CLIFFORD. Circuit Justice.
Three questions are raised by the demurrer .for the con[523]*523sideration of the court. But for the sake of convenience, the order in which they are presented in the pleadings will be reversed. They are as follows: (1) Whether the plea is sufficient in point of form; and if so, then, (2) whether the record of the former suit and judgment set forth in the plea is of a character to operate as a final and conclusive determination of the title of the parties in the court of the state where it was made; and if both of these questions are found in favor of the tenants, then, (S) whether a judgment upon the merits rendered in this state, by a court having jurisdiction of the parties and the cause, in a plea of land, commenced and prosecuted by a writ of entry, is a bar to a writ of right subsequently prosecuted between the same parties, and for the same premises, in the federal courts.
It is insisted by the demandant that the plea is double, and therefore bad in point of form, because it sets forth the proceedings in the court on the application of the demandant to amend the record, which proceedings took place subsequent to the rendition of the judgment, and are no part of the same. That suggestion would certainly have weight, if those allegations of the plea were necessary to maintain the defence set up by the tenants; and it would clearly be well founded, under the circumstances of this case, if the other matters set forth in the plea did not remain in full force, and wholly unaffected by those allegations. But it is obvious, if the judgment without those proceedings is of a character to operate as a final and conclusive determination of the title of the parties, then those proceedings are entirely immaterial to the issue of law raised by the demurrer; and if the judgment was not of such a character at the time the record of the judgment was made, still those proceedings are equally immaterial, because the record yet remains without any alteration whatever; so that the question whether the payment is or is not a bar to this suit, in any view that can be ! taken of the question, is wholly unaffected by those proceedings. According to the well-settled rules of pleading, therefore, the allegations of the .plea setting forth those proceedings, which in themselves are entirely immaterial, may be rejected as surplusage; and if the other matters set forth in the .plea are well pleaded, and constitute a sufficient answer to the declaration, the allegations setting forth those proceedings do not vitiate the plea. Examples may be found where the immaterial averment is descriptive of the matter in controversy, or where the immaterial matter is so interwoven with the substance of the plea that the whole allegation becomes material and is subject to a traverse; but the present ease falls within the well-known rule, that if the matter unnecessarily stated be wholly foreign and irrelevant to the cause, so that no allegation on the subject whatever was necessary, it may be rejected as surplusage, and need not be proved; nor will it vitiate even on a special demurrer. 1 Chit. Pl. (12th Am. Ed.) 229; Steph. Pl. 423; Co. Litt. 303b.
In the second place, it is insisted by the demandant that a judgment of nonsuit is never a bar to a new suit, and that the judgment set forth in the plea is a judgment of nonsuit That proposition, being twofold, presents two questions which will be separately considered. While the tenants do not controvert the first branch of the proposition, they expressly deny that the judgment in question is one of nonsuit, or that it was so intended or understood by the court before whom it was rendered. Nonsuit at common law was a mere default or neglect of the plaintiff to pursue his remedy, and therefore he was allowed to begin his suit again upon payment of costs. 3 Shars. Bl. 290. Courts of justice could determine nothing at common law, unless both parties were present in person or by their attorneys, except in cases of default. In the course of the pleading, therefore, if either party neglected to put in his declaration, plea, replication, or the like, within the times allotted by the rules of the court, the plaintiff, if the omission was his, was said to be nonsuit; or if the negligence was on the side of the defendant, judgment was rendered against him for his default Such a judgment, when rendered against the plaintiff, was only for the costs of the suit, and upon the payment of the same he might bring a new action. Those rules of practice substantially obtain at the present tíme, and accordingly it has been determined by the highest authority that a judgment of nonsuit, even upon an agreed statement of facts, cannot be pleaded in bar to a new suit, although it -was rendered by a court of competent jurisdiction, and was between the same parties and for the same subject-matter. Homer v. Brown, 16 How. [57 U. S. 354; Morgan v. Bliss, 2 Mass. 113; Knox v. Waldoborough, 5 Me. 185; Bridge v. Sumner, 1 Pick. 371: Wade v. Howard, 8 Pick. 353. These cases fully justify the first branch of the proposition assumed by the demandant; but it by no means follows, as will presently appear, that all of the deductions attempted to be made from the admission can be sustained. Assuming that a judgment of nonsuit is not a bar to a new action, the more important inquiry arises in the case, what is the true nature of the judgment set up in the plea. To show that it is a judgment of