Opinion of the court delivered by
Napton Judge.
Hunter brought an action of ejectment against Hemphill in the Circuit court of Pike county, to which defendant pleaded not guilty. In support of his title the plaintiff relied [108]*108on two certificates of purchase made by the receiver of the land office at Palmyra, the first being for the ea't half of the south east quarter of section No. 8, T. 53, R. No. 1, containing 80 acres, and the second for the west half of the south east quarter of the same section. The defendant admitted the possession of the land as charged in the declaration, and the plaintiff closed his testimony. The defendant then introduced a copy from the Registers office at Palmyra of the map or \ lat of Range 1 & 2, wrest township 53 & 54, on which map is the land in controversy. William Wright, the Register of the land office, testified that he entered upon the discharge of the duties of his office 29 th of July 1S30, that, on the plat aforesaid, Dubruiel’s claim was marked in a feint pencil mark which was on the book when he entered the office, and that he had no knowledge of the time when and by whom the pencil marks were made; that he was not present when the entry was made by the plaintiff, having entrusted the business of his office for some time to Mr. Green, wiüi whom he left blank certificates of application signed by him (the Register); that it wa.s usual for Mr. Green and himself to discharge the duties of both offices in the temporary absence of either; that they mutually deputed each other as agents for this purpose and left blanks signed by them respectively. Mr. Wright further stated, that if he had been present, he could not have permitted the entry of plaintiff; because the land was included within the pencil linos, and be considered it reserved from sale, from that fact; that He does not know that the land in controversy has been offered for sale publicly; that he never ' offered it for sale, and had frequently refused to permit persons to enter the lands included within, the pencil lines because he considered them reserved from sale.
Mr. Jordon testified that in 1818, in, company with others, he went to the land sales in St. Louis; that the claim of Dubruie] was not then laid down; that the lands in Range 2 were offered, for sale and many pre-emptions were offered wdthin the lines of Lubruiel’s claim as afterwards laid down; that-defendant had not been long enough on his land . to be entitled to a pre-emption; that in January or Februa-[109]*109jry 1819 he again- attended the land sales at St. Louis and while there he saw a man, whose name he thinks was Bar-croft,, marking down on the book of the register a claim. which the register told him was Dubruiels claim; that the marks were made with a pencil; that after that he.saw but one piece of land sold in- the limits of said claim, and that was a pie ;e bought bp a Mr. Byers only a part of which, lay in the claim, the purchaser (Byers) agreeing to loose that part lying within the claim, if it should be confirmed; that he never saw the land in controversy offered at public sale, either at that place or Palmyra; that he knew of only one-sale of any land within the claim and that was a case of relinquished lands sold by Carson, the-former register at Palmyra. Hemphill the defendant came to the- courtry in-1816 or 1S17 and has been been .in possession of the land in controversy .over since. lie also went to St. Louis in 1819 for the purpose of buying the land not offered for sale;. It was proved by several other witnesses, three or four in-number, that they, were at the land sales in St. Louis in-1819, and that they did not see the land in controversy offered for public sale; that they understood the lands included in the claim were not offered for sale in consequence of the laying d >wn of Dubruiel’s claim; Mr. Byers saw disclaim as laid down on the books at St. Louis in 1819, and' at his solicitation the register set up his piece for sale-, and’ he bought it, under the circumstances mentioned by Jordan-It was proved by a Mr. Smith that he had applied to enter at the Palmyra office a piece ofland within the claim, and the register refused to let him have it; (Mil Wright register.) lie also stated on one occasion, time not mentioned,, he went to enter for himself a tract in the claim, and was-requested by defendant to enter the land in- controversy but-en being informed by the register, Mr. Wright, that he-(Smith) could not enter his land, because it was within the- $ aim as marked on the book, he made no application for it 'because his land was in the- same situation.
