Shuffer v. Scudday.

the land claimed in, the suit. The location having been approved by the Secretary of the Interior, and a certificate to that effect granted by the register, the Governor of Louisiana issued a patent to the plaintiff, bearing date 12th November, 1852.

The opposing title of plaintiff in error is derived under an act of Congress of March 2d, 1849, and certain acts of the Legislature of the State, passed to carry into effect the act of Congress. The first section of the act of Congress of 1849 declares,

that to aid the State of Louisiana in constructing the neces sary levees and drains to reclaim the swamp and overflowed lands therein, the whole of the swamp and overflowed lands which are or may be found unfit for cultivating, shall be, and the same are hereby, granted to the State."

The second section provides, that as soon as the Secretary of the Treasury shall be advised by the Governor of Louisiana that the State has made the necessary preparations to defray the expenses thereof, he shall cause a personal examination to be made, under the direction of the surveyor general thereof, by experienced and faithful deputies, of all the swamp lands therein which are subject to overflow and unfit for cultivation, and a list of the same to be made out and certified by the deputies and the surveyor general to the Secretary of the Treasury, who shall approve the same, so far as they are not claimed and held by individuals; and on that approval the fee simple to said lands shall vest in the State of Louisiana, subject to the disposal of the Legislature thereof, provided, however, that the proceeds of said lands shall be applied exclusively, as far as necessary, to the construction of the levees and drains aforesaid.

On the 21st of March, 1850, the Legislature of Louisiana passed an act to enable the Governor to have the swamp and overflowed lands selected; and, in 1852, they passed an act, giving a preference in entering such lands to those in possession of or cultivating them, and the time of entering them was further extended by an act of 1853. The plaintiff in error entered this land on the 18th day of July, 1858, by virtue of a preferenceright claimed under that act of the Legislature. He was permitted to make this entry at the State land office, in consequence of the Secretary of the Interior having, on the 14th of April, revoked his approval to the State under the act of 1841, of this and other lands which had been located under warrants sold by the State, in conformity to the act of the Legislature of 1844. The reason assigned by the Secretary of the Interior was, that these locations had been made subsequent to the passage of the act of Congress of 1849, granting to the State all the swamp and overflowed lands. He states, in his opinion, that he considered the words used in the first section of that act as

Shaffer v. Scudday.

importing a grant in presenti, and as confirming a right to the land, though other proceedings were necessary to perfect the title; and that when the title was perfected, it had relation back to the date of the grant. His approval to the State, of the location of the land in controversy, under the internal-improvement law of 1841, was revoked, but the land was at the same time approved to the State, as having a vested title to it, under the act of 1849, and taking effect from the date of the passage of the act.

The controversy between the parties arises upon these twó patents, both granted by the State of Louisiana-the one to Scudday, under the grant made by the act of Congress of 1841, for the purposes of internal improvement; the other to Shaffer, under the grant made by the act of 1849, for the purpose of draining the swamp lands.

The case came regularly before the Supreme Court of the State; and that court, after stating that it was unnecessary to decide whether the construction, placed upon the act of 1849, by the Secretary of the Interior, under which he revoked his approval of Scudday's location, was erroneous or not, proceeded to express their opinion as follows:

"It is certain (say the court) that the Legislature could not have disposed of the land as belonging to the State, under the provisions of that act, [the act of 1849,] until she had complied with the conditions imposed on her by the act of Congress, and until the approval of the Secretary of the Treasury; but if she had not chosen to avail herself of the right given to her to appropriate these lands as swamp lands by defraying the expenses of locating them, she had still the right of locating them under the internal-improvement law of 1841, which was unconditional. The construction of the act of 1849, by the Secretary of the Interior, may be strictly correct; and yet it does not follow that the location of a warrant, under the internal-improvement law of 1841, which had been approved by the proper department of the Government, and for which a patent had been subsequently issued by the State, could be revoked, so as to destroy the title conferred by the patent. The question would have been different, if, after the passage by Congress of the act of 1849, the United States had granted the land away from the State of Louisiana. Such was not the case; and as both the acts of 1841 and of 1849 were grants of land to the State, we cannot go behind the patent which the State has granted. The patent can only be attacked on the ground of error or fraud. It is true that a patent issued against law is void; but in the present case the patent and all the proceedings on which it was based were in conformity to

