Morsell v. Hall.

in 1715, c. 28, s. 2, authorized this mode of taking bail in suits in the then Provincial Court, which, like this court, had jurisdiction coextensive with the State. This court adopted the practice, and has always since acted upon it.

"The written rule, No. 62, adopted in 1802, was not intended to alter the previous practice of this court, and has never been so construed. It is merely intended to confer the power upon other State officers also, so as to increase the facilities of giving bail where the defendant resided at a distance from the place of holding the court; for, upon searching the records we find recognizances of bail taken soon after the adoption of the rule of 1802, before two justices of the peace of the State, in the same manner with the recognizance now before the court. A prece dent has been produced as far back as 1812, and a more careful search would probably show precedents still earlier. The same practice has continued without interruption ever since; and, indeed, any other rule would be oppressive to citizens of the State who reside at a distance from the place of holding the court, especially as they would most commonly be obliged to bring their bail with them. In the case before us the recognizance of bail having been taken and sanctioned according to the estalished rules and practice of this court, the judgment upon the plea of nul tiel record must be for the plaintiff."

2. That the promissory note filed as the cause of bail in the action against Smith, was paid before the judgment was obtained against Smith.

To the first of these pleas Hall too!. issue, and the judgment of the court was as is above recorded.

To the second plea he demurred; and instead of joining in demurrer, Morsell took no notice of it, but the judgment of the court was for the plaintiff generally. A motion was made to enter an exoneretur on the bail-piece, which was overuled.

A writ of error brought the case up to this court.

It was argued by Mr. Stewart and Mr. Johnson, for the plaintiff in error and Mr. Dulany, for the defendant in error.

The counsel for the plaintiff in error did not press the objec tion founded upon the plea of nul tiel record, as before remarked; but contended that the judgment below should be reversed because the court did not decide upon the demurrer. Harris v. Wall, 7 low. 693; Wheelwright v. Jutting, 7 Taunt. 304; Thompson . Macirone, 4 Dowl. & Ry. 619.

2. That if it be assumed that the court did decide upon the demurrer in favor of the plaintiff below, that such decision was erroneous, because the debt, in reference to which the recogni

Morsell v. Hall.

zance of bail was entered into, is shown to have been discharged before the institution of the original suit. Jackson v. Hassel, Doug. 330; 6 D. & E. 363; Tetherington v. Golding, 7 D. & E. 80; 2 Tidd's Practice, 992, 993; Clark v. Bradshaw, 1 East, 86; 4 Halst. 97.

Mr. Dulany. The ground taken by the plaintiff in error in his second plea is, that, in the affidavit made by the defendant in error, in his original suit against William Smith,, he filed, as cause of bail in said suit, a promissory note for the sum of $2,678.90, which had been paid (he does not say by whom) before the judgment against Smith in that suit was obtained.

In support of the demurrer to this plea, it would seem sufficient to remark, that the plea relies upon a matter of defence which, if it had been established, as it might have been if true, in the principal action by Hall against William Smith, would ha e been an effectual bar to the recovery of the verdict and judgment in that case.

It is a maxim of law that there can be no averment in pleading against the validity of a record, therefore no matter of defence can be alleged which existed anterior to the recovery of the judgment. 1 Chitty's Pleading, (Am. Edition,) 1844, p. 486, and margin; Cardesa v. Humes, 5 Serg. & Rawle, 65; McFarland v. Irwin, 8 Johns. Rep. 77; Moore v. Bowmaker, 2 Marsh. 392; 6 Taunt. 379.

Now the payment of the note, which is the ground of defence apparently relied upon in the above plea, was anterior (as is expressly averred in the plea itself,) to the rendition of the judg ment against Smith, and upon that judgment the scire facias in this case was issued against the plaintiff in error as special bail of Smith. The plea must, therefore, be held bad, and the judg ment of the court below sustained, else there is great error in the above-stated legal maxim and in the authorities by which it is supported.

Mr. Chief Justice TANEY delivered the opinion of the court. This is a scire facias brought by Hall against Morsell, as the special bail of William Smith, in a suit in the Circuit Court of the United States for the District of Maryland, in which Hall recovered a judgment, and proceeded by proper process to charge

the bail.

Morsell appeared to the scire facias, and pleaded: 1st. Nul tiel record; and 2dly. That the promissory note, filed as the cause of bail in the action against Smith, was paid before the judg ment was obtained against Smith. The plaintiff, in the court below, took issue on the first plea, and demurred to the second;

Morsell v. Hall.

but the defendant did not join in the demurrer. The court gave judgment for the plaintiff, upon which this writ of error is brought.

The plaintiff in error alleges, that according to the record, the case was decided on the first plea only, and that the demurrer was not disposed of by the judgment—and they assign as error, 1st. That no judgment was given on the second plea; and 2dly, if the court consider it to be overruled by the general judg ment for the plaintiff below, that then the judgment is erroneous, because the plea was a good defence.

As relates to the first objection, the refusal or omission of the plaintiff in error to join in demurrer was a waiver of the plea, and there was no issue in law upon the second plea upon which the Circuit Court was required to give judgment. Townsend v. Jemison, 7 How. 719, 720.

