1806.

MANN-
HARDT

υ.

SODER

STROM.

United States shall extend &c. to those two cases among others that are enumerated in the same paragraph.

It being then established that Congress had a right to assume an exclusive jurisdiction" in all cases affecting consuls," fet us see what provision they have made upon that subject by their laws.

The 9th section of the judiciary act ascertains the jurisdiction of the District Courts of the United States. (a)

In the first parts of this section, jurisdiction is given to the District Courts in various matters both of a criminal and a civil nature, in some of which their jurisdiction is exclusive of the state courts, and in others concurrent with them. Towards the latter part of the section the District Courts are vested with jurisdiction" exclusively of the courts of the several states, of "all suits against consuls or vice consuls except for offences "above the description aforesaid." The word suits includes those both of a civil and criminal nature; and the exception of "offences above the description aforesaid" refers to a description in the first part of this section, viz. offences where no other punishment than whipping not exceeding thirty stripes, a fine not exceeding 100 dollars, or a term of imprisonment not exceeding six months, is to be inflicted.

It is to be remarked that the jurisdiction of the District Courts in suits against consuls or vice consuls is exclusive of the state courts, but not exclusive of the courts of the United 'States; because the second section of the third article of the constitution had provided that " in all cases affecting ambassa

dors, other public ministers, and consuls, the Supreme Court "shall have original jurisdiction." Accordingly it is enacted by the thirteenth section of the judiciary act, that the Supreme Court of the United States shall have "original but not exclu"sive jurisdiction of all suits in which a consul or vice consul "shall be a party."

Then the ninth and thirteenth sections of the judiciary act are consistent with each other and with the constitution; and in suits against consuls and vice consuls the jurisdiction of the state courts is excluded. Nor are we to wonder at this provision. One considerable object of our federal constitution was to vest in the United States the administration of those affairs

(a) 1 U. S. Laws 53, 54.

by which we are related to foreign nations. Consuls, although not entitled to the privilege of ministers, often exercise very important functions; and it is remarkable that in the constitution. they are mentioned in conjunction with "ambassadors and "other public ministers;" and like them they enjoy the important privilege of commencing suits in the Supreme Court of the United States. It was wise therefore to protect them from suits in the state courts, although they are left at liberty to bring actions against other persons in those courts, if they find it convenient and choose to do so.

Upon the whole the court are of opinion, that, it appearing on the record that this suit is against the consul general of the king of Sweden, their jurisdiction is taken away by the ninth section of the judiciary act, and consequently the proceedings against the defendant must be quashed.

Proceedings quashed.

1806.

MANN

HARDT

V.

SoDER

STROM.

HOAR against MULVEY.

DUPONCEAU upon a former day obtained a rule

plaintiff, to shew cause why there should not be a new of a party

the

may lay a ground for a

trial; and upon the argument, he now offered to the court same affidavit of the defendant upon which he obtained the rule to shew

rule.

cause, but it cannot be heard upon the argu

S. Levy for the plaintiff opposed it as being contrary to the ment on the invariable practice of the court.

Per CURIAM. The affidavit of the party is frequently used to lay a foundation for a rule to shew cause; but it has uniformly been the practice of the court, to refuse hearing it upon the argument on that rule. He must produce proofs from a different quarter.

rule.

1806.

Saturday,
March 228.

It is not essential to the validity

of a body of

lands, that the lines of

each tract should be marked on

the ground.

It is suffi

lar tracts;

but unless

is not en

titled to the

by law.

THI

WOODS against INGERSOLL and DALLAS.

HIS action was brought by the deputy surveyor of Bed= ford county, to recover from the defendants the fees due of a survey for surveying one hundred, and fifteen tracts of land of four hundred acres each, at the rate of 9 dollars 33 cents the tract; which is the full legal charge, deducting the fee for plot and return, which the plaintiff, in consequence of the defendants' refusal to pay, had never made. It was proved upon the trial, that the plaintiff or his assistant had gone upon the lands and cient if the had laid the warrants, some of which were leading warrants surveyor has and the rest adjoining, according to the description of township marked lines enough to and county therein; though in some instances the lands necesidentify the particu- sarily ran into another township. The survey was made as the surveys of company lands are usually made, by running the exhe marks all terior lines of the whole body; but the cross lines of the particuthe lines, he lar tracts were not run. In fact, the defendants had been grossly defrauded by a person, who had led them to locate by their full compen-warrants an immense tract of mountain, on which it was imsation given possible to run certain of the division lines; but the plaintiff was not implicated in this deception. In the ninth section of the same law which fixes the surveyors' fees, the mode of making the survey is directed as follows: "Every survey hereafter to "be returned into the land office of this state, upon any warrant "which shall be issued after the passing of this act, shall be "made by actual going upon and measuring of the land, and "marking the lines to be returned upon such warrant, after the "warrant authorizing such survey shall come to the hands of "the deputy surveyor, to whom the same shall be directed; "and every survey made theretofore, shall be accounted clandestine, and shall be void and of no effect whatever." 2 St. Laws 316. April 8th 1785. The warrants of the defendants were issued under the act of 3d April 1792, and came within the provisions of the above section. The cause was tried before Yeates and Brackenridge Justices, in December 1805. The declaration contained three counts; the first for work and labour done and materials furnished at the defendants' request; the second upon a quantum meruit; the third upon an insimul computassent; and the jury found a verdict generally for the plaintiff, for his whole demand without interest.

