the court to the jury, it should be considered as conclusive; but a mere matter of opinion as to the facts, will only have such influence on the jury as they may think it is entitled to.

The law knows of but one Christian name, and the omission or insertion of the middle name, or of the initial letter of that name, is immaterial; and it is competent for the party to show that he is known as well without as with the middle name. 5 Johns. Rep. 84; 12 Pet. 456.

We think there was no error in the Circuit Court, either in admitting the deed, or in their instruction to the jury on the point stated. A deed from Sterling to Walter Dunn, the lessor of the plaintiff for the premises in controversy, was objected to on the ground "that the delivery thereof was not proved nor acknowledged in the acknowledgment and proof thereof thereon indorsed."

This deed is not in the record, and it cannot, therefore, be inspected; nor can it, indeed, be considered in reference to the objection. But the same question is raised, it seems, on this deed, as was made on the deed from Buchanan to Sterling, and the remarks of the court on that exception would be equally applicable to this, if the deed to Dunn were in the record.

The evidence of the lessor of the plaintiff being closed, the defendants offered in evidence a certified copy of a paper purporting to be a deed from the auditor of Brown County, to 328*] John S. Wills, dated the 22d April, 1824, for two hundred acres of land in the tract claimed by the lessor of the plaintiff; which the court overruled, on the ground that it could not be received without proof that the requisites of the law, which subjected the land to taxation and sale, had been complied with. The defendants then offered the same deed, or copy of a deed, accompanied by a duly certified copy of the record of the proceedings, at and before the sale of said land, for taxes dated 9th May, 1838, certified by Hezekiah Lindsey, county auditor of said County of Brown, which the court overruled.

The laws of Ohio, imposing a tax on lands, and regulating its collection, like similar laws in, perhaps, almost all the other States, are peculiar in their provisions, having been framed under the influence of a local policy. And this policy has, to some extent, influenced the construction of those laws. There can be no clas of laws more strictly local in their character, and which more directly concern real property, than these. They not only constitute a rule of property, but their construction by the courts of the State should be followed by the courts of the United States, with equal if not greater strictness than the construction of any other class of laws.

It will be found from the Ohio reports that the Supreme Court has required a claimant under a tax title to show, before his title can be available, a substantial compliance with the requisites of the law. In 2 Ohio Rep. 233, the court say, "the requisitions of the law are substantial and useful, and cannot be dispensed with. Tax sales are attended with greater sacrifices to the owners of land than any others. Purchasers at those sales seem to have but little conscience. They calculate on obtaining acres for cents, and it stands them in

hand to see that the proceedings have been strictly regular."

In the case of The Lessee of Holt's Heirs v. Hemphill's Heirs, 3 Ohio Rep. 232, the court decided that a deed from a collector of taxes is not available to transfer the title, without proof that the land was listed, taxed, and advertised," etc.

The Act of the 2d February, 1821, provides that all deeds of land sold for taxes shall convey to the purchaser all the right, title, and interest of the former proprietor, in and to the land so sold; and shall be received in all courts as good and sufficient evidence of title in such purchaser."

Under this and similar provisions, which are found in the various tax laws up to 1824, the courts of Ohio seem never to have held that the deed on a tax sale is admissible as evidence of title, unaccompanied by proof that the substantial requisites of the law, in the previous steps, had been complied with. The collector, or person making the sale, was considered as acting under a special authority, and that his acts must be strictly conformable to law, to devest the title of real property, without the consent of the owner. And the purchaser at such sales is held bound to see that the requirements of the law, which subjected the land to [*829 sale for taxes, had been strictly observed. These principles have been repeatedly sanc tioned by this court.

We will now examine the statutes under which the sale in question was made, with the view of ascertaining whether the Circuit Court erred in overruling the record of the auditor, offered in evidence to support the tax deed.

The Act of the 8th February, 1820, and the act to amend the same, of the 2d February, 1821, are the laws under which the title in question was obtained.

The county auditor is required to make out from the books or lists in his office, every year, a complete duplicate of all the lands listed in his office, subject to taxation, with the taxes charged thereon. In which duplicate he shall state the proprietor's name, the number of entry, for whom originally entered, the quantity of land contained in the original entry, the county, water-course, number of acres, whether first, second, or third rate land, and the amount of taxes charged thereon. These matters of description are required to be entered in separate columns, opposite the name of the proprie tor. And the auditor is required to keep a book for that purpose, and to record in the form above specified, the lands entered in his county for taxation.

If the tax be not paid in the county by the 20th November, or to the State treasurer by the 31st December, in each year, the lands are to remain charged with all arrearages of taxes, and the lawful interest thereon, until the same shall be paid; to which there shall be added a penalty of twenty-five per cent. on the amount of tax charged for each year the same may have been delinquent.

