IN N ERROR to the Circuit Court of the United States for the Northern District of Illinois. The case is stated by the court. Mr. E. S. Smith, for plaintiff in error: I. The judgment was the first lien on the property in question. 1. There being no competent testimony show ing the appointment of administrators of the estate of Galbraith, no proof of notice was required by the statute; therefore the issuing of execution against the lands and tenements of the deceased defendant, was regular. 2. The record showing the issuing of execution by order of the court is conclusive against these defendants. Stat. of Ill., ed. 1863; sec. 1, p. 692, vol. 1; sec. 2, p. 610, vol. 1; sec. 3, p. 603; Rogers v. Brent, Gilm. (Ill.), 573, sec. 37, p. 710, Vol. I. II. It is very clear, from the reading of the 2d section before given, that the statute designed to preserve all liens, of judgments and to give to the creditor a right to obtain title under such lien after the death of the defendant, with out first reviving the judgment, as at common law. The section provides that when the lien exists, the plaintiff's remedy shall not be delayed or suspended by reason of nonage of any heir or heirs of such defendant, beyond one year after the death of the defendant, and that no preferences shall impair or efface the lien of the judgment. Section 37 provides: That it shall be lawful for execution to issue against the lands and tenements of the deceased person or persons, without first reviving the judgment against their heirs or legal representatives." The only condition attached to this positive provision of law, is noticed to the executors or administrators, if there be any, of the existence of the judgment before the execution can be is sued, and that twelve months must elapse after the death of a party before execution can issue. It is evident the design of the statute was to give to the creditor a cheap mode in which to enforce the lien which his judgment gave him. The lien once attached, it would operate until the judgment is satisfied. NOTE.-Effect of death of one of the parties after Reynolds v. Henderson, 2 Gil., 119; Turney v. Gates, 12 Ill., 141; Laflin v. Herrington, 16. Ill., 303; Pinch v. Martin, 19 Ill., 111. The fact of notice or the want of notice is no part of the record, as the issuing and service of a scire facias to revive a judgment, must be a part of the record. But, if the court please, we are not driven to sustain this position in the case under consideration, for the reason that the order of the court, directing an execution to issue, fully protects the plaintiff and makes his title good. Counsel for defendant in error, may, as heretofore, claim that the case of Brown v. Parker, 15 Ill., 307, is an authority in point to show that the execution and sale in this case is void; therefore the plaintiff could not recover on his title. We submit that the case does not sustain such a position. The fact appearing that so long a time had elapsed and no claim of any party interested in the estate being made, the fact of the sale being made must have come to the knowledge of the heirs and administrators, and, no one objecting, should be satisfactory evidence that they had notice, and that the sale was regular. The judgment was a lien on the property in question, and the plaintiff, under the statute, had a right to his execution, and a sale of the property, and without the order of court, was prima facie regular, and the burden of proof of want of notice, if such thing existed, was upon the defendant, and there being none, the plaintiff's title was good. III. The record showing the issuing of execution by order of court, is conclusive against these defendants. If the order of the court, made on the 24th day of September, 1847, that another execution issued on the judgment, is to be treated as all orders and judgments of a court of record by law are treated, then there is nothing further for us to say. The record does show that the court ordered the execution to issue, and it did accordingly issue against the lands and tenements of defendant Galbraith. It is to be presumed that Judge Catron had before him satisfactory proofs, that the administrators of Smith Galbraith had received notice of the judgment and of the motion, and that it was shown that twelve months had elapsed after the death of defendant Galbraith. These things must be admitted to have been made to appear to the court, or no such order would have been made. Nothing of the kind could go into the record. In all special cases, or in cases where the statute points out any other course or acquires anything to be done other than in ordinary cases, then it is competent for the party claiming the right, to apply for and obtain an order of court, and when the order is made, although upon a statute, the law presumes that the order is within the law, and that the parties have complied with the statutes in all things