Bell v. Corporation of Vicksburg. grants confirmed to individuals, the district court was empowered to settle those questions upon a proper case being submitted to it before the issue of the patent; and in such a case the judgment may properly extend to the confirmation of the survey, and an order for a patent to issue. But it was not the expectation of this court that the surveyor general should make returns to the district. court in every case, nor did they imply that the validity of a survey depended on the recognition of that court, or its incorporation into a decree of the court. The surveyor general of California was charged with the duty to cause all private claims which shall be finally confirmed to be accurately surveyed, and to furnish plats for the same; and in the location * of the said claims, [* 443] he was invested with such power and authority as are conferred on the register of the land office and receiver of the public moneys of Louisiana, in the sixth section of the "Act to create the office of surveyor of the public lands for the State of Louisiana,' approved 3d March, 1831. 4 Statutes at Large, 492. Under this act, the surveyor general exercises a quasi judicial power; and the claimant, with an authentic certificate of the decree of confirmation, and a plat or survey of the land, duly certified and approved by the surveyor general, is entitled to a patent. But, then, the commissioner of the land office, by virtue of enabling acts of congress, exercises a supervision and control over the acts of the subordinate officers charged with making surveys; and it is his duty to see that the location and survey made by that officer under the decree of the court, and which has not had the final sanction of the judicial tribunals, is in accordance with the decree. The refusal of the commissioner of the land office to issue a patent upon this survey was an appropriate exercise of the functions of his office, and the decree of the circuit court refusing a mandamus is affirmed with. costs. THOMAS BELL, Plaintiff in Error, v. THE MAYOR AND COUNCIL OF THE CITY OF VICKSBURG. 23 H. 443. PRACTICE IN CIRCUIT COURTS-STATE PRACTICE. Though, as a general principle, a plea is not demurrable because not verified by oath, as the statute requires, but the objection must be raised by motion, yet where the State court has held that the omission of the verification is good ground of demur rer, the circuit court should follow the rule of the State court on that subject. WRIT of error to the circuit court for the southern district of Mississippi. The case is sufficiently stated in the opinion. Bell v. Corporation of Vicksburg. Mr. Benjamin, for plaintiff in error. Mr. Badger and Mr. Carlisle, for defendants. [* 444] * Mr. Justice CAMPBELL delivered the opinion of the court. The plaintiff instituted this suit upon a sealed instrument, made in the name of the city of Vicksburg, payable to bearer. The defendant pleaded fifteen pleas; to ten of which the plaintiff demurred, and judgment was rendered for the defendant on the demurrer. Some of these pleas involved important questions touching the validity of the instrument, which have, since the decision of the circuit court, been the subject of discussion in the supreme court of Mississippi and in this court. It is conceded that nine of the pleas were insufficient, and that the demurrers should have been sustained to them. The remaining plea is the ordinary non est factum. This was filed without an affidavit of its truth, and this is required by a statute of Mississippi to authorize its reception. But the defendant contends that it is the office of a demurrer to call in question the sufficiency of a declaration or other pleading upon what appears upon its face, without reference to any extrinsic matter; that the affidavit is not a part of the plea; it is only that which is necessary to authorize the plea to be placed on file, and it may be waived either expressly or by implication. The filing of the plea is only irregular, and a demurrer or replication to it is a waiver. Upon the general principles of pleading, we assent to the accuracy of this argument. Commercial and R. R. Bank of Vicksburg, 13 Pet. 60. But in courts of States in which this statute exists, a plea of non est factum, without the affidavit required by it, is demurrable. Such is the practice in Mississippi. [ * 445 ] Smith v. Com. Bank of Rodney, 6 S. & M. 83. Bancroft v. Paine, 15 Ala. 834; 4 Ala. 198. We do not question the power of the circuit court to maintain the rules of pleading in the manner of applying the statutes of a State, or it may adopt the usual practice in the State, if not contrary to an act of Congress. We learn that the course of practice in the circuit court conforms to the State practice. We suppose that it would be a surprise upon the plaintiff, and might work injustice, if we were to sustain the plea under such circumstances. Judgment reversed and cause remanded. Frederickson v. The State of Louisiuna. FREDERICK FREDERICKSON and others, Plaintiffs in Error, v. THE STATE OF LOUISIANA. 23 H. 445. CONSTRUCTION OF TREATY WITH WURTEMBERG CONCERNING TRANSFER AND DESCENT OF PERSONAL PROPERTY. The treaty with Wurtemberg, which provides that "the citizens or subjects of each of the contracting parties shall have power to dispose of their personal property within the States of the other, by testament, donation, or otherwise; and their heirs, legatees, and donees, being citizens or subjects of the other contracting party, shall succeed to their said personal property, and may take possession thereof and dispose of the same at their pleasure, paying such duties as the inhabitants of the country where the property lies shall be liable to pay in like cases," has no application to the property of a naturalized citizen of the United States dying in Louisiana. His property is governed in this respect by the same rule as other citizens of Louisiana; and though formerly a citizen of Wurtemberg, he has no rights under that clause of the treaty. WRIT of error to the supreme court of Louisiana. fully stated in the opinion. Mr. Taylor, for plaintiffs in error.. Mr. Benjamin, for defendant. The case is *Mr. Justice CAMBPELL delivered the opinion