.On tiie part of the plaintiff, it was proved by Henry, that; lie entered the land marked on the copy of the map at , Palmyra at the time recorded on it. Oh inspection of the [110]*110map Mr. Henry’s entry is in Range 1, Township 53, and is the east half of the north east quarter of section 8, and within the pencil marks designating Dubiu'.el’s claim. Carson was register and Lane receiver. Carson was not present, but his deputy Jones received the application. Witness told Jones the land was said to be in tho claim of Bubruie1. Mr. Fitzhugh’s entry was a pre-emption right; his application was to Mr. Wright. From an inspection of the plat it seems, that Mr. Fitzhngh entered in Range 1, two pieces, one on the 21st Dec. 1830, and the other on the 23th May 1831, being the south west quarter of Sectiou'6, in Township 56, rango aforesaid, and within the pencil marks supposed to designate Dubruiel's claim. Mr. Bennett entered a jhalf quarter section in Range 2 and within the pencil marks, by application to Mr. Wright, the register, which was for pre-emption. Mr. Allison entered, throe tracts, of 80 acres each, parts of all the tracts lying within the pencil marks designating Bubruel’s claim, in range 1 in 1827, and the other two pieces in 1835, Wright was the register, and application made to him. ■ Mr. Templeton, another witness, testified that he bought the east half of the N. W. quarter, of section 5, T. 53, Range 1, west, on the 1st August 1831, at public sale; gave more than the minimum price for his land, and obtained a.patent for his land in about six months thereafter. This entry is also within ihe claim of Dubnisl, as laid down on the map. Mr. Wright was the register at the time, and the sale was made by him. Mr. Templeton stated that his piece was formerly claimed by pre-emption and perfected, and thereupon sold, some said it was relinquished. Other witnesses testified in relation to their entries as marked on the plat.
On this state of facts, as appears by the bill of exceptions, the defendant moved the court to instruct the jury;
1st. That if they shall believe from the evidence, that the entry of the defendant of the land in controversy, made in the absence of the register of the land office, by mistake of the person having charge of the register’s office, and that the said land had never, at the time of said entry, been offered for sale at public auction, then the said entry of said [111]*111plaintiff does not invest him with such a title as will enable him to recover of the defendant in this action.
2nd. That if they shall believe from the evidence that the land in controversy had not (at the time of the plaintiffs entry) been offered for sale at public auction, but had been reserved from sale by the register and receiver, that, in that case, the plaintiffs title under said entry is not sufficient to enable him to recover of the defendant in this action.
3rd. That if they shall believe from the evidence that the land in controversy had, up to the time of the plaintiffs entry, been re'erve.l from sale, on account of said land or a part thereof being supposed to bo within tho Spanish claim cf Antúi e Dubmiol, cf 10,000 arpents, then the said plaintiff is not entitled to recover of the defendant in this action. Which instruction-’, at prayed by defendant; were given, and thereupon the plaintiff moved the court to give tho following :
1st. That the two land receipts given in e vidcnce by the plaintiff, if the -ame be true and genuine, are sufficient evidence of title in the plaintiff, to the land therein mentioned to sustain this actio i o<- ejectment, unless the defendant, has' shown a better title in Imn-elf, or some other person.
2nd. That it is net legally incumbert on the plaintiff, in order to give v illicit/ to his entries which are given in evidence, to preve that the requirements of the laws of Congress, previous to the sale of the land by private entry, have been complied with.
3rd. The piaintiíl i-' net bound to prove, in order to enable him to recover in this action that the President of the United States had by proclamation appointed a time for the public sale of the lands in question, nor that the said land was ever in fact offered for sale at public auction.
4th. There is no legal evidence that the claim of Dubrufl was lawfully laid down upon the map of the register’s oilica, as testified by Mr. Wright and Mr. Jordan.
5th. If the jury believe from the evidence in the cause, that the plaintiff er fared with tho register and receiver of: the land office, at I idmyra the land in controversy and that [112]*112the defendant was m possession at the institution of this suit, an(i ^ they shall also find from the said evidence, that the defendant has only a naked possession, they ought to find for the plaintiff.
6th. That the defendant cannot maintain a naked posses* sion as against an entry with the register and receiver, by showing that the land had not previously been offered for public sale.
