Davis v. The Police Jury of Concordia. 9 H. against him having been taken, a jury might well presume that Gibson had notice of the assignment. But this was not important to the right of the assignee. She stands unaffected by the reconveyance. The indorsement of the words "Ne varietur" could have no effect on the notes which were payable in Mississippi, and which were indorsed to the plaintiff in that State. Nor could they have affected the negotiable character of the notes, had they been assigned in the usual course of business in Louisiana. [*279] Abat v. Gormley, 3 Louis. 241. These notes were assigned to the plaintiff, as collateral security, by Harris, for the payment of his note for six thousand dollars, exeecuted at the same time, which constituted a legal transfer of the notes, for the purpose stated. On the credit of these notes, it may be presumed, the plaintiff received the note of six thousand dollars from Harris. If Gibson be considered as a guarantor, as contended, yet a notice was not necessary, as he received an ample indemnity against the six thousand dollars by the mortgage. But he was not a guarantor in any sense of that term. Harris assigned the notes as security, and, under the circumstances, he cannot complain of want of notice of his own default. No demand of the notes, when due, at the Agricultural Bank of Mississippi, where they were made payable, was necessary. The action is against the maker of the notes, and if the money was in the bank, or if the party was there with the money to pay the notes on presentation, it is matter of defence, and consequently the demand at the bank need not be averred in the declaration, nor proved on the trial. This question was fully considered and decided in Wallace v. McConnell, 13 Pet. 136. . We think the judgment of the circuit court must be reversed, and the cause remanded to that court for further proceedings, conformably to this opinion. SAMUEL DAVIS, Plaintiff in Error, v. THE POLICE JURY OF THE PARISH OF CONCORDIA. 9 H. 280. It is in accordance with the laws of nations and has been affirmed by cach department of this government, that the treaty of San Ildefonso took effect on the day of its date, October 1, 1800; so that the Spanish governor of Louisiana could make no valid grant of a franchise to keep a ferry after that day. ERROR to the supreme court of the State of Louisiana. The facts sufficiently appear in the opinion of the court. Davis v. The Police Jury of Concordia. 9 H. Coxe and Gilpin, for the plaintiff. Jones, contrà. [* 285 ] * WAYNE, J., delivered the opinion of the court. There is enough upon the record of this case to give this court jurisdiction, but not enough to give the appellant the relief for which he has brought it here. His complaint is, that the application of the law of Louisiana for the establishment of ferries, 2 Mart. Dig. 142, 3 Mart. Dig. 292, to a ferry franchise claimed by him, from Concordia to Natchez, is an invasion upon a right of property secured by the third article of the treaty between the United States and the Republic of France, ceding Louisiana to the former; and that it impairs the obligation of a contract, which was entered into between the Marquis de Casa Calvo and one Thomas Thompson, on the 19th of February, 1801, granting to Thompson a ferry at the post of Concordia to Natchez, as a privilege to be attached to his plantation, on condition that Thompson would clear a public road from Concordia to the Bayou Cocodrillo. The appellant claims the franchise and land to which it was attached, as a purchaser of both from Joseph Vidal, who bought from Thomp son the grantee, on the 16th of October, 1803. It is [* 286 ] *further said, that by the law, usages, and customs of Spain, in Louisiana, at the date of the grant, no other ferry could be established within a league above or below its locality. The interference with the franchise is said to be the establishment of another ferry by the police jury of Concordia, from the town of Vidalia, in that parish, to the city of Natchez. The validity of this proceeding is called in question, on the ground, as we have already said, of its being contrary to a treaty and the constitution of the United States. Both having been decided by the highest court in Louisiana against the rights claimed, the cause is before us, under the provisions of the twenty-fifth section1 of the judiciary act of 1789. In support of the appellant's case, his counsel urge, 1. That the grant of a ferry privilege across the Mississippi, by competent authority, implies, ex vi termini, an exclusion of all other ferry rights, not only by private, unlicensed individuals, but operates to exclude the sovereign from making a similar grant to another, which will conflict with it, or impair or destroy its value. 2. That the grant in this case, con exclusion, is an express recognition of such exclusive right. 3. That this is a case of express contract, by which, for a valuable consideration, Thompson became a purchaser of an exclusive ferry privilege. 4. That the uninterrupted right thus claimed, 11 Stats. at Large, 85. Davis v. The Police Jury of Concordia. 9 H. having been exercised and enjoyed by the appellant, and those under whom he claims, for thirty-eight years, is conclusive evidence of title against the defendants. We have placed the point in the case upon which the jurisdiction of this court attaches in near connection with the points just read, to show that three of them are not reëxaminable by this court, however they may have been adjudicated by the court below. The first, second, and fourth points involve questions of what the sovereign may do, or not do, in granting a second ferry franchise which impairs the value of one previously granted; also whether the words con exclusion, in the grant to Thompson, mean an exclusive and perpetual ferry franchise; and, lastly, whether its long use by Thompson and those claiming from him is, or is not, conclusive proof of the franchise, and that they may claim it prescriptively. All of these are questions depending upon the provincial laws of Louisiana, when belonging either to France or Spain; upon its territorial law afterwards, when it became a part of the United States; and upon such laws as may have been passed and continue to be in force in the State of Louisiana. Neither of them involves the validity of a treaty or statute of, nor an authority exercised *under, [* 287 ] the United States; nor the validity of a statute or an authority exercised under a State, on the ground of being repugnant to the constitution, treaties, or laws of the United States; nor do they, or either of them, draw in question the construction of any clause of the