[Bradlie et al. v. The Maryland Insurance Company.]

that bond, in consideration of his undertaking to cause the repairs to be made.

The refusal to make good that promise, was the direct and immediate cause of the loss and sale of the ship. In the present case, the bottomry bond included charges and amounts, for which the underwriters were not liable. How, then, can it be inferred from the facts stated in the instructions, that the underwriters, by implication, and without consideration, undertook to indemnify the plaintiffs against the whole bottomry bond; for the payment of a part of which, only, they were by law responsible?

So that, admitting the authority of Da Costa v. Newnham to the fullest extent which its own circumstances warrant, it stands upon grounds entirely distinguishable from those which ought to govern the present case. If the underwriters, in the present case, had authorized the whole expenditures on their sole account, and had promised to save the plaintiffs harmless from the whole amount of the bottomry bond, and the plaintiffs had made the expenditures, and procured the advances for this purpose, upon the faith of such authority and promise; a very different case would have been presented for our consideration. At present, it is only necessary to say, that the instruction before us states no such case, and calls for no such question; and, therefore, Da Costa v. Newnham cannot be admitted to govern the present case.

Upon the whole, our opinion is, that there is no error in the instructions given or refused by the circuit court; and the judgment is therefore affirmed, with costs.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel. On consideration whereof, it is now here or dered 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 and damages at the rate of six per centum per annum.

VOL. XII.-3 F

DANIEL F. STROTHER, PLAINTIFF IN ERROR V. JOHN B. C. Lucas,

DEFENDANT.

Ejectment for two lots of ground in St. Louis, Missouri. The plaintiff had brought an ejectment, which was before the Court on a writ of error, in 1832, and the judgment in favour of the defendant was affirmed. 6 Peters, 763. He afterwards brought another action of ejectment for the same land. By the Court-Had this case been identical with the former, as to the merits, we should have followed the deliberate opinion delivered therein; but as one judgment in ejectment is not conclusive on the right of either possession or property in the premises in contro. versy, the plaintiff has a right to bring a new suit; and the court must consider the case, even if it is in all respects identical with the former, though they may hold it to be decided by the opinion therein given. It is otherwise when the second case presents a plaintiff's or defendant's right, on matters of law or fact, material to its decision, not before appearing in the record; it then becomes the duty of the Court to decide all pertinent questions arising on the record, in the same manner as if the case came before them for the first time, save such as arise on evidence identical as to the merits. In this case, we deem it a peculiar duty; enjoined upon us by the nature of the case, the course of the able and learned arguments as to the law of Spain and her colonies, in its bearing on the interest; ing question before us, together with a view of the consequences of our final decision thereon. Were we to leave any questions undecided which fairly arise on the record; or to decide the cause on points of minor importance only; the value of the premises would justify future litigation; which no court of chancery might think proper to enjoin so long as new and material facts could be developed, or pertinent points of law remain unsettled.

The state of Missouri was formerly a part of the territory, first of France, next of Spain, then of France, who ceded it to the United States by the treaty of 1803, in full propriety, sovereignty and dominion, as she had acquired and held it; 2 Peters, 301, &c.: by which this government put itself in place of the former sovereigns, and became invested with all their rights, subject to their concomitant obligations to the inhabitants. Both were regulated by the law of nations, according to which the rights of property are protected, even in the case of a conquered country; and held sacred and inviolable when it is ceded by treaty, with or without any stipulation to such effect; and the laws, whether in writing, or evidenced by the usage and customs of the conquered or ceded country, continue in force until altered by the new sovereign.

This Court has also uniformly held that the term "grant," in a treaty, comprehends not only those which are made in form, but also any concession, warrant, order or permission to survey, possess or settle, whether evidenced by writing or parol, or presumed from possession; and that in the term "laws," is included custom and usage, when once settled; though it may be "comparatively of recent date, and is not one of those to the contrary of which the memory of man runneth not, which contributed so much to make up the common law code, which is so justly venerated."

No principle can be better established by the autho of this Court, than "that the

[Strother v. Lucas.]

acts of an officer, to whom a public duty is assigned by his king, within the sphere of that duty, are prima facia taken to be within his, power." "The principles on which it rests, are believed to be too deeply founded in law and reason, ever to be successfully assailed. He who would controvert a grant executed by the lawful authority, with all the solemnities required by law, takes on himself the burthen of showing that the officer has transcended the powers conferred upon him; or that the transaction is tainted with fraud."

Where the act of an officer to pass the title to land according to the Spanish law, is done contrary to the written order of the king, produced at the trial, without any explanation, it shall be presumed that the power has not been exceeded; that the act was done on the motives set out therein; and according to some order known to the king and his officers, though not to his subjects: and courts ought to require very full proof, that he had transcended his powers, before they so determine it."

Even in cases of conquest, the conqueror does no more than displace the sovereign, and assume dominion over the country. "A cession of territory is never understood to be a cession of the property of the inhabitants. The king cedes only that which belongs to him; lands he had previously granted, were not his to cede. Neither party could so understand the treaty. Neither party could consider itself as attempting a wrong to individuals, condemned by the whole civilized world. 'The cession of a territory' should necessarily be understood to pass the sovereignty only, and not to interfere with private property." No construction of a treaty, which would impair that security to private property, which the laws and usages of nations would without express stipulation have conferred, would seem to be admissible further than its positive words require. "Without it, the title of individuals would remain as valid under the new government, as they were under the old; and those titles, at least so far as they were consummate, might be asserted in the courts of the United States, independently of this article." The laws of Spain as to the disposition of the royal domain in Louisiana, while Louisiana was held by Spain.

