conclusive of the plaintiffs' title. On the admitted fact that the land lay under the water in 1824, the court pronounced the act of Congress void. The second instruction depends on the fact, "whether the defendant had reclaimed the land in front of the grant of Forbes.' There is no evidence in the record that he had done so; and all the evidence purports to have been set out. A writ of error was prosecuted to the Supreme Court of Alabama. That court simply armed the judgment of the Circuit Court; and from that affirmance a writ of error was prosecuted to this court, by the corporation of the city of Mobile, under the twenty-fifth section of the Judiciary Act. I refer to the opinions in the cases of Eslava and Hallet. To these. I will add, that it is impossible for this court to follow the decisions of the Supreme Court of Alabama, without overruling the decision in Pollard's Heirs v. Kibbie (14 Peters, 353). William Pollard claimed a square of land below high water-mark fronting the city of Mobile; the claim was founded originally on a spanish concession, made in 1809. This was merely void. [*103 as was held in Foster and Elam v. Neilson (2 Peters, 254), and in Garcia v. Lee (12 Peters, 511). Ry the second sec. of the Act of 1824, the land was excepted from its operation, and did not pass to the city of Mobile (14 Peters, 364, 365, 366.) The title to the square claimed by Pollard therefore remained in the United States until it was granted to his heirs, by a private Act of Congress, of 1836, and a patent founded on the act, dated in 1837. This court on the Act of 1836, and the patent from the government. One error assigned in the Supreme Court of Alabama was, That the charge of the circuit judge denies that the United States had right and power to grant the premises in ques-maintained the title, and a recovery was had tion." On the general affirmance,can this court take jurisdiction and reverse, because the first instruction was erroneous? In the case of the same plaintiffs against Eslava (16 Peters, 246), the majority of the court held that the opinion of the Supreme Court of Alabama certified as part of the record, was no part of it. 102*] *Speaking of the opinion, the court says: Their opinion constitutes no part of the record, and is not properly a part of the case. We must look to the points raised by the exceptions of the Circuit Court, as the only questions for our consideration and decision." And so this court held, in even a stronger case (Gordon v. Longest, 16 Peters, 103), where there had been a general aflirmance of the judgment below, by the Supreme Court of Kentucky. In Eslava's case I thought the opinion of the Supreme Court of Alabama formed part of the record; in that case, as in this, the opinion was found in the paper book; but a majority of the court ruled it out, as no part of the record; to which decision I submit, of course. Looking only to the points raised by the exceptions in the Circuit Court, and we find it established with a plainness admitting of no doubt, that Alabama claims to hold as her own; and does actually hold, by force of her judicial decisions, all the lands within the State, flowed by tide-water; and that this claim is founded on an implied cession of the Sands under tide-water, by the United States to Alabama, as a consequence of the sanction given by Congress to the State constitution. The disastrous results of this assumption on part of the State courts of Alabama, I en: deavored to point out (so far as pressure of circumstances would permit), in my opinions in the cases of these plaintiffs against Eslava and Hallet (16 Peters, 247 and 263). If the Act of 1824 is void, because Congress had no power to grant the lands below the flow of the tides; so is equally, and as certainly, the Act of 1836, and the patent founded on it. Forbes owned the land in front of the land granted to Pollard's heirs; Forbes' grant extended to high water mark, was dated in 1802, and was undisputed. This court held in effect that it was bounded, and could not extend by implication beyond the high water-mark. So is the undoubted construction of grants for lands fronting tide-waters. A grant of lands on each side of an arm of the sea, and embrac ing it, does not pass the land under the water by general words; there must be special words of grant, showing plainly the land covered with water was intended to be granted; without such explicit words of grant, the high lands only pass. Such is the settled doctrine of this court. (Martin v. Waddell, 16 Peters, 367.) Forbes, therefore, could not claim, as riparian owner, the land granted on his front to Pollard; to hold otherwise would overrule the decision of Martin v. Waddell. In any aspect this controversy can be presented, it fails within the decision of Pollard v. Kibbe; that case must be overruled, if the doctrine of the courts of Alabama is maintained. 