Freeborn v. Smith, 69 U.S. (2 Wall.) 160

Freeborn v. Smith.

1. When Congress has passed an act admitting a Territory into the as a State, but omitting to provide, by such act, for the disposa o & pending in this court on appeal or writ of error, it may consi “ and properly pass a subsequent act making such provision or 2. This court will not hear, on writ of error, matters which are pr P the subject of applications for new trial.

3. Parties cannot give private conversation or correspondence with each other to rebut evidence of partnership with a third person.

This was a writ of error to the Supreme Court of Nevada Territory.

Smith had obtained a judgment against Freeborn and Shelden in the Supreme Court of Nevada; Nevada being at the time a Territory only, not a State. To this judgment a writ of error went from this court, under the law organizing the Territory, and the record of the case was filed here, December Term, 1862. After the case was thus removed, the Territory of Nevada was admitted by act of Congress, March, 1864, into the Union as a State. The act admitting the Territory contained, however, no provision for the disposal of cases then pending in this court on writ of error or appeal from the Territorial courts. Mr. Cope and Mr. Nrowning, in behalf of the defendants in error, accordingly moved to dismiss the writ in this and other cases similarly situated, on the ground that the Territorial government having been extinguished by the formation of a State government in its stead, and the act of Congress which extinguished it having,, in no way, saved the jurisdiction of the court as previously existing, nothing further could be done here. The Territorialjudiciary, it was urged, had fallen with the government, of which it was part; and the jurisdiction of this court had ceased with the termination of the act conferring it. Hunt v. Palao* and Benner v. Porter,were relied on to show that t e court had no power over cases thus situated.

It being suggested by Mr. O’ Connor and Mr. Carlisle on the ? side, or as interested in other cases from Nevada simi-ar y situated, that a bill was now before Congress supplye the omissions of the act of March, 1864, the hearing t e motion for dismissal was suspended till it was seen th 9*7 on®ress might do. Congress finally acted, and on 1Y. °^ ^hruary, 1865, passed “An Act providing for istiiet Court of the United States for the District of Nevada,” &c.

* < Howard, 589. । $ Id 235,

v°r.n. n

The eighth section of this enacts,—

“ That all cases of appeal or writ of error heretofore prosecuted and now pending in the Supreme Court of the United States, upon any record from the Supreme Court of the Territory of Nevada, may be heard and determined by the Supreme Court of the United States; and the mandate of execution or of further proceedings shall be directed by the Supreme Court of the United States to the District Court of the United States for the District of Nevada, or to the Supreme Court of the State of Nevada, as the nature of said appeal or writ of error may require; and each of these courts shall be the successor of the Supreme Court of Nevada Territory as to all such cases, with full power to hear and determine the same, and to award mesne or final process thereon.”

The motion to dismiss the writ for want of jurisdiction was now renewed.

Assuming jurisdiction to exist, this case of Smith v. Freeborn, &c., was argued also on a question of merits. The judgment mentioned at the beginning of the case, which Smith had obtained against Freeborn and Shelden, he had obtained against them as secret surviving partners of a certain Shaw. One ground of the writ of error was that no evidence whatever had been offered of a partnership with Shaw between Freeborn and Shelden (a matter which was more or less patent on the record); and that judgment having gone against both (two jointly) and error as to one, the judgment would have to be reversed. A motion ha been made and refused below for a new trial.

There was also another question of merits. To rebut t e evidence of partnership, the defendants offered some letters between themselves and Shaw, and between themselves an one Eaton, an agent of theirs; which letters, though con taining, as was urged, some admissions against their own interest, the court below refused to let go in evidence to is prove a partnership. ,

Its action on these two points was one matter argue, u the great question was that of jurisdiction, a matter a ecting other cases as well as this.

Dec. 1864.] Freeborn v. Smith. 163

1. As to the jurisdiction, our position is that the act is a retrospective enactment interfering with vested rights. Certainly it attempts to confer on this court jurisdiction to review judgments which, by law, at the time of its passage were final and absolute. The necessary result of maintaining it would be to disturb and impair these judgments, unsettle what had been previously settled, and compel the parties to litigate anew matters already definitively adjudicated. There is no higher evidence that rights have vested than a final judgment solemnly confirming them. Law is defined to be a rule of conduct; and to call an enactment which undertakes to deal with past transactions, and subject them to new requirements and conditions as tests of their legality, a rule of conduct, is to confound all rational ideas on the subject. Ex post facto laws are expressly prohibited by the Constitution, but the courts would hardly enforce enactments of this nature even in the absence of any constitutional prohibition; because, being retrospective, and providing for the punishment of acts not illegal when committed, they are not laws in the true sense of that term, and not, therefore, within the sphere of legislative authority. The principle is entirely applicable to civil causes, and prevents any injurious intermeddling with past transactions. Legislative power begins and ends with the power to enact laws, and in respect to the conduct of men in their dealings and obligations, and in the acquisition of property, no valid law can be enacted which nn oes or unsettles that which was legally done or settled under a previous law.

he validity of enactments of this character has frequently “Cen enied. In Merrill v. Sherburne,* Woodbury, J., says: al ° ri legislature which look back upon interests ea se^e<^ or events which have already happened, are LibitS^ec^ve’ an<^ our Constitution has in direct terms pro¡U8t ° -n^em’ because highly injurious, oppressive, and un__ PerLaps their invalidity results no more from this

* 1 New Hampshire, 213.