of the court. [* 446] The defendant in error made opposition to the account filed in the settlement of the succession of John David Fink, deceased, in the second district court of New Orleans, because the executor did not place on the tableau ten per cent. upon the amounts respectively allowed to certain legatees, who are subjects of the king of Wurtemberg. By a statute of Louisiana, it is provided that "each and every person, not being domiciliated in this State, and not being a citizen of any other State or territory in the Union, who shall be entitled, whether as heirs, legatee, or donee, to the whole or any part of the succession of a person deceased, whether such person shall have died in this State, or elsewhere, shall pay a tax of ten per cent. on all sums, or on the value of all property which he may have actually received from said succession, or so much thereof as is situated in this State, after deducting all debts due by the succession." The claim of the State of Louisiana was resisted in the district court, on the ground that it is contrary to the provisions of the third article of the convention between the United States of America and his majesty the king of Wurtemberg, of the 10th April, 1844. That article is, that "the citizens or subjects of each of the contracting parties shall have power to dispose Frederickson v. The State of Louisiana. of their personal property within the States of the other, [*447] by testament, donation, or otherwise; and their heirs, legatees, and donees, being citizens or subjects of the other contracting party, shall succeed to their said personal property, and may take possession thereof, either by themselves, or by others acting for them, and dispose of the same at their pleasure, paying such duties only as the inhabitants of the country where the said property lies shall be liable to pay in like cases." This court, in Mager v. Grima, 8 How. S. C. R. 499, decided that the act of the legislature of Louisiana was nothing more than the exercise of the power which every State or sovereignty possesses of regulating the manner and terms upon which property, real and 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. The case before the district court in Louisiana concerned the distribution of the succession of a citizen of that State, and of property situated there. The act of the legislature under review does not make any discrimination between citizens of the State and aliens in the same circumstances. A citizen of Louisiana domiciliated abroad is subject to this tax. The State v. Poydras, 9 La. Ann. R. 165; therefore, if this article of the treaty comprised the succession of a citizen of Louisiana, the complaint of the foreign legatees would not be justified. They are subject to 'only such duties as are exacted from citizens of Louisiana under the same circumstances." But we concur with the supreme court of Louisiana in the opinion that the treaty does not regulate the testamentary dispositions of citizens or subjects of the contracting powers, in reference to property within the country of their origin or citizenship. The cause of the treaty was, that the citizens and subjects of each of the contracting powers were or might be subject to onerous taxes upon property possessed by them within the States of the other, by reason of their alienage, and its purpose was to enable such persons to dispose of their property, paying such duties only as the inhabitants of the country where the property lies pay under like conditions. The case of a citizen or subject of the respective countries residing at home, and disposing of prop erty there in favor of a citizen or subject of the other, was [* 448] not in the contemplation of the contracting powers, and is not embraced in this article of the treaty. This view of the treaty disposes of this cause upon the grounds on which it was determined in the supreme court of Louisiana. It has been suggested in the argument of this case, that the government of the United States is incompetent to regulate testamentary dispositions Whitridge v. Dill. or laws of inheritance of foreigners, in reference to property within. the States. The question is one of great magnitude, but it is not important in the decision of this cause, and we consequently abstain from entering upon its consideration. The judgment of the supreme court of Louisiana is affirmed. THE FANNIE CROCKER. THOMAS WHITRIDGE and others, Appellants, v. JOSHUA DILL and others. 23 H. 448. ADMIRALTY-COLLISION. 1. Where two sailing vessels are approaching each other in converging lines, and the one in the rear is the heaviest and the fastest sailer, it is her special duty to give way if there is danger of collision as they approach. 2. A vessel is in fault for want of a sufficient lookout, when the only lookout is so engaged in working the sails that he does not discover a vessel ahead of or parallel with his until too late to avoid a collision. APPEAL from the circuit court for the district of Maryland. The facts are very fully stated in the opinion. Mr. Brown and Mr. Brune, for appellants Mr. Latrobe, for appellees. *Mr. Justice CLIFFORD delivered the opinion of the court. [* 449 ] This is an appeal from a decree of the circuit court of the United States for the district of Maryland. The libel was filed in the district court on the thirty-first day of March, 1855. It was a proceeding in rem against the schooner Fannie Crocker, and was instituted by the libelants, as the owners of the schooner Henry R. Smith, to recover damages on account of a collision which took: place between those vessels on the ninth day of March, 1855, in the Chesapeake bay, whereby the latter vessel was run down and totally lost. As alleged by the libelants, their vessel sailed the day previous to the collision, from Hampton roads, in the State of Virginia, laden with a valuable cargo of oysters, and bound on a voyage to New Haven, in the State of Connecticut. They also allege that at half-past eight o'clock, in the evening of the day of the collision, the wind being then from the northwest, and blowing a fresh breeze, and when their schooner was heading one point to the eastward of north, close hauled on the wind, an 23h 448 L-ed 581 36f 271 |