and station trees required by any law, without specifying the laws alluded to, and the omission of the surveyor to note on his plat the beginning, and of any mistake in platting the water

courses.

The Act for opening the land-office contains no particular rules respecting plats; and the Act which requires surveyors to note the beginning corner of their surveys, passed in December, 1789, long after the emanation of this patent. It would seem that the officer by whom the patent was issued, was the proper judge of all things apparent on the face of the plat, and that the patent itself presupposes that the plat was sufficient in law as to those requisites of which he could judge by inspection. This part of the instruction might have been given. But it is connected with a request that the court would instruct the jury that no fraud on the part of the officers of government could affect the plaintiff's title. It is not easy to perceive the extent of this instruction; and it could not, we think, have been safely given. 238*] *The 6th exception states, that the said plaintiff moreover gave evidence conducing | to prove that the title of Bazil Jones, the grantee of the said land, had been regularly and legally conveyed to the lessor of the plaintiff in this action, before the commencement thereof; and that all the lands in the possession of the defendants, and of each of them, at the time of the service of the process in this action, were within the lines described by the said grant to the said Bazil Jones, and were on the north and east side of the said south fork of the Oconee River. And thereupon, the said counsel for the plaintiff moved the court to instruct the jury, that, upon the aforesaid evidence, if the jury believed the same, the plaintiff was, by law, entitled to recover the premises in dispute: which instruction the court, being divided in opinion, refused to give.

This prayer states more explicitly the facts contained in the 3d and 4th, and is understood to come completely within the opinion of the

court on them.

It is the opinion of this court that the Circuit Court erred in not instructing the jury that the grant under which the plaintiff made title was valid as to the lands in possession of the defendants; and that for refusing to give this instruction the judgment of the said Circuit Court ought to be reversed and the cause remanded, that a venire facias de novo may be

awarded.

Cited 9 Pet., 680, 733; 12 Pet., 746; 14 Pet.,

376, 389; 15 Pet., 88.

239*] *J. HARPER, Plaintiff in Error,

v.

18,

The only question submitted to the court was, whether the assignee of a chose in action, assigned by an executor in the State where he had proved the will and taken out letters testamentary, where the debt was contracted, and where the testator lived and died, could maintain an action in another State, without a new probate and new letters testamentary taken out in the State in which the action was brought. The question arose on the demurrer of the defendant to the plaintiff's replication, setting out the probate, letters testamentary, assignment, &c. The District Court sustained the demurrer and decided against the plaintiff's right of action.

The causes of demurrer shown by the defendant in error, were:

1. That the replication does not allege and set forth that the will of the testator was proved, and that letters testamentary were granted to the executor in the State of Mississippi.

2. That the replication does not show that the will of the testator was proved, and probate thereof granted to the executor or any other person within the jurisdiction of the court; nor that it was granted by a tribunal of competent jurisdiction.

Mr. Jones, for the plaintiff, contended that the assignment being consummate in the jurisdiction where the executor's authority [*240 was indisputable, operated a complete transfer of the chose in action there; and carried with it a right of action everywhere; to which no new probate, or letters testamentary, could have added any validity whatsoever.

No counsel appeared for the defendant.

Mr. Chief Justice MARSHALL delivered the opinion of the court:

This is an action of debt brought by the plaintiff in error, in the Court of the United States for the District of Mississippi, as the assignee of Henry Clay, executor of James Morrison, deceased. The defendant pleaded in abatement, that the will of James Morrison had not been proved or recorded in the State of Mississippi, nor had letters testamentary therein been granted to Henry Clay, the executor. To this plea there was a replication, which set out the probate of the will in the State of Kentucky, the letters testamentary to the executor, and the assignment, in the State of Kentucky, of the note on which the action was brought to the plaintiff in error. To this replication the defendant demurred. The court gave judgment for the defendant, and the plaintiff has sued out this

writ of error.

་་

ELL ET AL.

v.