164 Freeborn y. Smith. [Sup. Ct

express prohibition, than from the circumstance that in their nature and effect, they are not within the legitimate exercise of legislative power.” After speaking of ex post facto laws, he adds: “ Laws for the decision of civil causes made after the facts on which they operate, ex jure post facto, are alike retrospective, and rest on reasons alike fallacious.” In Bates v. Kimball,* Aikens, J., says: “The principle meant to he laid down is that an act not expressly permitted by the Constitution, which impairs or takes away rights vested under pre-existing laws, is unjust, unauthorized, and void.” In Stanford, v. Barry, j Prentiss, J., in referring to the decision in Bates v. Kimball, and the reasoning on which it was based, says : “ The case appears to have been maturely considered, and was decided on principles and authorities which are conclusive of the question. We have only to add, that the principles adopted have become settled constitutional law, and are universally recognized and acted upon as such, by all judicial tribunals in this country. They are found in the doctrines of learned civilians, and the decisions of able judges, without a single decision, or even opinion or dictum to the contrary. They not only grow out of the letter and spirit of the Constitution, but are founded in the very nature of a free government, and are absolutely essential to the preservation of civil liberty, and the equal and permanent security of rights.” In Lewis v. Webbfi Mellen, C. J., lays it down as a settled rule, “that a law retrospective in its operation, acting on past transactions, and in its operation disturbing, impairing, defeating, or destroying vested rights, is void, and cannot and must not receive judicial sanction. In McCabe v. Emerson,§ Rogers, J., after stating that it could not be presumed that the legislature intended to give the act under consideration a retrospective effect, says. “ But granting that intention to be clearly expressed, I have no hesitation in saying that the act is unconstitutional an void. The legislature has no power, as has been repeate J held, to interfere with vested rights.”______________

f 1 Aikin, 314.

* 2 Chipman, 88.

g 18 Pennsylvania State, 111-

J 3 Greenleaf, 335.

Dec. 1864.] Freeborn v. Smith. 165

We do not question the validity of retrospective statutes that are purely remedial, that give a remedy without disturbing or impairing rights. Whenever they attempt to interfere with a right, however, the legislature has passed the bounds of its authority, and the acts are void.

The court is here asked to review a judgment on which the law has already pronounced its final sentence. The act of Congress just obtained, concedes that the judgment has become final, but declares that it shall not remain so, and deprives the parties of any benefit from it until the matters settled by it are again adjudicated. If it be possible for a right to attach itself to a judgment, it has done so here, and there could not be a plainer case of an attempt to destroy it by legislative action. It is unimportant, of course, that the court ever had jurisdiction; if it proceed at all, it must proceed under the jurisdiction conferred by the act, and not under that which it formerly had. The case stands as if the judgment had been rendered by a court of last resort.

2. In passing the act Congress attempted to exercise power judicial in its nature, and not legislative. If this is so, it will follow as a necessary conclusion that the act is void.

authority, but considered merely as acts done, or to be done, in the progress of a cause, a legislative body has no power or control over them, either to command the doing of them, or to set them aside when done. No one will deny that rendering a judgment is strictly a judicial act, and it is evident that the power exercised in rendering it must also be exercised in setting it aside, for the act of setting a judgment aside, like the judgment itself, is simply a proceeding in the cause. And so as to every act that may be done in a cause, from its inception to its close; it is merely a proceeding in the cause, and is purely judicial in its nature. There is no difference in this respect between one act or one proceeding in a cause and another, they are alike judicial in their nature, and exclusively the subjects of judicial power. If one such act may be done or undone by legislative authority, there is no reason why the same authority may not be employed to do or undo every act throughout the proceedings. The question ceases to be a question of power, and becomes one of discretion only.

In Merrill v. Sherburne, the question was as to the validity of a statute granting a new trial after final judgment, and in Bates v. Kimball, and Lewis v. Webb, as to the validity of statutes granting an appeal where the judgments had also become final. It was held, in all the cases, that the statutes were unconstitutional and void, that their effect was to take away the legal force of the judgments to which they applied» and that in respect to these judgments they amounted to orders or decrees, which the courts alone were competent to make. These cases were decided not only on reasoning the most conclusive, but on authorities of the highest respectability and weight.

operates as a judicial order in each of the cases to which it applies.

Moreover, how can Congress authorize this court to issue its mandate to a State court in a matter which is of State jurisdiction? It would be plainly unconstitutional to do so. Perturbations of our whole judicial system would aase; and no one could calculate the extent of the disaster.

II. Respecting merits. The case is here short and easy.

1. As to the first point, this court cannot review the evidence on which a jury found.

2. As to the second, there was no error in refusing to let parties make proof in their favor out of correspondence between one another, and between themselves and their .agent.

Messrs. O’ Connor and Carlisle, with brief of Mr. Billings, contra.

I. Ms respects jurisdiction.

1. Independently of the act of Congress of 27th February, 1865, how does the case stand ?

The Territorial government is said to have been extinguished by the formation and establishment of a State

government in its stead. Admitting this, does it necessarily o ow that all acts performed by any department of the erritorial government down to the last moment of its exist-

ence, must, by the annihilation of their author, become irreversibly enforceable forever ? We think not.

f a tribunal, hastily gotten up in one of the newly created erntories, has given a judgment involving millions, in utter vio ation of law, equity, reason, and conscience, must that Ju ament stand irreversible, establishing the right forever, atGfh ^.ecause courf that gave it was in articulo mortis think6 ^me’ an<^ exP^re(f shortly afterwards? Again we

with the government of which it was a part; but the Supreme Court of the United States never was any part of the Territorial government. It did not cease to exist when the State of Nevada was admitted, nor did it lose its power, in fact or in law, to annul a definitive judgment of the Territorial court which was unlawful, and which, however unlawful, must, nevertheless, until reversed, form a bar to justice between the parties in any earthly tribunal.

