Duncan v. United States. 7 P. one surety has signed it, on condition that it shall be signed by another before its delivery, no obligation is incurred until the condition shall happen. And if it appeared, in the present case, that Abner L. Duncan signed the bond, to be delivered on condition that Thomas Duncan should execute it, there can be no doubt the plea should have been sustained in the court below. But the delivery of the bond, as well as the signatures of the parties, is a question of fact for the jury; and this court cannot determine the legal question [* 449] arising on *such fact, unless it be stated in a bill of exceptions. The acknowledgment of the bond by Abner L. Duncan, and afterwards by John Carson, unconditionally, and its delivery to the government, would seem to rebut the inference drawn by the plaintiffs against its validity, from the simple fact of its not having been signed by Thomas Duncan. There is, therefore, nothing upon the face of the record which would go to destroy the validity of this bond. A question was raised, and elaborately argued by the counsel for the plaintiffs, whether this bond, having been executed at New Or leans, was not governed, not only as to the manner of its execution, but also as to the extent of the obligations incurred under it, by the principles of the civil law. In the case of Cox et al. y. The United States, 6 Pet. 172, decided at the last term, this question was set-tled. This is an official bond, and was given in pursuance of a law of the United States. By this law, the conditions of the bond were fixed, and also the manner in which its obligations should be enforced. It was delivered to the treasury department at Washington, and to the treasury did the paymaster and his sureties become bound to pay any moneys in his hands. These powers, exercised by the federal government, cannot be questioned. It has the power of prescribing, under its own laws, what kind of security shall be given by its agents for a faithful discharge of their public duties. And in such cases, the local law cannot affect the contract; as it is made with the government, and in contemplation of law, at the place where its principal powers are exercised. As there was no evidence before the jury that any part of the defalcation of the paymaster occurred without the limits of the district in which, as appears by the bond, he was to act; the court below might well instruct the jury that in the absence of such proof, they were bound to presume that the deficiency took place within the district. The rejection of the special verdict by the court, is the ground which seems most to be relied on for a reversal of this judgment. Duncan v. United States. 7 P. In 1817, the legislature of Louisiana enacted, that "in every case to be tried by a jury, if one of the parties demands that the facts set forth in the petition and answer should [* 450 ] be submitted to the said jury, to have a special verdict thereon, both parties shall proceed; before the jury are sworn, to make a written statement of the facts so alleged and denied, the pertinency of which statement shall be judged of by the counsel and signed by the judge, and the jury shall be sworn to decide the question of fact or facts so alleged and denied," &c. On the 26th of May, 1824, congress passed an act1 entitled "an act to regulate the practice in the courts of the United States for the district of Louisiana; in which it is provided, that the mode of proceeding in civil causes in the courts of the United States, that now are, or hereafter may be established in the State of Louisiana, shall be conformable to the laws directing the mode of practice in the district courts of said State; provided that the judge of any such court of the United States may alter the times limited or allowed for different proceedings in the state courts, and make, by rule, such other provisions as may be necessary to adapt the said laws of procedure to the organization of such court of the United States, and to avoid any discrepancy, if any such exist, between such state laws and the laws of the United States." This section was a virtual repeal, within the State of Louisiana, of all previous acts of congress which regulated the practice of the courts of the United States, and which came within its purview. It adopted the practice of the state courts of Louisiana, subject to such alterations as the district judge of the United States might deem necessary, to conform to the organization of the district court, and avoid any discrepancy with the laws of the Union. By a code of the Louisiana legislature, passed in 1829, called the "Code of Procedure," the act of 1817 was repealed. This repealing act was not before the court until the present session; and a question is made under it, whether it does not, by virtue of the act of congress of 1824, change the practice of the district court. It is insisted, for the plaintiffs, that it could not have been the intention of congress, by the act of 1824, to subject the practice of the district court in Louisiana to any changes which the legislature of that State might adopt, in reference to the practice of the state courts; and the construction* which has been given to the [* 451 ] act of 17922 which regulates process in the courts of the United States, is relied on as conclusive on the point. 