the language used, as he was speaking of the contract in the instrument assigned, not of the sale or transfer of it. We have looked simply at the question of jurisdiction in the case, as that is the only question raised by the plea, and as we are satisfied that the demurrer to it is well taken, the judgment of the court below should be reversed, with costs, and proceedings remitted, with directions that judgment be given for the plaintiff that the defendant answer over. Taney, C. J., Catron, J., Daniel, J., and Campbell, J., dissented. CATRON, J., dissenting. The defendant, Dodge, was treasurer and tax-collector of Cuyahoga county in Ohio, for the year 1852. There was assessed on the tax list of that year, against the Bank of Cleveland, $10,580; against the Merchants Bank of Cleveland, $7,965; on the Canal Bank of Cleveland, $9,216; and on the Commercial Bank of Cleveland, $11,981-making $38,981. These respective amounts were distrained in bank-notes from each bank, and deposited by the tax-collector with the Cleveland Insurance Company, to his credit. As the four banks whose property was distrained were incapable of suing the tax-collector (who was a citizen of Ohio) in the circuit court of the United States, they joined in a written transfer of the bank-notes to John G. Deshler, the plaintiff, a citizen of New York, and he obtained a writ of replevin, and process founded on it, out of the circuit court of the United States, and declared as a citizen of New York. The defendant, Dodge, pleaded in abatement, alleging that the causes of action are not within the jurisdiction of the court; to which plea there was a demurrer. The first question is, whether this plea in abatement is the proper defence, or should the plea have been in bar. The plea sets forth the distress for taxes due and unpaid from the banks to the State; that the defendant, Dodge, was the tax-collector, and had the proper authority to make the distress, and did distrain, by virtue of his authority. By the laws of England, replevin [* 633] does not lie for goods taken in execution; nor in cases where goods are taken by distress according to an act of parliament, this being in the nature of an execution. 7 Bac. Ab. Replevin and Avowry, C. 71; 6 Comyns's Digest, Replevin, D. 218; Ilsley v. Stubbs, 5 Mass. 283, per Parsons, C. J. So the statute of Ohio, under which the proceeding in this case was had, gives the writ of replevin, and prescribes the mode of proceeding, requiring an affidavit from the owner (or his agent) that the Deshler v. Dodge. 16 H. goods were his, that they are wrongfully detained by the defendants; "and that said goods and chattels were not taken in the execution, on any judgment against said plaintiff, nor for the payment of any tax, fine, or amercement assessed against the plaintiff;" and it is further provided that any writ of replevin, issued without such affidavit, shall be quashed at the costs of the clerk issuing it; and that he and the plaintiff shall be liable in damages to the party injured. This affidavit Deshler made, and got the property into his possession on giving bond as the law requires. The plea distinctly shows that the property was in a condition not to be taken by the writ of replevin, and that the circuit court had no jurisdiction to issue the writ, or in anywise interfere with the property by that suit in replevin; and there being no jurisdiction to try title, or proceed further, the plea in abatement was the proper one. And so are the American decisions. Shaw v. Levy, 17 Serg. & Rawle, 99. The next question is, whether these corporations could lawfully assign to a third person their rights of action, to property out of their possession, and held adversely? On common-law principles, such an assignment is champerty. Blackstone says, (vol 4, 135,) champart, in French law, signified a similar division of profits: "In our sense of the word, it signifies the purchasing of a suit, or right of suing; a practice so much abhorred by our law, that it is one main reason why a chose in action, or thing of which one hath the right, but not the possession, is not assignable at common law; because no man should purchase any pretence to sue in another's right." I am not aware that this, as a general rule, has been disputed. It therefore follows, as I think, that the assignment was void, and that the causes of action belonged to the four banks as if it had never been made; and they alone, having the right to sue in any form, and being citizens of Ohio, no power to interfere with the tax-collector, Dodge, or the property distrained, existed in the United States court, A principal objection that I have heard urged is, that as the plea sets forth matter in bar, and commences and concludes in abatement, it is bad for this reason: If we were allowed to rely on such a barren technicality, the assumption is not well founded. *In [634] a replevin for goods the defendant may plead property in another, (or that the goods were taken in execution,) either in abate. ment or bar. 1 Chit. Pl. 446; Ilsley v. Stubbs, 5 Mass. 284-5; 1 Johns. 380; 1 Salk. 5. As the plaintiff had no title that he could assert, it is of no conse. 28 VOL. XXI. Deshler v. Dodge. 16 H. quence to him who has, say some of the authorities; but if this second ground was doubtful, it is cured by the act of jeofails. The thirty-second section of the judiciary act declares that no proceeding in civil causes shall be quashed or reversed, for any defect of want of form, but that the courts shall proceed and give judgment according to the right of the cause without regarding such defects, or want of form in any pleading, except in cases of demurrer, where the party demurring shall have specially set down and expressed in his demurrer, the causes thereof. The demurrer here is general, and no mere technicality was allowable. "The right of the matter in law," in this case, involves a very grave consideration, such as would, in all probability, deeply disturb the harmony of the Union, if tax payers in larger classes could combine together, let their property be distrained, and then assign it to a third person, a citizen of another State, and on the same day, as in this case, take it from the state authority by a federal court writ, and let it be taken beyond the state's jurisdiction. It was said by the supreme court of Pennsylvania, in a case where property had been seized for taxes due, and taken from the officer's possession by a writ of replevin, " that the