constitution, or of a treaty or statute of, or commission held under, the United States. What we have to decide in this case is, whether or not the franchise of a ferry given by the Marquis de Casa Calvo to Thompson is a property protected by the treaty by which Louisiana was ceded to the United States, or a contract bought by Thompson for a valuable consideration, which has been impaired by the action of the police jury of Concordia, under the laws of Louisiana. Now, in our view of the case, it matters not what merits Thompson may have had in getting his privilege of a ferry; whether he made, or did not make, the road from the post of Concordia to Cocodrillo; or how long he and those claiming under him have had the use of the privilege; or what were the powers of the governor of Louisiana to grant such a franchise, or to what extent other officers, acting temporarily as governors, could exercise the powers of sovereignty, delegated to one who was so by commission; or what were the usages in Louisiana, before it was ceded to the United States, in respect to ferry grants and the use of them, — if the sovereignty of Spain in Louisiana had been parted with when Davis v. The Police Jury of Concordia. 9 H. the Marquis de Casa Calvo gave this ferry right to Thompson. Had the marquis, at the time it was done, supposing him to have been exercising the plenary power of a governor of Louisiana, any official faculty to delegate to a subject of the king of Spain, as a franchise, a portion of the king's royal privilege or prerogative? The contract must be tested, as all others are, whether they are national or private, by the competency of the parties to make it. If that does not exist, nothing can be claimed under it, except such equities as may have arisen to either from the conduct of one or the other of them in the transaction. The transaction in this case is, that the Marquis de Casa Calvo, governor-general of the province of Louisiana, granted to one Thomas Thompson, on the 19th of February, 1801, a ferry at the post of Concordia, opposite to the town of Natchez, as a privilege to be attached to the plantation he possessed, “in order that from that place, with exclusive privilege, he may carry on the ferry across the river, demanding and receiving only the prices most equitable and customary which may be established with the accord of the command[288] ant of the post of Concordia,"-" que se fixavan con acuer• do del dicho commandante." Four months before this privilege was given to Thompson, on the 1st of October, 1800, the treaty of St. Ildefonso was made, by which Spain retroceded to France the province of Louisiana. The terms and conditions of that treaty we will speak of presently, as far as it may be necessary to do so, after we have shown the views taken by the different departments of the government of the United States of the obligations of it, when they began, and when the full sovereignty of Spain ceased over Louisiana. Each of them has said officially, that the sovereignty of the king of Spain for granting lands in Louisiana ceased with the signatures of the treaty of St. Ildefonso, on the 1st of October, 1800. Within a year after the cession of Louisiana, congress, having learned that concessions for lands had been made by the governors of Louisiana, between the 1st of October, 1800, and the 30th of April, 1803,' the date of our treaty with France, passed an act2 declaring all such concessions void, and of no effect in law or equity. This act was passed coincidently with what had been the declaration of the executive department of the government. This court has said the same in several cases. In the case of the United States v. Joseph Reynes, 9 How. 127, decided at this term, it has been reaffirmed, with a more extended examination than had been made before of the treaty of St. Ildefonso, that also between the French 18 Stats. at Large, 200. 2 2 Ibid. 287. Davis v. The Police Jury of Concordia. 9 H. Republic and the king of Spain, signed in Madrid on the 21st of March, 1801, with the order of Barcelona for the delivery of Louisiana to France in execution of both treaties, and of the treaty between France and the United States in connection with the actual delivery of the province to the United States, on the 20th of December, 1803, by Laussat, the commissioner of the French government appointed for that purpose. The treaty of St. Ildefonso may be found in 2 White's New Rec. 516; that of Madrid of the 21st of March, 1801, in 2 Martin's Treaties Sup. 329, and in 2 White, 501; the royal order given at Barcelona, and the proceeding thereon, in 2 White's Recop., from 190 to 196 inclusive; the treaty between France and the United States, 2 White's Recop. 196; and the act of delivery by France to the United States, 2 White's Recop., from 225 to 228 inclusive. In Reynes's case, the judgment of the district court affirming his grant was reversed, on the ground that the treaty between France and the United States gave to the latter all the rights acquired by France by the treaty of St. Ildefonso, and that the [* 289 ] political sovereignty of the king of Spain in Louisiana to grant lands ceased with the date of it, on the 1st of October, 1800. We will now show, that the decision in that case accords with the received usages of nations in respect to rights acquired under treaties; that it is sustained by all that we now know of what were the relations between France and Spain at the time of the event, and the motives of the two governments for entering into the treaty of St. Ildefonso. All treaties, as well those for cessions of territory as for other pur. poses, are binding upon the contracting parties, unless when otherwise provided in them, from the day they are signed. The ratification of them relates back to the time of signing. Vattel, B. 4, c. 2, § 22; Mart. Summary, B. 8, c. 7, § 5. It is true, that, in a treaty for the cession of territory, its national character continues, for all commercial purposes; but full sovereignty, for the exercise of it, does not pass to the nation to which it is transferred until actual delivery. But it is also true, that the exercise of sovereignty by the ceding country ceases, except for strictly municipal purposes, especially for granting lands. And for the same reason in both cases; because, after the treaty is made, there is not in either the union of possession and the right to the territory which must concur to give plenum dominium et utile. To give that, there must be the jus in rem and the jus in re, or what is called in the common law of England the juris et seisina conjunctio. "This general law of property applies to the right of territory no less than to other rights |