1874.

UNITED STATES V. WOODRUFT.

We have already noticed that no sale upon credit was intended. There was, therefore, no reason why the vendor should part with anything before the purchase money was paid or tendered.

poned until the measurement at the delivery. | by both parties to ascertain the quality, no Here the timber was fully specified by the de- title passed until these acts were done. We do scription, and by the place where it lay. A not care, however, to review the decisions on 191*] statement of the estimated quantity this subject further, for the stipulation in the was given; the time and place of delivery was contract now under consideration, that the cot designated, as was the price per foot, measured ton should be paid for when weighed, was only off. Credit was also stipulated for. It was one of several provisions tending to the conclusion that the intention of the parties was not the case of selling ascertained chattels for an If this stood alone the con- to effect an immediate passing of the property. ascertainable sum. tract would have passed the property, but it was controlled by the provisions for the possession, carriage and delivery, as well as the measurement and re-adjustment of the price. Many other English cases to the same effect might be cited. See Zagury v. Furnell, 2 Camp., 240; Rugg v. Minett, 11 East, 210; Gilmour v. SupWe do not underple, 11 Moore, P. C., 551. stand that there is any disposition to depart from the doctrine of these cases, or that of Mr. Blackburn's first and second rules. Of course, when nothing remains for the seller to do, when the weighing or measurement stipulated for is incumbent upon the buyer, or when the parties have provisionally agreed that a certain sum shall be taken for the price, subject to future correction, the contract is not within the rules. Turley v. Bates, 2 Hurls. & C., 200, has sometimes been thought a departure from the earIt was lier cases, but we think without reason. the case of the sale of an entire heap of fireclay at two shillings per ton. The buyer was to cart it away and weigh it. He weighed, removed and paid for a part, and refused the rest. It was held the property of the whole heap had passed to him. But here the seller had nothing to do with the weighing or delivery. He had performed all he was required to do, either for ascertaining the quantity or the price. Besides, the jury had found as a fact that the sale was of the whole heap. The case of Kershaw v. Ogden, 3 Hurls. & C., 717, In each of these is in substance the same. cases the contract was in parol, and what it was, necessarily, for a jury.

It is true there are some American decisions, especially in New York, that are not in entire harmony with those we have cited. There are at least some dicta in Crofoot v. Bennett, 2 N. Y., 258, tending to show that specification of the subject in a contract for sale is sufficient to pass the property, though the vendor has the duty still of ascertaining the entire 192*] price by weighing or measuring before delivery. And in Kimberly v. Patchin, 19 N. Y., 330, and Russell v. Carrington, 42 N. Y., 118, it seems to have been ruled that the sale of a specified quantity of grain, part of a larger bulk, with a receipted bill of sale and an order for the grain, passed the title without any actual separation or delivery of the property. These decisions, we think, are not in accordance with the authorities generally in this country. They are in conflict with later decisions in New York. In Kein v. Tupper, 52 N. Y., 553, the English rule was strictly accepted. There it was said by Chief Justice Church, that when anything remains to be done by the vendor to ascertain the identity, quantity or quality of the property, no title passes. That was the case of a sale of a certain number of bales of cotton, described by marks, at so much per pound, and the court said, as the cotton was to be weighed by the vendors to ascertain the quantity, and sampled

The possession was certainly reThe vendors undertook to deliver at tained. Fort Adams. To enable them to carry, and thus deliver, possession was indispensable. The contract also provided that the cotton should be received by De Silva & Co. This agreement to carry and deliver at Fort Adams on the Mississippi, where it was obviously intended the contract should be consummated by the receipt of the cotton and the payment of its price, concurs with other circumstances in indicating a purpose of the parties [*193 that the property was not intended to be changed until the weighing, delivery, receipt Indeed, asand payment took place. So it was regarded in Logan v. Le Mesurier, supra. suming, as the contract warrants, that the sellers were to carry the cotton to a designated place, and to ascertain its quantity and aggregate price by weight before delivery, and assum ing that it was then to be received, and that payment for the whole was to be concurrent with the delivery, it is hard to find any intention that the owners intended to part with their ownership while the cotton lay at Felter's plantation.