court will not support this form of action in such a case, nor suffer such an abuse of their process. If one man may bring replevin where his goods have been taken for taxes, so may every other person; and thus the collection of all taxes might be evaded. Independently of the act of assembly, we are bound to quash this writ." Stiles v. Griffith, 3 Yeates's Rep. 82. I deem the case before us to have been a very disreputable proceeding. The officers of these banks could not make the necessary oath required to obtain a writ of replevin; and to evade the laws of Ohio, the device of an assignment, of their separate causes of action to a non-resident was resorted to, who could swear that this property was not distrained for his taxes, and thus apparently comply with the law, so far as an oath was required; whereas he violated its spirit, to bring into a tribunal of the Union a controversy that a state court would not sanction, by practising a fraud on the laws of Ohio, and a fraud on the constitution of the United States. And what adds to the grossness of this transaction is, the attempt to assign and vest in this plaintiff divers causes of action, by separate assign[* 635] ors, thus seeking to practise champerty, in a form and to an extent not heretofore devised. If four could assign, and their claims be combined in one suit, by the assignee, so could as many hundreds. To sanction the validity of an assignment to a nonresident, of property adversely held, and let him sustain a suit for it, Doe v. Braden. 16 H. would throw open the United States courts to every matter of litigation where property was in dispute exceeding the value of five hundred dollars. I feel quite confident that the constitution did not contemplate this mode of acquiring jurisdiction to the courts of the Union, and am of opinion, that the judgment of the circuit court, sustaining the plea, ought to be affirmed. DANIEL, J. I, also, dissent from the opinion of the court in this case, and concur in the views so conclusively taken of it by my brother Catron. 18 H. 331. JOHN DOE, on the demise of LOT CLARK, DAVID CLARKSON, JOSEPH D. BEERS, ANDREW TALCOTT, BRANTZ MAYER, and HARRIET HACKLEY, Plaintiff in Error, v. JOSEPH ADDISON BRADEN. 16 H. 635. The grant of lands in Florida by the king of Spain to the duke of Alagon, whether it takes date from the royal order of December 17, 1817, or from the grant of February 6, 1818, and whether the title was held by him or his assignee, is annulled by the treaty between the United States and the king of Spain, signed February 22, 1819, by virtue of the declaration to that effect, made by the President of the United States, on presenting the treaty for an exchange of ratifications, and assented to by the king in writing, and again ratified by the senate of the United States. Whether the king of Spain had power thus to annul a grant, is a question, foreclosed, in every judicial tribunal of the United States, by the action of the President and senate. treating with him as having that power. THE case is stated in the opinion of the court. Mayer and Johnson, for the plaintiff. Cushing, (attorney-general,) contrà. * TANEY, C. J., delivered the opinion of the court. This controversy has arisen out of the treaty1 with Spain by which Florida was ceded to the United States. [*654] The suit is brought by the plaintiff in error against the defendant to recover certain lands in the State of Florida. It is an action of ejectment. And the plaintiff claims title under a grant from the king of Spain to the duke of Alagon. This is the foundation of his title. And if this grant is null and void by the laws of the United States, the action cannot be maintained. The treaty in question was negotiated at Washington, by Mr. 18 Stats. at Large, 252. Doe v. Braden. 16 H. Adams, then secretary of state, and Don Louis De Onis, the Spanish minister. It was signed on the 22d of February, 1819; and by its terms the ratifications were to be exchanged within six months from its date. It appears, from the treaty, that the negotiations commenced on the 24th of January, 1818, by a proposition from the Spanish gov. ernment to cede the Floridas to the United States. The grant to the duke of Alagon, bears date February 6, in the same year, and consequently, was made after the king of Spain had authorized his minister to negotiate a treaty for the cession of the territory, and after the negotiation had actually commenced. It embraces ten or twelve millions of acres. The fact that this grant had been made, came to the knowledge of the secretary pending the negotiation; and he also learned that two other grants,-one to the Count of Puñonrostro, and the other to Don Pedro de Vargas, each containing some millions of acres, had also been made under like circumstances. These three grants cov ered all, or nearly all, of the public domain in the territory proposed to be ceded. And the secretary naturally and justly considered that grants of this description, made while the negotiation was pending, and without the knowledge or consent of the United States, were acts of bad faith on the part of Spain, and would be highly injurious to the interests of the United States, if Florida became a [*655] part of *their territory. For the possession and ownership of such vast tracts of country, by three individuals, would be altogether inconsistent with the principles and policy on which this government is founded. It would have greatly retarded its settlement, and diminished its value to the citizens of the United States. For no one could have become a landholder in this new territory without the permission of these individuals, and upon such conditions and at such prices as they might choose to exact. Acting upon these considerations, the secretary insisted that if the negotiations resulted in a treaty of cession, an article should be inserted by which these three grants, and any others made under similar circumstances, should be annulled by the Spanish government. The demand was so obviously just, and the conduct of Spain, in this respect, so evidently indefensible, that after much hesitation it was acceded to, and the 8th article introduced into the treaty to accomplish the object. By this article, "all grants made since the 24th of January, 1818, when the first proposal on the part of his Catholic majesty for the cession of the Floridas was made, are thereby declared and agreed to be null and void;" and all grants made before that day, are confirmed. |