in obtaining the order. The order is binding and conclusive, and all proceedings had under it, until it is set aside by some proceeding. Courts have never doubted this rule of law, and cases can be found in the books where orders and judgment, upon remedy by execution-see note, 61 judgments have been entered, and the record showed an error upon its face; yet it has always L. R. A. 353. been held that the order or judgment must stand until reversed in the manner pointed out by law. Regina v. Finney, 2 Car. & Kir., 774, and Prigg v. Adams, 2 Salk., 674, are cases in point, showing how closely the rule we contend for has been adhered to. These cases have been cited in a great number of cases in this country, as the settled rule of law. The People v. Peck, 3 Scam. (Ill.), 118; Grignon v. Astor, 2 How., 319. Claiming, as we do, the law to be as we contend, it is clear that the court erred in its instructions to the jury. It will only be necessary to refer the court to the record, showing the instructions asked and refused. The court instructed the jury that the order of the Circuit Court of Ogle County, was a nullity; that the execution sale and deed were all null and void. Mr. C. Hitchcock, for defendants in error: The execution of November 25th, 1847, against the lands and tenements of Smith Galbraith, deceased, was void, and the sale under it a nullity. This is a settled rule of property in Illinois. Brown v. Parker, 15 Ill., 307; Laflin v. Herrington, 16 Ill., 301; Finch v. Martin, 19 Ill., 105. This rule has been approved by the Supreme Court of the United States, and by the courts of last resort of most of the States. Erwin's Lessee v. Dundas, 4 How., 58; Stymets v. Brooks, 10 Wend., 207; Lessee of Massie's Heirs v. Long, 2 Ham., 287; State v. Pool, 6 Ired., 288; Gwin v. Latimer, 4 Yerg., 22; Abercrombie v. Hall, 6 Ala., 657; State v. Michaels, 8 Blackf., 436. This notice is provided as a protection to heirs against dormant judgments, and is a substitute for scire facias. No evidence of revivor was offered in either mode. | and others, recovered in the Circuit Court of Ogle County on the 27th of March, 1841. The execution was issued on the 25th of November, 1847; the sale was made on the 25th of November, 1848, and the deed was executed on the 24th of July, 1849. The defendants produce a deed from Galbraith and wife, dated on the 31st of May, 1842. It was proved that Galbraith died in 1843, and that letters of administration upon his estate were issued on the 25th of February in that year. A statute of the State authorizes execution to issue against the lands and tenements of a deceased judgment debtor "Provided, however, the plaintiff or plaintiffs in execution, or his or their attorney, shall give to the executor or administrator, if there be any, of said deceased person or persons, at least three months' notice in writing, of the existence of said judgment before the issuing of execution." There was no proof that such notice had been given to the legal representatives of Galbraith. To obviate this objection, the plaintiff proved that the premises in controversy had been sold under a prior execution, and that on the motion of the judgment creditor, the court in which the execution was returned had set the sale aside, quashed the execution, and ordered that another execution should issue. This order was made on the 24th of September, 1847. The court below instructed the jury that the want of proof of due notice to the legal representatives of Galbraith.before the issuing of the execution under which the sale was made, was fatal to the plaintiff's case. The jury found accordingly, and the plaintiff excepted. This exception is the hinge on the controversy between the parties. By, the common law, the death of either party It is difficult to see what maxims of law re-arrested all further proceedings in the case. lating to presumptions or to the burden of proof, can be called to the aid of this argument. Vide 1 Greenl. Ev., 26. It seems that every maxim of the law imposes the burden of proof, in this respect, upon the plaintiff. 1. He claims a statutory benefit, and must aver and prove himself to be within the terms of it. Kitchell v. Burgwin, 21 Ill., 40; Helpenstein v. Cave, 3 Clarke (Ia.), 287. 2. He holds the affirmative in asserting title under the statute. Hinman v. Pope, 1 Gilm. (Ill.), 140. 3. A different rule would impose on the defendant the burden of proving a negative. 