The auditor of the State is required to com. pare the list of defalcations transmitted from each county auditor with the duplicates sent to his office from said county, for the same year; and to record in a book kept for that purpose the delinquent lands, and charge the same with

penalties and interest. And the county auditor is required, in making out the duplicate for his county, to charge each tract, in addition to the tax for the current year, with the tax, interest, and penalty of the preceding year, which shall be entered in a separate column, to be designated for that purpose on said duplicate. And when lands are returned delinquent for two years, the penalty and interest are to be charged for each year by the State auditor, who is required to transmit the same to the county auditor; and he is forbidden to enter lands a second time delinquent on the duplicate for the current year.

On receiving this list of lands, a second time delinquent, the auditor is required to advertise the same six weeks successively in a newspaper printed in the county, which advertisement shall state the amount of the tax, interest and penalties due on each tract, and the time of sale, etc. All sales are to be made by the county auditor; and on such sale being made, 330*] he is required "to make a fair entry descriptive thereof, in a book to be provided by him for that purpose," and shall also "record in said book all the proceedings relative to the advertising, selling, and conveying said delinquent lands; which record shall be good evidence in all courts holden within this State." The record offered in evidence is stated to be a "record of the proceedings relative to the advertising, selling, and conveying the lands delinquent for tax, for the years 1821, 1822, and 1823, within the County of Brown and State of Ohio."

"Be it remembered that the following lands, as herein set forth, advertised for sale, in the names of the person to each tract annexed, were regularly entered on the duplicates for taxation by the auditor of Brown County for the year 1821; the tax whereon not being paid for said year, the collector of said county returned the same as delinquent therefor; whereupon the said county auditor made out and transmitted to the auditor of State a list of said lands so returned as delinquent; and afterwards a list of said lands, with the amount of taxes, penalty, and interest charged thereon, was transmitted by the auditor of State to the county auditor of said county; whereupon a copy thereof was published three weeks in succession in a newspaper printed at Georgetown, Brown County, Ohio, in general circulation in said county; and afterwards the county auditor, in making out the duplicate for said county the succeeding year, to wit, for the year 1822, charged each tract in addition to the tax for said year 1822, with the tax, interest, and penalty of the preceding, and sent the same out a second time for collection; the tax on said land not being paid for the year 1822, they were a second time returned delinquent for the nonpayment of the tax, penalty, and interest charged thereon; a list of which was again transmitted to the auditor of the State; that afterwards the said auditor of the State did transmit," etc.

This, together with the advertisement published six months before the sale of the land, is the record and only evidence offered to show that the legal requisites of the law had been complied with, previous to the sale of the land.

The first objection which arises to this paper is, that it is a mere historical statement of the facts as they occurred, and not a copy from the record.

The first important step is to show that the land was listed for taxation. On this depends the validity of the subsequent proceedings. And how is this shown by this record? It states that "the land was regularly entered on the duplicates for taxation, and sent out for collection for the year 1821," etc. Now, this is a mere statement of the fact, and not an exemplification of the record.

The record of the auditor shows in what manner the land was listed for taxation, the amount of tax charged, the description of the land required by the law, and the rate at which it was entered. But the auditor in the record before us has stated that the entry or list was regularly made, without copying the [*331 same from his records, which copy would enable the court to determine whether the entry for taxation had been made legally. Now, this is the foundation of the whole proceeding, and unless the court will substitute the judgment of the auditor for their own, it is impossible for them to say the land was entered for taxation according to law.

Suppose the auditor had, instead of copying the advertisement on which the land was sold, merely stated that the land had been regularly advertised; could such a statement have been held sufficient? Perhaps no one acquainted with the legal requisites on this point could hesitate in deciding that such a statement would be radically defective. That the advertisement constituted an essential part of the record, as the court could only judge of its sufficiency by inspecting it. It would not do, therefore, for the auditor to withhold from his record and the court the advertisement, and merely say that it was regular.

Clear as this point is, it is not less so than the objection above stated. The listing of the land in conformity to law, is as essential as advertising it for sale. But in this record we have no evidence that the land was entered according to law, except the mere statement of the fact by the auditor, that it was so entered.

Is this statement evidence? The law makes the record evidence; but this statement is evidently made out, not by copying from the record, but by looking at the record, and giving in a short statement what the auditor supposed to be the fact.

Suppose it should be important in any other case to show that this land had been regularly entered for taxation in the year 1821. Would the certificate of the auditor, in general terms, that the land was regularly entered that year, be evidence? Must not the record itself be produced, or an exemplification of it; which would show how it had been entered, and enable the court to judge of the regularity of the entry? That this would be required seems too clear for argument; and yet in no possible case could this evidence be so important as in the case under consideration.

