[Marlatt v. Silk.]

question as making a donation, but as allowing a reasonable compensation, for something of value, on the part of settlers; not of money indeed, paid into the coffers of the state, but of charge and risque incurred by the settlers. We think, then, that the allowance thus made, is, in the language of the compact, a right recognised by the law of Virginia previous to the date of that compact. Considering it as thus recognised, and consequently as secured and confirmed, we come now, in the order of the argument, to the other part of the stipulation aforesaid; which declares, that in disputes thereon, preference shall be given to the elder or prior right, whichever of the said states the same shall have been acquired under.

How is this question of priority to be decided? In answering this question, we think, that the first thing to be done is to ascertain. the character of the rights of the parties, as settled by the laws of the states, under which they respectively claim, as these laws stood at the date of the compact. In this aspect of the subject, it has been seen that the defendants claim under warrants granted by Pennsylvania in 1773, and surveyed in 1778. But the act of Virginia of 1779, having allowed 400 acres of land to those who had made a settlement before the first of January, 1778, and having founded that allowance on the charge and risque which they had incurred; in our judgment, the equitable claim, or the inchoate right of the parties, must consequently be referred, for its commencement, to the period when the charge and risque were incurred-that is, in the case at bar, to the year 1772. If, as we think, this principle be correct, this mere comparison of dates would decide the case. It has, however, been argued, that if this case were in a Virginia court, it would be decided in favour of the right under which the defendants claim, because that is by warrant, before the act of 1779; and in support of this, the court has been referred to the case of Jones v. Williams, 1 Washington, 230, in which the court of appeals of that state says, that before the act of 1779, those lands (that is, lands on which settlements had been made) might have been entered and patented by any person, notwithstanding prior settlements by others. That the act of 1779 applies to controversies between mere settlers. That it does not set up prior rights of this sort, so as to defeat those legally acquired under warrants.

The error of this argument, as we conceive, consists in this; that the doctrine here stated, however true in itself, does not apply to the case at bar. That was laid down, in a case, between two persons,

[Marlatt v. Silk.]

both of whom claimed under Virginia, and was therefore governed by the laws of Virginia, alone; whereas in this case, one of the parties claims under Pennsylvania, and the other, under Virginia; and -the case is to be decided, not by the laws of either state, by themselves: except that as before remarked, the character of each right is to be fixed by the laws of the state, as at the time of the compact under which the right is claimed; and then the comparison between the two is to be made, not under the laws of either state, but under the stipulation in the compact before referred to. Thus to illustrate, the origin of the plaintiff's claim, being, in our opinion, as operated upon by the act of Virginia of 1779, to be referred to the period of Watson's settlement in 1772; and that of the defendants, as affected by the laws of Pennsylvania, being of later date; the foundation being thus laid for deciding which is the prior or elder title; we then apply to the case the compact, which declares, that the preference shall be given to the prior or elder.

We suppose that it will scarcely be denied, that by the act of 1779 Virginia recognised the inception of the title of settlers, as being of the date of the settlement as against herself; if so, can it be imagined, that by the compact, she intended their title to take its date from a later period? If it should be said, that so also Pennsylvania cannot be supposed to have intended to impair the force of the titles claimed under her; the answer, that cach state intended that its own laws should settle the character of the right claimed under it, as to the time of its inception, and in every other respect; and then, that according to the inception thus fixed, the rule of priority should decide, as provided for in the compact.

It was argued, that the question had been settled in the supreme court of Pennsylvania; and the doctrine stated in 12 Wheat. 167, was referred to, where it is said-That this court adopts the state decisions, because they settle the law applicable to the case; and the reasons assigned for this course, apply as well to rules of construction growing out of the common law, as the statute law of the state, when applied to the title of lands. To say nothing of the division of the court, in the case referred to, it is a decisive answer to this argument, to say-That the principle does not at all apply. It was laid down in reference to cases arising under, and to be decided by the laws of a state; and then the decisions of that state are looked to, to ascertain what that law is; whereas in the case at bar, the question arises under, and is to be decided by, a compact between two

[Marlatt v. Silk.]

states: where therefore the rule of decision is not to be collected from the decisions of either state, but is one, if we may so speak, of an international character. Upon the whole, we are of opinion, that the judgment of the court below was erroneous in charging the jury, that the title of the defendants was the elder and prior right, and was therefore protected by the compact; on the contrary, we think that of the plaintiff was the elder and prior: the judgment must therefore be reversed, and a venire facias de novo awarded.

Mr. Chief Justice TANEY and Mr. Justice M'LEAN, dissented.

Mr. Justice M'LEAN.