4. It is, moreover, settled as a question of authority. Laflin v. Herrington, 16 Ill., 301; Finch v. Martin, 19 Ill., 105. Mr. Justice Swayne delivered the opinion of the court: This is a writ of error to the Circuit Court of the United States for the Northern District of Illinois, brought by the plaintiff in error, to reverse a judgment in ejectment rendered in that court in favor of the defendants in error, who also were the defendants in the original action. Both parties claimed to derive title from Smith Galbraith. The plaintiffs relied upon a sheriff's deed made pursuant to a sale under an execution upon a judgment against Galbraith If the death occurred before judgment, the suit abated. If there was but one defendant, and he died after judgment, no execution could issue unless it was tested before the death occurred. In such case it was necessary to revive the judgment by scire facias. The Statute of Westminister 2d (13 Edward I.) first gave a remedy against the lands of judgment debtors. The same rules applied to a writ of elegit sued out under that statute. If there was more than one defendant, and one of them died, execution might issue against all, though it could be executed only as to the survivors. It was so issued because it was necessary that it should conform to the record of the judgment. Woodcock v. Bennet, 1 Cow., 711; Stymets v. Brooks, 10 Wend., 207; Erwin v. Dundas, 4 How., 77; Brown v. Parker, 15 Ill., 307. The notice under the statute is cumulative. The plaintiff may give it, or resort to the common law remedy by scire facias. Executions in Illinois are required to bear test on the day they are issued. Brown v. Parker, 15 Ill., 309. When a defendant dies after judgment, and an execution is subsequently issued without the notice required by the statute having been given, or the *judgment revived by scire [*318 facias, the execution is a nullity, and all proceedings under it are void. Pickett v. Hartsock, 15 Ill., 279; Brown v. Parker, Id., 307; Finch v. Martin, 19 Id., 111. The order of the court of Ogle County, that The another execution should issue, does not in our | We The authorities which require the fact of competent jurisdiction to be presumed in certain cases have no application here. The statute is in contravention of the common law, and hence to be construed strictly. The notice is a substitute, and the only one permitted for the proceeding, otherwise indispensable, by scire facias. The provision is plain and imperative in its language, and it is the duty of a court called upon to administer it, not lightly to interpolate a qualification which the statute does not contain. The deed from Galbraith contains a special covenant against the "claims of all persons, claiming, or to claim, by, through, or under him." If the premises in controversy should be lost to the defendants, his estate would be liable in damages; and his legal representatives were entitled to all the time which the statute allowed them after notice, to show, if they could, that the collection of the judgment ought not to be enforced. WILLIAM H. JOLIFFE. (See S. C., 2 Wall., 450-474.) Fees under California Pilotage Act constitu tional law-vested rights-repeal of statute conferring-regulation of commerce. The Act of California of May 20, 1861, which declares that when a vessel is spoken by a pilot and half pilotage fees, creates a legal liability against his services are declined, he shall be entitled to one the vessel, her master and owners, for such fees. When a right has arisen upon a contract, or a transaction in the nature of a contract authorized by statute and has been so far perfected that nothing remains to be done by the party asserting it, the repeal of the statute does not affect it, or an action for its enforcement. The power to regulate commerce conferred on Congress by the U. S. Constitution does not exclude the exercise of authority by the States to regulate pilots. The U. S. Act of 1852 has not superseded state legislation concerning port pilotage. [No. 68.] Argued Dec. 12, 1864. Decided Jan. 30, 1865. 'N ERROR to the County Court of the City and County of San Francisco, California. The case is stated by the court. Mr. D. B. Eaton, for plaintiff in error. Messrs. J. C. McCulloch, Atty-Gen. of California, and J. M. Carlisle, for State of California. The Pilot Law of May 30th, 1861, of California (Stat. Cal. 1861, p. 594), under which this suit was brought, was repealed on April 4th, 1864. This action falls within the statute that gave it life. judgment is to be reversed on a writ of error at common law. If the previous statute conferred jurisdiction upon a court in civil cases, the repeal of it works the same consequence against the civil right, unless there be a saving clause, and there is none here. It is contended that it was incumbent on the 319*] defendants to show that the proper notice had not been given. We cannot take that view of the subject. The judgment survived only for the preservation of its liens, and as the basis of future action. The statutory notice, or its alternative-a scire facias-was necessary If the previous statute imposed a penalty, to give it vitality for any other purpose. Upon though the repeal takes place after conviction, the death of the defendant being shown, any ex-it arrests the judgment; if, after judgment, the ecution issued upon it was, as to him, prima facie void. This