7th. That if the jury shall believe from the evidence in the cause that the plaintiff entered the land in controversy with the register and receiver, at the land office in Palmyra, they should find for the plaintiff unless the defendant shows by evidence a better title in himself, that is, not in another person.
The court gave, the 1st, 5th and 7th instructions asked by plaintiff, and refused" the 2nd, 3rd, 4th and 6th and gave all the instructions asked by defendant, and, by way of explanation, instructed 'the jury further that if the jury believe from the evidence that the supposed entiy was made, in the absence of' the register, with a person left by him in the charge of his office, and not with himself, they must find for the- defendant, because he could not delegate his authority. ■
After verdict for defendant, the plaintiff moved for a new trial, because of misdirection of the court and insufficiency of the testimony to justify the verdict; which was overruled. The errors assigned by the plaintiff in this court, ares.
1st. That the court erred in giving the instructions asked by defendant.
2nd. The court erred in refusing to give the 2nd, 3rd, 4th and 6th instructions asked by plaintiff.
3rd. The court erred in giving the explanatory instructions for defendant.
4th. It erred in over ruling the motion for a new trial.
Before proceeding to consider the various defences set up. in this case, a preliminary enquiry necessarily arises in relation to the proper construction of our statute regulating the action of ejectment. The act provides that an entry with the register and receiver of any land office in the Uni-[113]*113fed States, shall enable the hoi ler to m ffutain an actum or ejectment against any person not having a better title thereto. It is argued from the phraseology o° this act that where the action is brought on an entry with the register and ceiver, that title mast prevad, unless the defen lant can show a better title in himse'f, an 1 he will not be at liberty to set up tille ¡a a third person. There is, it mint be admitted, some dim lultv in ascertaining what was meant hy the better title which the legislature speaks of. We.shoullbe more likely however, to arrive at a corre ;t interpretation 'by lookngat the evil, which the legidat.ire proposed to remedy, than hy any critical examination of their language. Nearlv all the land', occupie 1 by onr citizen?, have been pur-" chased by the United State-,, and the only evidence of tide were the-e receipts from the fe Isral officers, until the patents issued. In the early settlement of the couutrv,. no great hieonve’úenea was Alt from the short delays that m-ter^cnsd bet .vean the entries at the land off'cei and the issuing of the patents, but a? emigration increase 1, and. the bu; siness of the land office multiplied, years won! l el fp ¡e be'ore' the purciia-'er from the government could obtain his patent. It is a matter of history, I believe, that the-e documentary evidences of title from the land office were believed to ■stitute, at least, bat an equitable title, and con'equentíy woull not enable the hoi lers to maintain an e'ectment. — . . , Thü le¿i mura with a view to r'^mely thn eviL declared them sufficient evidence of legal title to maintain ejectment, and intended thereby sim¡ h to put them upon the footi lg other legal titles; not meaning to alter any of the ed rulas and principle? governing the action, except so far , 1 1 ^ ° .7i as that point wa? concerned. If a different construction prevail, and a more literal interpretation be given to the words of the act, the consequence will be that they have not only elevated these title? (by entry, New Madrid locations, pre-e nption', &c.) to'the rank of legal title?, but have , - ° . uiem on a more lnvorahlo footing, m a very important ticular. They have conferred on tlism privilege? "vVhich do not belong eveu to a patent. The common law rule in actions of ejectment, that the plaintiff’ must recover on the [114]*114strength of his own title, and not on the weakness of the /defendants would be abolished; and though th> plaintiff in possession of the receivers receipt may have, passed his ti-to another> the defendant cannot be permitted to show this in defence, because he has no title in himself, such a construction would be going farther than the evil, which the legislature aimed to remove, would require, and if the argument from inconvenience might be allowed to prevail in any case, this would seem to be one of that description. 4 Bac. Abr. 652.
