United States v. Staats. 8 H. cludes, like the one before us, that every such person shall be guilty of felony, and, on conviction, shall suffer death. The decision, therefore, bears directly upon the question in hand; and, as the principle seems to have been given up in the country from whence it was derived, and, at best, is here but the merest technicality, it is difficult to perceive any ground for still giving effect to it. It would be otherwise, if the felonious intent was descriptive of the offence, and not simply of the punishment. We shall, therefore, direct that it be certified to the court below, that the indictment is not fatally defective, for the reason the acts charged to have been committed by the defendant are not charged to have been committed feloniously, or with a felonious intent. 2. With respect to the second question certified. The court are of opinion that the offence charged in the indictment comes within the statute. The only doubt that can be raised is, whether the writing transmitted or presented to the commissioner in support of the claim for a pension should not, within the meaning of the statute, be an instrument forged, or counterfeited, in the technical sense of the term; and not one genuine as to the execution, but false as it respects the facts embodied in it. The instruments referred to in the first part of the section, the false making or forging of which, with the intent stated, is made an offence, probably are forged instruments in a strict technical sense; and there is force, therefore, in the argument, that the subsequent clause, making the transmission or presentation of deeds or other writings to an officer of the government a similar offence, had reference to the same description of instruments. [ * 47 ] * But this is by no means a necessary conclusion upon the words of the statute. Indeed, upon this construction, it is not easy to see the materiality of the clause; because the uttering and publishing of the forged instruments mentioned in the first clause as true, is made an offence, the same as the forging; and it is quite clear, that the acts provided against in the subsequent clause amount to an uttering and publishing. If restrained, therefore, to forged instruments, the clause would seem to be unnecessary. The deeds and other writings mentioned are not connected with those in the preceding paragraph, as would have been natural, and almost of course, if intended to describe similar instruments. The language is, "any deed, power of attorney," &c.; not, the aforesaid deed, which words must be in effect interpolated, upon the construction contended for. The clause, therefore, may well be regarded as providing for a dis Surgett v. Lapice. 8 H. tinct and independent offence,-one essential to the protection of the government against fraudulent claims; and which consists in the transmission or presentation of false or counterfeit papers to any officers of the government in support of an account or claim, with intent to defraud. The case is within the mischief intended to be guarded against; and, also, within the words; and we think the considerations urged, founded upon the form and structure of the general provision, though plausible, and calculated to excite doubts, not sufficient to take it out of them. A genuine instrument containing a false statement of facts, used in support of a claim, the party knowing it to be false, and using it with the intent to defraud, presents a case not distinguishable in principle, or in turpitude, or in its mischievous effects, from one in which every part of the instrument is fabricated; and when the one is as fully within the words of the statute as the other, we may well suppose that it was intended to embrace it. We shall direct, therefore, that it be certified to the court below, that the acts charged in the said indictment to have been committed by the defendant do constitute an offence within the provisions of the act above referred to. FRANCIS SURGETT, Appellant, v. PETER M. LAPICE and EDWARD WHITTLESEY. 8 H. 48. The proviso contained in the act of June 15, 1832, (4 Stats. at Large, 534,) requiring the claimant of back lands in Louisiana to give notice of his claim before proclamation of sale by the President, was prospective merely, and did not apply to a case where proclamation of sale had been made before the passage of the act. The proviso in the fifth section of the act of March 3, 1811, (2 Stats. at Large, 663,) excluding from the right of preëmption back lands, “fit for cultivation, bordering on another river, creek, bayou, or watercourse," refers only to lands bordering on some navigable water, and which also are fit for cultivation. I a case, which in its nature and objects is a suit in equity, is removed from a state court of Louisiana to the circuit court of the United States, it must be proceeded with, by the latter court, like other cases in equity; and it must be brought here on appeal, not by a writ of error. APPEAL from the circuit court of the United States for the district of Louisiana. Lawrence and Jones, for the appellant. Brown and Johnson, (attorney-general,) contrà. [ *64 ] Surgett v. Lapice. 8 H. * CATRON, J., delivered the opinion of the court. 1. On the facts appearing in the record, a motion was made to dismiss the suit for want of jurisdiction, because it was brought here by appeal, which brings before the revising court all the evidence; whereas, had a writ of error been brought, such parts of the evidence only could have been considered as were presented by bills of exception. This motion has been held up for a length of time, and is now considered with the merits, and the inquiry standing in advance of the merits is, whether the appeal shall be dismissed. The suit was commenced in a state district court, according to a prescribed form of practice in Louisiana, and removed by the defendant from the state court to the circuit court of the United States, where the same mode of pleading and practice was necessarily pursued that would have been, had the cause continued in the state court, and been there adjudged; it therefore comes here as an anomalous case. The proceeding was commenced by Lapice and Whittlesey; they asked to have a cloud removed from their title, which they alleged was embarrassed by a pretended and illegal claim of Surgett to a back concession, of anterior date to their title, and for the same land. Surgett came in, and set forth his claim; it was purely equitable in its character, in the sense of the term "equity," as denominated in the constitution and acts of congress; this claim Surgett, (by a petition in his answer,) by way of reconvention, asked to have enforced against Lapice and Whittlesey. He thereby became complainant. The character of Lapice and Whittlesey's title is not in controversy; both sides admit that it is a legal