presumption could be overcome only by showing, either that no legal representative had been appointed, or that the notice required by the statute had been given. The plaintiff asserted a title, and it was for him to show everything necessary to maintain it. The rule on this subject is thus laid down by Chief Justice Marshall: "It is a general principle, that the party who sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends upon an act in pais, the party claiming under that deed is as much bound to prove the performance of the act, as he would be bound to prove any matter of record on which its vitality might depend. It forms a part of his title: it is a link in the chain which is essential to its continuity, and which The power granted to Congress to regulate it is incumbent on him to preserve. These facts commerce is not exclusive in the sense that the should be examined by him before he becomes a state statute is void in the absence of any purchaser, and the evidence of them should be specific legislation of Congress on the subjectpreserved as a necessary muniment of title." matter. Cooley v. Board, etc., 12 How., 315. Williams v. Peyton, 4 Wheat., 79; see, also, Thatcher v. Powell, 6 Wheat., 127. NOTE.-Vested rights defined; how affected by We understand the Supreme Court of Illinois to have subsequent repeal of statute see note to Fletcher. V. Peck, 3 L. ed. U. S. 162. Miller's case, 1 W. Bl., 451; Surtees v. Ellison, 9 Barn. & C., 750; Key v. Goodwin, 4 Moore & P., 341; Commonwealth v. Duane, 1 Binn., 601; Butler v. Palmer, 1 Hill (N. Y.), 324; Springfield v. Com. of Highways, etc., 6 Pick., 500; Trustees 1. & M. Canal v. Chicago, 14 Ill., 334; Lewis v. Foster, 1 N. H., 61; Yeaton v. U. S., 5 Cranch, 281; The Rachel v. U. S., 6 Cranch, 329; State v. Addington, 2 Bai. (S. C.), 516; Hartung v. The People, 22 N. Y., 95; Sanchez v. People, 22 N. Y., 155. The subjects of this power are not such as to require exclusive legislation by Congress, and most especially is this true of the pilot regulations. Sturges v. Crowninshield, 4 Wheat., 122; Houston v. Moore, 5 Wheat., 1, 45; Willson v. B. C. M. Co., 2 Pet., 245; N. Y. v. Miln, 11 Pet., 147; License Cases, 5 How., 579; Passenger Cases, 7 How., 497, 557; Cooley v. Board, etc., 12 How., 318. The Act of Congress of '52 is not such an exercise of the commercial power as that it supersedes the pilot laws of the State. The diversity of interests are so great, the local necessities of commerce are so different, that it would be very difficult, if not impossible, for Congress to establish an uniform system of pilot regulations throughout the Union. And Congress has never attempted it, but has left the subject almost wholly to the State Legis latures to adopt such rules as were best suited to the local peculiarities of the ports within their respective limits. There is no such direct repugnance between the Act of '52 and the California Statute as that the latter is superseded by the former. The state laws are co-operative with congressional legislation. N. Y. v. Miln, 11 Pet., 145; Cisco v. Roberts, 6 Bosw., 507. An examination of the provisions of the California Statute will show that they are appropriate parts of a legitimate system of legislation upon the subject, testing them by the practice of commercial States and countries legislating upon the subject of pilots and pilot regulations. Cooley v. Board, etc., 12 How., 299, 307. Messrs. Gregory, Yale and W. W. Cope, for defendant in error: The first point made by the Attorney-General of the State is, that by an Act of the Legislature of California, of the 4th of April, 1864, the Act of 1861, and all other Acts relating to pilots and pilot regulations, are repealed without any reserving clause and, consequently, this action cannot be enforced. The authorities cited by the Attorney-General to sustain the first point in his brief, belong to other classes of cases, such as penalties, qui tam actions, etc. Norris v. Crocker, 13 How., 429, gives the rule in a case of penalty. This is not a case of penalty. An agreement for pilotage service is an express contract, which the repeal of the law under which it was made would not affect. Half pilotage is a quasi contract. It is a charge to which the ship is subjected, when the service is offered and declined. Whole and half pilotage stand, in this respect, on the same footing as contracts. No question has been made upon the validity of state legislation as to the subject of half pilotage, since the decision of Cooley v. Port Wardens of Phil., 12 How., 312. The distinction is correctly made in Butler v. Palmer, 1 Hill, 324, one of the authorities cited by the Attorney-General. Inchoate rights, generally, derived under a statute, are lost by its repeal, unless saved by express words; but otherwise in respect to civil rights, perfected far enough to stand independent of the statute, where executed. California