The 2nd sect, of tho act concern-c. i335; !>• á31>) eject-lnj!'t lnN 130 mimtaiiiul &.?. against « w ¡tile Jííd ¿y virtue 0ntlT with the req-cud ro-“v!Jg °[( limply to entrios'&c0 fg^ot^other" •gal titles, ■ u*erwi3entoS 'ltcr ii« establish-ti rules and vrmciples •Terning the
Believing then that this title is not of such a paramount character as to preclude the same defences, which are admissible in other actions of ejectment, I proceed to examine th® nature of the defence set up by Hemphill, and the sufficiency of the evidence to maintain that defence. It is admitted that the entry with the register and receiver is prima facie evidence of title and that it is not incumbent on the holder of such title to prove that various prerequisites of the law have been complied with. But it is insisted that the defendant may show that the entry was illegal and void, and that consequently 'no title passed from the United States, by such attempted sale. The Supreme Court of the United States, in the case of Wilcox vs. the lessee of McConnell, decided at the January term 1839, have declared that if the register and receiver undertake to grant pre-emptions in land, in which the law declares they shall mot be granted, then they are acting on a subject matter clearly not within their jurisdiction, as much so, as if a court, whose jurisdiction was declared not to extend beyond a given sum should attempt to take cognizance of a case beyond that sum. This we understand to be oneof the casesin which the entry with theregister and receiver would be absolutely void as against the United States, those officers having undertaken to exercise a power not given to them by law, but expressly withheld. This opinion is streng-thend by the official opinion of Mr. Wirt, given,to the-commissioner of the general land office, on the 22nd Oct;-1828', (see land laws &c. vol. 2, part 2, p. 39.) “On the case stated from the general land office, under date the 6th inst. it is my opinion that' no patent ought to issue for lands which have been inadvertently sold without [115]*115any legal authority to sell them. The mistake having been brought to the knowledge of the commissioner of the general land office before the emanation of the patent, lands excepted from sale by acts of Congress ought not to be sold, and if they have been inadvertantly sold, the sale is void for want of authority. To issue a patent for lancT, which the government had no power to sell, is a measure which I cannot advite. Those sales are now in legal contemplation mere nullities.” Such is the strong language of the Attor« ney General and I quote it not so much as any authority» which indeed the acknowledged abilities of the able jurist who penned it would justly give it, but chiefly with a view to show the light in which the executive authorities of the United States have viewed sales of this description. There can be no doubt that where there has been an express reser- • * vation, and the register and receiver sell lands 'so reserved, their acts would at least be held void in any suit in which ^ the United States might be a party. Whether they are void to the extent claimed by Mr. Wirt, and are mere nul-lites, and a defendant resting on a naked possession can show that to be such, is a question which it is not. important to determine. In this case a majority of the court incline J J to the opinion that the defence is admissible. Granting that such defence is good, we proceed to consider the taken by th.c defendant, with a view to establish a title the United States and to show that the acts of the and receiver, in allowing Hunter to enter the several tracts ° . of land described in the declaration, were null. It is urged:
Where has been an oxP1'ess roser-vation of land for sale by the ^'gbiter lind6 receiver sell reserved* ° thcP ‘fl0 I*'' no doubt, that their acts any suit in might be a party — But guere, are such sales » defendant mercTnaifcd* possession show thera to be such?
1st. That, in accordance with the provisions of the of 3rd March 1811, (land laws p. 591) the land in question was expressly reserved from sale in consequence of the claim ofDubrueil for 10,000 arpens. 1
2nd. That the latod never was actually offered at public •sale., and consequently was not subject to private entry.
3rd. That the register had no power to appoint a deputy, and there was therefore no sale in fact.