Added to this is, we think, a very significant circumstance. The contract shows that a portion of the cotton was not in a condition for delivery. True, it was relatively but a small portion, sufficient, as found by the court, to make about twenty bales. But, as we have noticed, the contract was entire. It was for The purchaser was under no all the crops. obligation to take less than the whole. The subject of the contract was baled cotton, and Lobdell bargained for that. Nothing in the contract, indeed, shows clearly how much of the cotton was unginned, and how much was unbaled, but it reveals that a portion was; and certain it is, it was considered essential that all which had not been ginned, and baled and bagged, should be put into that condition before the vendee was required to accept it. And this the sellers were required to do. So much is clearly implied in the contract. If, then, it be, as asserted in Mr. Blackburn's first rule, that when anything remains to be done by the seller for the purpose of putting the goods into that state in which the purchaser is bound to accept them, or, in other words, into a deliverable condition, the property does not pass, it cannot be held that there was any intention of Gordon, or his principals, to transmit to Lobdell the ownership of the cotton before its delivery and before the payment of its stipulated price. We do not deny that a person may buy chattels in an unfinished condition and acquire the right of property in [*194 them, though possession be retained by the vendor, in order that he may fit them for delivery.

869

But in such a case the intention to pass the ownership by contract cannot be left in doubt. The presumption is against such an intention. It should also be noticed that Lobdell undertook by the contract to furnish the necessary bagging, rope and twine to put the unginned and unbaled cotton in a deliverable state. Obviously this was to be done before the sellers were bound to deliver. It was, therefore, a condition precedent upon which the vendee's right depended. With this condition there was no compliance, and thus neither the vendors nor the vendee did all that it was contemplated and agreed they should do preparatory to the acceptance of the goods, or to bring the cotton to the condition in which it was understood it should be to entitle the sellers to the price stipulated.

In our judgment, therefore, the contract of July 31st, 1863, must be regarded as only an agreement to sell, and not as effecting a transfer of the ownership. It left the property in Elgee, where it was before.

It is hardly necessary to add that the receipt of $30 "in order to confirm the contract," can have no bearing upon the question whether the property passed. The confirmation of the contract and its effect are distinct matters. Whatever may have been thought by some old writers respecting the effect in the transmission of property, of giving and receiving earnest money, it is now considered of no importance, or of the smallest importance. The subject is discussed in Benjamin on Sales, 2d ed., pp. 260-262, and the conclusion is reached that the true legal effect of earnest is simply to afford conclusive evidence that a bargain has been actually completed, with mutual intention that it should be binding on both; and that the inquiry, whether the property has passed in such cases, is to be tested [196 On the other side it has been argued with not by the fact that earnest is given, but by much earnestness, that the provision in the the true nature of the contract concluded by contract, the cotton, from the date thereof, giving the earnest. The author says further, should be at the risk of Lobdell, exhibits an "No case has been found in the books in which intention of the parties that the property the giving of earnest has been held to pass should pass. It must be admitted that when the property in the subject-matter of the sale, a contract of sale has transmitted the property where the completed bargain, if proved in in its subject to the buyer, the law determines, writing, or in any other sufficient manner, in the absence of agreement to the contrary, would not equally have altered the property." that the risk of loss belongs to him. This is consequence of his ownership, though undoubtedly the property may be in one and the risk in another. But it needs no agreement that the buyer shall take the risk, if it is intended the ownership shall pass to him. Hence the stipulation that the cotton should be at the risk of Lobdell after the date of the contract, instead of showing an intention of the parties that the right of property should pass to him, seems rather to indicate a purpose that the ownership should remain unchanged. Else why introduce a provision totally unnecessary? Such was the inference drawn from the introduction of a similar clause in a contract considered in Martineau v. Kitching, L. R., 7 Q. B., 436. There it was stipulated that The result of what we have said is, that 195] the goods should remain at the risk neither Lobdell nor Woodruff and Bouchard, of the sellers, and Lord Cockburn asked "If who claim under him, had any such ownerthe property in the goods had not passed to ship of the cotton as to entitle them or either the buyers, why it was said the goods should of them to sue in the Court of Claims for its remain at the risk of the sellers?" adding fur-proceeds. We come next to the claim of Mrs. ther, "what would be the necessity, what Nutt, executrix of Haller Nutt, deceased. A would be the object and purpose of such a stip. very vigorous argument has been made to us ulation if the property still remained in them. in support of this claim, but we think it canOf course it would be at their risk." It may not be sustained. Assuming that Nutt's conbe asked what, then, was the object of stip-tract with Elgee, made in October, 1863, was ulating that the cotton should be at Lodbell's not illegal, that it was not in violation of the risk if it was not intended to evidence a trans- non-intercourse laws, it still was not such a mission of the title? No doubt some purpose contract as passed the property in the cotton. existed, and we think it may be found in the The finding of the court is, that in October, circumstances in which the parties stood when 1863, Truman Holmes, as the agent of Dr. they contracted. The cotton was in a dis- Nutt, contracted with Elgee for the sale from turbed region of the country. It was in dan him of so much of the 2,100 bales of cotton ger of destruction by the Confederate forces, stowed at Felter's plantation as he (Holmes) and of capture by the United States forces. should get out in safety to a market, for the The sellers undertook to carry and deliver it price of £15 per bale, to be paid in Liverpool. at the landing at Fort Adams. Such a de-*The risk of the cotton till got out to [*197 livery might be rendered impossible by the vicissitudes of the war, and hence it was a reasonable provision that Lodbell should bear the risk, that the sellers should not be answerable in damages in case of Confederate burning or federal capture. To us this is a sufficient explanation of the assumption of the risk by Lodbell, without regarding it as a mutual recognition of a change of ownership.