Shaffer v. Scudday.

the laws. As between the Government of the United States and the State of Louisiana, a question will arise, whether the State is not entitled to an additional quantity of land, to be located under the act of Congress of 1841, in consequence of the swamp lands having been appropriated for locations of warrants issued under the internal-improvement act; but we are of opinion that the title which the State has granted to the plaintiff, and for which she has been paid, is unaffected by the acts of the officers of the United States Government and of the State Government, done since the patent was issued."

Upon these grounds, the Supreme Court of the State gave judgment in favor of Scudday, and this writ of error is brought to revise that decision.

It does not appear from the opinion of the court, as above stated, that any question was decided that would give this court jurisdiction over its judgment. The land in dispute undoubtedly belonged to the State, under the grants made by Congress, and both parties claim title under grants from the State. The construction placed by the Secretary upon the act of 1849, and the revocation of his order approving the location of Scudday, did not and was not intended to re-vest the land in the United States. On the contrary, it affirmed the title of the State; and its only object was to secure to Louisiana the full benefit of both of the grants made by Congress, and leaving it to the State to dispose of the lands to such persons and in such manner as it should by law direct. It certainly gave no right to the plaintiff in error. He admits the title of the State, and claims under a patent granted by the State. Now, whether this patent conveyed to him a title or not, depended altogether upon the laws of Louisiana, and not upon the acts of Congress or the acts of any of the officers or authorities of the General Government. It was a question, therefore, for the State courts. And the Supreme Court of the State have decided that this patent could convey nó right to the land in question, because the State had. parted from its title by a patent previously granted to Scudday, the defendant in error. The right claimed by the plaintiff in error, which was denied to him by the State court, did not therefore depend upon any act of Congress, or the validity of any authority exercised under the United States, but exclusively upon the laws of Louisiana. And the Supreme Court of the State have decided that, according to these laws, he had no title, and that the land in question belonged to the grantee of the elder patent.

We have no authority to revise that judgment by writ of error; and this writ must therefore be dismissed for want of jurisdiction.

Thomas et al. v. Osborn.

WILLIAM THOMAS, SOUTHWORTH BARNES, NATHANIEL RUSSELL, AND OTHERS, OWNERS OF THE BARQUE LAURA, APPELLANTS, V. JAMES W. OSBORN.

The master of a vessel has power to create a lien upon it for repairs and supplies obtained in a foreign port in a case of necessity; and he does so without a bottomry bond, when he obtains them, in a case of necessity, on the credit of the vessel.

It is not material whether the implied hypothecation is made directly to the furnishers of repairs and supplies, or to one who lends money, on the credit of the vessel, in a case of necessity, to pay such furnishers.

This power of the master extends to a case where he is charterer and special owner pro hac vice.

But this authority only exists in cases of necessity, and it is the duty of the lender to see that a case of apparent necessity for a loan exists.

Hence, where the master had received freight money, and, with the assistance of the libellants, invested it in a séries of adventures as a merchant, partly carried on by means of the vessel, the command of which he had deserted for the purpose of conducting these adventures, and money was advanced by the libellants to enable the master to repair and supply the vessel, and purchase a cargo to be transported and sold in the course of such private adventures; and the freight money earned by the vessel was sufficient to pay for the repairs and supplies, and might have been commanded for that use if it had not been wrongfully diverted from it by the master, with the assistance of the libellants, it was held that the latter had no lien on the vessel for their advances.