It is said that no mandate can go to the Territorial court of Nevada announcing a reversal here because no such court exists. Granted; but is such a process indispensable to the existence of power here, or to the efficacy of this court’s judgment in all courts and places ? Surely not.

No further proceeding can be had in the Territorial courts, by either plaintiffs or defendants; but the plaintiffs may bring a new action in the State courts. To such action the judgment, heretofore rendered in the now extinct courts of Nevada, would, indeed, be prima facie a bar. But such bar would be at once raised, and every impediment to legal justice removed, if the plaintiffs should produce a record of this court showing that the judgment of the Territorial court was here reversed. It could not be said that the decision of this court was nugatory because it had failed to announce its reversal to the extinct tribunal whose judgment it reversed. “ This reversal was not to depend on any act to be performed, or opinion to be given by the court below; but stood absolute by the judgment of this court.

There is no repeal of the Territorial act. It remains a law, valid and operative fpr the purpose of giving efficiency and force to all things done under its authority. The assertion that it is superseded is only partly true. The Territoria government, with its departments, is, indeed, gone; but the power of vacating errors committed in those departments which, in a lawful and constitutional way, was vested in any still existing officers of the United States, is not necessarily superseded.

We do not perceive any difficulty even in removing a judgment to this court after the admission of the State. The record remains a valid paper in the hands of an officer whose duties, except as custodian of the records, have ceased.* And it is settled that the writ of error to remove a record may go to the place where the record is lawfully deposited, and to the court or officer having lawful custody of it. There is no necessity that it should go to the tribunal which pronounced the judgment sought to be reversed.

We think it is not correct to say that the act creating Nevada Territory is repealed or abrogated. Nothing can be done under it which is inconsistent with the subsequent governmental action of the United States in admitting the State of Nevada; but this is the whole extent to which it has become inoperative. The jurisdiction of this court to reverse the judgments of the Territorial Supreme Court remains.

2. How does the case stand under the act of 27th February, 1865?

This act is in substantial conformity with former legislation of Congress, which has been passed upon and approved by this court. After the State of Florida was admitted into the Union on February 22d, 1847, an act was passed directln& cases in which judgment or decrees have een rendered in the” late Territorial courts of Florida, “ and rom which writs of error have been sued out or appeals have een taken to the Supreme Court of the United States, the 8ai a UPrer^e ^ourt shall be and is hereby authorized to hear etermine the same.”f Under that act, this court exerC18e appellate jurisdiction in Benner v. Porter.\ By a supaCt’ ?a88ed February 22d> 1848>§ was enacted Kall R6 Provi8i°n8 °f said act of 1847, “ so far as may be, wh' h e? hereby are, made applicable to all cases c rf iR the Supreme or other superior o and for any Territory of the United States, which

+ 9 \ 9 Howard, 246. f 9 Stat, at Large, 129, § 3. + J Howard 24R ° ’ *

may hereafter be admitted as a State into the Union, at the time of its admission, and to all cases in which judgments or decrees shall have been rendered in such Supreme or superior court at the time of such admission, and not previously removed by writ of error or appeal.” The first section of this same act of 1848 applied in terms the remedy thus contemplated to the like cases in the Territorial courts of Iowa. Under this first section of the act of 1848, this court took cognizance of a writ of error in an ordinary land case, not of peculiar Federal cognizance, issued after Iowa had been admitted as a State, and thereupon reversed the judgment of the Territorial court of Iowa in Webster v. Reid.*

As a palliative of the consequences plainly resulting from the doctrines of the defendant, it is intimated that Congress might have done all that was necessary in the enabling act under which Nevada came in as a State; but having let slip that opportunity, no remedy can now be applied. But

1. This assumes the much debated and very disputable position that Congress, when admitting a State into the Union, may impose special conditions upon that favor, and place her in a position inferior to that of her elder sisters.

2. It also assumes that, in retaining or exercising authority to cause a review of judgments pronounced by its own judges in its own courts, the Federal Government woul exercise a jurisdiction over matters and questions piopei J of State cognizance. Such is not the fact. It only reverses, if erroneous, and approves, if right, the acts of its own officers.

The authorities to the contrary of the doctrine thus se up are numerous. It is neither an exercise of judicial power nor an invasion of vested rights. It is merely a legis ativ regulation of judicial practice. There is no such t mg <■ a vested right in a wrong-doer to evade the exercise o ju cial power, f Bull v. CalderX is an early leading cas.

*11 Howard, 487. gg f Watkins v. Holman, 16 Peters, 60, 61; Schenley v. Comm®“2VL0J25. Pennsylvania State, 29; Rich v. Flanders, 39 New Hampshire, ,

I 3 Dallas, 386.

Dec. 1864.] Freeborn v. Smith. 171

Reply for the motion.

'United States v. Sampeyrac* is a later one. It was held in this last case that Congress might confer jurisdiction, and at the same time might ratify and legitimate an action already commenced in a court which, until the act in question, had no jurisdiction of the matter. The doctrine of vested rights never restrains a legislature from advancing justice or remedying wrongs. It is intended to prevent oppression and injustice, not to afford them an impunity.

II. Jis to merits.

1. Is it shown upon the record that Freeborn and Shelden were partners with Shaw ? Our objection is on this point, that there was absolutely no evidence tending to show that such a partnership existed. The court ought not to have submitted to the jury the question of fact whether such partnership existed. It follows that if the court can correct the error below upon the record, the judgment must be reversed. Because it is familiar law that where there has been judgment against two (jointly), and there is error as to one, the judgment must be reversed.

