[549] and no bill of exceptions having been presented | containing exceptions, on a trial before a jury, Judge Shipman was duly designated to hold the Circuit Court for the Southern District of New York for two weeks beginning on the 16th of January, 1888. The session of the court held by him terminated on the 27th of January, 1888, and, during the time from that day until the first Monday of April, 1888, which was the second of April, when the April Term of that court began, Judge Shipman was assigned to hold no court within the Southern District of New York, and he was not at any time between the 27th of January, 1888, and the second of April, 1888, within the Southern District of New York for any official purpose. A writ of error to remove the case to this court was allowed, on a bond approved to operate as a supersedeas, and a citation was served. A transcript of the record was filed in this court on the 8th of October, 1888. The foregoing facts are stated, partly from the papers in the application for the mandamus, and partly from the contents of such record. We are of opinion that the writ of mandamus must issue. By Rules 67 and 69 of the Circuit Court for the Southern District of New York, which took effect on the first Monday of August, 1838, it is provided that, when exceptions to the opinion of the court are taken by either party on the trial of a cause, he shall not be required to prepare his bill of exceptions at the trial, but shall merely reduce the exceptions to writing, or the court will, on request, note the point, and the bill of exceptions shall afterwards be drawn up, amended, and settled, under the following regulations: The bill of exceptions shall be prepared and a copy thereof served upon the opposite party before judgment [552] is rendered on the verdict; the opposite party may, within four days after such service, propose amendments to the bill and serve a copy upon the party who prepared it; if the parties cannot agree in regard to the amendments, then, within four days after such service of a copy of the amendments, either party may give to the other notice to appear within a convenient time, and not more than four days after service of such notice, before the judge who tried the cause, to have the bill and amendments settled; the judge shall thereupon correct and settle the same as he shall deem to consist with the truth of the facts; but, if the parties shall omit, within the several times above limited, unless the same shall be enlarged by a judge, the one to propose amendments, and the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the bill as prepared, and the latter to have agreed to the amendments as proposed; and if the party omit to make a bill within the time above limited, unless the same shall be enlarged as aforesaid, he shall be deemed to have waived his right thereto. A corresponding practice prevails in the Supreme Court of the State of New York, by its rules, with variations as to time. Under those rules, a case, or a case and exceptions, or a case It is apparent that both parties in this case acted upon the view that the rule of practice of the Supreme Court of the State applied to the case; because the plaintiff, instead of serving on the defendant his proposed amendments to the bill within four days after the third of March, as required by the Rule of the Circuit Court, waited ten days, under the Rule of the Supreme Court of the State, and then, on the 13th of March, obtained a stipulation from the defendants giving ten days' additional time to prepare and serve amendments. It may be that the defendant, in serving, on the 27th of March, a notice of settlement of fourteen days, for the 10th of April, on the plaintiff, intended to comply, as it in fact did comply, with the requirement of the rule of the state court that such notice should be a notice of not less than four nor more than twenty days; yet it also sufficiently complied with Rule 87 of the Circuit Court, which required a notice of not more than four days, because a notice of four days, served on the 27th of March, would have been for the 31st of March, and Judge Shipman was not then within the Southern District of New York, so as to be able to perform any judicial act there; nor did he come there, so as to be able to do so, until the second of April, 1888. Under these circumstances, the notice for the 10th of April was a reasonable compliance with the Rule of the Circuit Court. We are of opinion that the practice and rules of the state court do not apply to proceedings in the Circuit Court taken for the purpose of reviewing in this court a judgment of the Circuit Court, and that such rules and practice, embracing the preparation, perfecting, settling and signing of a bill of exceptions, are not within the "practice, pleadings and forms and modes of