nonsuit, and nothing more, the attention of the court is drawn by the counsel of the demandant to the various kinds of judgment as known and understood at common law. He assumes, in the language of a learned commentator, that the judgment of the court is the sentence of the law, and that there can be but four kinds of judgment in cases of this [524]*524description. (1) Upon demurrer, where the facts are agreed by- the parties, and the law is determined by the court (2) Where the law is admitted by the parties, and the facts are disputed, as in case of judgments on verdicts. (3) Where the facts and law arising thereon are admitted by the defendant, as in judgments by confession or default. (4) Where the plaintiff is convinced that the facts, or the law, or both, are not sufficient to support his action, as in judgments on nonsuit, retraxit, and discontinuance. 3 Shars. Bl. 395. That‘course of remark, however, is based upon the assumption that the practice in the courts of Massachusetts is ihe same in all respects as the practice was at common law; and inasmuch as a final judgment on an agreed statement of facts was unknown in the early jurisprudence of the parent country, so it is insisted that such an agreed statement cannot now be regarded as the proper foundation of such a judgment as will conclusively determine the rights of the parties and constitute a bar to a new suit. Much reason exists to suppose that such was the theory of the common law. General verdicts, however, were often taken subject to the opinion of the court on a special case stated by the counsel; but as nothing appeared on the record except the general verdict, the parties were precluded from the benefit of a writ of error. Id. 377. At one time strong doubts were entertained whether a writ of error would lie in the supreme court on a judgment rendered in the circuit court upon an agreed case. Keene v. Whittaker, 13 Pet [38 U. S.] 459. Those doubts, however, were soon removed when, upon an examination of the question, it was found that the practice of the court had been to sustain writs of error in such cases almost from the time of its organization. Faw v. Roberdeau’s Ex’r, 3 Cranch [7 U. S.] 173; Tucker v. Oxley. 5 Cranch [9 U. S.] 34; Kennedy v.
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CLIFFORD. Circuit Justice.
Three questions are raised by the demurrer .for the con[523]*523sideration of the court. But for the sake of convenience, the order in which they are presented in the pleadings will be reversed. They are as follows: (1) Whether the plea is sufficient in point of form; and if so, then, (2) whether the record of the former suit and judgment set forth in the plea is of a character to operate as a final and conclusive determination of the title of the parties in the court of the state where it was made; and if both of these questions are found in favor of the tenants, then, (S) whether a judgment upon the merits rendered in this state, by a court having jurisdiction of the parties and the cause, in a plea of land, commenced and prosecuted by a writ of entry, is a bar to a writ of right subsequently prosecuted between the same parties, and for the same premises, in the federal courts.
It is insisted by the demandant that the plea is double, and therefore bad in point of form, because it sets forth the proceedings in the court on the application of the demandant to amend the record, which proceedings took place subsequent to the rendition of the judgment, and are no part of the same. That suggestion would certainly have weight, if those allegations of the plea were necessary to maintain the defence set up by the tenants; and it would clearly be well founded, under the circumstances of this case, if the other matters set forth in the plea did not remain in full force, and wholly unaffected by those allegations. But it is obvious, if the judgment without those proceedings is of a character to operate as a final and conclusive determination of the title of the parties, then those proceedings are entirely immaterial to the issue of law raised by the demurrer; and if the judgment was not of such a character at the time the record of the judgment was made, still those proceedings are equally immaterial, because the record yet remains without any alteration whatever; so that the question whether the payment is or is not a bar to this suit, in any view that can be ! taken of the question, is wholly unaffected by those proceedings. According to the well-settled rules of pleading, therefore, the allegations of the .plea setting forth those proceedings, which in themselves are entirely immaterial, may be rejected as surplusage; and if the other matters set forth in the .plea are well pleaded, and constitute a sufficient answer to the declaration, the allegations setting forth those proceedings do not vitiate the plea. Examples may be found where the immaterial averment is descriptive of the matter in controversy, or where the immaterial matter is so interwoven with the substance of the plea that the whole allegation becomes material and is subject to a traverse; but the present ease falls within the well-known rule, that if the matter unnecessarily stated be wholly foreign and irrelevant to the cause, so that no allegation on the subject whatever was necessary, it may be rejected as surplusage, and need not be proved; nor will it vitiate even on a special demurrer. 1 Chit. Pl. (12th Am. Ed.) 229; Steph. Pl. 423; Co. Litt. 303b.