2. The remaining point arises upon the rejection of certain evidence offered by the defendants, to wit, letters and telegraphic messages from Shaw (the real debtor) to the parties charged as partners in this suit, and now plaintiffs in error. These letters contained admissions against interest, and should have been received.

eply. Two cases in this court are cited as militating against the general principles we assert: Calder v. Bull\ doe ^nded States v. Sampeyrac.X But neither really

Ider v. Bull arose on a statute of Connecticut allowing th from a judgment rendered by a probate court of tate, the time for appealing under the law as it stood tbeV1°]US exPired* statute was passed prior to option of a State constitution, and it was shown to

7 Peters, 222.

Reply for the motion.

have been the custom of the legislature from a very early period to enact laws of this nature, and exercise a general control over the judiciary in respect to new trials and appeals. The grounds urged against the statute were that it was a judicial and not a legislative act, and that it contravened the clause of the Federal Constitution prohibiting the passage of ex post facto laws. The decision of the court was in favor of its validity, but the judges wrote separate opinions, and assigned different reasons for their conclusion. As to the first ground, some of them held that it was immaterial, there being no provision in the Constitution preventing the legislature of a State from exercising judicial powers. Others held that whether the statute be regarded as judicial or legislative, it was justified by the ancient and uniform practice of the legislature, and should be maintained. It was unanimously agreed that the prohibition referred to only applied to criminal enactments, and that a State statute affecting civil rights merely was not within it. This was the whole case, and the decision certainly has no effect upon the principle contended for here.

It may be that, in Benner v. Porter,* this court assumed jurisdiction of an appeal given by an act of this nature; but it seems to have done so without argument, and without any consideration of the question of the power of Congress to pass the act. Under such circumstances, the case should not be regarded as conclusive; and the question should be treated as an open one, and determined upon its merits.

Mr. Justice GRIER delivered the opinion of the court.

The most important question of this case is that of jurisdiction.

It is objected to the act of 27th February, just passed, that it is ineffectual for the purpose intended by it; that it is a retrospective act interfering directly with vested rights; that the result of maintaining it would be to disturb and impair judgments which, at the time of its passage, were final and absolute; that the powers of Congress are strictly legislative, and this is an exercise of judicial power, which Congress is not competent to exercise. But we are of opinion that these objections are not well founded.

he extinction of the Territorial government, and conversion of the Territory into a State under our peculiar institutions, necessarily produce some anomalous results and queslons which cannot be solved by precedents from without.

t cannot be disputed that Congress has the exclusive power of legislation in and over the Territories, and, consequent y, that the Supreme Court has appellate jurisdiction p t e courts established therein, “ under such regulations

it i °ngress may In the case of Benner v. Porter,| q 18 8ai • “ ^he Territorial courts were the courts of the clerk^ ^Overninen^ and the records in the custody of their seem8?^6 reco-r(^s ^ia^ Government, and it would

0 ollow necessarily from the premises that no one

9 Howard, 235.

The act of Congress admitting the State of Nevada omitted to make such provision, although the Constitution of Nevada had provided for their reception. Now, it has not been and cannot be denied, that if the provisions of the act now under consideration had been inserted in that act, the jurisdiction of this court to decide this case could not have been questioned.

legal proceedings.* The passage of the act now in question was absolutely necessary to remove an impediment in the way of any legal proceeding in the case.

The omission to provide for this accidental impediment to the action of this court, did not necessarily amount to the affirmance of the judgment, and it is hard to perceive what vested right the defendant in error had in having this case suspended between two tribunals, neither of which could take jurisdiction of it; or the value of such a right, if he was vested with it. If either party could be said to have a vested right, it was plaintiff in error, who had legally brought his case to this court for review, and whose remedy had been suspended by an accident, or circumstance, over which he had no control. If the judgment below was erroneous, the plaintiff in error had a moral right at least to have it set aside, and the defendant is only claiming a vested right in a wrong judgment. “ The truth is,” says Chief Justice Parker, in Foster v. Essex Bankrf u there is no such thing as a vested right to do wrong, and the legislature which, in its acts, not expressly authorized by the Constitution; limits itself to correcting mistakes and to providing remedies for the furtherance of justice, cannot be charged with violating its duty, or exceeding its authority.” Such acts are of a remedial character, and are the peculiar subjects of legislation. They are not liable to the imputation 0 eing assumptions of judicial power.

The constitutional difficulty attempted to be raised on the argument, that Congress cannot authorize this court to issue a man ate to a State court, in a mere matter of State jurislc ion, is factitious and imaginary. It is founded on the sumption, that all the questions which we have heretofore fo 6 k* 6 c.on^rarJr ^0 law, and is but a repetition of the una ° jec^ons which have been overruled by the court __r an°ther form of expression. For if it be true, as we

have shown, that Congress alone had the power of disposing of the Territorial records, and providing for the further remedy in the newly organized courts—if it requires the concurrent legislation of both Congress and the State to dispose of the cases in the peculiar predicament in which this case was heard—if Congress had, as we have shown, the power to remove the impediments to its decision, and remit it to a State court authorized by the constitution of the State to take cognizance of it, they must necessarily regulate the conditions of its removal, so that the parties may have their just remedy respectively. If a State tribunal could not take possession of the record of a court removed legally to this court, nor exercise jurisdiction in the case without authority of Congress (as we have decided), without the legislation of Congress, they must necessarily accept and exercise it subject to the conditions imposed by the act which authorizes them to receive the record. This court would have the same right to issue its mandate as in cases where we have jurisdiction over the decisions of the State courts, under the 25th section of the Judiciary Act, and for the same reasons, because we have jurisdiction to hear and decide the case.