proceeding" in the Circuit Court which are required, by section 914 of the Revised Statutes, to conform "as near as may be" to the "practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the State" within which the Circuit Court is held, "any rule of court to the contrary notwithstanding." This court has had occasion several times to construe section 914. In Nudd v. Burrows, 91 U. S. 426 [23: 286], a state statute required a judge to instruct a jury only as to the law of a case; and provided that the written instructions of the court should be taken by the jury in their retirement and returned with the verdict, and that papers read in evidence might be carried from the bar by the jury. The court charged the jury upon the facts, and refused to permit them to take to their room the written instructions given by the court, or papers [553] [554] [555] read in evidence. This court held that this In Indianapolis & St. L. R. Co. v. Horst, 93 "prepare and serve," in the order allowing the In harmony with the foregoing decisions, we are of opinion that section 914 does not extend On the facts of the present case, the decision to the means of enforcing or revising a decision in Müller v. Ehlers, 91 U. S. 249 [23: 319], has once made by the Circuit Court. Section 914 no application. In that case, on a trial by the does not extend to proceedings to enforce a court, without a jury, of an action at law, there judgment, because by section 916 special pro- was a general finding for the plaintiff, and a visions are made as to a remedy by execution motion for a new trial. The motion was con- [556] or otherwise, to reach the property of a judg- tinued until the next term, when it was overment debtor, by borrowing from the laws of ruled, and judgment was entered on the findthe State only those remedies then already ex-ing. At the latter term, a writ of error, reisting, or which should thereafter be adopted turnable to this court, was sued out, and the by general rules of the Circuit Court. Lamaster term was adjourned without any bill of exv. Keeler, 123 U. S. 376 [31: 238]. The object ceptions having been signed or allowed, or any of section 914 was to assimilate the form and time having been given, either by consent of manner in which the parties should present the parties or by order of the court, to prepare their claims and defense, in the preparation for one. At the next ensuing term, and after the the trial of suits in the federal courts, to those return day of the writ of error, a bill of excepprevailing in the courts of the State. As we tions was signed and filed by order of the court, have seen, it does not include state statutes re- as of the day the finding was made; and it did quiring instructions to the jury to be reduced not appear that that had been done with the to writing, or those which permit such instruc- consent or knowledge of the plaintiff. On tions, and certain papers read in evidence, to these facts, this court held that the order of be taken by the jury when they retire, or those the court below, directing the filing of the bill which require the jury to be directed, if they of exceptions as of the date of the finding, was return a general verdict, to find specially upon a nullity, on the ground that the parties had, in particular questions of fact involved in the is due course of proceeding, both in law and in sues; and, as it does not apply to a motion for a fact, been dismissed from the court. That denew trial, nor affect the power of the Circuit cision has no application to the present case, Court to grant or refuse a new trial at its dis- because the rights of the defendant were saved cretion, so it does not cover any other means by the express order of the court, made during of enforcing or revising a decision once made the term, and by a sufficient compliance on the by the Circuit Court. The manner or the time part of the defendant with the rules of the Cirof taking proceedings as a foundation for the cuit Court, and by what must be held to have removal of a case by a writ of error from one been the consent of the plaintiff. federal court to another is a matter to be regulated exclusively by Acts of Congress, or, when they are silent, by methods derived form the common law, from ancient English Statutes, or from the rules and practice of the courts of the United States. The only regulation made by Congress as to bills of exceptions is that contained in section 958 of the Revised Statutes, which provides that they shall be sufficiently authenticated by the signature of the presiding judge, without any seal. These views were adopted by the Circuit Court for the Southern District of New York, in Whalen v. Sheridan, 18 Blatchf. 