In the treaty of cession of Louisiana no exceptions were made, and his Court has declared that none can thereafter be made. 8 Peters, 463. The United States must remain content with that which contented them at the transfer, when they assumed the precise position of the king of Spain. The United States have so remained, as appears by their laws. By the acts of 1804, 1805, 1807, and 1816, they recognised the laws, usages, and customs of Spain to be legitimate sources of titles; and, by the act of 1812, confirmed to the inhabitants of St. Louis, and other villages, according to their several right or rights of common thereto, the rights, titles, and claims to town or village lots, out lots, common field lots, and commons, in, belonging or adjoining to the same, which titles depended on paro! grants and local customs. The same recognition extended to grants to actual settlers, pursuant to such laws, usages and customs; to acts done by such settlers to obtain a grant of lands actually settled, or persons claiming title thereto, if the settlement was made before the 20th December, 1803.

The unwritten law of Louisiana, before the cession of the territory to the United States.

In favour of long possession and ancient appropriation, every thing which was done shall be presumed to have been rightfully done; and though it does not appear to have been done, the law will presume that whatever was necessary has been done. A grant may be made by a law, as well as a patent pursuant to a law; and a con

[Strother v. Lucas.]

firmation by a law, is as fully to all intents and purposes a grant, as if it contained in terms a grant de novo.

The acts of the commissioners appointed to adjust and settle land titles in Louisiana, under the acts of congress authorizing and confirming the same, are conclusive as to all titles to lands, which have been confirmed according to the provisions of the different acts of congress on the subject.

It is inconsistent with all the acts of congress which have organized boards of commissioners for adjusting land titles, the proceedings of the board, and the laws which have confirmed them, that the confirmations of the commissioners shall enure to any other uses, or to any other person, than the person or persons claiming the confirmation: it would defeat the whole object of these laws, and introduce infinite public mischief; were the Court to decide that the confirmations by the commissioners and congress, made expressly to those who claim by derivative titles, did not operate to their own use.

IN error to the district court of the United States for the district of Missouri.

The counsel for the plaintiff in error, exhibited the following statement of the case:

"This was an action of ejectment brought by Daniel F. Strother, of Kentucky, against Jno. B. C. Lucas, of Missouri, to recover a tract of land particularly described in the declaration, as follows: "Lying and being in the city and county of St. Louis, state of Missouri, containing two arpents in breadth, by forty in depth, or eighty superficial arpents, French measure; one of which arpents by forty was granted to one Rene Kiersereau and his heirs, by the proper authority; and the other, to wit, the northern of said two arpents, was originally granted to one Gamache and his heirs; and which said. two arpents by forty are bounded on the north by a forty arpent lot, originally granted to one Louis Bissonet; and on the south by a forty arpent lot, originally granted to one John Baptiste Bequette; and which said two forty arpent lots, so above bounded, have been confirmed by the authority of the congress of the United States to the legal representatives of the said Rene Kiersereau, and Gamache, respectively."

The defendant pleaded the general issue, and the cause was tried at the September term, 1835, when there was a verdict for the defendant, and judgment rendered thereon; to reverse which this writ of error is prosecuted.

By the evidence, it appears that in 1764, the post of St. Louis, in Upper Louisiana, was first established by the French, under M.

[Sirother v. Lucas.]

Laclede. In May, 1770, the Spaniards, under the treaty of 1762, took possession of St. Louis, and Upper Louisiana. Between the year 1764, and 1772, divers grants of land in Upper Louisiana were made by the French and Spanish authorities, respectively. Amongst those grants were some forty or fifty, containing each from one arpent by forty, to four arpents by forty, located in the prairie immediately west of the then village of St. Louis, and extending some distance north and south of it. These lots extend westward to the uniform depth of forty arpents, being parallelograms whose opposite sides are on the north and south, forty arpents in length; and on the east and west from one arpent to four arpents.

Some time in the year 1772, a survey was made, as above described, of these lots, by Martin Duralde, the authorized surveyor of the post of St. Louis.

About that time a fence was established on the eastern boundary of the above range of lots, which separated them from the village, and what was called the commons; there was no division fence, nor any fence on the western boundary; the lots were contiguous to each other; but each lot was held separately, and cultivated separately, by its proprietor or occupant, who was bound by the regulations of the post, to keep the fence in front of his lot (or of whatever number of lots he occupied,) in good repair.

The surveys so made by Duralde, were entered in a book called the Livre Terrein.

Amongst the lots so surveyed and entered, are the two lots in question, described and bounded as in the declaration in this cause. The surveys so entered, and the grants by virtue of which said surveys were made, were solemnly recognised and affirmed by the Spanish lieutenant governor, Don Pedro Piernas; and by his predecessor, the French commandant, S'Ange de Bellerive.

The entry in the Livre Terrein, No. 2, p. 68, which contains this recognition of said grants and surveys, has been printed by authority of congress, and is to be found in Gales & Seaton's American State Papers, vol. 3, p. 677. In the entry in the Livre Terrein of the survey of Gamache's arpent, the grantee is called "Joseph" Gamache. This was a mistake, as is shown fully by the evidence in the cause. It is conclusively proved that the name of Gamache, the grantee, was John Baptiste Gamache, and that no such man as "Joseph" Gamache, existed at that time in Upper Louisiana.

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