II. Having disposed of the question of jurisdiction, the case presents no difficulty.

As to the case made on the motion for a new trial: our decision has always been, that the granting or refusing a new trial is a matter of discretion with the court below, which we cannot review on writ of error.

The single bill of exceptions in the case is to the refusal of the court to receive certain letters in evidence. The e-fendants were charged to have been partners of one George N. Shaw, or to have held themselves out to the public as such. This was the only issue in the case. To rebut t e plaintiffs’ proof, the defendants offered a correspondence between themselves, and some letters to them by one Eaton, their agent. It is hard to perceive on what grounds t parties should give their private conversations or correspon dence with one another or their agent to establish their own case, or show that they had no't held themselves out to t

"_______________________________ !_____________

Syllabus.

public as partners of the deceased. Let judgment of affirmance be entered in the case, and a statement of this decision be certified to the Supreme Court of Nevada.*

Affirmance and certificate accordingly.

Sheets v. Selden’s Lessee.

1. When a deed is executed on behalf of a State by a public officer duly authorized, and this fact appears upon the face of the instrument,, it is the deed of the State, notwithstanding the officer may be described as one of the parties, and may have affixed his individual name and seal. In such case the State alone is bound by the deed, and can alone claim its benefits. Accordingly, where the legislature of Indiana passed two acts, one authorizing the Governor, and the other the Governor and Auditor of the State to sell certain property of the State, and to execute a deed of the same to the purchaser on behalf of and in the name of the State, and such property being sold, the Governor and Auditor executed to the purchaser a deed, naming themselves as parties of the first part, but referring therein to the acts of the legislature authorizing the sale, and to a joint resolution approving the same, and declaring that, by virtue of the power vested in them by the acts and joint resolution, they conveyed the property sold, “being all the right, title, interest, claim and emand which the State held or possessed,” such deed was sufficient to pass the title of the State.

2. Land will often pass without any specific designation of it in the conveyance as land. Everything essential to the beneficial use and enjoyment of the property designated is, in the absence of language indicatng a different intention on the part of the grantor, to be considered as passing by the conveyance. cordingly, where the conveyance was of a division or branch of a canalr c u ing its banks, margins, tow-paths, side-cuts, feeders, basins, right unt ^amS.’ wa^er~Powerr structures, and all the appurtenances theree onfiinS> certain adjoining parcels of land belonging to the

. r which were necessary to the use of the canal and water-power, anv "fit USe^ it at the time, but which could not be included in

3, At the 6 ^erms above, in Italics, passed by the conveyance.

eject C°mi^on the grantee of a reversion could not enter or bring Hear ^.re.ac^ th® covenants of a lease; and the statute of 32. con« J j. ’giving the right of entry and of action to such grantee, is c°nfined to leases under seal.

4. The term “month,” when used in contracts or deeds, must be construed, where the parties have not themselves given to it a definition, and there is no legislative provision on the subject, to mean calendar, and not lunar months. The term thus held in a lease of the State of Indiana. 5. In the interpretation of contracts, where time is to be computed from a particular day or a particular event, as when an act is to be performed within a specified period from or after a day named, the general rule is to exclude the day thus designated, and to include the last day of the specified period.

Accordingly, where leases provided that the rents should be paid semi-annually on the first days of May and November; and that if any instalment should remain unpaid for one month from the time it sUd become due, all the rights and privileges secured to the lessees should cease and determine, &c., the one month from the first day of May, within which the payment of the rent due on that day was to be made to prevent a forfeiture, expired on the first day of June following. In the computation of the time, the day upon which the rent became due was to be excluded. \6. Verbal authority is sufficient for a person to act as agent or a lessor in the collection of rent, or in demanding its payment.

The State of Indiana, being owner of the Northern Division of the Central Canal, and of certain adjacent lands, authorized its Board of Internal Improvement, to cause any surplus water, of which there was some, along “with sue portions ofground belonging to the State as might be necessary to its use, to be leased.” Under this act leases were made in 1839-40,—one to Yandes & Sheets, another to Sheets; each for the term of thirty years.

claries, to wit, [here a particular piece of ground was described] containing a little more than half an acre.” The second lease, that to Sheets, in consideration of the rent reserved, leased also for the same term, and on the same conditions as the water-power was leased, “such part of the ground belonging to the State as in the opinion of the engineer having charge may be necessary to the use of the water-power hereby leased,” to wit [here, also, a particular piece of ground, as thus necessary, was described]. The lease to Yandes & Sheets was executed on the part of the State by the President of the Board of Internal Improvement, and by the lessees in this form:

D. H. Maxwell, [seal.]

President of the Board of Internal Improvement.

Daniel Yandes, [seal.] William Sheets, [seal.]

The lease to Sheets was executed by N. Noble, Acting Canal Commissioner, and Sheets, in this form:

N. Noble,

Acting Commissioner for the Northern Division

of the Central CanaL

William Sheets.

The “seals” which appear to the lease to Yandes & Sheets were ink scrawls. No seals of any kind appeared on the second lease,—that to Sheets.

Some time subsequently to the making of these leases the tate passed two statutes. By the first, entitled “An act to ant orize the Governor of Indiana to compromise with, and 0 cause suit to be brought against lessees of the water-power of the Northern Division of the Canal,” the Governor was authorized to sell “all the right, title, and interest of e tate of Indiana, in and to the Northern Division of the ^ana^’ and a^ rents that shall become due after e sa e of the said property, and the water-power and apPWenances thereunto belonging.”

and Auditor of the State were “authorized to make sale and dispose of all the right, title, interest, claim, and demand which the State holds in the Northern Division of the Central Canal, situate in the said State of Indiana, with all the water-power and appurtenances thereunto belonging,” and authorizing those officers to convey the same to the purchaser, on behalf of the State, in the name of the State of Indiana.

