League v. De Young. 11 H.

tion of independence should be considered citizens of the republic, and if they had not previously received land under the colonization laws should be entitled, every head of a family, to one league and labor of land," &c.

In 1837, December 14, an act of the congress of Texas was passed, establishing a land-office, and authorizing the ap[201] pointment of certain commissioners with power to grant certificates of claims to land to all persons who should

make proof that they were entitled to them.

Immense numbers of these certificates were soon put in circulation, either forged or fraudulently obtained, which, if confirmed by surveys and patents, would soon have absorbed all the vacant land in the republic. To guard against such impositions, an act was passed on the 29th of January, 1840, entitled "An act to detect fraudulent certificates," by which a new board of commissioners was appointed "to inspect the board of land commissioners of each county, and ascertain by satisfactory testimony what certificates were genuine and legal." All others not so reported were forbidden to be surveyed or patented. This was followed on the 4th of February, 1841, by a supplement, in which persons holding certificates not reported genuine and legal by the board of commissioners, were permitted to enter suit against the government, and have a trial by jury to establish the genuineness and validity of their certificates; and if found valid, and so certified by the court, the claimant should be entitled to a survey and patent.

In 1843, a statute of limitation was passed, requiring all suits to establish certificates and claims to be instituted before the 1st day of January, 1844.

Thus it appears that, after the 1st of January, 1844, all claimants of these head rights under the constitution of the republic and its land law of 1837, were barred, and their certificates of no validity whatever, unless suit has been brought and their genuineness established in a court of justice; and this continued to be the case, till the adoption of the new constitution, previous to the admission of Texas as a State of the Union, in 1845.'

The eleventh article of that constitution provided as follows:"Sect. 1. All certificates for head right claims, issued to fictitious persons, or which were forged, and all locations and surveys thereon, are, and the same were, null and void from the beginning.

"Sect. 2. The district courts shall be opened until the first day of July, one thousand eight hundred and forty-seven, for the establish

15 Stats. at Large, 797.

League v. De Young. 11 H.

ment of certificates for head rights not recommended by the commis sioners appointed under the act to detect fraudulent land certificates, and to provide for issuing patents to legal claimants; and the parties suing shall produce the like proof, and be subject to the requisitions, which were necessary, and were prescribed by law, to sustain the original applications for said certificates; and all certificates above referred to, not established or sued upon before [ 202 ] the period limited, shall be barred, and the said certificates, and all locations and surveys thereon, shall be forever null and void; and all re-locations, made on such surveys, shall not be disturbed until the certificates are established as above directed."

This is a succinct history of the legislation complained of by the plaintiff. He instituted this action in the district court of the State of Texas for the county of Galveston. It is a bill or petition for a mandamus to the defendants, (who are the surveyor and the deputy surveyor of the district,) commanding them to make a survey of a certain certificate granted on the 20th of June, 1838, by the land commissioners of the county of San Augustine to Colin T. McRea, for one league and labor of land, &c. The plaintiff claimed to be the assignee of this certificate. The defendants alleged in their answer, that they were forbidden by law to survey this certificate, as it had not been returned as genuine and legal by the commissioners under the act of the 29th of January, 1840, nor had any suit been brought to establish its genuineness before the first day of July, 1847, according to the provisions of the constitution. The court refused to grant the mandamus; and on writ of error to the supreme court of Texas, their judgment was affirmed.

To the judgment of the supreme court of the State this writ of error has been prosecuted, under the 25th section of the judiciary act.' The sum of the argument on which the plaintiff founds his claim to our interference seems to be, that the republic of Texas was under obligation to make these grants of land. That all grants made by the land commissioners under the act of 1837, were in their nature judicial decisions, and whether fair or fraudulent, their validity could never after be inquired into. That such certificate constituted a perfect right to the quantity of land awarded, and all legislation of the republic of Texas, appointing new tribunals to examine their genuineness and legality, or to limit the time within which the holder or assignee of a certificate may demand a survey and patent, is void. because it impairs the obligation of contracts; and the 11th section of the constitution of the State of Texas is void for the same reason.

11 Stats. at Large, 85.

League v. De Young. 11 H.

If it were necessary for this court to consider these arguments, it would be a sufficient answer to say:

1. That the certificates are not in the nature of judicial decisions vesting title in the holders, whether forged or fraudulent.

2. If they were judicial decisions, a State may grant new trials, and make new tribunals of review in order to detect [* 203 ] *fraudulent grants or reverse fraudulent judgments, without impairing the obligation of any contract.

3. Judgments as well as grants obtained by fraud or collusion, are void, and confer no vested title; and a State may justly require those who claim that their grants are not of this character to make proof of their genuineness in some proper tribunal before they can be entitled to a survey or patent under them, and may limit the time within which suits may be instituted. The United States have pursued this course with regard to French and Spanish grants, and it has never been alleged that they thereby impaired their contract (contained in the treaty) to protect valid grants.

4. The eleventh article of the constitution of the State of Texas avoids none but forged and fraudulent certificates, and extends the time within which valid ones may be established by suits against the State, and therefore annuls no vested rights and impairs the obligation of no contract, but, on the contrary, confers a right which had been lost and forfeited by the laches of the party.