v. McGlynn, 20 Cal., 276. Mr. Justice Field delivered the opinion of the court: This case arises upon the Act of the State of California of the 20th of May, 1861, entitled "An Act to establish Pilots and Pilot Regulations for the Port of San Francisco." The Act provides for the creation of a Board of Pilot Commissioners, and authorizes the Board to license such number of pilots for the port as it may deem necessary, and prescribes their qualifications, duties, and compensation. It makes it a misdemeanor, punishable by fine or imprisonment, for any person not having a license from the board, to pilot any ship or vessel in or out of the port by way of the "Heads," that is, by the way which leads directly to and from the ocean. It enacts that "All vessels, their tackle, apparel, and furniture, and the masters and the owners thereof, shall be jointly and severally liable for pilotage fees, to be recovered in any court of competent jurisdiction." it declares, that when a vessel is spoken by a pilot and his services are declined, he shall be entitled to one half pilotage fees, except when the vessel is in tow of a steam tug outward bound, in which case no charge shall be made, unless a pilot be actually employed. And On the 1st of November, 1861, the plaintiff in the court below, the defendant in error in this court, was a pilot for the Port of San Fran cisco, having been regularly appointed and licensed by the Board created under the Act of the State. At that time the steamship Golden Gate was lying in the port, and about to proceed to Panama, carrying passengers and treasure. This vessel was then, and ever since 1852, had been an American ocean steamer, registered at the custom-house, in the Port of New York, and exclusively employed in navigating the ocean, and carrying passengers and treasure between San Francisco and Panama, and was owned by the Pacific Mail Steamship Company, a Corporation created under the laws of the State of New York. To the master of this steamship the plaintiff offered his services to pilot the vessel to sea; but his services were refused, and to recover the half pilot- [*456 age fees allowed in such cases by the Act of 1861, the present action was brought. * At the last term of this court, it was sug gested that the constitutionality of the Act in question was involved in the decision of the case; and the court thereupon reserved its consideration until the State of California could be represented. The Attorney-General of the State has accordingly appeared and filed a brief in the case. Since the action of the court in this respect, the Legislature of California has passed a new statute on the subject of pilots and pilot regulations for the Port of San Francisco re-enacting substantially the provisions of the original Act, but at the same time in terms repealing that Act. And the first point made by the Attorney-General is, that, by reason of the repeal, the present action cannot be maintained. His position is, that as the claim to half pilotage fees was given by the statute, the right to recover the same fell with the repeal of the statute; and that this court must dismiss the writ of error on that ground. The claim to half pilotage fees, it is true, was given by the statute, but only in considera tion of services tendered. The object of the regulations established by the statute, was to create a body of hardy and skillful seamen, thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart from the port, and thus give security to life and property exposed to the dangers of a difficult navigation. This object would be in a great degree defeated if the selection of a pilot were left to the option of the master of the vessel, or if the exertions of a pilot to reach the vessel in order to tender his services were without any remuneration. The experience of all commercial States has shown the necessity, in order to create and maintain an efficient class of pilots, of providing compensation, not only when the services tendered are accepted by the master of the vessel, but also when they are declined. If the services are accepted, a contract is created between the master or owner of the vessel 457*] *and the pilot, the terms of which, it is true, are fixed by the statute; but the transaction is not less a contract on that account. If the services tendered are declined, the half fees allowed are by way of compensation for the exertions and labor made by the pilot, and the expenses and risks incurred by him in placing himself in a position to render the services, which, in the majority of cases, would be required. The transaction, in this latter case, between the pilot and the master or owners, cannot be strictly termed a contract, but it is a transaction to which the law attaches similar consequences; it is a quasi contract. The absence of assent on the part of the master or owner of the vessel does not change the case. In that large class