venire de novo, or amending the verdict, agree | to waive the error, and to submit the cause to the court, both on the facts and the law. Their agreement is as follows: "Memorandum. Upon the trial of this cause the parties, by their attorneys, filed a written agreement in the words following, to wit: 'And the parties agree that the court, in deciding upon the foregoing verdict, shall look to and regard the decisions of the courts of the State of Pennsylvania, as found in the several printed volumes of the reports thereof, to avail as much as if the same were found by said verdict, and to have such weight as in the judgment of the court they ought to have; and the parties further agree to waive all objections to said verdict, on account of its finding in part evidence, and not fact. And that the court, in deciding thereupon, may make all just inferences and conclusions of fact and law from the evidence and facts therein stated, and the decisions aforesaid, which, in the opinion of the court, a jury ought to draw therefrom if the same were submitted to them upon the trial of this cause; and that this agreement is to be made part of the record in this suit.' The judgment of the court below was rendered upon this submission, and not on the special verdict alone. In cases at law, this court can only review the errors of the court below in matters of law appearing on the record. If the facts upon which that court pronounced their judgment do not appear on the record, it is impossible for this court to say that their judgment is erroneous in law. What "inferences or conclusions of fact" the court may have drawn from the evidence submitted to them, we are not informed by the record. The fact submitted to the judge formed the turning point of the case. So far as the record exhibits the facts, no error appears. The note being found to have been obtained from the defendant by fraud, the plaintiff's right to recover on it necessarily depended on the fact that he gave some consideration for it, or received it in the usual course of trade. We must presume that the court found this fact against the plaintiff; and if so, their judgment was undoubtedly correct. Whether their "inferences or conclusions of fact" were correctly drawn from the evidence, is not for this court to decide. 486*] *That such has been the uniform mixed up with supposed conclusions in matters of fact." See, also, Minor v. Tillotson, 2 How. 394, and United States v. King, 7 How. 833. The judgment of the court below is therefore affirmed. Messrs. Justices McLean, Wayne, and Woodbury dissented. Mr. Justice Wayne: I do not concur with the court in the course which it has taken in this case, or in affirming the judgment. The record in my view is irregular. It is difficult to say whether it has | been brought to this court upon a special verdict, or a case stated by agreement of the parties; and I think it difficult to determine whether the court below acted upon either. It may have given its judgment pro forma to get the case to this court. I think a different direction ought to have been given to it, by returning the case to the District Court for amendment, so that the case might have been decided substantially upon its merits. This would have been according to what has been done by this court in other cases similarly circumstanced as this case is. Mr. Justice Woodbury: I feel obliged to dissent from the judgment in this case. It is conceded that the special verdict is defective in form. Instead of stating some of the matter as a fact-only the evidence of it is given. The most obvious and proper course under such circumstances would seem to be, to send the case back, and give an opportunity to the plaintiff to have that defect corrected, and afterwards, if the case comes up again, to render judgment on the mer- [*487 its upon all the facts, when thus formally set out. This could regularly be done by reversing the judgment below, instead of affirming it, as here. That judgment was rendered erroneously on this same defective verdict, instead of putting it first in proper shape, and then deciding on it as corrected. After the reversal here, we should, in my opinion, remand the case to the Circuit Court, not to have judgment entered there either way on this imperfect verdict, but to have a venire de novo ordered so as to correct it. Such I understand to be the well settled practice of this court. As decisive proof, that the course now pursued, of refusing to send the case back for correction before final judgment, is not in accordance with what has been done by this court in like cases, Chief Justice Marshall, in Chesapeake Ins. Co. v. Stark, 6 Cranch, 268, observed: "In this case the jury have found an abandonment, but have not found whether it was made in due time or otherwise. fact is therefore found defectively, and for that reason a venire facias de novo must be awarded." "Judgment reversed, and the cause remanded, with directions to award a venire facias de novo." Such was deemed the proper course there, rather than at once to give absolute and final judgment, as here, against the plaintiff, because the special verdict was defective. Another objection there was precisely as here, "because