First; It does not appear that either the laws of Congress or the regulations of the commissioner of the general land «ffice have provided any specific mode for complying with [116]*116the proviso to the. 10th section, of the act of 3i\l March. 1811, which declares that,'til! after the decision of Congress thereon, no tract of land, shall be offered for sale, the claim to which has, in doe time and according to law, been presented to the .recorder of land titles in the D/strict of. Louisiana, and tiled'in hi* office for the purpose of being investigated by the commissioner appointed for-u-certaiaing the right of persons claiming lands in the Teni'.ory of Louisiana. To' show a compliance with its provi .ion j in the case before the court .the te timony of Wright and Jordan.is relied on. The evidenced’ Jordon shows,.that in 1818, the lands in rangeS, u ¡thin the suppo:ed claim were offered for sale at the land sales in St. Louis, and that various, pro emp-tions were allowed, upon the land included w/.bi.i Du-brueil’s claim. This witness further te.,tilled, that.in 1819, whilst .attending the land sales at St. Louri, he saw a man, whose name lie thought was Barcroft, marking down in pencil lines the claim of Dubrueil upon the books of the register, Mr. Wright, the register, to tilled that the lines marking on the map the claim of Dubrueil are in feint pencil marks, and were mi the books when he went- into.cilice, (29th July 1830) but that he had no knowledge of the time when or by whom the pencil maiks were made. No act of Congress expresdy leierving' this land is shown,.nor any other com- ] liance v. ith the provisions of the act of 1811, unless we acknowledge tiie authority of Mr. Barcroft to de uguate the claim upon, the books of'the register. It is true that the commissioner of the general land office, in some instructions'to the register at St. Helena, gives some general directions in relation to the ascertainment of private - claims, and it is possible, and indeed probable, that similar instructions may have been given to the other regi.ters. On such a state of evidence a jury would bar lly infer that there was an express j enervation under, the act of 1811, but the act of Congress of 126th May 1831 (continued by act of 21th'May 1828) expressly provides that persons claiming lands within the Stale tf Missouri,’by virtue of any French or Spanish grant, may' prosecute their claims before the district court of the State of Missouri. The 5th section declares that any [117]*117claim to lamb within theprovbiors of 'this act, which not be brought by petition before the said courts within' two years from the passing of. this act, or which after being brought bé "ore tilo raid com is rhr.ll, on account of theneg-lect or deb y (A tbe (laim-nt, not to l.e \ m: oca ed. to a final. decision within Ihree year •, shall l:o foruer barred, both at law and in equity, &c. The 7th re ami- :-yy-, that in each and every case in which ' any cla:m 11 >. a i under the pro visions of this act, shall be haired iy virtue of the provisions contained ihereii.-, ihe land s] erified in such claim shall forth*' with be held and taken as a | art of the public lands of the United State , ¡-object to the same disposition as any other, public land in f; e same di trict. The act of May 21th 1828 . contiuue: in f uro the provi ions of tbe above mimed act u.n* til the 25th May 183 b a:id declare: that the courts having cognizance of said claim ¡ shall deci le upon a id confirm such-as would .have been confirms.1 unoer the laws; usages and customs of tiie Spanish government for't.vo years from and after the 2C;.h May 1.828, and no longer. The entries of Hunter 'wore made on ihe íHh and 11th July 183.1. It is admitted that t! e c'ai.n of Dub-rneil -was not coi,fi mi until Nov. 4th li>23, by the then ading board of cornmi hollers, in St.-Louie There waui period then of nearly fourteen months, from the 26th day oí May -1830 to the 9th July 18Í1, during which the land was declared'hv the laws of the United State i to be hell and taken as a part of the'public land of the United State •, subject' to t! e s ime disposition as -any other public hud in the same district. There was nothing to prevent Hemphill, tire defendant, who from the ev-< ■idence appears to have been living oa the laud since 1816, from claiming his rights under the pre-emption Jaws then in force. There was no evidence then'that -the claim of 'Du-bruielevor war po.itively reserved from'sale-'.by.any .lavy of the United States, and if reserved under the general provision which' re erved all lands upon which there was any Spanish or French claim,, there was no proof of the existence of an/ s; cb claim upó i -theJand in question, at the time .sale was made and certainly no proof of any legally author[118]*118ized reservation by the register; of the land office, in accor. dance with the provisions of law.
. Yho.mcro ¿lestofnation of a, cJa,im-lo land upon the books of the register of the land office ly a stranger, is not a suffi- . cieifrt compliance with the provision of •the act of Congress o.f 3rd March 1811 to authorize the register to with-.Sold such land from • >iüe.