If the court are to receive the mere statement of the auditor that the land was regularly entered, which is the first step in the proceeding, and as important as any other; to be consistent, they must receive his mere state

The law requires the auditor, on receiving the list of delinquent lands from the State auditor, to give public notice by advertisement, for three weeks in succession, in some newspaper in general circulation in his county, of the amount of taxes charged, etc. Now, if this advertisement be not published, the land cannot be returned by the auditor a second time as delinquent; and if not regularly returned as 332] delinquent twice, it is not liable to be sold. And what evidence is there in the record that this notice was given. There is none but the mere statement of the fact that such notice was given three weeks in succession, in a newspaper printed in Georgetown. Now, if the statement of the auditor be sufficient as to this notice, it must be held equally good as to the notice of the sale. This land was transmitted from the auditor of the State twice, charged with penalties, to the county auditor, who, by the 36th section of the Act of 1820, was required to publish the same, when received, three weeks; but it seems from his record that this notice has been but once given.

And, again, there is no evidence that the penalties were charged, and the interest added, but the mere statement of the auditor. What amount was charged as penalty, and the amount of interest added, nowhere appears.

In the list published in the notice of sale, it does not appear at what rate the land was entered for taxation; and the gross sum of fifty dollars is charged, without showing of what items it was composed. In the case of Lafferty's Lessee v. Byers, 5 Ham. 458, the plaintiff offered in evidence an exemplified copy of the books of the county auditor, showing the listing for taxation and the advertisement of the sale.

Upon the whole, we think that the court did not err in rejecting the paper certified by the auditor as a record. We think that this record contained no evidence that the land was regularly listed for taxation, and that it was defective in not showing that other important requisites of the law had been complied with. That it is a mere historical account of the facts as they transpired, and not the record evidence of those facts as they appear or should appear on the record.

Under the law of 1824, which makes the tax deed prima facie evidence, the Ohio courts have not required proof to the same extent in support of the deed as before such law. But the present case does not come under this law; and it is unnecessary to go into its construction by the Ohio courts. 5 Ohio Rep. 370.

The defendants gave in evidence a duly authorized transcript of the record, proceed ings, and decree, of the Supreme Court of the State of Ohio, of a certain case wherein White's Heirs and J. S. Wills' Heirs and H. Brush were complainants, and David Buchanan, deceased, in his lifetime, defendant; and his unknown heirs defendants after his death, by bill of

The court were asked to instruct the jury, by the defendant, that it was necessary for the plaintiff to prove the calls of his patent for the ground, by establishing the different corners, etc. But the court refused to give the instruction as requested, and informed the jury that, by a rule of court, the defendants having entered into the consent rule, were bound to admit, at the trial, that they are in possession of "the premises claimed by the lessor of [*333 | the_plaintiff. And there can be no doubt that, under the rule, this decision of the court was correct.

This was not a dispute about boundaries, but of title; and in such a case, the rule referred to is salutary, and supersedes the necessity of proving the possession of the defendant. Without this rule it would have been incumbent on the plaintiff to prove the possession; but this could have been done by anyone who had a general knowledge of the land in controversy, and who could state that the defendant was in possession.

And the court instructed the jury that the pendency of the suit against Buchanan and his heirs could in no sense be held constructive notice to Sterling, in receiving the deed from Buchanan, after the commencement of the suit, unless the process had been served or publication made before such deed was executed.

There can be no doubt that this instruction was proper; and, upon the whole, we affirm the judgment of the Circuit Court.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed with costs.

*THE UNITED STATES, Appellants, [*334

V.

ELIZABETH WIGGINS, Appellee.

Spanish land grant in East Florida-foreign laws-proof of Florida treaty.

A grant of land by Estrada, the Governor of East Florida, was made on the 1st of August, 1815, to Elizabeth Wiggins, on her petition, stating, that "owing to the diminution of trade, she country." The grant was made for the quantity of will have to devote herself to the pursuits of the land apportioned by the regulations of East Florida, to the number of the amily of the grantee It was regularly surveyed by the surveyor-general, according to the petition and grant. No settlement or improvement was ever made by the grantee, or by anyone acting for her on the property. In 1831. Elizabeth Wiggins presented a petition to the Su firmation of the grant; and in July, 1838, the perior Court of East Florida, praying for a concourt gave a decree in favor of the claimant. On an appeal to the Supreme Court of the United

NOTE. As to prima facie evidence, what is, see note to 8 L. ed. U. S. 523.

States, the decree of the Superior Court of East Florida was reversed. The court held that by the regulations established on the 25th November, 1818, by Governor Coppinger, the grant had become void, because of the non-improvement, and the neglect to settle the land granted. The existence of a foreign law, especially when unwritten, is a fact to be proved like any other fact, by appropriate evidence.