5. And lastly, if the congress of Texas had abolished all these certificates, whether fraudulent or genuine; or if the people of Texas had done the same thing by their constitution adopted before their admission as a State of the Union, their right to do so could not be questioned by this court, under any power conferred upon them by the twenty-fifth section of the judiciary act.

There is no allegation that the legislature of the State of Texas has passed any law impairing the obligation of contracts, or affecting vested titles guaranteed by the treaty of union, since that State has been admited as one of the States of this Union. The constitution of the United States was made by, and for the protection of, the people of the United States. The restraints imposed by that instrument upon the legislative powers of the several States could affect them only after they became States of the Union, under the provisions of the constitution, and had consented to be bound by it. It surely needs no argument to show that the validity of the legislation of a foreign state cannot be tested by the constitution of the United States, or that the twenty-fifth section of the judiciary act confers no power on this court to annul their laws, however unjust or tyrannical. How far the people of the State of Texas are bound to acknowledge

Brooks v. Norris. 11 H.

contracts or titles repudiated by the late republic, is a question to be decided by their own tribunals, and with which this court has no right to interfere under any power granted to them by the constitution and acts of congress.

The judgment of the supreme court of Texas is, there- [204] fore, affirmed.

14 H. 79.

JEHIEL BROOKS, Plaintiff in Error, v. SAMUEL NORRIS.

11 H. 204.

A writ of error is not brought, until filed in the court to which it is addressed, and whose record is to be removed by it; and therefore, though the writ is tested within five years, if it be not filed in the court which rendered the judgment, till after the expiration of that period, it is barred.

The bar of a writ of error by the statute of limitations, may be taken advantage of in this court on motion.

• THE case is stated in the opinion of the court.

Bullard, for the motion.

Walker, contrà.

[* 207 ]

* TANEY, C. J., delivered the opinion of the court. This case is brought here by writ of error upon a judgment rendered in the supreme court of the State of Louisiana, and a motion has been made to dismiss the writ.

It appears by the record that the judgment was rendered on the 25th of October, 1843. The writ of error by which the case is brought here was allowed by the chief justice of the state court, upon the petition of the appellant, on the 19th of October, 1848, and the bond also bears date on that day. But the writ of error was not issued until the 4th of November following. It was issued by the clerk of the court in which the judgment was rendered, and on the same day, as appears by indorsement upon it, filed in that office by the counsel for the plaintiff in error. More than five years from the day of the judgment had therefore elapsed when this writ of error was filed.

The act of 1789, c. 20, § 221 provides that writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of. The writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of lim

11 Stats. at Large, 84.

Warner v. Martin. 11 H.

itation prescribed by the act of congress must be calculated accordingly. The day on which the writ may have been issued by the clerk, or the day on which it is tested, are not material in deciding the question. In this case, therefore, five years had elapsed before the [* 208 ] * writ of error was brought, and the limitation of time in the act of congress was a bar to the writ. According to the English practice, the defendant in error must avail himself of this defence by plea. He cannot take advantage of it by motion; nor can the court judicially take notice of it, as the limitation of time is not an objection to the jurisdiction of the court. It is a defence which the defendant in error may or may not rely upon, as he himself thinks proper. But according to the established practice of this court he need not plead it, but may take advantage of it by motion. The forms of proceeding in the English courts of error have never been adopted or followed in this court. And either party, without any formal assignment of error or plea, may avail himself of any objection which appears upon the record itself. In this case the bar arising from the lapse of time is apparent on the record, and the defendant may take advantage of it by motion to quash or to dismiss the writ.

As this objection is conclusive, it is unnecessary to inquire whether the writ of error was allowed or issued by proper authority, or what previous defects may be cured by the appearance of the defendant in The writ must be dismissed, upon the ground that it is barred by the limitation of time prescribed by the act of congress.

error.

8 Wal. 688; 6 Wal. 355.

JOHN A. WARNER, a Citizen of the State of Pennsylvania; JOHN A. WARNER AND COMPANY, Citizens of the same State; and WILLIAM HEALD, JACOB HEALD, residing out of the Jurisdiction of the Circuit Court of Pennsylvania, SAMUEL WOODWARD, and A. J. BUCKNER, Citizens of the same State, trading under the Firm of HEALD, WOODWARD, AND COMPANY, Appellants, v. THOMAS P. MARTIN, a Citizen of the State of Virginia, who survived SPENCER FRANKLIN, also a Citizen of the State of Virginia, lately trading under the Firm of MARTIN AND FRANKLIN.

11 H. 209.

A factor has not power to transfer the title of his principal to goods consigned to him for sale, in payment of a precedent debt due from himself; and a creditor who receives the goods under such an arrangement, as well as his vendee, though acting in good faith, and in ignorance of the fact that the goods did not belong to the factor, acquires no title, as against the principal.

A factor who leaves the country, cannot delegate to his clerk the power to sell goods of his principal, no usage of the trade to that effect being shown.