[118]*1182nd. The second in tractions given by the court, at the instance of the defendant, assumes that if the land in controversy had not been offered for sale at public auction, but had been reserved from sale by the register and receiver, the plaintiffs title was insufficient to enable him to recover. This instruction brings up the position assumed by the plaintiff in his 6th instruction, and which is.the reverse of the one just recited, which was given for the defendant. The 6th instruction asked by the plaintiff was, that the defendant can not maintain a naked possession as against an entry with the register and receiver, by showing that the land in controversy had not been offered at public sale. The question involved in these instructions is undoubtedly one of immense importance in this counüy, where three-fourths, or rather nine teuthsof the land are deiived from the. General Government, and the holders have no better or other evidence of title than the receiver’s receipt, and in some instances the patent certificate. Is it true that a defendant in ejectment, who claims no title under the United States him seif, but stands on his naked possession can avail himself of a defence grounded on the irregularites or misconduct of the government officers? That the defendant may show title out of the plaintiff and in the United States seems to be sanctioned,< if not by the express decision of the Supreme Court of the United States, in the Baubin claim, at least countenanced; for the language of the court is, that where the regidor and receiver act upon a subject matter not within their cognizance, their acts are not merely voidable, but void. But it must be recollected that that was a controversy in which the United States was substantially a party, Wilcox, the defendant, having claimed possession, as an officer in the army in possession of a military post, under the express order of the Secretary of War. Admitting the correctness of the decidon in that case, we might well pause, before .we adopt in extent the language of the learned judge who delivered the opinion without reference to the question really at issue before the court- It is unnecessary to enter into an investigation of [119]*119the distinction between void and voidable acts. It is cient to say, that acts which are even held void in mon legal parlance as to some persons are not necessarily void as to ot’ners, and where Mr- Justice Barbour declared certain entrie’, made with the land officers, of land expressly reserved from sale to be absolutely void and null, it certainly was onl v necessary he should have declared them so, as against the United States, and those claiming under them, A. makes a Joed to B. to-day, and to-morrow makes another deed to C. for the same land, who has his deed regularly recorded, and has no notice legal or actual of the first deed, the deed to B. is said to be absolutely void as to C., though very good and binding between the parties. The decision of the Supreme Court'in the Beauben case only established that the defendant m ejectment, only claiming under the United States, could show that the -acts of the register and receiver were absolutely void having been in relation to a subject matter over which they had no power. Admitting that the defendant claiming under the United States could set up this defence, and admitting farther that any defendant who relied on his i aked possession could make the same defence, the instruction of the circuit court given at the instance of .the defendant goes still further, and declares that the defen. dant may even avail himself of facts in pais which could only make the entry avoidable. To carry the' doctrine to this extent would in our opinion be contrary to established doctrines and sound policy. Whatever irregularities be committed by the agents of this general landed tor, the'United .States, their acts are to be held prima facie good, and no third person can be allowed to impeach them, ° * r ■ unless the principal should think'proper to disclaim them.— Whatever is therefore merely avoidable when the officers had a general power to sell, and where there was no express reservation of the land sold, the sale is good as to all the world except the United States, or those claiming under them; and no one standing on a naked possession shall be allowed to question their validity. It seems scarcely necessary to examine the evidence on this point; the burthen of proof rested on the defendant and yet the only proof to ne-[120]*120gatív'e the fact of an offer to sell pullicly was founded on the of two .or three fitnesses, lhat in 1819, whilst the books were kept at St: Louis, the land in Range 1, and included in the' supposed claim of Dubrueil w-as net allowed to he entered, but'(hat various sales were made in Range 2, which 'were' afterwards embraced within the limits of said . , claim in hen traced.out on the map in the register’s office.