The Governor accordingly made public sale of certain property, advertised for sale, as “ being all the right, title, interest, claim, and demand which the State may hold or possess in the Northern Division of the Central Canal, and all the rents which may have become, or shall become, due after the sale of said property, and the water-power, and the appurtenances thereunto belonging, including its banks, margins, tow-paths, side-cuts, feeders, basins, right of way, dams, water-power, structures, and all the appurtenances thereunto belonging.” And having reported the sale to the legislature, that body confirmed it, directing him to convey the said portion of the canal, with the rights, privileges, and appurtenances, to the purchaser in fee.

The Governor and Auditor of the State (J. A. Wright and E. W. H. Ellis) afterwards executed to F. A. Conwell, who held under the purchaser, an instrument, which made one of the questions in the case. It purported to be made “ between Joseph A. Wright, Governor of the State of Indiana, and Erastus W. H. Ellis, Auditor of said State, of the first part, and F. A. Conwell of the second part,” and recited the sale, and referred to the several acts under which the instrument professed to have been executed, which are those hereinbefore recited; and acknowledged the payment of the purchase-money.

It then makes known that, by virtue of the power vests in them by the acts and joint resolution therein named, e> Joseph A. Wright, Governor of the State of Indiana, and Eras tus W. H. Ellis, Auditor of the said State, do hereby convey to the said F. A. Conwell,” &c., in fee, all the estate, U, herein described; the description being just as the prope y was sold, and as the same is above described; nothing, oW

Dec. 1864.] Sheets v -. Selden’s Lessee. 181

ever, being described by metes and bounds, or in any form more specific than that above given; and, as the reporter inferred from the argument, neither parcel falling within the specific designation of 44 bank, margin, tow-path, side-cut, feeder, basin, right of way, dam, or structure.”

The deed was thus executed and tested:

“ In testimony whereof, we have hereunto set our hands and affixed the seal of said State, at the city of Indianapolis, the day and year first above written.

* 11 Joseph A. Wright,

“Governor.

f SEAL OF THE STATE Ì « ERASTUS W. H. ELLIS, I OF INDIANA. f .

“ Auditor of State.

44 C. H. Test,

“ Secretary of State.”

Selden became owner of the property thus sold by the State; and Sheets, being in possession under the leases which the State had made, and having refused to pay rent, an agent of Selden, authorized by parol, formally demanded, on the first day of May, 1860, and afterwards on the first day of June, a short time before sunset, upon the premises, the rents due on the first of May of the year just named. Payment not being made, Selden, regarding the lease as foreited, brought ejectment against Sheets (the only tenant in possession). The premises for which the action was brought were the parcels of land described in the two above leases, executed in 1839-40 by the Board of Internal Improvement, as property belonging to the State, and leased in connection wit the surplus water, because necessary to the use of such water. The defences in substance were:

To the deed of the Governor and Auditor. • As not executed in the name of the State. .As not embracing the premises in controversy.

hat the leases not being under seal, Selden, as grantee e reversionary interest of the State, could not maintain

The court below—the Circuit Court of the District of Indiana—held none of these defences sufficient; and judgment was given for the plaintiff. The same reasons urged against recovery there were taken for reversal in error here.

Mr. Dumont, for Sheets, plaintiff in error: The deed by the Governor and Auditor is not a deed made on behalf of the State in the name of the State; whiclr the statute declares that it must be. It is by Mr. Wright, the Governor, and Mr. Ellis, the Auditor. These persons do not profess to act even as attorneys of the State; and if they did, the thing would be irregular, for the deed should have been made in the name of the principal; that is to say, of the State by its attorneys; and not in the name of the Governor and Auditor, even if they represented themselves as attorneys of the State, which with such a mode of presentation would not be a grantor at all. “ It was resolved,” says Lord Coke, in Combe’s case* il that when any has authority to do any act, he ought to do it in his name who gives the authority; for he appoints the attorney to be in his place and to represent his person, and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority.” No rule in the law is better settled than this, and none has so uniformly received the sanction and approbation of the various ju i-cial tribunals of the country.f In this case, however, as we have said, the attorneys do not even profess to act in the name of the State. They act in their own name, their official titles being added, just as the same titles might we have been added, and probably would have been added, as descriptions of who the grantors were,—if the same in i viduals had been conveying lands belonging to themse ves

* 9 Coke, 76, b. . c f See Ewell v. Shaw, 1 American Leading Cases, 2d ed., 559, note; w authorities are collected.

Dec. 1864.] Sheets v. Selden’s Lessee. 183

personally. Indeed, it would be doubtful whether, in any kind of contract, titles thus appended would be held to be more than descriptive designation, or to relieve from personal liability; for Alright neither conveys nor signs as governor, nor Ellis as State auditor. In regard to a deed, however, the act of acts in the law, the case is stronger than the case of simple contracts, and, as we think, is quite plain. The statutes under which the sale was made have no such inherent force as to operate without regard to general law, as administered between private persons. They may or may not indicate what was meant to be sold; but they do not alter the ancient settled effect of those acts which are done. We concede that, in many cases of Government contracts, the intention to bind the Government and not the agent will prevail; as, for example, where, from the whole instrument, such intention is manifest; but this exception does not apply where the act of the agent, and the manner of its execution, are alike specifically pointed out by legislative direction; and especially does it not apply to a case like the present, where the effect of the act of the agent is to divest the State of title to a valuable freehold estate in lands, and important public franchises besides. Here the legislature has provided how that thing should be done, and by whom.