In the second place, it is insisted by the demandant that a judgment of nonsuit is never a bar to a new suit, and that the judgment set forth in the plea is a judgment of nonsuit That proposition, being twofold, presents two questions which will be separately considered. While the tenants do not controvert the first branch of the proposition, they expressly deny that the judgment in question is one of nonsuit, or that it was so intended or understood by the court before whom it was rendered. Nonsuit at common law was a mere default or neglect of the plaintiff to pursue his remedy, and therefore he was allowed to begin his suit again upon payment of costs. 3 Shars. Bl. 290. Courts of justice could determine nothing at common law, unless both parties were present in person or by their attorneys, except in cases of default. In the course of the pleading, therefore, if either party neglected to put in his declaration, plea, replication, or the like, within the times allotted by the rules of the court, the plaintiff, if the omission was his, was said to be nonsuit; or if the negligence was on the side of the defendant, judgment was rendered against him for his default Such a judgment, when rendered against the plaintiff, was only for the costs of the suit, and upon the payment of the same he might bring a new action. Those rules of practice substantially obtain at the present tíme, and accordingly it has been determined by the highest authority that a judgment of nonsuit, even upon an agreed statement of facts, cannot be pleaded in bar to a new suit, although it -was rendered by a court of competent jurisdiction, and was between the same parties and for the same subject-matter. Homer v. Brown, 16 How. [57 U. S. 354; Morgan v. Bliss, 2 Mass. 113; Knox v. Waldoborough, 5 Me. 185; Bridge v. Sumner, 1 Pick. 371: Wade v. Howard, 8 Pick. 353. These cases fully justify the first branch of the proposition assumed by the demandant; but it by no means follows, as will presently appear, that all of the deductions attempted to be made from the admission can be sustained. Assuming that a judgment of nonsuit is not a bar to a new action, the more important inquiry arises in the case, what is the true nature of the judgment set up in the plea. To show that it is a judgment of nonsuit, and nothing more, the attention of the court is drawn by the counsel of the demandant to the various kinds of judgment as known and understood at common law. He assumes, in the language of a learned commentator, that the judgment of the court is the sentence of the law, and that there can be but four kinds of judgment in cases of this [524]*524description. (1) Upon demurrer, where the facts are agreed by- the parties, and the law is determined by the court (2) Where the law is admitted by the parties, and the facts are disputed, as in case of judgments on verdicts. (3) Where the facts and law arising thereon are admitted by the defendant, as in judgments by confession or default. (4) Where the plaintiff is convinced that the facts, or the law, or both, are not sufficient to support his action, as in judgments on nonsuit, retraxit, and discontinuance. 3 Shars. Bl. 395. That‘course of remark, however, is based upon the assumption that the practice in the courts of Massachusetts is ihe same in all respects as the practice was at common law; and inasmuch as a final judgment on an agreed statement of facts was unknown in the early jurisprudence of the parent country, so it is insisted that such an agreed statement cannot now be regarded as the proper foundation of such a judgment as will conclusively determine the rights of the parties and constitute a bar to a new suit. Much reason exists to suppose that such was the theory of the common law. General verdicts, however, were often taken subject to the opinion of the court on a special case stated by the counsel; but as nothing appeared on the record except the general verdict, the parties were precluded from the benefit of a writ of error. Id. 377. At one time strong doubts were entertained whether a writ of error would lie in the supreme court on a judgment rendered in the circuit court upon an agreed case. Keene v. Whittaker, 13 Pet [38 U. S.] 459. Those doubts, however, were soon removed when, upon an examination of the question, it was found that the practice of the court had been to sustain writs of error in such cases almost from the time of its organization. Faw v. Roberdeau’s Ex’r, 3 Cranch [7 U. S.] 173; Tucker v. Oxley. 5 Cranch [9 U. S.] 34; Kennedy v. Brent, 6 Cranch [10 U. S.] 187; Brent v. Chapman. 