the jury have found the evidences of the authority and time, but not the fact of authority nor the reasonableness of the time.” p. 271. The So, again, in Livingston v. Mar. Ins. Co. 6 | that he proceeded to show a consideration, and Cranch, 280, the court made a like order. And proved that the second indorsee passed the note another of similar character in Barnes v. Wil- to him to secure and pay certain debts and lialiams, 11 Wheaton, 415. We should thus ob- bilities assumed then in his behalf, as would tain a verdict in due form, with all the facts seem to be inferable from the record. It found positively, and not the mere evidence of would in that event be obtained in the course some of them submitted. And the judgment of business for a new and original considerabelow could then be rendered understandingly, tion, and thus the transfer stood unimpeached. as it could also here, if the case was again But if the debts were pre-existing ones, as is brought here by either party. contended, they would still constitute a good *consideration. However the decisions [*489 in different States on this may differ, and may have changed at different periods, this court seems deliberately to have held this doctrine in Swift v. Tyson, 16 Peters, 15, 22. It does not seem promotive of justice to affirm a judgment below, on the ground that the imperfect verdict must at all events stand, and to decide technically on the hypothesis that a certain transaction is not in the case as a fact, and is not to be considered, nor allowed to be corrected and restated, though full evidence of it is submitted. And the more especially does it look wrong where, if it was corrected in conformity with what the evidence proves, the judgment ought, in my view, to be for the plaintiffs. But it is objected, that the counsel agreed 488*] below to waive *this exception to the special verdict, and consequently the court there rendered judgment on that agreement and waiver, as well as on the verdict, and that this was a wrong course of proceeding. Supposing it was wrong, there is no proof that the court acted on the agreement and waiver, but may have deemed it proper to disregard them and decide on the verdict alone. On the contrary, if that court decided on the whole, their decision for the defendant seems to me erroneous, both on the merits and on the course of proceeding, and ought in either court to be reversed instead of affirmed, as it has been on this occasion by the majority of this court. The original plaintiffs should, on the apparent merits, in my apprehension, recover, because no doubt exists, first, that in point of law the note in controversy must be construed by the laws of Pennsylvania, where it was made; and that by those laws it was negotiable. See Act of February 27th, 1797, 4 Dallas, Laws of Pennsylvania, 102. It is as little in doubt, that no pretense exists but that the plaintiffs took this note from the second indorsees before it was due, and without any circumstances to excite suspicion or cast a shade over its goodness, and without any notice or knowledge of the badness of its original consideration. Under such circumstances it is equally clear, that such a bona fide holder of a note is presumed to have given a valid consideration for it, and on producing it is entitled to a recovery of its amount, unless this presumption is repelled by counter evidence. Story on Prom. Notes, p. 220. Furthermore, in such case it is no obstacle to a recovery, that a consideration is not shown between the first indorsee and his indorser. Adolph. & Ell. 498. 1 But it is found here that, for some reason not specified in the record, there was fraud in the original consideration. Hence it is contended that the holder must, in such case, prove a consideration given by him; but he is not otherwise affected by the original fraud, when without notice of it. 4 Adolph. & Ell. 470; Chit. on Bills, 69. Granting this for the argument, it appears It will not answer to overturn all these established principles, because some might fancy the equities of the maker, who was defrauded as to the consideration, greater than those of the present holder, who paid a full and valuable consideration for the note, relying, too, on the good faith of the maker, not to send negotiable paper into the market, and running for five years, so as to mislead innocent purchasers, and, for aught which appears, making no attempt to recall it when discovering he was defrauded, and giving no public and wide caution, as is usual, by advertisement or otherwise, against a purchase of it after such discovery. Under such circumstances, if equities were to weigh, irrespective of the law, which cannot be correct, they seem rather to preponderate in favor of the holder, who has thus been misled and exposed to be wronged by the conduct of the maker. United States v. Bank of the Metropolis, 15 Peters, 398. Finally, were we compelled to give a decision as to the merits on the special verdict, as it now stands somewhat defective in form, but with an agreement by counsel virtually to waive the defect of form, it would be most just to regard the jury as intending to find for a fact what they find as given in evidence and uncontradicted. This