324, and by the Circuit Court for the District of Massachusetts, in United States v. Train, 12 Fed. Rep. 852. In the present case the defendant prepared and served its bill of exceptions within the forty days from January 25. The expression In this view of the case, the question whether the term at which the verdict was rendered expired on the 25th of February, being the Saturday next preceding the last Monday of February, or on the 31st of March, being the Saturday next preceding the first Monday of April, is immaterial. The Rules of the Circuit Court clearly contemplate proceedings, to perfect a bill of exceptions within the times limited by those rules, without reference to the expiration of a term. By section 658 of the Revised Statutes, terms of the Circuit Court are appointed to be held in the Southern District of New York on the first Monday in April and the third Monday in October, "and for the trial of criminal causes and suits in equity" on the last Monday in February. The defendant contends that the October Term terminated at the beginning of the February Term, and the plaintiff contends that the October Term terminated at 557] [560] the beginning of the Aprii Term. We do not find it necessary to decide this question. A writ of mandamus may properly be issued by this court, to compel the judge of an inferior court to settle and sign a bill of exceptions. Ex parte Crane, 30 U. S. 5 Pet. 190 [8: 92]. Such a writ does not undertake to control the discretion of the judge as to how he shall frame the bill of exceptions, or as to how he shall decide any point arising on its settlement; but it only compels him to settle and sign it in some form. The writ will issue in the terms of the prayer of the petition, commanding the Judge to settle the bill of exceptions tendered by the defendant, according to the truth of the matters which took place before him on the trial of the aforesaid action, and, when so settled, to sign it as of the 10th day of April, 1888, that being the day when the proposed bill and proposed amendments were submitted to him for settlement. WILLIAM GLASGOW, Jr., Surviving Commissioner, etc. Piff. in Err., v. JOHN BAKER ET AL. (See 8. C. Reporter's ed. 560-578.) Jurisdiction of supreme court to review state judgment-Act of June 13, 1812—confirming St. Louis lands-Act of 1820-sufficiency of proof. 1.This court has jurisdiction to review a judgment of the supreme court of a State in an action to recover lands, where the matter in dispute arises either under the French Treaty of 1803, the Acts of Congress in regard to the lands, or the authority of some officer of the Government of the United States exercised over them. 2. The Act of June 13, 1812, by which certain town or village lots in or adjoining the then village of St. Louis and other villages or towns, which had been inhabited, cultivated or possessed prior to the 20th of December, 1803, were confirmed to the inhabitants of the respective towns or villages according to their several right or rights in common thereto, was a present grant, at the moment of its passage, of all the title of the United States to such land as had been so inhabited, cultivated or possessed prior to 1803, and operated to convey or confirm such titles and claims as came within its description. 3. The right of the grantee was not dependent on the factum of a survey under the Spanish Government; a patent to another after the passage of said Act, for any of these lands, would be void because the Government had already released all title and claim thereto. 4. Such lands did not afterwards pass to the State of Missouri, by virtue of the Act of 1820, for school purposes. 5. One who claims to have purchased the title arising from such occupation, cultivation or possession is not required to prove with certainty and precision the time when and the person who cultivated or occupied that precise property eighty or ninety years ago. 6. Neither the statute nor justice can require anything more than satisfactory proof that such lots had been inhabited, cultivated or possessed prior to the year 1803. [No. 40.] Argued Oct. 24, 25, 26, 1888. Decided Dec. 10, 1888. Reported below, 85 Mo. 559. This was an action of ejectment, begun in the state circuit court in 1853 by Glasgow, the plaintiff in error, and two others (since deceased), as Commissioners for the State of Missouri. Plaintiff recovered of defendants a triangular shaped track, containing about fifty-three acres. This judgment, on appeal by defendants to the St. Louis Court of Appeals, was affirmed; and upon a further appeal to the Supreme Court of Missouri, was by that court, in 1885, reversed, and a final judgment thereupon entered therein for the defendants. From this last judgment the plaintiff has brought the case here by writ of error. The further facts are stated in the opinion. Messrs. Melvin L. Gray, Elmer B. Adams and John W. Dryden, for plaintiff in error: The reservation contained in section 2 of