And as concerns the second objection, if the plea was before the court and not waived, it was no defence. For the right of the defendant in error being established by the judgment in his favor, he was not bound to prove it over again in the scire facias against the bail. 1 Chit. Pl. (Am. Ed. of 1847) 469, 486, and

margin.

And consequently the omission to enter a formal judgment upon it could not, under the act of Congress of 1789, c. 20, s. 32, be assigned as error. The omission would be a mere imperfection in form, not affecting the right of the cause or the matter in law as they appear on the record. Roach v Hulings, 16 Pet. 319; 4 How. 164; Stockton and others v. Bishop, and Parks v. Turner & Renshaw, decided at the present term.

The record, as transmitted to this court, shows that a motion was made, before the judgment on the scire facias to enter an exoneretur of the bail upon ground similar to that taken in the second plea; and that affidavits were filed in support of, and also in opposition to the motion. And it has been urged, in the argument here, that the Circuit Court erred in not granting this motion.

A motion to enter an exoneretur of the bail is no defence to a scire facias even if sufficient grounds were shown to support the motion, (which we do not mean to say was the case in the present instance.) It is a collateral proceeding, not forming a legal defence to the scire facias, but addressing itself to the equitable discretion of the court, and founded upon its rules and practice. Chit. Pl. (Am. Ed. 1847,) 469. No writ of error will therefore lie upon the decision of a motion of that kind; because a writ of error can bring up nothing but questions of law. It does not bring up questions of equity arising out of the rules and practice of the courts. And the proceedings upon the motion to

The United States v. McCullagh et al.

discharge the bail form no part of the legal record in the proceedings on the scire facias and ought not have been inserted in the record transmitted to this court.

There is no foundation therefore for any of the errors assigned in this case, and the judgment of the Circuit Court must be affirmed with costs.

Order.

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 ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed with cost and damages, at the rate of six per centum per annum.

THE UNITED STATES, APPELLANTS, V. WILLIAM AND ALEXANDER MCCULLAGH AND JAMES CORNAHAN, TRUSTEES OF THE HEIRS OF ALEXANDER MCCULLAGH AND DAVID MCCALEB.

The act of June 17, 1844, (5 Stat. at Large, 676,) reviving the act of 1844, gives jurisdiction to the District Courts in cases only where the title set up to lands, under grants from former governments, is equitable and inchoate, and where there is no grant purporting to convey a legal title.

Grants from the British government, as well as those of France and Spain, are equally within this restriction.

THIS was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana.

The opinion of the court sets out the facts of the case so far as to raise the question of jurisdiction.

It was argued by Mr. Lawrence and Mr. Crittenden, (Attor ney-General) for the United States, and by Messrs. Janin and Taylor, for the appellees.

Mr. Chief Justice TANEY delivered the opinion of the court. This case arises on a petition filed by the appellees in the District Court for the Eastern District of Louisiana, praying that their title to a certain tract of land containing one thousand acres, situated on the Mississippi River, to the westward of Baton Rouge, may be declared valid and confirmed. They claim title under Alexander McCullagh, Sen., who obtained a grant from the British authorities while they were in possession of the coun

The United States v. McCullagh et al.

try and before it was ceded to Spain. The grant was made on certain conditions therein specified, which it is not necessary to state, as the court is of opinion that the District Court had no jurisdiction in the questions upon which the validity or invalidity of the title claimed by the appellees against the United States, depends.

The proceeding is under the act of June 17th, 1844, and this court have always held that under that act the District Court has jurisdiction in those cases only where the title set up by the petitioner is equitable and inchoate; and where there is no grant purporting to convey a legal title as contradistinguished from an equitable one. It is true that the cases heretofore decided have arisen under titles derived from the French or Spanish authorities while they respectively held the territory and exercised dominion over it. And this is the first case that has come before the court in which the title sought to be confirmed is derived from the government of Great Britain. But as respects the jurisdiction of the District Court, claims of this description. are placed by the act of 1844, on the same footing with those which are derived from France or Spain. The jurisdiction conferred in either case is that of a court of equity only; and the titles which the court is authorized to confirm, are inchoate and imperfect ones, which upon principles of equity, the government of the United States are bound to confirm and make perfect.

In this case, all of the questions upon which the title of the appellees depend, are strictly legal questions, to be decided in a court of law, in a suit at law. They are not, therefore, within the equity jurisdiction given by the acts of 1824 and 1844. There are no equitable considerations involved in the controversy; and the validity or invalidity of this claim, can be tried and determined in any court having competent jurisdiction to try and decide a disputed title to land between individual claimants. There was no necessity, therefore, for any special jurisdiction to try them, and on that account they were not embraced in the acts of Congress above mentioned.

It appears, in this case, that the District Judge had an interest in the land in question, and the cause was certified to the Circuit Court for the Eastern District of Louisiana, under the act of March 3, 1821, and the decree affirming this title was passed by the Circuit Court. This decree must be reversed; and a mandate issued to the Circuit Court to dismiss the petition without prejudice to the rights of the United States or the appellees.

Order.

This cause came on to be heard on the transcript of the