[Strother v. Lucas.]

would constitute and preserve to said St. Cyr, his heirs or assigns, a possession available under the law of prescription referred to; notwithstanding said St. Cyr, or those deriving title from him, should leave the actual possession or cease to occupy and cultivate, if that abandonment of the actual possession, occupancy, or cultivation was with the intention to return, and without any mental abandonment of the possession."

Instructions asked by defendant, and given by the court:

1st. That if the jury find from the evidence that Hyacinth St. Cyr, and those lawfully claiming under him, have possessed the two arpents by forty, surveyed for Gamache and Kiersereau, without interruption, and with claim of title for thirty years, consecutively, prior to October, 1818, the plaintiff is not entitled to recover in this action.

2d. "If the jury find from the evidence that Hyacinth St. Cyr, and those lawfully claiming under him, possessed the two lots in the declaration mentioned, for ten years, consecutively, prior to, and until the 23d day of July, 1810, and the lands confirmed to Auguste Choteau on that day, are the same lands in the declaration mentioned; the plaintiff cannot recover in this action.

3d. "If the jury find from the evidence that the defendant possessed the lots of land in the declaration mentioned for ten years, consecutively, prior to the first of October, 1818, the plaintiff cannot recover in this action."

Which instructions the court gave to the jury; with the further instruction: "That the possession mentioned must be an open and notorious possession; and that if they should find such possession, it gave title under, and according to the Spanish or civil law, which was in force in Upper Louisiana at the date of the treaty, by which Louisiana was acquired by the United States; and remained in force and unabrogated by any law of the district of Louisiana or of Missouri, down to a period as late as October, 1818. That the possession of ten or thirty years would give a title, the one period or the other according to the circumstances under which the possession was obtained. That the ten years' possession which would give a prescriptive title, must be a possession under a purchase made in good faith; and where the purchaser believed that the person of whom he purchased had a good title; and where the owner of the title prescribed against resided in the same country during the said ten years. That if the jury believe from the evidence, that the possession of St. Cyr,

[Strother v. Lucas.]

under whom the defendant claims, was obtained under a purchase made by him in good faith, and under the belief that the persons of whom he purchased had a good title; and that the possession of Choteau, under whom the defendant claims, was obtained in like manner and under a purchase made with the like belief; and that they had the possession mentioned in the second instruction asked for on the part of the defendant; and that the said Marie Louise was in the country during the said ten years, the plaintiff cannot recover in this action."

And further instructed the jury, in relation to the possession mentioned in the third instruction asked for on the part of the defendant: "that to make the possession there mentioned a bar to the plaintiff's recovery in the present action, the possession of the defendant must have been obtained under a purchase, where he believed that the persons of whom he purchased had a good title, and that the said Marie Louise was in the country during the said ten years; which, unless the jury believe, they cannot find for the defendant upon such possession."

The foregoing instructions given for the defendant, with the explanations, are substantially correct.

This is the whole case; in the affirmance of the judgment in which, I concur, for the reasons here stated. But there are various principles introduced into the preceding opinion, the accuracy of which I very much doubt. Furthermore: it is apprehended they are foreign to the case presented by the record; and it is feared their introduction into it, may lend them a sanction they do not deserve, and embarrass the inferior courts, and this Court, in future, in the numerous controversies now depending, and likely to arise on the titles of Florida, Louisiana, Missouri, Arkansas and Wisconsin, involving the application and construction of the laws of France and Spain: and hence this separate opinion has been filed.

Mr. Justice WAYNE stated that he dissented from the opinion of the Court, delivered by Mr. Justice Baldwin. He was authorized to say that Mr. Justice M'Kinley concurred with him in opinion.

The title to the lots was in Chancellier at the time of his death. St. Cyr obtained a title by fraud, and by fraud he continued in pos

session.

Choteau's claim is not such as divested the title of Chancellier, according to the Spanish law.

[Strother v. Lucas.]

Mr. Justice M'LEAN dissented.

Mr. Chief Justice TANEY did not sit in this cause, having been of counsel for one of the parties.

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

EX PARTE EMILY T. AND MATILDA POULTNEY, COMPLAINANTS 7. THE CITY OF LA FAYETTE, SHIELDS, ET AL.

case.