the Act of June 13, 1812, did not prevent the Act of 1820 operating as a grant to Missouri of the land in dispute. Hammond v. St. Louis Public Schools, 8 Mo. 74; Eberle v. St. Louis Pub. Schools, 11 Mo. 262; Cabannév. Walker, 31 Mo. 285; Kissell v. St. Louis Pub. Schools, 16 Mo. 581; S. C. on app. 59 U. S. 18 How. 25 (15: 327); Frisbie v. Whitney, 76 U. S. 9 Wall. 187, 196 (19: 668, 671); Yosemite Valley Case, 82 U. S. 15 Wall. 87 (21: 85); Ham v. Mo. 59 U. S 18 How. 133 (15:337); S. C. below, 19 Mo. 601. The Act of 1820 was a compact, by one sovereign power with another, upon a valuable consideration. As such it should be construed more strictly than other Acts. Cooper v. Roberts, 59 U. S. 18 How. 179, 180 (15: 340); Beecher v. Wetherby, 95 U. S. 517 (24: 440); Ham v. Mo. supra. No means were provided by the Act of 1812 for selecting the particular lands which should constitute the one twentieth reserved for schools. The Act, therefore, was incapable of enforcement and of no effect. Slidell v. Grandjean, 111 U. S. 413, 439 (28: 321, 330); Menard v. Massey, 49 U. S. 8 How. 293 (12: 1085); Boyce v. Papin, 11 Mo. 26; Eberle v. St. Louis Pub. Schools, Id. 264. The reservation of 1812 was at that time but a mere float, and had not attached to the particular parcel, within the general survey of the town, that was granted by the Act of 1820 and so did not affect that grant. Menard v. Massey, supra; Fremont v. U. 8. 58 U. S. 17 How. 542, 558 (15: 241, 246); Cousin V. Labatut, 60 U. S. 19 How. 203, 210 (15: 601, 605); Henshaw v. Bissell, 85 U. S. 18 Wall. 255, 266 (21: 835, 839); Miller v. Dale, 92 U. S. 473, 476 (23. 735,786); U. S. v. McLaughlin, 127 U. S. 450 (ante, 213). The duty of fixing the outboundary, and selecting the lots to satisfy the reservation, belonged to the political authorities. Their action as to that was conclusive upon the schools of the town. (15: 114, 115); Stanford v. Taylor, 59 U. S. 18 West v. Cochran, 58 U. S. 17 How. 414, 416 How. 412 (15: 454); Bryan v. Forsyth, 60 U. S. 19 How. 336 (15: 675); Meehan v. Forsyth, 65 Louis, 66 U. S. 1 Black, 179 (17: 102); Glasgow v. Hortiz, 66 U. S. 1 Black, 602 (17:114); John 513 son v. Towsley, 80 U. S. 13 Wall. 72 (20: 485); | (11: 1051); Menard v. Massey, 49 U. S. 8 How. French v. Fyan, 93 U. S. 171 (23: 813). The grant by the Act of 1820 gave a good title to the State. Dredge v. Forsyth, 67 U. S. 2 Black, 569 (17: 255); Beecher v. Wetherby, supra; Natoma Water & Min. Co. v. Bugbey, 96 U. S. 165 (24:621). The United States is presumed to have title to all land which it grants. 293 (12.1085); Delauriere v. Emison, 56 U S. 15 How. 525 (14: 800); S. C. below, 14 Mo. 37; Dent v. Sigerson, 29 Mo. 489; Cabanné v. Walker, 31 Mo. 274; Waller v. Von Phul, 14 Mo. 84. The surveys of Cozens were no evidence of the location of the lots confirmed to the several claimants, because of their nonconformity to Long v. McDow, 87 Mo. 201; Minter v. Crom-the descriptions of those lots as given in the melin, 59 U. S. 18 How. 87 (15: 279). confirmations. An outstanding title, if barred by time, or abandoned, will not avail. Foster v. Joice, 3 Wash. C. C. 501; Jackson v. Hudson, 3 Johns. 386; Bennett v. Horr, 47 Mich. 223; McDonald v. Schneider, 27 Mo. 410; Howard v. Massengale, 13 Lea, 577, 585; Peck v. Carmichael, 9 Yerg. 325; Hall v. Gittings, 2 Harr. & J. 112. Abandonment was a familiar mode of losing title to land under Spanish Law. U. S. v. Halleck, 68 U.S. 1 Wall. 439 (17:664); Fossat v. U. S. 69 U. S. 2 Wall. 649 (17: 739); Villalobos v. U. S. 51 U. S. 10 How. 541 (13: 531); U. S. v. Levy, 38 U. S. 13 Pet. 81 (10:68); U. S. v. Forbes, 40 U. S. 15 Pet. 173 (10: 701). The questions raised by the assignments of error are federal questions, which bring the case within the jurisdiction of this court. Murdock v. Memphis, 87 U. S. 20 Wall. 590 Fine v. St. Louis Pub. Schools, 23 Mo. 576;|(22: 429); Mackay v. Dillon, 45 U S. 4 How. Lajoye v. Primm, 3 Mo. 529; Page v. Scheibel, 11 Mo. 183; Byron v. Sarpy, 18 Mo. 458; Soulard v. Clark, 19 Mo. 570; Barada v. Blumenthal, 20 Mo. 162; St. Louis v. Toney, 21 Mo. 254; Clark v. Hammerle, 36 Mo. 620; Vasquez V. Ewing, 42 Mo. 247. Lands thus lost by abandonment, or forfeiture, before 1812, or whose former owners had died without heirs, were not granted to anyone by the Act of 1812. Page v. Scheibel, 11 Mo. 183, 185; Byron v. Sarpy, 18 Mo. 458; Strother v. Lucas, 37 U. S. 12 Pet. 410 (9: 1137). The lots in the common field were not confirmed by the Act of 1812 in a body, as one field. Each lot was confirmed severally to its separate owner, or claimant, by its boundaries, as they actually existed on the ground. Guitard v. Stoddard, 57 U. S. 16 How. 494 (14: 1030); Glasgow v. Lindell, 50 Mo. 60, 79, 80. The Grand Prairie common field was not inclosed, but was an open area of land. It was not a field in the usual sense of the word. Mackay v. Dillon, 45 U. S. 4 How. 421 (11: 1038); Guitard v. Stoddard, supra; Les Bois v. Bramell, 45 U. S. 4 How. 449 (11: 1051); Page v. Scheibel, 11 Mo. 174. A grant to A or B is of no effect, because no one can say which is, and which is not, the grantee. Bacon, Abr. title, Grant, C. pp. 510, 511; 1 Shep. Touch. 