104*] *THE UNITED STATES, Plaintiff's in Error, v. WILLIAM LINN ET AL. Action ex delicto--ex contractu-nolle prosequi as to one defendant-plea alleging alteration of bond after delivery-construction of demurrer -date of surety's bond-pleadings. A plaintiff may, in an action in form ex delicto against several defendants, enter a nolle prosequi against one of them. But in actions in form er contractu, unless the defense be merely in the personal discharge of one of the defendants, a nolle prosequi cannot be entered as to one defendant without discharging the other. Quere. Whether a plea which sets up new matter and concludes "to the country" is good. A plea alleging merely that seals were affixed to a bond without the consent of the defendant,with out also alleging that it was done with the knowledge, or by the authority or direction of the plaint iffs, is not sufficient. A plea which has on the face of it two intend. ments, ought to be construed most strongly against the party who pleads it. A party who claims under an instrument which appears on its face to have been altered, is bound to explain the alteration; but not so, when the alteration is averred by the opposite party, and it does not appear upon the face of the instrument. Where the plea is bad and the demurrer is to the plea, the court, having the whole record before them, will go back to the first error. Where the date of a surety bond is subsequent to the appointment of the principal to office, the declaration should allege that the money collected by the principal remained in his hands at the time when the surety bond was executed. first day of August, in the year one thousand eight hundred and thirty-six." They also crave oyer of the condition of the said supposed writing obligatory, and it is read to them in these words: " The condition of the foregoing obligation is such, that whereas the President of the United States hath, pursuant to law, appointed the said William Linn receiver of public moneys for the district, of lands subject to sale at Vandalia, in the State of Illinois, for the term of four years, from the 12th day of January, 1835, by commission bearing date 12th February, 1835. Now, therefore, if the said William Linn shall faithfully execute and discharge the duties of his office, then the above obligation to be void and of none effect, otherwise it shall abide and remain in full force and virtue. "Sealed and delivered in the presence of Presley G. Pollock, as to Wm. Linn, D. B. Waterman, Lemuel Lee, J. M. Duncan, John Hall, Wm. Walters, Asahel Lee, Wm. L. D. Ewing, and A. P. Field; A. Caldwell as to Joseph Duncan. WILLIAM LINN, LEMUEL LEE, JOHN HALL, L. S. L. S. L. S. WM. L. D. EWING, [L. S. "GENERAL LAND OFFICE. "ETHAN A. BROWN." To the first count, which purports to be debt on the bond, the defendants plead jointly non est factum and several other pleas not necessary here to be noticed. To the second and third counts which are upon the same instrument, not described, however, as a bond, but as a certain *instru- [*106 Mr. Justice THOMPSON delivered the opinion ment in writing. To these counts the defendof the court: *.. This case comes up on a writ of error from the Circuit Court of the United States for the District of Illinois. The writ or summons is sued in the cause purports to be in a plea of debt for one hundred thousand dollars. And the declaration contains three counts upon the following instrument, which, upon oyer craved by the defendants, is set out upon the record: 105*] Know all men by these presents, that we, William Linn, David B. Waterman, Lemuel Lee, James M. Duncan, John Hall, William Walters, Asahel Lee, William L. D. Ewing, Alexander P. Field, and Joseph Duncan, are held and firmly bound unto the United States of America, in the full and just sum of one hundred thousand dollars, money of the United States, to which payment, well and truly to be made, we bind ourselves jointly and severally, our joint and several heirs, ex ecutors, and administrators, firmly by these presents, sealed with our seals, and dated this ant, Joseph Duncan, put in the following plea: "And the said Joseph Duncan impleaded as aforesaid, by Logan and Brown, his attorneys, comes and defends the wrong and injury, when, &c. And as to the said second and third counts in the said plaintiffs' declaration contained, says that the said plaintiffs their said action on the said second and third counts ought not to have or maintain against him, this defendant; because, he says, that protesting that he executed the supposed written instrument declared upon in the said second and third counts of the plaintiffs' amended declaration, he says that after he had signed said instrument, and delivered it to his co-defendant, Linn, to be transmitted to the plaintiffs; and after the securities to the said written instrument had been affixed (approved) by the Hon. Nathaniel Pope, Judge of the District Court of the United States for the State of Illinois, it was, without the consent, direction. or authority of said Joseph Duncan, materially altered in this-that scrawls, by way of seals, were affixed to the signature of said Joseph Duncan to said written instrument, and to the instrument, whereby the character and effect of signatures of the other partics to said written the said written instrument, declared in the - And so said Duncan says, that the said supposed written instrument declared on in the second and third counts of plaintiffs' amended declaration, is not his act and instrument; and of this he puts himself upon the country.' To which plea there is interposed a special demurrer, and the court gave judgment for the defendant Joseph Duncan upon the demurrer, thereby adjudging that the plea was sufficient in law to bar the plaintiffs from maintaining their action against him. And issues being Fined upon the pleas to the first count, the cause came on to be tried by a jury, and under the instructions of the court a verdict was found for the defendants upon the issues of fact Exceptions were taken to the instruc tions of the court to the jury. And the cor rectness of such instructions is the first question presented on this writ of error. second and third counts aforesaid, was materi- ' plea is bad as to both; for the court cannot ally changed, and