We are the better satisfied with this conclusion because it works substantial justice, and because it accords with what appears to have been the subsequent understanding of the parties. The bargain was for cash, yet no steps were taken to consummate it until after the cotton was seized in April, 1864. Never, indeed. No tender of the price was made, the cotton was neither weighed, delivered nor received and, throughout, both parties appear to have treated the agreement as merely executory.

be on Mr. Elgee. That this was but an execu. tory contract is very plain. Its subject was indefinite. It was not necessarily the 2,100 bales; not certainly any of them. It was simply so much of them as Holmes should get out in safety to a market. The agreement contemplated that he might never get out any. If so, nothing was agreed to be sold. In fact he never did get out a bale. Whatever else

by military authority, of courts for the trial of civil causes during the civil war, in conquered portions of the insurgent States.

3. Whether a State Court acted within its juris. diction or not, is a question exclusively for the state tribunals.

may be dispensed with, it is certain that there ean be no sale of personal chattels without a specific identification of the thing sold. Which of the whole number of bales could the purchaser say was his? For which of them could he have been compelled to pay? And there is no evidence that Holmes ever received the cotton or any part of it, or asserted any possession, though the sale was on credit, and if the property was his principal's he was en-Argued Feb. 24, 1875. Decided May 3, 1875. titled to remove it at once to a market.

Our attention has been called to the letter addressed by Elgee to Holmes afterwards, which it is argued was itself a sale. It was dated Oct. 8, 1863, and was as follows:

DEAR SIR: It having been agreed on between you and myself that I sell to you all the cotton of Elgee and Chambers now baled and under shed, for the price of fifteen pounds ster: ling per bale, payable in Liverpool, you will cause the same to be placed to my credit with James A. Jackson & Co., of Liverpool.

CAPTAIN TRUMAN HOLMES, Present.
J. K. ELGEE.

4. The legislation of a State may validate the judgments of a State Court in fact, though in giv. ing the judgments the court may have transcended its jurisdiction. [No. 202.]

N ERROR to the Supreme Court of the

State of Louisiana.

court, and, more fully, in the dissenting opinThe case is stated in the opinion of the

ion of Mr. Justice Field.

Messrs. E. & A. C. Janin and Louis Janin for plaintiffs in error:

New Orleans, at the date of the proceedings instituted by the Union Bank against the Mechanics' and Traders' Bank, was in the peacea ble possession of Gen. Butler, and had been since May 6, 1862.

The Venice, 2 Wall., 258, 17 L. ed. 866.

This restored the national territory. The Circassian, 2 Wall., 158, 17 L. ed. 802; U. S. 1872, 40; Woods, Circuit Court J., and the v. Stark, 11 Am. Law Reg. (N. S.) for Jan., cases there referred to. The Grapeshot, Wall., 129, 19 L. ed. 651.