5 Craneh [9 U. S.] 358; Shankland v. Washington Corp., 5 Pet [30 U. S.] 390; Inglee v. Coolidge, 2 Wheat. [15 U. S.] 363; Miller v. Nicholls, 4 Wheat [17 U. S.] 311. Three cases have since been reported, in which the point has been directly adjudicated, so that the question may now be considered as closed. U. S. v. Eliason, 16 Pet. [41 U. S.] 301; Stimpson v. Baltimore & S. R. Co., 10 How. [51 U. S.] 329; Graham v. Bayne, 18 How. [59 U. S.] 60; Suydam v. Williamson, 20 How. [61 U. S.] 427. General usage in the courts of Massachusetts, “whereof the memory of man runneth not to the contrary,” has sanctioned this mode of trial until it has become a part of the common law of the state. Cases are often submitted to the court in that mode, without any other pleading than the declaration. Issues are seldom or never framed in such submissions, except so far as they arise out of the statement of the case. When the practice was commenced is not known, and in all probability it would be as vain as it would be useless to attempt to trace its origin. Four cases at least where the trial was in that mode, are reported in the first volume of the Massachusetts Reports. They were all conducted by eminent counsel, and were severally heard and decided by a learned court. Livermore v. Newburyport Ins. Co., 1 Mass. 264; Payson v. Payson, Id. 284; Gordon v. Pearson, Id. 324; Porter v. Bussey, Id. 436. No one can read any one of those cases and fail to see that the practice as now known and universally understood was at that early period equally familiar to the bar and the court. From the year 1804 to the present time, the practice of trying causes in that mode has constantly increased, and it was never doubted, so far as appears, that a judgment rendered on such a foundation, if purporting in its terms to be a final judgment, was a conclusive determination of the matter in controversy, and as such that it might be pleaded in a bar to a new- suit between the same parties for the same cause of action. Maine at that period was a part of Massachusetts, but since the act of separation, her courts have adopted and sanctioned the same practice, which has been continued to the present time. Hubbard v. Cummings, 1 Me. 11; Fosdick v. Gooding, Id. 30; Lincoln & K. Bank v. Richardson, Id. 79; Hallowell v. Gardiner, Id. 93; Jewett v. Somerset Co., Id. 125. To admit that there can be a doubt upon this question, would be to prejudice vast interests long since supposed to rest upon the irrepealable determinations of the courts. There is no ground for doubt upon the subject, any more than in respect to a judgment on the verdict of a jury. Having come to this conclusion, it now becomes necessary to examine the agreement under which the cause was submitted to the determination of the court. Sueii agreements are usually appended to the statement in the case, and in fact form a necessary part of it. Livermore v. Newburyport Ins. Co., 1 Mass. 269. In the first place, the plea states that, the parties appeared at regular term of the court, and agreed to submit the action to the decision of the court, on the following statement of facts: That agreement recites the nature of the action, describes in general terms the land in controversy, and contains a full statement of the evidence of title on which each party relied. By the terms of the agreement it was stipulated: (1) That if the court came to the conclusion, on the facts stated, that the de-mandants had no right to any part of die demanded premises, then the demandants were to become nonsuit, and judgment was to be entered for the tenants. (2) On the other hand, if the court, in view of the facts, came to the conclusion that the title to the whole of the premises in question was in the demand-ants, then the tenants were to be defaulted, and judgment was to be entered accordingly. (3) But if the circumstances were- such, in [525]*525tlie opinion of the court, that the tenants might have acquired title to any portion of the demanded premises by adverse possession, then, although the paper evidence showed the title to be in the demandants, still the court was authorized to refer the matter to three commissioners, with such instructions as the court might see fit to give in order that the commissioners might determine to what, if any, part of tlie same premises the tenants had acquired a title by such adverse possession; but it was expressly stipulated that the return of the commissioners should be conclusive between the parties, and that judgment should be entered accordingly. Under each of the three clauses of the agreement already recited, the parties themselves prescribed the judgment which the court should enter in the case. No discretion whatever