of transactions designated in the law as implied contracts, the assent or convention, which is an essential ingredient of an actual contract, is often wanting. Thus, if a party obtain the money of another by mistake, it is his duty to refund it, not from any agreement on his part, but from the general obligation to do justice which rests upon all persons. In such case the party makes no promise on the subject; but the law, "consulting the interests of morality," implies one; and the liability thus arising is said to be a liability upon an implied contract. Argenti v. San Francisco, 16 Cal., 282; Maine on Ancient Law, 344. The claim for half pilotage fees stands upon substantially similar grounds. "There are many cases,' says Mr. Justice Curtis, speaking for this court, "in which an offer to perform, accompanied by present ability to perform, is deemed by law equivalent to performance. The laws of commercial states and countries have made an offer of pilotage services one of those cases." Cooley v. Wardens of Phil., 12 How., 312. below in the present action: the pilotage services had been tendered by him; his claim to the compensation prescribed by the statute was then perfect, and the liability of the master or owner of the vessel had become fixed. And it is clear that the Legislature did not intend, by the repealing clause in the Act of 1864, to impair the right to fees, which had arisen under the original Act of 1861. The new Act re-enacts substantially all the provisions of the original Act, relating to pilots and pilot regulations for the harbor of San Francisco. It subjects the pilots to similar examinations; it requires like qualifications; it prescribes nearly the same fees for similar services; and it allows half pilotage fees under the same circumstances as provided in the original Act. It appears to have been passed for the purpose of embracing within its provisions the Ports of Mare Island and Benicia, as well as the Port of San Francisco; of creating a Board of Pilot Examiners for the three Ports, in place of the Board of Pilot Commissioners for the Port of San Francisco alone, and of prohibiting the issue of licenses to any persons who were disloyal to the Government of the United States. The new Act took effect simultaneously with the repeal of the first Act; its provisions may, therefore, more properly be said to be substituted in the place of, and to continue in force with modifications, the provisions of the original Act, rather than to have abrogated and annulled them. The observations of Mr. Chief Justice Shaw, in Wright v. Oakley, 5 Met., 406, upon the construction of the Revised Statutes of Massachusetts, which in terms repealed the previous legislation of the State, may with propriety be applied to the case at bar. In "In construing the Revised Statutes and the connected *Acts of amendment and re- [*459 peal, it is necessary to observe great caution to avoid giving an effect to these Acts which was never contemplated by the Legislature. terms, the whole body of the statute law was repealed; but these repeals went into operation simultaneously with the Revised Statutes, which were substituted for them, and were intended to replace them, with such modifications as were intended to be made by that revision. There was no moment in which the repealing Act stood in force without being replaced by the corresponding provisions of the Revised Statutes. In practical operation and effect, therefore, they are rather to be considered as a continuance and modification of old laws than as an abrogation of those old and the re-enactment of new ones." On the trial in the court below two grounds were urged in defense of the action: Ist, the unconstitutionality of the Act of the State of May 20th, 1861; and, 2d, the repugnancy of its provisions to the Act of Congress of August 30, 1852, ch. 106 (10 Stat., 61). Similar grounds were urged in this court for the re The claim of the plaintiff below for half pilotage fee, resting upon a transaction regarded by the law as a quasi contract, there is no just ground for the position that it fell with the repeal of the statute under which the transac-versal of the judgment. tion was had. When a right has arisen upon a contract, or a transaction in the nature of a 458] contract, authorized by statute, and has been so far perfected that nothing remains to be done by the party asserting it, the repeal of the statute does not affect it, or an action for its enforcement. It has become a vested right which stands independent of the statute. And such is the position of the claim of the plaintiff The unconstitutionality of the Act was asserted from its alleged conflict with the 3d clause of the 8th section of the 1st article, which declares that "The Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The power conferred by this clause is without limitation; it extends to all the subjects of commerce, and to all per |