The United States v. King et al. practically ascertained; and neither is deniable but for fraud in the making of the grant. Or the grant may be shown to have been made without authority or contrary to law. Neither fraud nor violation of law is imputed to this grant, and it stands good for all that is asserted in it, against any suspicion of fraud which alleges that the figurative plan of Trudeau had been antedated. But, further still, against such a suspicion, shall no force be given to the declaration of Trudeau himself in such a case? His signature to the figurative plan is proved. He was the surveyor-general, whose duty it was to make for the governor, by his order, such a figurative plan, before the governor could make the grant. A plan is made purporting to be signed by Trudeau, his signature is proved to be genuine, the governor and his secretary recognize it to be such by making a grant according to it; the character of Trudeau for private virtue and official ability and integrity is proved by those who knew him. If all this be not proof positive that the figurative plan had been made and was annexed to the grant contemporarily with its execution, then no proof will suffice, and our rejection of it involves a denial of all truthful character in the three highest functionaries then representing the king of Spain in Louisiana, the Baron de Carondelet, Secretary Armesto, and the Surveyer-General Trudeau. Such is the consequence concerning these men; but I know the majority of this court do not mean it, for if the more subordinate condition of two of them had not imposed upon their contemporaries the conviction that they were uninfected by the corruption which we are too apt to suppose degraded the provincial officers of Spain, the Baron Carondelet lived in his long career of public service to his sovereign, and died in it, unsuspected. I will not take up further time by making any remarks upon the suggestion, that the grant of June, 1797, was not meant to convey land to the Marquis de Maison Rouge for himself, but was a grant for emigrants, as the contract of 1795 with him was, except to say, that it would indeed be very singular if the two were for the same purpose; that in that of 1795 the government of Spain bore all the burdens of colonization, and in the grant of June 20th, 1797, no provision is made for such a purpose, but they were to be borne by the Marquis de Maison Rouge, an impoverished emigré from France, and whose poverty in his humble residence in a wilderness, bought by him for a small price, is proved in the record, and relied upon by this court, as it is shown in his will by his use of the word bienes as a reason that such a grant was not made to him. He used that word bienes-as The United States v. King et al. any other person who had been brought up *under the *892] civil law would have done--as signifying all that a man can own, or which can be property. Besides, however, the difference in regard to the expenses of colonization in the two instruments just mentioned, that they were not meant for the same purpose, without benefit to the Marquis in the last, is very conclusively shown by the fact that they were made by different authorities,-the one by the governor, Carondelet, without operation until it received the approval of the king, because it involved the expenditure of the king's revenue; that of June, 1797, by the governor himself, who, by the royal order, was authorized to make grants of land without the special assent of the king to such grants. It is true that the language of the grant to the Marquis, after saying that he "is near completing the establishment of the Washita, which he was authorized to make for thirty families by the royal order of July 14th, 1795," does recite further," that, desirous to remove for the future all doubt respecting other families or colonists who may come to establish themselves, we destine and appropriate conclusively for the establishment of the aforesaid Marquis de Maison Rouge the thirty superficial leagues marked in the plan annexed to the head of this instrument." But the extension of colonization implied by it certainly cannot become a fact of a previous contract for that purpose, almost already completed, without the same terms for its enlargement as the king of Spain imposed upon his treasury in the first contract, or other terms expressed and assented to by the Marquis. And I will further say, if this grant, from its terms, can be interpreted to convey land for emigrants, of which the Marquis was only a trustee, that the terms used in it will be equally effective to convey to the Marquis the dominion of the land for himself, if the facts in the case and the reasoning upon them shall preponderate in favor of the latter interpretation. In other words, the suggestion of the court in the opinion, of a conveyance having been intended for colonists, and not for the Marquis, admits, so far as the suggestion conveys the first idea, that the words of the grant are sufficient to convey the land by such an instrument. There can be no objection to the grant, then, on account of a deficiency of formal terms of conveyance. Such services were never required by the civil law of Spain to make a good grant for land. Any words for that purpose are enough, in a grant from which an equitable title can be inferred for the grantee. The suit of the United States against King is in the nature of a writ of ejectment. Inasmuch, however, as The United States v. King et al. the distinction, so well known in England and in our States in the United States, between courts of equity and courts of common law does not prevail in *Louisiana, what in England would be recognized as a purely equitable [*893 title may serve as well in a court in Louisiana as a perfect legal title, either to maintain the claim of the United States, or as a defence on the part of the defendant against such demand. In the case of The United States v. Fitzgerald, 15 Peters, 407, this court recognized what has just been said to be the correct doctrine of the Circuit Court of the United States sitting in Louisiana, and gave judgment for the defendant in a writ of error, upon a right purely equitable, against the strictly legal title of the United States, in a petitory action for the recovery of land. But let it be admitted, for the sake of the argument, that the instrument of June 20th, 1797, was designed to carry out more extensively the contract of 1795, either for the benefit of the settlers who had been already introduced under that contract, or for other colonists who might thereafter be placed upon the land by the Marquis, I cannot see how the right of the United States to recover in this action is in any way strengthened. Whether the thirty leagues were assigned to the Marquis for his own use, or in trust for others,-whether he was to be the sole and exclusive proprietor, or was to hold it, as is contended, for the benefit of others, is a question with which the United States have nothing to do. That is wholly between the Marquis, as holding the legal title, and those who may advance a claim as cestui que use. In either case, the land was severed from the public domain and became a private property. It could not, in either case, pass, by any construction of the treaty, to the United States. They have neither a legal nor equitable title to the land. In order to entitle the United States to a judgment, they must affirmatively aver and prove a title in themselves. The very pretension that the Marquis received this grant as a trustee for others is as fatal against a recovery by the United States as if the entire legal and equitable title were conceded to be, as in my judgment it is clearly shown to be, vested absolutely and exclusively in the Marquis de Maison Rouge. I have written much upon this case, I know,-more than I usually permit myself to do in any case; but less would not have shown the judicial history of this, from the beginning of the action to its first appearance in this court, or our judgment and vacated judgment afterwards, and now the course The United States v. King et al. which this court has taken upon the writ of error to reverse the judgment of the Circuit Court. One word more. The mandate upon the decision here made is for the reversal of the judgment given in favor of King for the land for which the United States sued him. The case will of course be before the Circuit Court *894] of Louisiana again, when new evidence on both sides may be introduced, or, if that does not exist, for that court to correct the error in its judgment. It cannot do so by any decision of this court upon the bills of exceptions in the record. The reversal is for causes or errors said to be in the judgment. If, then, the Circuit Court shall, in its further trial of this cause, be of the opinion that the evidence proves title to the land in King, I presume that the mandate will be satisfied if it gives a judgment in his favor again for that quantity of land for which the United States has sued, without saying any thing about the validity of the title, or declaring that Mr. Coxe is an owner of any part of the Maison Rouge grant. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, 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, reversed, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to that court to enter judgment for the United States for the land described in the petition. 938 TO THE MATTERS CONTAINED IN THIS VOLUME. ACCOUNTS. [The references are to the STAR (*) pages.] 1. Where a running account is kept at the Post-Office Department between 2. This the creditor has a right to do in the absence of instructions from ADMIRALTY. See JURISDICTION, 30–34. APPEAL. 1. Where an issue is sent by a court of equity to be tried by a jury in a 3. The amount of damage which will follow from restraining a party from 4. The meaning of the forty-third rule of this court is, that, if a judgment 5. But if the judgment or decree of the court below be rendered less than ATTACHMENT. See BANKRUPTCY, ATTORNEY. 4-9. 1. It was error in the court below to reject the testimony of an attorney |