This was not found by the court to have been the contract between the parties. It refers to the former agreement, and evidently it was intended as a direction where to pay the price of the cotton, if any should be got out, and if any purchase money should become New Orleans was then national territory; it due. It had no other purpose. It was not had been purged of secession; it was at that even a delivery order. Much less can it be time in constant communication with the regarded as a bill of sale. And there is no North and the West, and with the seat of govfinding that it was accepted. The only contract, therefore, respecting the sale of the ernment. Congress was in session, and there cotton to Holmes upon which the executrix of was daily communication between the two Dr. Nutt can rely, is that found by the court points. Under these circumstances, where was to have been made; a contract for the sale of so much of the 2,100 bales as Holmes should get out in safety to a market, and that contract passed no property in the cotton.

This disposes of the whole case. The prop erty in the cotton was in Elgee, and neither of the contracts proved devested him of his ownThe result is that his personal ership. 198*] *representatives are entitled to a judg ment for the entire proceeds of the cotton held in trust for the owner.

The judgment of the Court of Claims is reversed, and the record is remitted, with instructions to dismiss the petitions of Woodruff and Bouchard, and Julia A. Nutt, executrix, and to enter a judgment in favor of the personal representatives of John K. Elgee, for the sum found in the Treasury, the net proceeds of the sale of the cotton.

Dissenting, Mr. Justice Bradley, and Mr. Justice Hunt.

the necessity to appoint a judge to try civil cases between two citizens of New Orleans, in June, 1862 If it had been a promissory note. the Union Bank could not have obtained judg ment in the ordinary course of the courts, in the short delay that occurred between the suit and the judgment before Mr. Justice Bell, aocelerated as he was by "orders" from headquarters.

The case of Ex parte Milligan, 4 Wall., 2, 18 L. ed. 281, as we have seen, was for what fense: "Conspiring against the Government of the government alleges to be a millitary of the United States." The whole attempt to sustain the pretension to try the prisoner by a military commission was predicated on the plea of necessity and, as will be seen, it failed. in the proceeding against the Union Bank there was no necessity.

But the extraordinary part of the proceeding is, that the provost judge, who was doubtless a gentleman and a good lawyer, although as a decider of cases he was a mere judicial waif, decided the case in favor of the Mechanics' and

THE MECHANICS & TRADERS' BANK, Traders' Bank. His judgment was not ap

Plffs. in Err.,

v.

THE UNION BANK OF LOUISIANA.

(See S. C., 22 Wall., 276-308.) Commanding General, power of to appoint a judge-creation of courts by military authority-jurisdiction.

1. The Commanding General of the Army which captured New Orleans, and held it in May, 1862, had authority, after the capture of the city, to establish a court and appoint a judge with power to try and adjudicate civil causes.

2. The Constitution did not prohibit the creation,

pealed, nor was error taken to General Butler; but the General ordered him to open the case and reverse his own decision; and this he did, and, as he says, "under orders." Who was the judge? Surely not Bell, for his will, his mind, his judgment were at variance with his decree. We think it clear that General Butler was the judge, and that Bell did but record his decree.

If this be so we have the military commander of a recaptured city ordering one citizen to pay a sum of money to another.

For the law to sustain him see his brief 4 Wall. 8, 18 L. ed. 282, et seq. He was, at the time, supreme legislator, supreme judge and supreme executive. And all without any necessity whatever. U. S. v. Ferreira, 13 How., 41. This, then, is simply a judgment, rendered by a court which never had any jurisdiction and which, without leaving a record of its proceedings, has gone out of existence. We say that its decree was judicially inoperative, and the money paid under it, in virtue of the military order, subjecting the citizen of New Orleans to obedience to its mandates, but paid under protest, did not devest the Mechanics' and Traders' Bank of the ownership of the money so paid; nor did it give the Union Bank a right to it.

Gilbert v. Hollinger, 14 Ann., 445; Beard v. Moranoy, 3 Rob., 121; Holmes v. Henkin, 6 Rob., 54; Dufour v. Camfrano, 11 Mart., 610; Elliott v. Peirsol, 1 Pet., 340; Civ. Code, 2129,

2291.

It is manifest that the national authorities never supposed that General Butler had the power to appoint a provost judge to try cases between the citizens of New Orleans. If so, why did the President, in October, 1862, appoint Judge Peabody to exercise those judicial functions? That the President, as Commander-in-Chief, had the constitutional authority to establish a provisional court in time of war, is conceded. It is so decided in Texas v. White, 7 Wall., 700, 19 L. ed. 227; and in The Grapeshot, 9 Wall., 129, 19 L. ed. 651.

