Baring v. Fanning.

dollars eighty-seven cents, or render an account of all other goods, monies, and effects in their hands, belonging to Consequa, at the time of notice of the assignment to Baring & Co., on the 5th of August, 1811, and of the sales, payments, and disposition of the same.

For the decree and proceedings in the Court of Chancery of this state, reference, by consent of counsel, is made to the report of the case, 3 John. Rep. 587., and 17 John. Rep. 511.; by which it appears that the shipment of the 2d of December, 1809, was not at all in question, but was excluded from the account then taken. The report of the Master, in that case, did not, therefore, purport to state an account of the proceeds of the shipment now in question, and of the payments and remittances on account of the same, which was a direct and particular subject of reference to the Master in this case. In this case any inquiry into the state of the accounts between Consequa and the defendants, is by the order of reference made contingent, depending on the facts, whether the proceeds of that shipment, or any part thereof, had been remitted by the defendants to Consequa, or otherwise disposed of prior to the 5th of August, 1811, so that the same had not come to the hands of Baring & Co.; and if they had, then the Master was directed to state an account as between Consequa and the defendants, down to the 5th of August, 1811. The proceedings in the case of Consequa against the defendants, do not ascertain these facts; the report of the Master there states the balance as it stood on the 31st of January, 1818, and not as it stood on the 5th of August, 1811, as is required in this case; so that neither of the inquiries referred to the Master, in this case, were directly decided in the case of Consequa against the defendants.

The proceedings in that case were not offered in evidence, to show admissions by the defendants, of any particular facts necessary to be established in the present case; but to show

Baring v. Fanning.

a final and conclusive balance in favour of Consequa, to an amount sufficient to cover the plaintiffs' claim; and for this purpose, and to this extent, the evidence was received by the Master, which I think cannot be sustained.

The report must accordingly be set aside, and the cause referred again to the Master, under the orders of reference heretofore entered in the cause.

CIRCUIT COURT OF THE UNITED STATES.

NEW-YORK, OCTOBER TERM, 1826, AT NEW-YORK.

BEFORE

The Hon. SMITH THOMPSON, Associate Justice of the Supreme Court.

JOSEPH BARKER V. JACKSON EX DEM. HENRY ET AL.

Where a statute of the state of New-York, affecting the title to lands, had been in existence for thirty years, and had been uniformly sanctioned by the decisions of the Courts of the state: Held, that this Court was bound by such decisions, it not being objected to the statute that it was repugnant to the constitution, laws, or treaties of the United States, but only to the constitution of the state.

The act of the state of New-York of the 24th of March, 1797, entitled "An act to settle disputes concerning the titles to lands in the county of Onondaga," is in effect only a statute of limitations, and a valid and constitutional law. The commissioners appointed under this act were not a Court within the meaning of the 41st section of the constitution of the state. They acted in the character of arbitrators, to hear disputes that should be voluntarily submitted to them; and if their award was not specially agreed to by the parties, it had no binding effect upon the right. It was not necessary, therefore, that they should proceed according to the course of the Common Law or by jury trial. This act is a law of the land within the meaning of the 13th article of the constitution, although it does not extend over the whole state, but is confined to lands in the county of Onondaga.

Barker v. Jackson ex dem. Henry.

Being a statute of limitations only, it relates to the remedy and not the obligation of contracts, and therefore is not within the 10th section of the 1st article of the constitution of the United States.

Not being retrospective, nor taking away any existing rights, it is no sufficient objection that it does in some measure affect such rights. It affects them by hastening a party in the assertion of them. Most statutes of limitation are subject to the same objection.

ERROR to the District Court of the Northern District of New-York.

This was an action of ejectment brought to recover the possession of a part of lot number twelve, in the township of Hector. The premises were originally granted by the state as military bounty lands.

At the trial in the Court below, the jury found a special verdict, containing the following facts:

On the 8th of July, 1790, a patent of said lot was granted by the state to John Folliard, a soldier, who conveyed the same to Abraham Nelson, a native of Ireland, who came to the United States in 1778, and resided here until 1798, when he died. The lessors of the plaintiff were his heirs; but they remained British subjects, having never been in this country. On the 12th day of April, 1800, the commissioners, appointed under the act of the state of New-York, entitled an act to settle disputes concerning the titles to land in the county of Onondaga, passed March 24th, 1797,a made the following award:

"Having heard the proofs and allegations, and having examined the titles of such of the parties interested in lot number twelve, in the township of Hector, in the county of Cayuga, as have appeared and exhibited claims to the said lot; and having also inspected the records and files remaining in the

a 1 N. R. L. 213.

Barker. Jackson ex dem. Henry.

office of the clerk of the county aforesaid relative thereto, and due deliberation being thereon had, we, the commissioners appointed by and in pursuance of the act entitled "an act to settle disputes concerning the titles of lands in the county of Onondaga," do, in pursuance of the authority given us in and by said act, award and determine, that Benjamin Willard is entitled to and stands seised in his demesne, of an absolute estate of inheritance in and to one undivided moiety of said lot; and that Daniel Wells, James Wells, William Wells, and Israel Wells, children of Israel Wells, deceased, are entitled to and stand seised in their demesne, as of an absolute estate of inheritance in and to the other moiety of said lot, subject to the reservations, provisions, and conditions contained in the original grant."

Which award was duly entered in a book provided for that purpose, and filed in the clerk's office, agreeably to the provisions of the third section of said act, and to which award no dissent has been entered. The lessors of the plaintiff did not appear personally before the commissioners at the time of making the award, nor did any one appear on their behalf, although duly cited, according to the provisions of the 6th section of said act, by a publication in the newspapers. The defendant was in possession of the premises in question, under a title regularly deduced from the title obtained under the award of the commissioners.

The verdict also found the said law of 1797, and the 41st article of the constitution of the state of New-York, adopted in 1777, and the 2d and 5th articles of the bill of rights of that year.

The Court below decided, that the said law and the acts of the commissioners under it were unconstitutional and void, and gave judgment for the plaintiff.