was vested in the court as to the judgment to be rendered under any one of those three clauses of the agreement. Demandants were to be nonsuited under tlie first clause, and the tenants were to be defaulted under the second, and judgment was to be rendered on the return of the commissioners under the third clause. Nothing. therefore, can be plainer than the fact that the court, in giving tlie judgment in question, did not act under any one of those three clauses. It is not pretended that the demandants were ever nonsuited, or that the tenants were defaulted, or that the cause was ever referred to commissioners. Were there no .other clause in the agreement, it would then be clear that the judgment was erroneous. Such, however, is not the fact, as appeal's from the fourth clause of the agreement, which provides as follows: “Or the court may make any other order or judgment in the case which they shall think it may require.” Under this last clause, the whole controversy was submitted tq the court on the facts stated, without restriction or limitation. To suppose otherwise would be. to do violence to the language employed, and to make a new agreement for the parties instead of expounding the one they have made for themselves. It is suggested, however, that the fourth clause was intended to apply only to the special proceeding contemplated under the third, and that it should be so limited and qualified. But that suggestion cannot be sustained, for the reason that the third clause is as independent, full, and complete as the first and second; and also, for tlie better reason, that it expressly provides that “tlie return of the commissioners shall be conclusive between the parties, and judgment be entered accordingly.” Admitting this construction of the agreement to be correct, it then follows that it was entirely competent for the court to render judgment for the tenants, or judgment for the demand-ants. accordingly as they found for the one or the other party; and such a judgment, undoubtedly, if properly entered, would be a conclusive determination of the matter in controversy in the courts of this state. Assuming that the court had power to render a final judgment for the tenants, the next inquiry is, Was the judgment which they rendered one of that character? It is contended by the demandant that it is a judgment for costs only. No question is made as to the facts stated in the plea, but the argument on this point is addressed to the construction of the language employed by the court in giving the judgment, and the argument is, that the language so employed, when taken in connection with the agreement under which the court acted, shows that the judgment is one for costs only, which impliedly admits that the language is correctly recited in the plea. Had there been any doubt as to the correctness of that part of the plea which recites tlie judgment, it should have been controverted by a proper replication. Under the admissions of the demurrer, it must be assumed that the judgment as recorded is a judgment for the tenants, in the manner and form as stated in the plea. Taking that for granted, I am of the opinion that the judgment is in legal effect precisely what it purports to be,—a final judgment for the tenants. Clearly it is not a judgment of non-suit, and therefore was not rendered under the first clause of the agreement; and it is equally clear that it could not have been rendered under the second clause, because it is a judgment for the tenants, and not for the demandants. All agree that the third clause was inapplicable to the case, and that no such judgment as is therein contemplated could have been entered by the court, because the case was never referred to commissioners. It comes to this, then, either that the court acted under the fourth clause or they acted without authority. For the argument's sake, however, let it be admitted that the construction here given to the fourth clause is not correct, and that the judgment is erroneous. Still, it is a final judgment of a court having jurisdiction of the cause and of the parties, and in the opinion of this court its validity cannot here bo questioned. Where a coru-t has such jurisdiction, it has a right to decide every question that arises in the cause; and whether the decision be correct or not, the judgment, until reversed, must be regarded as binding in every other court. Errors and irregularities, if any, must be corrected by some direct proceeding to set the judgment aside, either before the same court or in an appellate court. Elliot v. Peirsol, 1 Pet. [26 U. S.] 340; Thompson v. Tolmie, 2 Pet [27 U. S.] 168; Cook v. Darling, 