In the latter case the Chief Justice said: "It was a military duty to be performed by the President, 88 Commander-in-Chief, and intrusted as such with the direction of the military force by which the occupation was held." But, because the Constitution gave the power to the President, to appoint judges, it does not follow that every commanding general, every military district, may do so.

removed the case to the Supreme Court, where the judgment of the inferior court was affirmed, and they have now brought the record here for our review.

The facts of this case, so far as they are necessary to a proper understanding of the question raised, are the following:

In May, 1862, after the capture of New Orleans by the United States army, Gen. Butler, then in command of the army at that [*294 place, issued a general order appointing Major J. M. Bell, volunteer aid de-camp, of the division staff, provost judge of the city, and directed that he should be obeyed and respected accordingly. The same order appointed Captain J. H. French provost-marshal of the city, and Captain Stafford deputy provost-marshal. A few days after this order the Union Bank lent to the plaintiffs the sum of $130,000, and subsequently, the loan not having been repaid, brought suit before the provost judge to recover the debt. The defense was taken that the judge had no jurisdiction over civil cases, but judgment was given against the borrowers, and they paid the money under protest. To recover it back is the object of the present suit, and the contention of the plaintiffs is that the judgment was illegal and void, because the Provost Court had no jurisdiction of the case. The judgment of the district court was against the plaintiffs, and this judgment was affirmed by the Supreme Court of the State. To this affirmance error is now assigned.

The argument of the plaintiffs in error is that the establishment of the Provost Court, the appointment of the judge, and his action as such in the case brought by the Union Bank against them are invalid, because in violation of the Constitution of the United States, which vests the judicial power of the General Government in one Supreme Court and in such ininferior courts as Congress may from time to time ordain and establish, and that under this In the case of The Grapeshot, supra, this constitutional provision they were entitled to court, in discussing the authority of the Presi-immunity from any liability imposed by the dent to establish a provisional court in New judgment of the Provost Court. Thus, it is Orleans, refers to Leitensdorfer v. Webb, 20 claimed, a federal question is presented, and How., 176, 15 L. ed. 891, and incidentally to the highest court of the State having decide! Jecker v. Montgomery, 13 How., 498; 18 How., against the immunity claimed, our jurisdiction 110, 15 L. ed. 311, and Cross v. Harrison, 16 is invoked. How., 164. Leitensdorfer's case is altogether different from this.

In that case the appointment and the authority were received from the President, and it did not originate with General Kearney. If General Kearney had of his own mere volition appointed a civil judge, then the case would have been like that of Jecker v. Montgomery, and would have been decided, doubtless, in the

same manner.

Mr. P. Phillips, for defendant in error.

Mr. Justice Strong delivered the opinion of the court:

Assuming that the case is thus brought within our right to review it, the controlling question is, whether the commanding general of the army which captured New Orleans and held it in May, 1862, had authority after the capture of the city to establish a court and appoint a judge with power to try and adjudicate civil causes. Did the Constitution of *the United States prevent the creation [*295 of civil courts in captured districts during the war of the rebellion, and their creation by military authority?

This cannot be said to be an open question. The subject came under consideration by this court in The Grapeshot, 9 Wall., 129, 19 L. ed. 651, where it was decided that when, during the late civil war, portions of the insurgent territory were occupied by the national forces,

This case originated in the Sixth District Court of the Parish of Orleans, in the State of Louisiana, where the plaintiffs sued the Union Bank, to recover $130,000 which they had paid to the defendants under compulsion of the judg-it was within the constitutional authority of ment given by the Provost Court of New Orleans in 1862, when the city was occupied by the United States forces under General Butler. Failing in the District Court, the plaintiffs

the President, as Commander-in-Chief, to es tablish therein provisional courts for the hear ing and determination of all causes arising under the laws of the State or of the United