- — • "Various sales are made at St. Louis and in Palmyra, in Range J . though various- applications were made at such ] lace and 1 - - refficled ,' If the;lands in que-tion were on tie 5th of July 1831, a.r orti'on'-of the public domain, c,< miug within the pur-7 1 7 © 1 yiew-'of the' ] roolamation of the President of-the United Lillies, dated 25th March 1831, it was the duty of the regis-.tot to offer them for sale-; and to'allow the defendant to • • ... • pi;c\e that- 'the- lands were not in fact.offered for sale would 'e allowing him to take advantage of.inadve tencies, irregu-lanties’and.pmishions of duty on the part of lho-e public of- « \ : . . . 1 * Iicers which be has at least no. right to comí la:n of. By looking'at the instrivtious frem’ the commis. ioner of the ■ .. , . _ general land olhee to the regí ter and receiver at ct. Louis, Eraklip, Palmyra, Jackson an.l Lexington, dated June 25th 1331, (land laws'in-traction?; opinions, &c. :vol. 2nd, page 7-Í 5,) we find that the lands in'dispute were directed to be 'sold.. The circular letter says, the quesíio n has been asked ’whether'the unconfirmed-private claim; in Missouri are subject to ¡ale' under'the- proclamation of the Pie.'idetit, dated 25th .March last, and after rehearsing the various acts of Cóngré: s p 'eviding that after ti é 26th. 1830, those claims shall be-bárred, pio'ceeds to direct the officers as fellow's; such -unconfirmed claims, therefore formeily reserved from -sal© under, the-áct of'the'.3rd March, 1811, a-, have net been .broi-'gi.t before-the courts or .prosecuted to a final decision uuderany <f the acts of Ccngiess above mentioned, are.subject to- be offered at public sale, and you .and hereby, directed to offer. ..the same under the .proclamation of the President of the-Unifed States above alluded to. 'The presumption arising-ire m the facts is therefore against the assumption of the defendant tha;t the lands weve never Offered for sale.-T— We aré further of-opinion- that the defendant should not. [121]*121have been allow.1} to slmw that the lan bin qne t!on hal 1 ver been o.Teivd at public sale, an i consequently the 6th stiuction asks! by the ¡ 1 liutilF wa; improperly refused.
bocom-agents oí tí¡¡-U- S. in the disposal of th# public do-™ct'snáro to bo hold primo/c-n0 third’ per-?on c“be,a]-pe-ueh them XmldbeTis-claimed by whatever .in therefore merely avo.G* able, when had aSgenorai power to bell and when there1 lias' been no ex- . iX.~ ■press reserva-’ t.ion of the bHo isgotd as te all the ■ world except the U. s. m ■ ¡ncrmidor'11111 them, and nn one ^taixHig on a naked •poas.csHioii, shall be al-low od to question oféuch sale
followthatlw gister^of the ^Bd”^°pre. wll®n were sold,}» act by '* question ■ termined it look into th« act porftrm-cd; 'if ministerial or It d~o8 not .clerical act, it might be performed by deputy. .If a Judicial act — and the register does for some purposes, and in some matters act as a Judicial officer — (as in granting pro-omptíons,) the act could not bo deputy.
The third jrroan.l of defence assume l in the case was that the register hau l no right to depute his authority to another much less the receiver, and that therefore the entry was void. The instruction of the court on thl point wm very.broad. That instruction was, that if the jury believe from the evidence that the supposed entry was made in the aVence of the register,, with a person led by him in charge of his office, and not with him sel they must iin-1 for the de'onJant, because'he coulJ not delegate his authority. The court in tliis instruction place the validity of the entry entirely upon the question of the presence nr absence of the regi.-ter, and then proceed to deal ire the huv aiding upon a supposed state of facts, assuming that if the regiiter was absent, he necessarily acted by deputy. The court declare such -acts illegal and vci-l. Iam enable to perceive how the consequences result which the court assumed woul Ire suit and how it fellows that because the register was. not present when a certain act was dene he necessarily performed that act by deputy. Before that question coul l be determined, it wouii 1)3 nece^ary lo look Lito Ills nature of the act which was to be performs l, if a mere derical act, it .might have, been performed by denuty ; if a Judicial act, and register does, lor some-purposes, and m some matters, act as a judicial oílic-r (as in granting pra-eni} lions) the act could. not have been performed by deputy. The instruction sumed the broad position that no act of the register, ministerial, clerical or judicial, could be. performed except m proper person, an,l loít with (he jury mereh .to say whs-ther the act in question was so performed or not, The court erred in giving this instruction. ■
For the reasons above given, the judgment of the’circuit ’ court is reversed and'remanded.