JOHN HARMAN.

nected with a grant; and that a void deed is not such a conveyance as that a possession under it will be protected under the statute of limitations; all which is directed and ordered to be certified to the said Circuit Court of the United

Under the statute of limitations of Tennessee, of 1797, a possession of seven years is a protection only when held under a grant, or under valid mesne conveyances, or a paper title, which are legally or equitably connected with a grant; and a void deed is not such a conveyance as that a possession under it will be protected by the statute of limitations.

THIS case came before the court from the

West Tennessee.

19.

Overruled--6 Pet., 293, 801; 1 Wall., 212; 1 McLean,

*JOHN T. RITCHIE, Appellant, [*243

D.

Mr. Chief Justice MARSHALL delivered the opinion of the court:

The question now referred to this court differs from that which was decided in Patton's 242*] Lessee v. Easton (1 Wheat., *476) in this, that the defendant who sets up a possession of seven years in bar of the plaintiff's title, endeavors to connect himself with a grant. The sale and conveyance, however, by which this connection is to be formed, are admitted to be void. The conveyance being made by a person having no authority to make it, is of no validity, and cannot connect the purchaser with the original grant. We are therefore of opinion that the law is for the plaintiff, and that this be certified as the opinion of this court. This cause came on to be heard on a certificate of division of opinion of the judges of the Circuit Court of the United States for the District of West Tennessee, and on the questions and points on which the said judges of that court were divided in opinion, and which have been certified to this court, and was argued by counsel; on consideration whereof, this court is of opinion, that under the statute of limitations of Tennessee, of 1797, a possession of seven years is a protection only when held under a grant or under valid mesne conveyances, or a

Appellees.

Guardian's interest-right of appeal.

The value of the interest a guardian has in the minor's estate, is not the value of the estate, but that of the office of guardian. This is of no value, except so far as it affords a compensation for labors and services; and in a controversy between persons claiming adversely as guardians, having no distinct interest of their own, it cannot be considered as amounting to a sufficient sum to authorize District of Columbia. an appeal to this court, from a Circuit Court of the

of Wie county of Washington; in which

THIS was an appeal from the Circuit Court

court the proceedings of the Orphans' Court of that county, appointing a guardian to the estate of a minor, had been reversed on appeal, and the court had proceeded to pass such a decree as it adjudged the Orphans' Court should have passed. From this decree of the Circuit Court, the appellant came before this court, and he sought to sustain the decision of the Orphans' Court.

The appellant, under an order of the Orphans' Court, had been appointed the guardian of John W. Ott; and had, in pursuance of the same order, entered into a bond, as guardian of the said John W. Ott, in the penal sum of $10.000, with sureties.

The case was argued upon the whole of the matter contained in the decree, by Mr. C. C. Lee and Mr. Chambers for the appellant, and by Mr. Bradley for the appellees. As the court did not decide but upon one of the points in the case presented by the counsel, the arguments upon the others are omitted.

An objection was made by the counsel of the appellees, that the amount in controversy was not sufficient to authorize an appeal from the Circuit Court of Washington county to this court. The whole question to be decided on this appeal was, whether the appellant or the appellees were legally entitled to the guardianship of the person and estate of John W. Ott, a minor; whose estate, it was admitted, was of considerable value. It was also admitted, that *neither the appellant nor the appellees [*244 had any interest in the estate, except that which would be obtained from the compensation they might derive for their labors and responsibilities, as guardians of the minor.

The counsel for the appellant contended that the right of appeal was complete, as the property which would come into the hands of the guardian exceeded $2,000; and the bond given by him, by order of the Orphans' Court, was in the sum of $10,000.

The law is well settled, that a trustee may appeal when the property under his charge is of sufficient amount, although he has no interest whatever in the trust estate. A guardian is a trustee, and should be considered in the same relations to the property of his ward.