A subpoena in chancery was issued in the circuit court of the United States for the Louisiana district, on the 15th of July, 1837, returnable to the next term of the court to be holden in November. Some of the defendants appeared, and an affidavit was filed, stating that upwards of two hundred persons were named as defendants in the bill, and that owing to the epidemic in New Orleans and at La Fayette, and the absence of many of the defendants, it had been impossible for the defendants to prepare for a defence to the bill; for this and for other reasons, an extension of the time for their appearance was essentially necessary for their proper defence, &c.: and that the application was not made for delay. The circuit court, on this affidavit, laid a rule on the complainants to show cause why the defendants should not be allowed to the next term to make their appearance and defence; and that in the mean time no further proceeding should be had in the The solicitors for the complainants, moved that the cause should be placed on the rule docket of the court, that the complainants might proceed in the cause, according to the chancery practice. This motion was overruled by the circuit court. The complainants moved the Supreme Court for a rule on the circuit court to show cause why a mandamus, in the nature of a procedendo, should not issue, commanding the court to send the case to the rule docket of the court. By the Court-We can preceive nothing in the proceedings of the circuit court to warrant the rule to show cause, which has been asked for in behalf of the complainants; on the contrary, judging from the evidence contained in the record, the conduct of the court in relation to the cause in question, appears to have been strictly conformable to the practice and principles of a court of equity. The statements contained in a petition addressed to the Supreme Court, asking for "a rule to show cause why a mandamus, in the nature of a writ of procedendo, should not be issued," not being verified by affidavit; they cannot, under the decisions and practice of the court, be considered.

Every court of equity possesses the power to mould its rules in relation to the time and manner of appearing and answering, so as to prevent the rule from working injustice. And it is not only in the power of the court, but it is its duty to exer cise a sound discretion upon this subject; and to enlarge the time whenever it shall appear that the purposes of justice require it. The rules in chancery proceedings in the circuit courts, prescribed by this Court, do not, and were not intended to deprive the courts of the United States of this well known and necessary power.

ON a motion, by Mr. Crittenden, for a rule on the judges of the circuit court of the United States for the eastern district of Louisiana, for a rule to show cause why a mandamus, in the nature of a writ of procedendo, should not issue, &c.

[Ex parte Poultney v. The City of La Fayette et al.]

Mr. Chief Justice TANEY delivered the opinion of the Court: This case comes before us upon a motion on the part of the complainants, for a rule upon the judges of the circuit court for the eastern district of Louisiana, to show cause why a mandamus, in the nature of a writ of procedendo, should not issue from this Court; commanding the circuit court to "remand this suit to the rule docket of the court, so that the complainants may proceed therein according to chancery practice."

The copy of the record upon which this motion is founded, shows that a bill in equity was filed in the circuit court, by the above named complainants, against the above named defendants, on the 15th of July, 1837; and that subpoenas thereupon issued, returnable to the next term of the circuit court, to be holden on the third Monday in November, in the same year. On the return of the subpœnas, some of the defendants appeared; and an affidavit was filed on behalf of a great number of them, stating that upwards of two hundred persons were named as defendants in the bill; that owing to the epidemic which had prevailed in the city of New Orleans and city of La Fayette, and the absence of many persons, and the recent service of the process upon many of the defendants, it had been impossible for the greater part of them, until within a, short time before, to take the steps which they deemed necessary to their defence; that they had but recently been able to engage counsel, and had been informed by them, that it was wholly out of their power, with a due regard to the rights of their clients, to ascertain the facts necessary to enable them to decide upon the nature and mode of defence at that term; that there was some uncertainty as to the proper mode of proceeding in equity in the circuit court, on account of recent decisions on the subject; and that on account of the great importance of the matters to be tried, an extension of time for the appearance of the defendants was essentially necessary to their proper defence, and to obtain the ends of justice; and that the affidavit was not made for delay, but solely for the ends of justice.

Upon this affidavit, the court laid a rule upon the complainants to show cause on the next day, the 21st of November, why the defendants should not be allowed until the first day of the next term to make their appearance and defence; and in the meantime that no further step or proceeding be had in the case.

On the 15th of December, at the same term, the complainants, by their solicitors, moved the court "to enter an order, directing the VOL. XII.-30