18 Pick. 393; Granger v. Clark, 22 Me. 128; Smith v. Keen, 26 Me. 423; Banister v. Higginson, 15 Me. 73; Simms v. Slacum, 3 Cranch [7 U. S.] 306; Voorhees v. Bank of U. S., 10 Pet. [35 U. S.] 478. Lastly, it is insisted by the de-mandant that the judgment set up in the plea is not a bar to this suit, because it was rendered in a plea of land commenced and pros[526]*526ecuted by a writ of entry. Beyond question the writ of right is in' -its nature the highest writ in the law. It lies only for the recovery of an estate in fee simple, and is the last resort of a party who has been ousted of real property. This writ, says Judge Blackstone, lies concurrently with all other real actions in which an estate of fee simple may be recovered, and it also lies after them, being as it were an appeal to the mere right when judgment hath been had as to the possession in an inferior possessory action. 3 Shars. Bl. 193; Jack. Beal Act. 276; Steams, Real Act. 350. Such a remedy still exists at common law, and it existed in the courts of Massachusetts until 1840, when it was abolished by statute. Rev. St. Mass. c. 101, § 51. A writ of right was a proper remedy in the courts of Massachusetts, as at common law, prior to that period; and it was held by the supreme court, in the case of Homer v. Brown, 16 How. [57 U. S.] 363, that the repeal of the statute conferring the remedy did not repeal it as process in the circuit court for this district But the same court held, in the same case, that it was as process alone that it continued in the circuit court for this district, and that the action was subject to the limitation prescribed by the state law as to the time within which such a remedy may be prosecuted. Writs of right were abolished in Massachusetts before the rendition of the judgment set up in the plea of the tenants. When that judgment was rendered, therefore, the writ of entry was the highest writ known to the law of the state, and the judgment in question conclusively settled the title of the parties under the law of the state, so that the question here presented is not one respecting the form of the remedy, but presents the inquiry whether there can be one rule of property in the courts of the state, and another and a different rule touching the same subject-matter in the circuit court for the district. By the thirty-fourth section of the judiciary act, it is provided that the laws of the several states, except in certain cases not material to the present inquiry, shall be regarded as rules of decision in the courts of the United States in cases where they apply. Repeated decisions of the supreme court have established the doctrine that the federal courts adopt the local law of real property as ascertained by the decisions of the state courts, whether those decisions are grounded on the construction of the statutes of the state, or form a part- of the unwritten law of the state, which has become a fixed rule of property. Jackson v. Chew, 12 Wheat. [25 U. S.] 153; Henderson v. Griffin, 5 Pet [30 U. S.] 151; Daly v. James, 8 Wheat. [21 U. S.] 495; Lane v. Vick, 3 How. [44 U. S.] 464. While, therefore, a writ of right may still be maintained in the circuit court for this district, the common-law rule that a final judgment in a writ of entry is not a bar to such a suit is no longer here in force; certainly not, if such judgment was recovered in the state court since the writ of right was abolished by the statute of the state. To regard the writ of right in the circuit court of the district as still overriding a final judgment recovered on a writ of entry in the state court, would present the anomaly of one rule of property in the state courts, and another and a different rule in the circuit court in respect to the same subject-matter. Infinite mischief would ensue from such a contrariety in the rules of property in the respective jurisdictions; and it was to prevent such a state of things that the thirty-fourth section of the judiciary act was passed. That section does not apply to process, it merely furnishes a rule of decision, and was not intended to regulate the. remedy. M’Keen v. Delaney, 5 Cranch [9 U. S.] 22; Wayman v. Southard, 10 Wheat. [23 U. S.] 1; Polk’s Lessee v. Wendall, 9 Cranch [13 U. S.] 87; Mutual Assur. Soc. v. Watts, 1 Wheat [14 U. S.] 279; Shipp v. Miller, 2 Wheat. [15 U. S.) 316; Thatcher v. Powell, 6 Wheat. [19 U. S.] 119; M’Cluny v. Silliman, 3 Pet [28 U. S.] 270; Green v. Neal, 6 Pet [31 U. S.] 291. In view of the whole case, I am of the opinion that the plea of the tenants is sufficient, and constitutes a bar to the present suit. Demurrer overruled. Plea adjudged sufficient