Mr. Bradley, for the appellees, submitted the question of the right of appeal to the court, presenting only the suggestion that the pecun iary benefit of the appellant from the estate, could not, under any circumstances, amount to $1,000. Whatever claims on the estate of his ward the appellant might have, for services to be rendered hereafter, in the state of things at the time of the appeal, as he had never acted as guardian, he had no pecuniary claims whatso

ever.

stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution, or a law of the United States, is an affair between the govern ment of Delaware and its citizens, of which this court can take no cognizance. [251]

If Congress had passed any Act, in execution of the power to regulate commerce, the object of small navigable creeks, into which the tide ebbs which was to control State legislation over these and flows, and which abound throughout the lower country of the Middle and Southern States, we should feel not much difficulty in saying that a be void. But Congress has passed no such Act. The State law coming in conflict with such Act would repugnancy of the law of Delaware is placed entirely on its repugnancy to the law to regulate eral States; a power which has not been so exercommerce with foreign nations and among the sevcised as to affect this question. [252]

opinion of the court:

In the present case, a majority of the court are of opinion that this court has no jurisdiction in the case, the value in controversy not being sufficient to entitle the party by law to claim an appeal. The value is not the value of the minor's estate, but the value of the office of guardian. The present is a controversy mere ly between persons claiming adversely as guardians, having no distinct interest of their own. The office of guardian is of no value, except so far as it affords a compensation for labor and services thereafter to be earned.

Cited-Woolw., 336.

245*] *THOMPSON WILSON ET AL., Plaintiff's in Error,

v.

THE BLACK BIRD CREEK MARSH COMPANY, Defendants.

THIS was a writ of error to the High Court Delaware.

The Black Bird Creek Marsh Company were incorporated by an Act of the General Assembly of Delaware, passed in February, 1822; and the owners and possessors of the marsh, cripple and low grounds in Appoquinimink Hundred, in Newcastle county and State of Delaware, lying on both sides of Black Bird Creek, below Matthews' Landing, and extending to the river Delaware, were authorized and empowered to make and [*246 construct a good and sufficient dam across said creek, at such place as the managers or a majority of them shall find to be most suitable for the purpose; and also to bank the said marsh, cripple and low ground, &c.

After the passing of this Act, the company proceeded to erect and place in the creek a dam, by which the navigation of the creek was obstructed; also embanking the creek, and carrying into execution all the purposes of their incorporation.

of Assembly.

This court has frequently decided that, to sustain its jurisdiction in appeals and writs of error, it is not necessary to state, in terms, upon the record that the Constitution, or a law of the United States, was drawn in question. It is sufficient to bring the case within the provisions of the 25th section of the Judicial Act, if the record shows that the Constitution, or a law of the United States, must have been misconstrued, or the decision could not have been made; or that the constitutionality of a State law was questioned, and the decision was in favor of the party claiming under such law. [250]

The Act of the Assembly of the State of Delaware, by which the construction of the dam erected by the plaintiffs was authorized, shows plainly that this is one of those many creeks passing through a deep, level marsh, adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these obJeets, provided they do not come in collision with the powers of the general government, are, undoubtedly, within those which are reserved to the States. But the measure authorized by this Act

NOTE-A8 to the jurisdiction of the Supreme Court of the United States, to review final judgments of the State courts in which is drawn in question the Constitution, treaties, or laws of the United States, &c., see notes to Matthews v. Zane, 4 Cranch, 3-2; Martin v. Hunter, 1 Wheat., 304; Houston v. Moore, 3 Wheat., 433; Gibbons, v. Ogden 6 Wheat., 448; Cohens v. Virginia, 6 Wheat., 264.

ularly licensed and enrolled according to the navigation laws of the United States, broke and injured the dam so erected by the company; and thereupon an action of trespass, i et armis, was instituted against them in the Supreme Court of the State of Delaware, in which damages were claimed, amounting to $20,000. To the declaration filed in the Supreme Court, the defendants filed three pleas; the first only of which being noticed by the court in their decision; the second and

third are omitted.