said instrument declared on, sever it, and say that one is guilty, and that vitivted. the other is not, when they put themselves on the same terms. (Chitty, 598.) A plaintiff may in an action in form ex delicto against several defendants, enter a nolle prosequi as to one of them. But in *actions in form [*108 ex contractu, unless the defense be merely in the personal discharge of one of the defendants, a nolle prosequi cannot be entered, as to one defendant, without discharging the other, for the cause of action is entire and indivisible. (Chitty, 599.) The rule laid down by Chitty is fully sustained by the English and American decisions. In Smith v. Bouchin et al. (2 Strange, 993), the action was trespass and false imprisonment; plea not guilty by all, and a justification as to eight days' imprisonment. And the court held, that although the officer and jailer might have been excused, if they had pleaded severally, but having joined in the plea with others who could not justify, they had forfeited their justification. Moors v. Parker et al. (3 Massachusetts, 310), the action was trespass de bonis asportatis against several, and all join in the plea of not guilty, and also in a plea of justification. The court held that the bar set up was no justification for one of the defendants, and if several defendants join in pleading in bar, if the plea is bad as to one defendant it is bad as to all. Upon the trial, after reading the bond to the jury, the defendants called a witness, who tes tid-1, in substance, that he saw the bond after 107*] *it had been signed by the obligors, in the hands of William Linn, the obligor first named therein, after it had been returned from the district judge with his certificate indorsed of the sufficiency of the sureties. That the district judge, in a note in writing, accompanying the bond, had pointed out the omis sion of seals to the names of the signers of the instrument; and said Linn, saying he would viate that difficulty, took a pen, and in the presence of the witness, added scrawls, by way of seals, to each name subscribed, as makers of the instrument. Other testimony was given, under the issues of fact, which it is not materi al to notice. Upon this evidence the court gave the folwing instruction to the jury: "If they shall fad from the evidence, that after the instrumest upon which the action is brought, was ized by the defendants, it was altered by William Linn, one of the defendants, without the knowledge or assent of the other defend ats, by adding to the names of the defendants the scrawl seals which now appear upon the face of the instrument, and such defendants have not at any time since the alteration sane ted it, the instrument is not the deed of such defendants, and the jury will find a verdict in their favor." And the question is, whether this instruction was in point of law correct, under the pleadings and evidence in the cause. Ali the defendants united in a joint plea of won est factum, and the proof was that the scrawls were added by Linn to his own name and to the names of the other defendants. The adding the scrawl by Linn to his own tame did not vitiate the instrument as to him: he had a right to add the seal, or at least, he can have no right to set up his own act in this respect to avoid his own deed. It was therefore his deed, and the plea of non est factum as to him is false. And the question is, whether it is not false as to all who joined him in the plea of non est factum. It is laid down by Chitty in his Treatise on Pleading, that a plea which is bad in part is bad in toto. If, therefore two defendants join in a plea, which is sufficient for one but not for the other, the HOWARD 1. U. S., Book 11. In So in the case of Schermerhorne et al. v. Tripp (2 Caines, 108), which was in error from a court of common pleas. The action was trespass against a justice of the peace, the constable, and the plaintiff, and all joined in a plea of not guilty. The court said, the constable having joined with the others in the plea of the gen eral issue, they are all equally trespassers. If he had pleaded separately, he would probably have been excused; but he has now involved himself with others, and we cannot separate their fates. It is unnecessary to multiply authorities on this point, the books are full of them, and it is a well settled and established rule in pleading. The reason is, because the plea, being entire, cannot be good in part and bad in part, an entire plea not being divisible, and consequently, if the matter jointly pleaded be insufficient as to one of the parties, it is so in toto. (1 Saunders, 28, n. 2, and cases there cited.) It has been suggested that this objection is waived by the following entry in the bill of exceptions: "A judgment having been obtained against Linn for the full amount of his defalcation, a judgment on this bond was not asked against him or any of the defendants. unless the jury shall find against all the defendants." *It is not perceived how this can be [*109 considered a waiver of any error. No judg ment could have been given against Linn sepa rately, the plea of non est factum being joint. But the plaintiffs, according to the express terms of this memorandum, did ask a verdict and judgment against all the defendants; and if from the pleadings and evidence they were entitled to judgment against all, as we think they were, there was no waiver that will justify the instructions given to the jury. The next question arises upon the special demurrer to the plea of Joseph Duncan to the second and third counts of the declaration. 5 65 |