Campbell v. Boyreau. And so found by the court; and finally gave judgment against the plaintiffs in error, who were defendants in the court below. this writ of error is brought to revise that judgment. It appears by the transcript that several exceptions to the opinion of the court were taken at the trial by the plaintiffs in error-some to the admissibility of evidence, and others to the construction and legal effect which the court gave to certain instruments of writing. But it is unnecessary to state them particularly; for it has been repeatedly decided by this court, that, in the mode of proceeding which the parties have seen proper to adopt, none of the questions, whether of fact or of law, decided by the court below, can be re-examined and revised in this court upon a writ of error. It will be sufficient, in order to show the grounds upon [226] which * this doctrine has been maintained, and how firmly it has been settled in this court, to refer to two or three recent cases, without enumerating the various decisions previously made, which maintain the same principles. The point was directly decided in Gould and others v. .Frontin, 18 How. 135; which, like the present, was a case from California, where a court of the United States had adopted the same mode of proceeding with that followed in the present instance. And the decision in that case was again reaffirmed in the case of Suydam v. Williamson and others, 20 How. 432; and again in the case of Kelsey and others v. Forsyth, decided at the present term. Indeed, under the acts of Congress establishing and organizing the courts of the United States, it is clear that the decision could not be otherwise; for, so far as questions of law are concerned, they are regulated in their modes of proceeding according to the rules and principles of the common law, with the single exception of the courts in the State of Louisiana, of which we shall presently speak. And by the established and familiar rules and principles which govern common-law proceedings, no question of the law can be reviewed and re-examined in an appellate court upon writ of error, (except only where it arises upon the process, pleadings, or judgment, in the cause,) unless the facts are found by a jury, by a general or special verdict, or are admitted by the parties, upon a case stated in the nature of a special verdict stating the facts, and referring the questions of law to the court. The finding of issues in fact by the court upon the evidence is altogether unknown to a common-law court, and cannot be recognized as a judicial act. Such questions are exclusively within the province of the jury; and if, by agreement of parties, the questions of fact in dispute are submitted for decision to the judge upon the Campbell v. Boyreau. evidence, he does not exercise judicial authority in deciding, but acts rather in the character of an arbitrator. And this court, therefore, cannot regard the facts so found as judicially determined in the court below, nor examine the questions of law, as if those facts had been conclusively determined by a jury or settled by the admission of the parties. Nor can any exception be taken to an opinion of the court upon the admission or rejec- [* 227 ] tion of testimony, or upon any other question of law which may grow out of the evidence, unless a jury was actually impaneled, and the exception reserved while they were still at the bar. The statute which gives the exception in a trial at common law gives it only in such cases. And as this court cannot regard the facts found by the judge as having been judicially determined in the court below, there are no facts before us upon which questions of law may legally and judicially have arisen in the inferior court, and no questions, therefore, open to our revision as an appellate tribunal. Consequently, as the circuit court had jurisdiction of the subject-matter and the parties, and there is no question of law or fact open to our re-examination, its judgment must be presumed to be right, and on that ground only affirmed. case. The cases referred to in the argument, which were brought up by writs of error to a circuit court of Louisiana, do not apply to this The act of congress of May 26, 1824, (4 Stats., 62,) adopted the practice of the State courts in the courts of the United States. And a writ of error to a circuit court of that State, therefore, is governed by different principles from a like writ to the circuit court of any other State. And as, by the laws of Louisiana, the facts, by consent of parties, may be tried and found by the court without the intervention of a jury, this court is bound, upon a writ of error, to regard them as judicially determined, and treat them as if they had been found by the special verdict; and the questions of law which arise on them are consequently open to the revision of this court. But the practice in relation to the decisions in that State is an exception to the general rules and principles which regulate the proceedings of the courts of the United States; nor can the laws or the practice of any other State authorize a proceeding in the courts of the United States different from that which was established by the acts of 1789 and 1803, and the subsequent laws carrying out the same principles and modes of proceeding. Upon the grounds above stated, the judgment in this case must be affirmed. But it must at the same time [* 228 ] be understood that this court express no opinion as to the facts or the law as decided by the circuit court, and that the whole Lessee of French v. Spencer. case is open to re-examination and revision here, if the questions of fact or law should hereafter be brought legally before us, and in a shape that would enable this court to exercise its appellate jurisdiction. LESSEE OF WILLIAM C. FRENCH AND WIFE, Plaintiff in Error, v. WILLIAM H. SPENCER, Jr., and others. 21 H. 228. BOUNTY LAND WARRANTS-ASSIGNABILITY. 1. Whatever may be the construction of the acts of 1811-'12, as to the transferability of bounty land warrants issued under them, there is nothing in the act of 1816 granting bounties to American citizens residing in Canada which forbids such transfer. 