and valid title on its face, and as against the United States indisputable; but Surgett sets up a right of preference to entry of the same land at the time when the entries were made under which Lapice and Whittlesey claim, and the question is, how was the circuit court to deal with the matter when an appeal or writ of error was demanded, as the one or the other the judge was compelled to allow; he was called on for a de[ *65] cree by *each party, as on bill and cross-bill in an ordinary chancery proceeding, and did decree that Lapice and Whittlesey should be quieted in their title to, and possession of, the land in, controversy, and that Surgett should be forever enjoined from setting up any claim or pretension to the same; and so he might have decreed the other way; and although, by the laws of Louisiana, a jury might have been called in a state court to aid in ascertaining the facts, yet, as none was required by the parties in the circuit court, and the cause was heard by the court alone, and a decree rendered, we think the mere fact that a state court might employ a jury does not affect the character of the proceedings actually had in the circuit Surgett v. Lapice. 8 H. court. In other States, juries are frequently employed by the chancellors when hearing causes, as in Kentucky, where it is required by a statute; yet if an ordinary suit in equity was removed from a state court to the circuit court, (United States,) in a district where, by the state statutes, a jury was required to find contested facts, still, the circuit court would not be required to resort to a jury, nor could it do so. And we take occasion here to say, that, had the circuit court submitted the cause to a jury in this instance, we should have deemed it improper, although demanded by either side. Our opinion, there fore, is, that there was litigated in the circuit court a mere equitable title, in a form impressed on the proceeding in a state court, and a decree pronounced as a court of equity would have done in a regular course of proceeding in chancery; and that the merits of the cause could only be reviewed on appeal. But as several cases have been dismissed from this court because they were brought here by appeal instead of a writ of error, it is insisted that this rests on the same grounds of those that have been dismissed, and the case of the United States v. King, 3 and 7 How. 773 and 844, has been much relied on to show that this cause cannot be brought here by appeal. But that was not an action of title to quiet the plaintiff in possession of his land, but was a petitory action brought by the United States to recover land which was in the possession of the defendant, and to which the United States claimed a legal title. The suit was in the nature of an ejectment in a court of common law, and was therefore strictly an action at law, and in no respect analogous to a proceeding in equity to remove a cloud from the title of a party who not only holds the legal title, but is also actually in possession of the land in dispute; and as the United States cannot be sued in reconvention, if the defendant had claimed an equitable title in that case, it would have been no defence, because he could not make the United States a defendant, [66] and himself a plaintiff, by a suit in reconvention. The whole proceedings were necessarily proceedings at law, and could therefore be removed by writ of error only, and not by appeal. And substantially of the same character were all the cases relied on by counsel to dismiss this appeal; none of them resembled the case before us in any material degree, certainly not enough to govern it, and the jurisdiction is consequently sustained. * 2. We come in the next place to discuss the merits; and here some general considerations present themselves. On the first settlement of Lower Louisiana, the nature of the country imposed on the governments who successively held it a peculiar policy in granting land to individual proprietors; the Mississippi River overflowed its Surgett v. Lapice. 8 H. banks annually, and to overcome this impediment to cultivation, and to reclaim the back lands, heavy embankments had to be thrown up on the sides of the river, so as to keep the water at flood-tide within the channel; and these embankments had to be connected and continuous for a great distance, otherwise the whole country would be submerged; and the king's domain was resorted to as a means of securing the country from overflow, and of reclaiming it to a great extent; and individual proprietors were relied on to do that which, in other countries at all similarly situated, was a great national work; and it is matter of surprise how much the policy accomplished with such feeble and questionable means. The grants were not large, and fronted on the river only to the extent of from two to eight arpens as a general rule, and almost uniformly extended forty arpens back; to these front grants the Spanish government reserved the back lands, to another depth of forty arpens; and although few if any grants were made of back lands in favor of front proprietors, still, they were never granted by the Spanish government to any other proprietor, but used for the purpose of obtaining fuel and for pasturage by the front owners, so that, for all practical purposes, they were the beneficial proprietors, subject to the policy of levees, and of guarded protection to front owners. We took possession of Lower Louisiana in 1804. In 1805, commissioners were appointed, according to an act of congress,1 to report on the French and Spanish claims in that section of country, and by the act of April 21, 1806,2 it was made a part of their duty "to inquire into the nature and extent of the claims which may arise from a right, or supposed right, to a double or additional concession on the back of grants or [* 67 ] concessions heretofore made," previous to the transfer * of government," and to make a special report thereon to the secretary of the treasury, which report shall be by him laid before. congress, at their next ensuing session. And the lands which may be embraced by such report shall not be otherwise disposed of, until a decision of congress shall have been had thereon." The commissioners were engaged nearly six years in the various and complicated duties imposed on them, and then reported, that, by the laws and usages of the Spanish government, no front proprietor by his own act could acquire a right to land further back than the ordinary depth of forty arpens, and although that government invariably refused to grant the second depth to any other than the front proprietor, yet nothing short of a grant or warrant of survey from the governor could confer a title or right to the land; wherefore they rejected claims for the second depth, as not having passed as private 12 Stats. at Large, 324. 22 Ib. 391. |