THIS was an appeal from the Circuit Court of the United States for the district of Maryland.

It was a libel filed in the District Court by James W. Osborn, of the city of Baltimore,' against the barque Laura, her tackle, apparel, and furniture, Osborn being the assignee of Loring & Co., merchants in Valparaiso. The barque Laura belonged to Plymouth, in Massachusetts, and the lien claimed was for supplies and repairs furnished to the vessel at Valparaiso. The District Court decreed that there was due to the libellant the sum of $2,910.23, with interest from the 1st of April, 1852, which decree was affirmed in the Circuit Court. The case was argued at the preceding term, and held under a curia advisare vult until the present.

The circumstances of the case are set forth with great particularity in the opinion of the court, and need not be repeated.

It was argued by Messrs. Brume and Brown for the appellants, and by Messrs. Wallis and J. H. Thomas for the ap pellee.

Some of the points made by counsel related to particular items in the accounts between the parties, which it is not deemed necessary to notice in this report. Those which re

Thomas et al. v. Osborn.

ferred to the points decided by the court were the following, viz:

First. That no lien on the Laura was created for the expenses paid and supplies furnished by Loring & Co., as per their account, and that Phineas Leach, on whose order or request they were paid and furnished, was not then the master of the barque, and no one but the master can create an implied lien on a vessel. Conkling's Admiralty, 59; Flanders on Shipping, 181; Flanders's Maritime Law, 174, 175, 186; Story on Agency, sects. 116 to 124; Curtis on Merchant Seamen, 76-165 to 185; The St. Jago de Cuba, 9 Wheaton, 409, 416; The Phebe, Ware, 275; Sarchet v. Sloop Davis, Crabbe, 199, 200, 201; Jones v. Blum, 2 Richardson, 475, 476, 479, 480; Thorn v. Hicks, 7 Cowen, 700; James v. Bixley, 11 Mass., 87, 38, 40, 41; Sproat v. Donnell, 20 Maine, 187, 188; Thompson v. Snow, 4 Maine, 268, 269; Mann v. Fletcher, 1 Gray, (Mass.,) 128, 129, 130; Webb v. Peirce, 1 Curtis C. C. R., 105 to 113; Reeve v. Davis, 1 Ad. and E., 312; Minturn v. Maynard, 17 Howard, 477; The Aurora, 1 Wheaton, 103; Greenway v. Turner, 4 Md., 296, 303, 304; Young v. Brander, 8 East., 12; Frazer v. Marsh, 13 ib., 238; Bogart v. The John Jay, 17 Howard, 401; Abbot on Shipping, 128; 1 Bell's Com., 506; The Jane, 1 Dod., 461; 2 Starr's Institutions, 953, 955, 962, 966; Gilpin, 543.

Second. At the time when the supplies in question were furnished, Leach had ceased to be captain, and had become a merchant, doing business in Valparaiso, in the counting-room of Loring & Co. As to the Laura, he was a wrong-doer, improperly detaining her from her owners, and using her as his own. And the facts which came to the knowledge of Loring & Co. were sufficient to have put them on the inquiry as to the legality of the right which Leach claimed to exercise over the Laura, and such an inquiry would have enabled them to ascertain that he had no such right. They had therefore constructive notice of all the facts to which such an inquiry might have led. Curtis on Seamen, 151 to 153; Carr v. Hector, 1 Curtis C. C. R., 393, and cases there cited; Ringgold v. Bryan, 3 Md. Ch. R., 493; Magruder v. Peter, 11 G. and J., 243; Baynard v. Norris, 5 Gill, 468; Oliver v. Piatt, 3 How., 479, 495; Harrison v. Vose, 9 How., 372.

The points made on the part of the appellee, so far as they were included in the decision of the court, were:

1. That whether Leach, by the terms of the contract under which he navigated the barque, was or was not to be regarded as her temporary owner at the time when the repairs and supplies in controversy were furnished, and whether the gen