The Chief Justice and Justice M'LEAN think that the condition of the compact, "that the private property and rights of all persons acquired under, founded on, or recognised by the laws of either country previous to the date hereof, be secured and confirmed to them, although they should be found to fall within the other; and that in disputes thereon, preference shall be given to the elder or prior right, whichever of the said states the same shall be acquired under," placed the land in controversy under the common jurisdiction of both states; and that the first appropriation of the land, under the authority of either state must be considered, under the compact, as the prior right.

The Pennsylvania warrant which was located on this land, was surveyed on the 21st of January, 1778. At this time the Virginia claimant, though he lived on the land, had no colour of right. He was in fact a trespasser.

The Virginia act of 1779 provided, "that all persons, who, at any time before. the 1st of January, 1778, had bona fide settled upon waste or unappropriated lands, on the western waters, to which no other person hath any legal right or claim, shall be allowed four hundred acres," &c.

Now, if the land in controversy was subject to the jurisdiction of both states, and might be appropriated by either, was it not appropriated under the Pennsylvania warrant, before the Virginia claimant had any right under the act of 1779? This is too clear to be controverted. In the language of the compact, then, had not the Pennsylvania claimant "the prior right?"

The act of 1779 does not purport to vest any title in the settler

[Marlatt v. Silk.]

anterior to its passage. The settler, to bring himself within the act, must show that he was a bona fide settler before the 1st of January, 1778; and this entitled him to four hundred acres of land under the act, provided, "no other person had any legal right or claim to it."

At this time the land, as has been shown, was appropriated under the Pennsylvania law, and which appropriation, if effect be given to "the prior right," under the compact, does constitute within the meaning of the act of 1779, a "right or claim to the land."

In 1 Wash. Rep. 231, the court of appeals of Virginia says, that the law of 1779 does not "set up rights so as to defeat those legally acquired under warrants."

This land, by the compact, was considered as liable to be appropriated by a Pennsylvania as by a Virginia warrant, before the act of 1779; and in ascertaining the priority of right the time of the appropriation is the fact to be established.

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 Pennsylvania, 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 reversed, and that this cause be, and the same is hereby remanded to the said district court, with directions to award a venire facias de novo.

CHARLES M'MICKEN, PLAINTIFF IN ERROR V. AMOS WEBB, AARON SMITH, AND IRA SMITH, DEFENDANTS.

M'Micken and Ficklin were in partnership, as merchants, in the state of Louisiana; and at the dissolution of the connection, Ficklin agreed to purchase the half of the stock belonging to M'Micken; and after the partnership was dissolved, gave him, in payment for the same, a promissory note, payable, after its date, to the order of M'Micken and Ficklin, which was executed by Ficklin, Jedediah Smith, and Amos Webb, by which they promised, jointly and severally, to pay the amount of the note. Although the note was made payable to the order of M'Micken and Ficklin, the latter was in no wise interested in it, as the payee thereof. M'Micken is a citizen of Ohio, and the drawers of the note were citizens of the state of LouisiAmos Webb resided in the western district of Louisiana, but when the process in this suit was served upon him he was in New Orleans, in the eastern district. The defendant, Webb, denied the jurisdiction of the district court of the United States for the eastern district of Louisiana, alleging that he was a citizen of the western district. The defendants pleaded in abatement; and to the jurisdiction, that the suit should have been brought in the name of both the payees, and at the time it was given, Ficklin was a citizen of Louisiana; this suit could not, therefore, be brought in the district court of the United States.

ana.

'he residence of a party in another district of a state than that in which the suit is brought in a court of the United States, does not exempt him from the jurisdiction of the court. The division of a state into two or more districts, cannot affect the jurisdiction of the court on account of citizenship. If a party is found in the district in which he is sued, the case is out of the prohibition of the judiciary act, which declares that "no civil suit shall be brought in the courts of the United States, against a defendant, by any original process, in any other district than that whercof he is an inhabitant, or in which he shall be found at the time of serving the writ."

The objection to the jurisdiction of the court, on the ground that the note was given to Ficklin and M‘Micken, and as Ficklin was a citizen of Louisiana, the suit is interdicted by the prohibition of the judiciary act, which declares that the courts of the United States shall not have cognisance of a suit in favour of an assignee of a chose in action, unless a suit could have been prosecuted in said court, for the same, if no assignment had been made, except in cases of foreign bills of exchange; cannot be sustained. Ficklin never had any interest, as payee, in the note. Although the note had been given in the names of both persons, it was for the sole and individual benefit of M'Micken, and there was no interest which Ficklin could assign.

IN error to the district court for the eastern district of Louisiana.

The plaintiff in error filed his petition in the court below, averring that he was a citizen of and resident of the state of Ohio, claiming VOL. XI.-D