A copy of a decree by the Governor of East Florida, granting land to a petitioner while Spain had possession of the territory, certified by the secretary of the government to have been faithfully made from the original in the secretary's office, is evidence in the courts of the United States. By the laws of Spain, prevailing in the province at that time, the secretary was the proper officer to give copies; and the law trusted him for this particular purpose, so far as he acted under its authority. The original was confined to the public

office.

The cases of Owings v. Hull, 9 Peters, 624, Percheman's case, 7 Peters, 51. The United States v. Delespine, 12 Peters, 655, cited.

Prima facie evidence of a fact, is such, as in judgment of law is sufficient to establish the fact, and if not rebutted, remains sufficient evidence of it. Kelly v. Jackson, 6 Peters, 632, cited. The eighth article of the Florida Treaty stipulates that "grants of land made by Spain in Florida, after the 24th of January, 1818, shall be ratified and confirmed to the persons in possession of the land to the same extent that the same grants would be valid if the government of the territory had remained under the dominion of Spain." The government of the United States may take advantage of the nonperformance of the conditions prescribed by the law relative to grants of land, if the treaty does not provide for the omission.

The

In the cases of Arredondo, 6 Peters, 691, and Percheman, 7 Peters, 51, it was held that the words in the Florida Treaty "shall be ratified and confirmed;" in reference to perfect titles, should be construed, "are" ratified and confirmed. object of the court in these cases was to exempt them from the operation of the eighth article, for that they were perfect titles by the laws of Spain when the treaty was made; and that when the soil and sovereignty of Florida were ceded by the second article, private rights of property were, by implication, protected. By the law of nations, the rights to property are secured when territories are ceded; and to reconcile the eighth article of the treaty with the law of nations, the Spanish side of the article was referred to in aid of the American side. The court held that perfect titles "stood confirmed" by the treaty and must be so recognized by the United States in our courts. Perfect titles to lands, made by Spain in the territory of Florida before the 24th January, 1818, are intrinsically valid, and exempt from the provision of the eighth article of the treaty; and they need no sanction from the legislative or judicial departments of the United States.

The eighth article of the Florida Treaty was intended to apply to the claims to land whose validIty depended on the performance of conditions, in consideration of which the concessions had been made and which must have been performed before Spain was bound to perfect the titles. The United States were bound after the cession of the country, to the same extent that Spain had been bound before the ratification of the treaty, to perfect them by legislation and adjudication.

the petitioner "from the secretary's office." A certified copy of these documents was given to the petitioner on the same day, by "Don Tomas De Aguilar."

A survey of the land was made by the surveyor-general of the province on the 23d of March, 1821. On the 26th of May, 1831, Elizabeth Wiggins presented a petition to the judge of the Superior Court of East Floridastating her claim to three hundred acres of land, granted to her by Governor Estrada, and praying that the validity of the claim might be inquired into, and decided by the court, in pursuance of the acts of Congress.

The answer of the district attorney of the United States to this petition denied the right of Elizabeth Wiggins to the land claimed on many grounds. Those which were brought into examination and decided upon, were:

First. That the petitioner had never taken possession of or cultivated the land.

Second. The petitioner was required to make proof that a grant for the land had been issued.

Third. That the petitioner having failed and neglected to occupy, improve, or cultivate the land, and having abandoned it, the right and title thereto, if any had existed, were wholly forfeited and lost.

Subsequently, a replication to the answer of the United States was filed, and the original certified copy of the grant to Elizabeth Wiggins of the land, the same being certified by Tomas De Aguilar, secretary, etc., was offered in evidence by the claimant, and was objected to by the United States.

The court admitted the evidence.

By an amended bill, the petitioner also stated that no condition of settlement or improvement was contained in the grant of the land; and that if any condition of settlement had been contained in it, the unprotected situation of that part of East Florida from Indian depredations and aggressions, from the time of the grant to the cession of the territory of Florida to the United States, had rendered it impossible to settle in that portion of the country with safety to the persons or property of those who might venture so to do.

The United States, in an amended answer, set up in further opposition to the claim of the petitioner, the usage, practice, and custom, of the government of Spain, 1*336 which prevailed when the alleged grant was made; that ten years' occupancy and cultivation of the land, under such a grant, was necessary to give the grantee the title in fee

of East Florida.

other objections to the title claimed by the petitioner, and denied that the settlement of the land was rendered dangerous by the disturbed state of the country.

The parties to the cause proceeded to take evidence in support and in opposition to the claim of the petitioner, and the cause was heard on the documents and evidence. At July Term, 1838, the Superior Court made a decree confirming the title of Elizabeth Wiggins to the land claimed by her. From this decree the United States took an appeal to this court.

The case was argued by Mr. Gilpin, Attorney-General, and Mr. Dent, for the United States. and by Mr. Downing for the appelles.