This plea was in the following terms:

1. That the place where the supposed trespass is alleged to have been committed was, and still is, part and parcel of said Black Bird Creek, a public and common navigable creek, in the nature of a highway, in which the tides have always flowed and reflowed; in which there was, and of right ought to have been, a certain common and public way, in the nature of a highway, for all the citizens of the State of Delaware and of the United States, with sloops or other vessels to navigate, sail, pass and repass, into, over, through, in and upon the same, at all times of the year, at their own free will and pleasure.

zens of the State of Delaware and of the Therefore, the said defendants, being citiUnited States, with the said sloop, sailed in

and upon the said creek, in which, &c., as they lawfully might for the cause aforesaid; and because the said gum piles, &c., bank and dam in the said declaration mentioned, &c., had been wrongfully erected, and were there wrongfully continued standing, and being in and across said navigable creek, and obstructing the same, 247*] so that without pulling up, *cutting, breaking and destroying the said gum piles, &c., bank and dam respectively, the said defendants could not pass and repass with the said sloop, into, through, over and along the said navigable creek. And that the defendants, in order to remove the said obstructions, pulled up, cut, broke, &c., as in the said declaration mentioned, doing no unnecessary damage to the said Black Bird Creek Marsh Company; which is the same supposed trespass, &c.

The plaintiffs, in the Supreme Court of the State, demurred generally to all the pleas; and the court sustained the demurrers, and gave judgment in their favor. This judgment was affirmed in the Court of Appeals, and the record remanded, for the purpose of having the damages assessed by a jury. Final judgment having been entered on the verdict of the jury, it was again carried to the Court of Appeals, where it was affirmed, and was now brought before this court, by the defendants in that court, for its review.

The case was argued for the plaintiffs in error by Mr. Core, and by Mr. Wirt, Attor ney-General, for the defendants.

Mr. Core insisted that the record contained a case in which the constitutionality of a law of the State of Delaware had been brought into question; and the decision of the highest tribunal of the State had been in favor of its constitutionality. Under the provisions of the 25th section of the judiciary law, this case is, therefore, protected before this court.

destroy the navigation of the creek. He also considered the second Act of the Legislature of Delaware as a repeal of the provisions of the first law. The court not having noticed this point in their decision, the arguments of counsel upon it are omitted.

The first plea having stated the river to be navigable, it is against the principles of the common law to obstruct it. (10 Mass. Rep., 70.) The rights of navigation are public rights, belonging to all the citizens of the United States. The use of them is necessary for the purposes of commerce to the whole people of the United States.

Navigable streams are the waters of the United States. (9 Wheaton, 187.)

He urged that the constitutional power of Congress to regulate commerce includes navi gation; and the States are by this provision deprived of the power of closing a navigable river. In this case the sloop was a licensed and enrolled vessel to carry on the coasting trade, and she was unlawfully and unconstitutionally impeded in the use of her license by the dam erected by the defendants, under the unconstitutional Act of the Assembly of Delaware.

The statute of Delaware does not look to the preservation of the health of the citizens of the State, but to private emolument.

Upon the right of navigation being jus publicum, Mr. Coxe cited Coop. Justinian, 68; Angel, 15; Vattel, 178, Lib. I., sec. 234, &c.; *1 Halstead. 72. 76; Angel, 167; [*249 Hargrave's Collection, 36, 72. 87. He relied on the decision of this court in Gibbons v. Ogden (9 Wheaton, 187) as a conclusive authority for the plaintiffs in error.

If Delaware has no right to restrain particular vessels from using her navigable streams, she cannot stop the navigation of those

streams.

Mr. Wirt, for the defendants, contended that the record does not present a case in which this court has jurisdiction. The courts of Delaware might have decided in favor of the defendants in error without sustaining the constitutionality of the Act of incorporation; and this court will not assume that the question was decided, if upon other grounds the opinion of the State Court could be maintained. In Mathews v. Zane, the court held that the question of con

It has been repeatedly held that, to give this court jurisdiction, it is not necessary that the constitutionality of the law shall have been specially questioned before the State Court. 248*1*If, upon examination of the record, it shall be found that, unless the court should have held the law to be constitutional, they could not have given the judgment presented by the record, it is sufficient to maintain the jurisdiction here under the Act of Congress.

the Act authorizing the erection of this dam violate the Constitution of the United States? It is admitted that the creek was navigable; and that the stream was a public highway. But it is asked whether the Legislature of a State may not stop up a public highway within the territories of the State. Parliament, in England, exercises the power to stop up streams, which are public highways. (4 Barn. & Cress., 589.)

long to the whole people of the nation, this creek continued subject to the power of the State in whose territory it rises. It is one of those sluggish reptile streams, that do not run, but creep, and which, wherever it passes, spreads its venom, and destroys the health of

all those who inhabit its marshes; and can it be asserted that a law authorizing the erection of a dam, and the formation of banks which will draw off the pestilence, and give to those who have before suffered from disease, health and vigor, is unconstitutional?