is clearly the substance of this verdict, and in such a view, as already shown, the same result would follow, that the plaintiffs appear in law entitled to recover. Order. This cause came on to be heard on the transcript of the record from the District Court of the United States for the Western District of Virginia, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby affirmed, with costs. *ALEXANDRINE MAGER, Widow Col- [*490 lard, Opponent and Plaintiff in the matter of the succession of John Mager, Deceased, Plaintiff in Error, V. FELIX GRIMA, Testamentary Executor of the last Will and Testament of John Mager, Deceased, and the Treasurer of the State of Louisiana. Louisiana law, imposing tax on legacies payable to aliens, constitutional. By a law of the State of Louisiana, every person | nor citizens of any other State or territory in not being domiciliated in that State, and not being the Union, are heirs, legatees, or donees, in a citizen of any State or territory in the Union, whole or in part, and of the amount accruing who shall be entitled, whether as heir, legatee, or donee, to the whole or any part of the succession of to such persons; and any judge failing to fura person deceased, shall pay a tax to the State nish such statement shall be subject to a fine of ten per cent. of the value thereof. This law is not repugnant to the Constitution not exceeding five hundred dollars for each of the United States. and every such omission; and that he be responsible to the State for the amount due; and that the sheriffs of the different parishes throughout the State, except those of the parishes of Orleans and Jefferson, shall pay over the taxes thus received from successions in the same manner, and be subject to the same penalties, as in the payment of other taxes; and that the taxes thus received be taken in view in the execution of the sheriff's bond.' THIS HIS case was brought up, by a writ of error issued under the twenty-fifth section of the Judiciary Act, from the Supreme Court of Louisiana. The Widow Collard, who was the plaintiff in error, resided at Metz in the kingdom of France, and was the universal legatee of her brother, Jean Mager, who died in Louisiana. There was a statement of facts in the court below, which explains the whole case. "Statement of Facts agreed. "Succession of John Mager, on the opposition of Alexandrine Collard, to the tableau filed by the testamentary executor. Case agreed. "2d. It is agreed that, by the laws of France, a tax or duty of six and a half per cent. would be levied by the French government on an inheritance falling to an American citizen, in the a deceased same degree of relationship to French subject as the opponent and universal legatee in this case bore to the deceased John Mager, the testator. "1st. The tableau filed by the executor is "3d. The testator, John Mager, was a natumade part of this case, to show that the exec- ral-born Frenchman, who had emigrated to the utor retains from the opponent, the universal United States after the cession of Louisiana legatee of John Mager, the sum of eight thou-to France, and died in the city of New Orsand dollars and upwards, being the amount of leans. the tax imposed by the fourth section of the Act of the Legislature of the State of Louisiana, passed on the 26th of March, 1842, on property or estates inherited by foreigners within the State of Louisiana, and which is in the words and figures following: "Sec. 4th. Be it further enacted, etc., that "4th. The opponent, Agathe Alexandrine Mager, Widow Collard, is the sister of the testator, and his universal legatee, according to his last will and testament, duly recorded in this court, and admitted to probate, and is a French subject residing in France. "5th. The last will of the testator, John Mager, and all the mortuary proceedings in this court, make part of this case, and may be referred to, and used in whole or in part, by either party. (Signed) "Isaac T. Preston, each and every person not being domiciliated in this State, and not being a citizen of any State or territory in the Union, who shall be entitled, whether as heir, legatee, or donee, to the whole or any part of the succession of a "*If upon this case the law of the [*492 person deceased, whether such person shall State of Louisiana aforesaid, imposing the tax have died in this State or elsewhere, shall pay aforesaid, be valid, and not repugnant to the a tax of ten per cent. on all sums, or on the Constitution of the United States, then the opvalue of all property, which he may actually position of the opponent to be dismissed, and receive from said succession, or so much thereof the tableau homologated and approved. If, on as is situated in this State, after deducting the contrary, the said law imposing said tax is debts due by said successions. When the said in-repugnant to the Constitution of the United heritance, donation, or legacy consists of specific States, then the opposition shall be maintained, property, and the same has not been sold, the and the item of eight thousand dollars and upappraisement thereof in the inventory shall be wards, as aforesaid, retained as the amount of 491*] considered *as the value thereof. said