. ’ The State, no doubt, was owner of all the lands demised by the leases; but did the State authorize a sale of all those lands ? The legislature describes specifically what s ould be sold. It is the “water-power” and the “appurtenances, nothing else. Now, this ejectment is brought for certain pieces of land, meted and measured out; pieces of an which, confessedly, are not any one of the things either a vertised for sale or sold, unless they are those “ appurtenances „which, we admit, were sold. But “ it seems now 8e ed, says Tomlins,* citing authorities, “ that lands will no Pass by the word appurtenances.” To insist that the Pa cular tracts described in the leases are appurtenant to . . _______

J.1 ’ ®iC,i0“^ “-Appurtenances;” citing the old reporters, ™wr,375; Godbolt, 352; Hutton, 86; S.0.Littleton,8.

some one or more of the things sold by the State, would be even more absurd than to maintain that land can be appurtenant to land. It would be maintaining that land can be appurtenant to a mere easement, a .right of way, a water-power, or a stream of water, natural or artificial. The lands demised cannot be “ appurtenant” to the bed of the caval, nor to its banks, nor its margins, nor its tow-paths, nor its side-cuts, nor its feeders, nor its basins, nor the right of way, nor the dams, nor the water-power, nor the structures, specified in the act. What the State meant to convey is not important. The question is, what has she conveyed ? and that is to be determined by looking at the words of the statutes and deed, and interpreting them by the rules of law; rules which are of all time, and are the same whether the parties be States or subjects.

2. The leases are not under seal. Now, when a forfeiture is asserted, the party asserting it must prove the forfeiture strictly, for forfeitures are odious. Whence comes this right of re-entry at all ? It comes from an English statute; a statute passed in the worst year of, perhaps, the worst of English kings,—in the 32d Henry VIH; but which, in common with most statutes of our mother country prior to the fourth year of James I, is confessedly in force by statute adoption of 1818* in Indiana. The language of the English statute is thus:

“ The grantees or assignees shall have and enjoy the like advantages against the lessees, &c., by entry for non-payment o/ rent, &c., and also shall and may have and enjoy all and every such like and the same advantage, benefits, and remedy, by action only, for not performing other conditions, covenants, and agree ments, contained and expressed in the indentures of their sc leases, demises, or grants, against all and every the said lessees, &c., as the said lessors or grantors themselves, &c., ought, s ou, or might have enjoyed, at any time or times, in like manner form as if the reversion of such lands, &c., had not come to hands of our said sovereign,” &c.

Dec. 1864.] Sheets v. Selden’s Lessee. 185

This statute carries with it the construction which it has received in England, as well as with us. Now, in Bickford v. Parson* Judges Wilde, Coltman, Maule, and Cresswell, severally gave opinions, each one of them assuming it to be settled law that to bring a case within this statute of 32 Henry VIH, 34, the lease must be by deed; Maule, J., saying, “ The demise not being by deed, the right to sue is not transferred to the assignee of the reversion by force of the statute.”

Doubtless, it will be said that the necessity for a seal in the true form is dispensed with by our Illinois statute of 1843. But is it ? The statute provides! that an ink scrawl may be used,11 except where any statute of this State shall require a specific seal.” Is it clear that, adopted by statute of Illinois as the statute of 32 Henry VHI will be conceded by all to have been, a “ specific seal” is not necessary when you attempt to establish the forfeiture allowed by the English act; that forfeiture especially which there, as here, is odious, and in favor of which nothing will be intended nor benignantly construed ? But even supposing that an ink scrawl, or even no seal, would be sufficient between private persons, yet certainly when the State is the lessor, the private ink scrawl of the State’s agent is not sufficient.

3. The demand was too late. This court! bias fully recognized the obligation of the common law requirements in regar to re-entry on the ground of forfeiture for non-payment 0 rent. One of these requirements is, that where, as in t e present case, the agreement is, that “ if the rent shall be e ind and unpaid by the space of thirty or any other num er of days after the days of payment, it shall be lawful ?. t e lessor to re-enter; a demand must be made on the irtieth or other last day.”§ The right to re-enter for breach ^re ig by the terms of the lease suspended for one month time the rent became due. 44 The month, by the

5 Manning, Granger, and Scott (57 English Common Law), 920.

J Statutes of 1843, p. 592, §25, chap. 83. J Connor v. Bradley, 1 Howard, 217.

uPpa v. Mayo, 1 Saunders, 286, note 16.

common law,” says Tomlins,* quoting good authorities, “ is but 28 days, and in case of a condition for rent, the month shall be thus computed. So in the case of enrolment of deeds, and generally in all cases where a statute speaks of months.” It is true that, by an Illinois “ act in relation to the construction of statutes and the definition of terms,” it is declared that the word “ month” shall mean a calendar month; but this act relates only to the construction of statutes, and to the meaning of terms as used in them. So, too, the fact that in mercantile contracts, or in other contracts where there was, obviously, such an intention, the calendar month is assumed, is not important; for this business of forfeiture is a very strict proceeding under ancient common law. Admitting, however, that a calendar month was meant, and that the court will so construe the leases, yet then the authority is, that the demand must be on the last day of the month.f Here it was on the first of the succeeding.

Jfr. Hendricks, contra.

Mr. Justice FIELD delivered the opinion of the court.