2. A deed which professed to convey the land, and also to be a power of attorney to locate the warrant in the name of the grantee, is valid, and conveys the land which had really been entered and located. The location of the specific warrant was sufficient to identify it. 3. Though the patent issued long after the death of the party to whom the warrant was issued, and in whose name it was located, it inured to the benefit of the grantor in the deed made by him. 4. This is also true on the principle that where a grantor sets forth that he is seized of a particular estate which he purports to convey, he and all claiming in privity with him are estopped to deny that he was so seized at the time he made the conveyance. WRIT of error to the circuit court for the district of Indiana. The case is stated in the opinion. Mr. Thompson, for plaintiff in error. Mr. Burnett, for defendants. [* 236] *Mr. Justice CATRON delivered the opinion of the court. Silas Fosgit obtained a warrant for three hundred and twenty acres of land as a Canadian volunteer in the war of 1812 with Great Britain. This warrant he caused to be located in the Indiana territory, June 3, 1816, on the land in dispute. On the twenty-eighth day of that month he conveyed the land to William H. Spencer, who died in possession of the same; it descended to his children and heirs, who continued in possession, and are sued in this action by one of the two heirs of Fosgit, who died about 1823. A patent was issued by the United States to Fosgit, dated in October, 1816. A deed from Fosgit to Spencer was offered in evidence in the circuit court, on behalf of the defendants, and was objected to: 1st. Because it is void on its face, being in violation of the acts Lessee of French v. Spencer. of congress touching the subject of bounty land for military services, and against the policy of the United States on that subject. 2d. Because said writing, on a fair legal construction of its terms, conveys no legal title (and indeed no title at all, of any kind) to the lands in question; and 3d. Because said writing is irrelevant, and incompetent as evidence in this cause. The court overruled the objections, and permitted the defendants to give the writing in evidence, and instructed the jury that it was a complete defense to the action; to all of which the plaintiff excepted. 1. Was the writing void because it was in violation of acts of congress touching the sale of bounty lands before the patent had issued? This depends on a due construction of the act of 1816. It gave to each colonel nine hundred and sixty acres; to each major eight hundred acres; to each captain six hundred and forty acres; to each subaltern officer four hundred acres; * to [* 237] each non-commissioned officer, musician, and private, three hundred and twenty acres; and to the medical and other staff in proportion to their pay, compared with that of commissioned officers. Warrants were ordered to be issued by the secretary of war, subject to be located by the owner, in quarter sections, on lands within the Indiana territory, surveyed by the United States at the time of the location. And three months additional pay was awarded to this description of troops. By the acts of 1811, ch. 10, 1812, ch. 14, sec. 12, and that of May 6, 1812, ch. 77, sec. 2, it was provided that each private and non-commissioned officer, who enlisted in the regular service for five years, and was honorably discharged, and obtained a certificate from his commanding officer of his faithful service, should be entitled to a bounty of one hundred and sixty acres of land; and that the heirs of those who died in service should be entitled to the same, to each of whom by name a warrant was to issue. The act of May 6, 1812, provided for surveying, designating, and granting these bounty lands; the fourth section of which declares that no claim for military land bounties shall be assignable or transferable until after the patent has been granted; and that all sales, mortgages, or contracts, made prior to the issuing of the patent, shall be void; nor shall the lands be subject to execution sale till after the patent issues. It is insisted that this provision accompanies and is part of the act of 1816, and several opinions of Mr. Attorney General Wirt are relied on to sustain the position that the acts granting bounty Lessee of French v. Spencer. He gave lands are in pari materia, and must be construed alike. an opinion in 1819, (2 L. L. and Opinion 6,) that a land warrant issued to a Canadian volunteer was not assignable on its face, or in its nature, and consequently that the patent must issue in the name of the soldier. But he did not decide, nor was he called on to do so, that, after the warrant had been located and merged in the entry, the equitable title and right of possession to the land could not be transferred by contract. The act of 1816 involves considerations, different from the previous provisions, for the protection of the enlisted common soldier. A class of active, efficient, American citizens, who [* 238] * had emigrated to Canada, were compelled to leave there on the war of 1812 breaking out; they returned to their own country, and went into its service; and when the war was ended, both officers and soldiers were compensated in lands and money for this extraordinary service. The act of congress orders the warrants to be delivered to the respective owners, to be located by them; whereas the common soldier, provided for in the acts of 1811 and 1812, did not receive his warrant, but the government bound itself to locate the land at its own expense. Congress may have thought it not at all necessary to guard the Canadian volunteers against being overreached by speculators, and deprived of their bounty lands. This, however, is mere conjecture. The act of March 5, 1816, has no reference to, or necessary connnection with, any other bounty-land act; it is plain on its face, and single in its purpose. And, then, what is the rule? One that cannot be departed from without assuming on part of the judicial tribunals legislative power. It is, that where the legislature makes a plain provision, without making any exception, the courts can make none. McIver v. Reagain, 2 Wheaton, 25; Patton v. McClure, Martin and Yerger's Ten. R. 345, and cases cited; Cocke & Jack v. McGinnis, ib. 365; Smith v. Troup, 20 Johns. 33. We are therefore of the opinion that Fosgit could sell and convey the land to Spencer after the entry was made. 2. The next ground of objection to the deed is, that it conveys no title when fairly construed. It has a double aspect, obviously, for the reason that the parties to it did not know, at the time it was executed, whether or not the land had been located by Fosgit's agent. The issuing of the warrant is recited in the deed, and the quantity of land it calls for; and then the grantor says: "For the consideration of five hundred dollars, I have assigned and set over, and by these presents do grant, bargain, sell, transfer, assign, and set over, to said William H. Spencer, his heirs and assigns, |