tax, shall be expunged, and the same Every executor, curator, tutor, or administra-merged in the succession of the said John tor, having the charge or administration of Mager, to be paid over to his universal legatee. succession property belonging, in whole or in part, to a person residing out of this State, and not being a citizen of any other State or territory, shall be bound to retain in his hands the "Attorney for Opponent." amount of the tax imposed by this act, and to The Court of Probate dismissed the opposipay over the same to the State treasurer, if the tion of the Widow Collard, and ordered the succession be opened in the parish of Orleans account of the executor (retaining the tax) to be or Jefferson, or to the sheriff, if the succession homologated. An appeal was carried to the be opened in any other parish; in default Supreme Court of Louisiana, which affirmed whereof every such executor, curator, tutor, or the judgment of the Court of Probates, and administrator, and his securities, shall be liable the case was then brought up to this court, for the amount thereof. It shall be the special under the twenty-fifth section of the Judiciary duty of the judges of the courts of probate to Act. see that the tax imposed by virtue of this section be collected and paid over; and each of said judges shall be bound to furnish to the treasurer, once a year, a statement or list of the The points upon which Mr. Jones rested his successions opened in his parish, whereof per- argument were the following, which were opsons who are neither residents of this State,posed by Mr. Coxe: "Attorney-General. "H. R. Denis, It was argued by Mr. Jones for the plaintiff in error, and Mr. Coxe for the defendants in error. I. The tax in question is laid on the person and the rights of an alien, residing in his own country; and so is repugnant to the exclusive power of Congress to regulate commerce with foreign nations. II. Or it is a tax on the property and effects | in the hands of the executor, and under the sole destination of being exported to the foreign legatee; and so is a tax on exports, and expressly prohibited by the Constitution. I. It is repugnant to the power of Congress to regulate commerce with foreign nations. Under this head, two questions arise: First, whether it be in the nature of a regulation of commerce, such as the Constitution contemplated in the grant to Congress of the power to regulate commerce. Second, whether that power be in its terms or in its nature exclusive, and incompatible with State regulations of commerce. First. To lay a peculiar tax, out of the rule of taxation common to the citizens of the State, on foreigners residing in their own country and holding property, or having vested rights 493*] *and interests of any kind in the State, and to lay it for the reason that they are foreigners beyond the jurisdiction of the State, is to exercise a power comprehended in the terms of the general power to regulate commerce with foreign nations. II. The tax in question is, essentially, a tax on exports. The State of Maryland could lay no tax on imported goods, even after the importation was consummated, and the goods removed to the importer's warehouse for sale, but still unsold. Brown v. Maryland, 12 Wheat. 419. A fortiori, not on effects deposited in the hands of an executor, trustee, or agent, to be exported or remitted to the owner abroad. Shifting the tax from the material of the export to the person of the exporter does not alter its essence. Brown v. Maryland, 12 Wheat. 449. Mr. Chief Justice Taney delivered the opinion of the court: This is a plain case, and when the facts are stated, the question of law may be disposed of in a few words. The plaintiff in error was the residuary legatee-or, in the language of Louisiana law, the universal legatee of a certain John Mager, who was a native of France, and migrated to the United States after the cession of Louisiana. He died at New Orleans possessed of property to a large amount. The Widow Collard is his sister. At the time of his death she was a French subject residing in France. By the law of Louisiana a tax of ten per cent. is imposed on legacies, when the legatee is neither a citizen of the United States, nor domiciled in that State. And the executor of the deceased, or other person charged with the administration of the estate, is directed to pay the tax to the State Treasurer. Felix Grima, the defendant in error, is the executor of John Mager, and retained the amount of the tax, in order to pay it over as the law directs. And this suit was brought by the legatee to recover it, upon the ground that the act of the Louisiana Legislature is repugnant to the Constitution of the United States. Now, the law in question is nothing more than an exercise of the power which every state and sovereignty possesses, of regulating the manner and term upon which property real or personal within its dominion may be transmitted by last will and testament, or by inheritance; and of prescribing who shall and who shall not be capable of taking it. Every State or nation may unquestionably refuse to allow an alien to take either real or personal property situated within its limits, either as heir