The power given by the Constitution to Congress to regulate commerce, may not be exercised 250*] to prevent such measures; *and there has been no legislation by Congress under the Constitution, with which the proceedings of the defendants under the law of Delaware have interfered.

Mr. Chief Justice MARSHALL delivered the opinion of the court:

The defendants in error deny the jurisdiction of this court, because, they say, the record does not show that the constitutionality of the Act of the Legislature, under which the plaintiff claimed to support his action, was drawn into question.

Undoubtedly the plea might have stated in terms that the Act, so far as it authorized a dam across the creek, was repugnant to the Constitution of the United States; and it might have been safer, it might have avoided any question respecting jurisdiction, so to frame it. But we think it impossible to doubt that the constitutionality of the Act was the question, and the only question which could have been discuss ed in the State Court. That question must have been discussed and decided.

The plaintiffs sustain their right to build a dam across the creek by the Act of Assembly. Their declaration is founded upon that Act. The injury of which they complain is to a right given by it. They do not claim for themselves any right independent of it. They rely entirely upon the Act of Assembly.

The plea does not controvert the existence of the Act, but denies its capacity to authorize the construction of a dam across a navigable stream, in which the tide ebbs and flows; and in which there was, and of right ought to have been, a certain common and public way in the nature of a highway. This plea draws nothing into question but the validity of the Act; and the judgment of the court must have been in favor of its validity. Its consistency with, or repugnancy to the Constitution of the United States, necessarily arises upon these pleadings, and must have been determined. This court has repeatedly decided in favor of its jurisdiction in such a case. Martin v. Hunter's Lessee 251*] (1 Wheaton, 355); *Miller v. Nicholls (4 Wheaton, 311), and Williams v. Norris (12 Wheaton, 117), are expressly in point. They establish, as far as precedents can establish anything, that it is not necessary to state in terms on the record that the Constitution or law of the United States was drawn in question. It is sufficient to bring the case within the provisions of the 25th section of the Judicial Act, if the record show sthat the Constitution or a law or a treaty of the United States must have been misconstrued, or the decision could not be made. Or, as in this case, that the constitutionality of a State law was questioned, and the decision has been in favor of the party claiming under such law.

The jurisdiction of the court being established, the more doubtful question is to be con

sidered, whether the Act incorporating the Black Bird Creek Marsh Company is repugnant to the Constitution, so far as it authorizes a dam across the creek. The plea states the creek to be navigable, in the nature of a highway, through which the tide ebbs and flows.

The Act of Assembly by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the States. But the measure authorized by this Act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgement, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance.

The counsel for the plaintiffs in error insist that it comes *in conflict with the [*252 power of the United States "to regulate commerce with foreign nations and among the several States.'

If Congress had passed any Act which bore upon the case; any Act in execution of the power to regulate commerce, the object of which was to control State legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the Middle and Southern States, we should feel not much difficulty in saying that a State law coming in conflict with such Act would be void. But Congress has passed no such Act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States; a power which has not been so exercised as to affect the question.

We do not think that the Act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.

There is no error, and the judgment is affirmed.

This cause came on to be heard on the transcript of the record from the High Court of Errors and Appeals of the State of Delaware, and was argued by counsel; on consideration whereof this court is of opinion, that there is no error in the judgment of the said High Court of Errors and Appeals of the State of Delaware; whereupon it is considered, ordered and adjudged by this court, that the judgment of the said court in this cause be, and the same is hereby affirmed with costs.

Criticised-7 How., 283, 397.

Cited 3 Pet., 302; 4 Pet., 429; 6 Pet., 48; 10 Pet., 396; 11 Pet., 149; 14 Pet., 592; 5 How., 583, 584, 604,