237; Thomas v. Marshfield, 10 Pick. 367; Jackson v. Sissons, 3 Johns. Cas. 602; Jackson v. Cory, 8 Johns. 385; 3 Wash. Real Prop. 5th ed. 281, 566; 1 Wood Convey. 171. The documentary evidence was not sufficient to establish presumptively grants under the Act of 1812, to the claimants. Gamache v. Piquignot, 57 U. S. 16 How. 451 (14: 1012); Soulard v. Allen, 18 Mo. 591; Buyck v. U. S. 40 U. S. 15 Pet. 215 (10: 715); U. S. v. Delespine, 40 U. S. 15 Pet. 319 (10:753); U. S. v. Miranda, 41 U. S. 16 Pet. 153 (10:920); Slidell v. Grandjean, 111 U. S. 412 (28:321). The confirmation of the Bizet claim by the Act of 1836 would be junior to the title of plaintiff under the Act of 1820. It would begin in 1836. Les Bois v. Bramell. 45 U. S. 4 How. 449 421 (11:1038); Cousin v. Labatut; 60 U. S. 19 How. 202 (15: 601); Carondelet v. St. Louis, 66 U. S. 1 Black, 179 (17: 102); Magwire v. Tyler, 66 U. S. 1 Black, 195 (17: 137); Gamache v. Piquignot, 57 U. S. 16 How. 451 (14: 1012); Mo. Rev. Stat. 1879, § 3781. Messrs. Rob't E. Collins, John Flourney, Thos. T. Gantt and Charles Gibson, for defendants in error: All of the land in controversy in this case is a part of the Grand Prairie common field adjoining the Town of St. Louis in the former Territory of Missouri; and, all of said common field having been inhabited, cultivated or possessed as common field lots, prior to the 20th day of December, 1803, by inhabitants of said Town of St. Louis, the title of the United States to said land was vested in fee simple absolute, without requiring survey or patent, in such inbabitants of St. Louis who so inhabited, cultivated or possessed said common field lots, under and by virtue of the Act of Congress of June 13, 1812, entitled "An Act Making Further Provision for Settling the Claims to Land in the Territory of Missouri." Page v. Scheibel, 11 Mo. 167; Milburn v. Hardy, 28 Mo. 514; Glasgow v. Lindell, 50 Mo. 60; Glasgow v. Baker, 72 Mo. 441; Guitard v. Stoddard, 57 U. S. 16 How. 494 (14: 1030); Glasgow v. Hortiz, 66 U. S. 1 Black, 595 (17: 110). It is because a plaintiff is the only person entitled to the land sued for in ejectment, that he is permitted to recover. He must show both a legal interest and a possessory title, to the exclusion of all others. Mo. Rev. Stat. 1879, p. 373, § 2240; Beal v. Harmon, 38 Mo. 435; 2 Greenl. Ev. § 303; Adams, Eject. 33. The fact that the land in controversy is not within the outboundary line, as platted on Map X, does not affect the titles to common field lots. Milburn v. Hardy, and Glasgow v. Hortiz, supra. The proceedings before the recorder of land titles and the board of commissioners, together with the certificate of confirmation and the United States surveys, are, as against the plaintiff in error, undisputed proof of a grant by the Act of 1812 to the persons named of the land embraced in said surveys; and said grant [561] is a better title than that of the plaintiff in er- | official, M. Laussat, on the 30th day of Novem- Soulard v. Allen, 18 Mo. 591; Harrison v. Mr. Justice Miller delivered the opinion of The writ of error in this case brings before us for review a judgment of the Supreme Court of the State of Missouri, rendered on the 11th day of May, 1885, in a suit commenced in the Saint Louis Land Court of Saint Louis County, in that State, on the 15th day of September, 1853. This suit is in the nature of an action of ejectment to recover possession of about two hundred acres of land. It was tried three or four times in the court of original jurisdiction, the last trial resulting in a verdict for fifty-three acres of said land in favor of plaintiff; has been once or twice before the court of appeals, a court of intermediate review; and has been three times heard and decided in the Supreme Court of the State of Missouri. All of the decisions of the latter court have been in favor of the defendants, and the last one is now before us. It is one of a class of cases very numer ous, many of which have reached this court, growing out of claims for land which had their inception prior to the Treaty of 1803, by which the United States obtained the region of country called "Louisiana" from France. Article III of that Treaty reads as follows: "The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess." 8 Stat. at L. 200. ber, 1803; and on the 20th day of December The acquisition of titles by individuals to The Government of the United States per- This provision for the protection of the rights [562 [563] |