or legatee, *and may, if it thinks proper, di- [*494 rect that property so descending or bequeathed shall belong to the State. In many of the States of this Union, at this day, real property devised to an alien is liable to escheat. And if a State may deny the privilege altogether, it follows that, when it grants it, it may annex to the grant any conditions which it supposes to be required by its interests or policy. This has been done by Louisiana. The right to take is given to the alien, subject to a deduction of ten per cent. for the use of the State. In some of the States, laws have been passed at different times imposing a tax similar to the one now in question, upon its own citizens as well as foreigners; and the constitutionality of these laws has never been questioned. And if a State may impose it upon its own citizens, it will hardly be contended that aliens are entitled to exemption; and that their property in our own country is not liable to the same burdens that may lawfully be imposed upon that of our own citizens. We can see no objection to such a tax, whether imposed on citizens and aliens alike, or upon the latter exclusively. It certainly has no concern with commerce, or with imports or exports. It has been suggested, indeed, in the argument, that, as the legatee resided abroad, it would be necessary to transmit to her the proceeds of the portion of the estate to which she was entitled, and that the law was therefore a tax on exports. But if that argument was sound, no property would be liable to be taxed in a State, when the owner intended to convert it into money and sent it abroad. The judgment of the State court was clearly right, and must be affirmed. Order. This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Louisiana, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby affirmed, with costs. *CHARLES A. WILLIAMSON and Cath-[*495 arine, his Wife, Plaintiffs, JOSEPH BERRY. Construction of private act of Legislature of New York, passed to remove obstacles in way of executing certain trusts under will. Mary Clarke devised to Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, and their heirs forever, as joint tenants, and not as tenants in common, "all that part of my said farm at Greenwich aforesaid, called Chelsea, etc., to have and to hold the said hereby devised premises to the said Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, and to the survivor or survivors of them, and to the heirs of such survivor, as joint tenants, and not as tenants in common, in trust, to receive the rents, issues, and profits thereof, and to pay the same to Thomas B. Clarke, etc., during his natural life, and from and after the death of Thomas B. Clarke, in further trust, to convey the same in fee to the lawful issue of the said Thomas B. Clarke, living at his death." Under this devise, the first-born child of Thomas B. Clarke, at its birth, took a vested estate in remainder, which opened to let in his other children to the like estate, as they were successively born, and such vested remainder became a fee-simple absolute in the children living, on the death of their father. The acts of the Legislature of New York passed for the relief of Thomas B. Clarke show that he was made the trustee of the property devised, to sell or mortgage a part of it, with the assent or appointment of the Chancellor. His obligation was to account annually for the proceeds of every sale or mortgage which might be made, and it was his right to use the interest of the principal for himself and for the education and maintenance of his children. The acts of the Legislature discharged the trustees named in the devise, whatever may have been their estate in the land under it, but did not vest an estate in fee in Thomas B. Clarke. The acts of the Legislature for the relief of Clarke are private acts. They provide that the Chancellor may act upon them summarily, upon the petition of Clarke, upon which orders are given, as contradistinguished from decrees in suits by bil filed. The last are judgments upon the matters in controversy between the parties before the court. The others are orders in conformity with a legislative act in a particular case. Whatever the Chancellor does in either case, he does as a court of chancery. It will stand when it has been done within the jurisdiction conferred by the private act, until it has been set aside upon motion, as his decrees in suits upon bill filed do, until they have been set aside by a bill of review. In such a case the court will not deviate from the letter of the act, nor make an order partly founded upon its original jurisdiction, and partly upon the statute. It cannot confound its original jurisdiction in a suit with the powers it may be authorized to execute by petition, either in a public act giving statutory jurisdiction to the court, to be exercised summarily upon petition, or in a private act providing for relief in a particular case, which is to be carried out by the same mode of proced ure. In these acts for the relief of Clarke, what the chancellor can do is precisely stated. No authority was given to him, in giving his assent to Clarke's making sales of any part of the devised premises, to order that