States, and it was ruled that a court instituted the trial of civil causes during the civil war in by President Lincoln for the State of Louisiana, conquered portions of the insurgent States. with authority to hear, try and determine civil | The establishment of such courts is but the causes, was lawfully authorized to exercise exercise of the ordinary rights of conquest. such jurisdiction. Its establishment by mili- The plaintiffs in error, therefore, had no contary authority was held to be no violation of stitutional immunity against subjection to the constitutional provision that "The judicial *the judgments of such courts. They [*297 power of the United States shall be vested in argue, however, that if this be conceded, still one Supreme Court and in such inferior courts Gen. Butler had no authority to establish such as the Congress may from time to time ordain a court; that the President alone, as Comand establish." That clause of the Constitu-mander-in-Chief, had such authority. We do tion has no application to the abnormal con- not concur in this view. Gen. Butler was in dition of conquered territory in the occupancy command of the conquering and occupying of the conquering army. It refers only to courts of the United States, which military courts are not. As was said in the opinion of the court, delivered by Chief Justice Chase, in The Grapeshot, "It became the duty of the National Government, wherever the insurgent power was overthrown, and the territory which had been dominated by it was occupied by the national forces, to provide, as far as possible, so long as the war continued, for the security of persons and property and for the adminis- Commander-in-Chief. tration of justice. The duty of the National Government in this respect was no other than that which devolves upon a regular belligerent, occupying during war the territory of another belligerent. It was a military duty, to be performed by the President, as Commander-inChief, and intrusted as such with the direction of the military force by which the occupation was held."

army. He was commissioned to carry on the war in Louisiana. He was, therefore, invested with all the powers of making war, except so far as they were denied to him by the Commander-in-Chief, and among these powers, as we have seen, was that of establishing courts in conquered territory. It must be presumed that he acted under the orders of his superior officer, the President, and that his acts, in the prosecution of the war, were the acts of his

Again; it is argued that even if the Provost Court was rightly established, it had no jurisdiction over civil causes. It must be conceded that the order by which the court was created did not define expressly the nature and extent of its jurisdiction. And it is also true that a Provost Court ordinarily has cognizance only of minor criminal offenses; but that a larger jurisdiction may be given to it, by the power 296*] *Thus it has been determined that which brings it into being, is undeniable. the power to establish, by military authority, Whether a larger jurisdiction was conferred courts for the administration of civil as well in the case now under consideration, we are as criminal justice in portions of the insurgent not called upon to determine. It is not a States occupied by the national forces, is pre- federal question. The Supreme Court of cisely the same as that which exists when for- Louisiana decided that Gen. Butler had a eign territory has been conquered and is oc- right, after the capture of New Orleans, in cupied by the conquerors. What that power May, 1862, to appoint a judge to try civil is has several times been considered. In Leitens-cases, notwithstanding the provisions of the dorfer v. Webb, 20 How., 176, 15 L. ed. 891, Constitution. Having determined that he had may be found a notable illustration. Upon the conquest of New Mexico, in 1846, the commanding officer of the conquering army, in virtue of the power of conquest and occupancy, and with the sanction and authority of the President, ordained a provisional government for the country. Exec. Doc., 2d sess. 29 Cong., vol. 3, Doc. 19. The ordinance created courts with both civil and criminal jurisdiction. It did not undertake to change the municipal laws of the territory, but it established a ju dicial system with a superior or appellate *Such a question the plaintiffs allege [*298 court, and with circuit courts, the jurisdiction is presented. Assuming that the judgment of which was declared to embrace, first, all given by the Provost Court in favor of the criminal causes that should not otherwise be Union Bank was void for want of jurisdiction provided for by law; and second, original ex- in the court, they argue that when they paid clusive cognizance of all civil cases not cog- the sum adjudged against them the law nizable before the prefects and alcaldes. But raised an implication of a promise by the Union though these courts and this judicial system Bank to refund it, and that the obligation of were established by the military authority of this contract was impaired by the 149th article the United States, without any legislation of of the State Constitution of 1868. That article Congress, this court ruled that they were law-ordained that all judgments and judicial sales, fully established. And there was no express marriages and executed contracts made in good order for their establishment emanating from the President or the Commander-in-Chief. The ordinance was the act of Gen. Kearney, the commanding officer of the army occupying the conquered territory.

In view of these decisions it is not to be questioned that the Constitution did not prohibit the creation by military authority of courts for

such a right, we have disposed of the question which entitles the case to be heard here, and it is not for us to inquire whether the Provost Court acted within its jurisdiction or not. That is a question exclusively for the state tribunals. In determining, as the State Supreme Court did, that the plaintiffs had no such constitutional immunity as they claim, there was no error. If in other respects errors were committed, they are not reviewable by this court, unless they present some other federal question.

faith and in accordance with existing laws in the State, rendered, made or entered into between the 26th day of January, 1861, and the adoption of the Constitution, should be valid. But if the court was lawfully established, as the Supreme Court of the State decided, the law raised no such promise as is asserted, and the validating clause of the Constitution, there