The objections taken by the defendant in the court below against a recovery, and urged in this court for a reversal of the judgment, which require consideration, relate, 1st, to the validity of the deed executed by the Governor and Auditor of Indiana to pass the title of the State to the premises in controversy; 2d, to the claim by the lessors of the plaintiff of a right to maintain ejectment for the premises upon a breach of the covenants to pay rent contained in the leases of the Stater; and 3d, to the proceedings taken to effect a forfeiture of the leases.

1. The objection to the deed of the Governor and Auditor is, that it is not executed in the name of the State, and does not cover the premises in controversy.

pliance with the language of either of the acts of Indiana; it is not in terms between the State, of the one part and the assignee of the purchasers of the property of the other part; but it shows a completed transaction between the State and the grantee named. It refers to the acts of the legislature authorizing the sale; it sets forth a sale made pursuant to their provisions; it mentions the joint resolution affirming the sale; and it declares that the Governor and Auditor in virtue of the power vested in them by the acts and joint resolution convey the property sold, “being all the right, title, interest, claim and demand which the State” held or possessed therein.

In the execution of this instrument the Governor and Auditor acted officially and not personally, and in our judgment the deed was sufficient to pass the title of the State they represented. And it may be stated generally that when a deed is executed, or a contract is made on behalf of a State by a public officer duly authorized, and this fact appears upon the face of the instrument, it is the deed or contract of the State, notwithstanding that the officer may be described as one of the parties, and may haye affixed his in-vidual name and seal. In such cases the State alone is ound by the deed or contract, and can alone claim its benefits.*

he objection that the deed does not cover the premises m controversy rests upon the fact that it does not convey e parcels of land for which the action is brought, by P ci e esignation and description. Such designation and esciption, though usual, are not always essential. Land or a ° ten Pa8S °^er berms. Thus a grant of a messuage in? imessua£e with the appurtenances will carry the dwell?arflo°U8e adjoining buildings, and also its orchard, thatpD> curtilage-t The true rule on the subject is this, veryt mg essential to the beneficial use and enjoyment

231; The Stat D^er’t Cranch, 345; Stinchfield ®. Little, 1 Greenleaf, t Shenh! ? Z M^auley, 15 California, 456. T pherd'g Touchstone, 94.

188 Sheets v. Selden’s Lessee. [Sup. Ct

of the property designated is, in the absence of language indicating a different intention on the part of the grantor, to be considered as passing by the conveyance.* Thus the devise of a mill and its appurtenances was held by Mr. Justice Story to pass to the devisee not merely the building but all the land under the mill and necessary for its use, and commonly used with it.f So a conveyance “of a certain tenement, being one-half of a corn-mill situated,” on a designated lot “ with all the privileges and appurtenances” was held by the Supreme Court of New Hampshire to pass not only the mill, but the*land on which it was situated, together with such portion of the water privilege as was essential to its use.J And the exception of a factory from a mortgage deed was held by the Supreme Court of Massachusetts to extend to the land under the factory, and the water privilege appurtenant thereto.§

In the deed from the Governor and Auditor the property conveyed is designated as “ all the right, title, interest, claim, and demand, which the State may hold or possess in the Northern Division of the Central Canal, &c., and all the rents which may have become, or shall become due after the sale of said property, and the waten-power, and the appurtenances thereunto belonging, including its banks, margins, tow-paths, side-cuts, feeders, basins, right of way, dams, water-power, structures, and all the appurtenances thereunto belonging.”

2. The objection that the lessors of the plaintiff, as grantees of the reversionary interest of the State, cannot maintain ejectment for the premises upon breach of the covenants to pay rent contained in the leases of the State, rests upon the supposition that the leases are not under seal.

It is conceded that at the common law the grantee of a reversion could not enter or bring ejectment for breach of the covenants of a lease; and that the statute of 32 Henry7 A HI, giving the right of entry and of action to such grantee, was confined to leases under seal. The statute speaks of conditions, covenants, and agreements, contained in indentures of leases, demises, and grants; language only7 applicable to sealed instruments. That statute was adopted in Indiana as early as 1818, but a law of the State passed in 1843 alters its rule, and extends its remedies to all leases.

3. The objection taken to the proceedings for the forfeiture of the leases is that the demand for the rent was not made on the proper day, nor by properly authorized agents.

The demand was made on the first day of May, and also on the first day of June. The first demand was premature; the question is as to the demand on the latter day. The leases provided that the rents should be paid semi-annually on the days of May and November; and that if any instalment 8 ou^ remain unpaid/or one month from the time it should become due, all the rights and privileges secured to the lessees 8 ould cease and determine, and any authorized agent or essee of the State should have power to enter and take possession of the premises.

be sustained. The term is not technical, and when the parties have not themselves given to it a definition, it must be construed in its ordinary and general sense, and there can be no doubt that in this sense calendar months are always understood. The reasons upon which a different rule rests in England with reference to other than mercantile contracts, do not outweigh this consideration.*

The rent becoming due on the first day of May, the one month from that time within which the payment was required to be made to prevent a forfeiture, expired on the first day of June following. In the computation of the time, the day upon which the rent became due was to be excluded. The general current of the modern authorities on the interpretation of contracts, and also of statutes, where time is to be computed from a particular day or a particular event, as when an act is to be performed within a specified period from or after a day named, is to exclude the day thus designated, and to include the last day of the specified period. “When the period allowed for doing an act,” says Mr. Chief Justice Bronson, “ is to be reckoned from the making of a contract, or the happening of any other event, the day on which the event happened may be regarded as an entirety, or a point of time; and so be excluded from the computation.”!

The parties who made the demand for rent were duly authorized by the lessors of the plaintiff*. Authority in writing was not essential; verbal authority was sufficient for t e purpose.

Judgment affirmed.