Clarke might make sales of any por | tion of it, in payment and satisfaction of any debt or debts due and owing by Clarke, upon a valuation to be agreed upon, between him and his respective creditors. Or that Clarke might take the money arising from the sales of the premises, and apply the same to the payment of his debts, investing the surplus only in such manner as he may deem proper to yield an income for the maintenance and support of his family. This was not an exercise of jurisdiction, but an order out of and beyond it. Clarke. These were private acts for the alienation of land, to be made with the assent of the Chancellor that there might be an assurance by matter of record, under his sanction, of a transfer of the property to such as might become purchasers from Neither orders summarily given upon petition in chancery, nor decrees in suits upon bill filed, can be summarily reviewed as a whole in a collateral But it is a well settled rule in jurisprudence, that the jurisdiction of any court exercising au thority over a subject may be inquired into in 496*1 every other court, when *the proceedings in the former are relied upon, and brought before the latter, by a party claiming the benefit of such proceedings. way. The rule applies to the case in hand, though it may have been decided by the highest tribunal in New York, that the Chancellor had jurisdiction, under the acts for the relief of Clarke, to give the order permitting him to sell the property to his creditors, in payment of his debts, for though this court will recognize as a rule for its judgments the decisions of the highest courts of the States relative to real property as a part of the local law, it does not recognize as in any way binding upon them, as a part of the local law, the decisions of the State courts upon private acts of any kind, or such of them as provide for the alienation of private estates, by particular persons, with the sanction of a court or of the Chancellor. Decisions upon private acts form no part of the local law of real property. They concern only those for whose benefit they are made, and can be no rule for any other case. This court decides that, under the acts of New York, the Chancellor had not the jurisdiction to give an order, permitting Clarke to convey any part of the devised premises in satisfaction of his debts, and that neither De Grasse, nor his alienee Berry, can derive from the order of the Chancellor, or from the conveyance by Clarke to De Grasse, any title to the premises in dispute. Sale is a word of precise legal import, both at law and in equity. It means a contract between parties to take and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold. A sale ordered, decreed, or permitted by a chancellor, subject to the approval of a master, requires the master's approval, and confirmation by the court, before a purchaser can have a legal title to the estate that he means to buy or has bid for under the decree of the court. In any sale under a decree or order in chancery, the purchaser, before he pays his money, must not only satisfy himself that the title to the property to be sold is good, but he must take care that the sale has been made according to the decree or order. If he takes under an imperfect sale, he must abide the consequence. The sale in this instance by Clarke to De Grasse, if it were otherwise good, which it is not, would be a nullity, for it wants the approval by the master to whom the execution of the order was confided by the Chancellor. Nor was Clarke's sale to De Grasse a judicial sale. By judicial sale is meant one made under the process of a court, having competent authority to order it, by an officer legally appointed and commissioned to sell. In order that the sale by Clarke to De Grasse should be a judicial sale, it was requisite that the Chancellor should have had the authority to direct a sale of the premises to his creditors for their demands, and that it should have been approved by the master in the way the order directed it to be done. HIS case came up from the Circuit Court of the United States for the Southern District New York, on a certificate of division in opinion between the judges thereof. of It was an action of ejectment for one third of eight lots of land in the city of New York. Mrs. Williamson was the daughter of Thomas B. Clarke, being one of three children who survived him, the other two being Mrs. Isabella M. Cochran and Bayard Clarke. In the year 1802, Mary Clarke died, leaving a will, from which the following is an extract: "Item, I give and devise unto the said Benjamin Moore and Charity, his wife, and to Elizabeth Maunsell, and their heirs forever, as joint tenants, and not as tenants in common, all that certain lot of land number eight, in the said thirteenth allotment of the said patent, containing one hundred acres; also that part of *my said farm at Greenwich aforesaid, [*497 called Chelsea, lying to the northward of the line hereinbefore directed to be drawn from the Greenwich road to the Hudson River, twelve feet to the northward of the fence standing behind the house now occupied by John Hall, bounded southerly by the said line, northerly by the land of Cornelius Ray, east |