A motion was made by the defendants for a new trial; which now came on to be argued by Dallas and Ingersoll for the defendants, and by Morgan and Rawle for the plaintiff.

The defendants' counsel objected to the verdict upon two grounds: First, That the plaintiff was entitled to nothing, because the survey was not made in conformity with the act of Assembly, and therefore void. Secondly, That at all events, the whole duty enjoined by that act had not been performed, and therefore entire fees could not be due,

This survey consisted in marking certain of the external trees, which could not possibly constitute more than one line of a large proportion of the tracts. The object of the law was to guard against the confusion which results from such a survey, by requiring each tract to be designated by its own peculiar limits; whereas in this survey all the interior or central tracts are without line or corner, and can be traced only from the leading warrant. It is such a survey as the law declares to be of no effect; a patent cannot be obtained upon it; and the surveyor can be entitled to no compensation for services which are not in conformity with the law.

At all events, the jury have given too much; for the entire fees are due only for the entire duty. Now whatever may be the effect of omitting to mark the cross lines of the whole body, that is, the lines of each tract, most clearly the law directs it; it is a part of the surveyor's duty; his fee is regulated with reference to it; and if he fails to do it, his compensation must be diminished accordingly.

It was answered by the counsel for the plaintiff, that the law of 1785 embraced, in the section referred to, two distinct objects; the one the mode of making a survey, and the other the time of making it. With respect to the first, it is merely directory to the deputy surveyors, and no penalty is provided for the neglect of the direction; but with respect to the latter, which was a source of fraud upon the warrant holder, the law is decisive in the penalty it affixes to disobedience, and declares that every survey made before the warrant comes to the hands of the deputy surveyor shall be accounted clandestine and void. With this latter clause our case has no connexion. If we have not complied with the former, we have still done enough. The

1806.

WOODS

v.

INGER-
SOLL.

1806.

WOODS

v.

survey was proved to have been made in the usual manner; patents have been invariably granted upon such surveys, and to disturb them would be to shake innumerable titles in PennsylINGER- vania. Sufficient has been done to indicate any one of the one hundred and fifteen tracts, both as to quantity and position, with perfect clearness, and this is the sole use of a survey.

SOLL.

If we are entitled to any thing, we are entitled to the sum found. Our claim is, in fact, for a quantum meruit, of which the jury are the proper judges; and they have acted with great liberality to the defendants, in allowing no interest upon a debt that has been due and unsatisfied for many years.

TILGHMAN C. J. This is an action brought by the plaintiff against the defendants for his services as a deputy surveyor in surveying 115 tracts of 400 acres each. The plaintiff's charge was 9 dollars 33 cents for each tract, which is the full legal charge; that is, ten dollars a tract, deducting five shillings, the fee for the plot and return, because the surveys were not returned by plaintiff. He held back the return until his fees should be paid him.

The jury found for the plaintiff 1073 dolls. 33 cents, being the full amount of his claim without interest.

From the report of the judges who sat on the trial of the cause, I take for granted that the evidence warranted the conclusion that although the external lines of the whole body of land were run, so as to enable the plaintiff to ascertain not only the whole quantity but also the quantity of each particular tract, yet the cross lines dividing the several tracts from each other,

were not run.

By the act of Assembly fixing the fees of the deputy surveyor, it is enacted as follows in the 9th section: "Every survey "hereafter to be returned into the land office of this state upon <6 any warrant which shall be issued after the passing of this "act, shall be made by actual going upon and measuring of the "land, and marking the lines to be returned on such warrant,

after the warrant authorizing such survey shall come to the "hands of the deputy surveyor to whom the same shall be di"rected; and every survey made theretofore shall be accounted "clandestine, and shall be void and of no effect whatsoever." 8th April 1785. 2 St. Laws. 316.