1 4 Stats. at Large, 62. This act, by 21 Stats. at Large, 275. Duncan v. United States. 7 P. reënacting the act of 1789,1 adopted the "modes of process" for the district and circuit courts, which were in use at the time of its passage in the supreme courts of the respective States, but did not require, as this court have decided, a conformity to the changes which might be made in the process of those courts. Nor did the act apply to those States which were subsequently admitted into the Union. But this defect was removed by the act of the 19th of May, 1828,2 which placed all the courts of the United States on the same footing in this respect, except such as are held in the State of Louisiana. It does not appear that the district court of Louisiana, by the adoption of any written rule, has altered the practice which this court, in the case of Parsons v. Armor and Oakey, and Parsons v. Bedford and others, reported in 3 Pet. 413 and 433, considered as having been adopted by the act of 1824. But if the questions raised in these cases occurred after the act of 1817 was repealed by the code of procedure, in 1829, the fact was not known to the court. As the act of 1824 adopted the practice of the state courts, before this court could sanction a disregard of such practice, it must appear that, by an exercise of the power of the district court, or by some other means, the practice had been altered. It is not essential that any court, in establishing or changing its practice, should do so by the adoption of written rules. Its practice may be established by a uniform mode of proceeding for a series of years, and this forms the law of the court. In the case under consideration, it appears that the Louisiana law which regulated the practice of the district court of Louisiana has not only been repealed, but the record shows that, in the year 1830, when the decision objected to was made, there was no such practice of the court as was adopted by the act of 1824. The court refused to suffer the statement of facts to go to the jury for a special finding, because they say "such was contrary. to the practice of the court." On a question of practice, under the circumstances of this case, it would seem that the decision of the district court, as [* 452 ] * above made, should be conclusive. How can the practice of the court be better known or established than by its own solemn adjudication on the subject? In regard to the last error assigned, it is not perceived how the refusal of the special verdict precluded the defendants from proving that the bond was delivered as an escrow. Such evidence was ad 1 Stats. at Large, 93. 24 Ib. 278. United States v. Eighty-four Boxes of Sugar. 7 P. missible under the plea or answer of the defendants, but it does not appear that any such was offered and rejected by the court. The judgment of the district court must be affirmed, with costs. 11 P. 351; 5 H. 295. IN THE MATTER OF THE UNITED STATES V. EIGHty-four Boxes OF SUGAR. TUFTS AND CLARKE, Claimants. 7 P. 453. Where the property condemned as forfeited, for an entry under a false denomination, was of greater value than $2,000, but, if the duties were paid and deducted from the proceeds, less than $2,000 would remain - Held, that the whole value of the property was the amount in dispute, and the claimant had a right to appeal. THE case is stated in the opinion of the court. Mayer, for the appellants. Taney, (attorney-general,) contrà. M'LEAN, J., delivered the opinion of the court. [*458] This case is brought before the court by an application for a mandamus, to be directed to the judge of the court of the United States for the district of Louisiana, requiring him to allow an appeal from the judgment of that court. * In their petition, the claimants state that the 84 boxes [* 459 ] of sugar were consigned to them at New Orleans, and that, on their arrival, they were libelled by the United States for an alleged breach of the revenue laws; that the sugars were valued by the two custom-house appraisers at $2,602.51; that they were afterwards condemned and sold by the marshal at public sale, for $2,338.48, leaving $2,150.06 after deducting the costs and charges of the sale. From the judgment of condemnation the claimants prayed an appeal to the supreme court, which was refused, on the ground that the value of the sugars, exclusive of duties, is less than $2,000. By consent of parties, if the claimants shall, in the judgment of this court, be entitled to an appeal, the merits of the case shall be considered as regularly before the court for a final decision. Whether the claimants were entitled to an appeal is the first point to be considered. The decision of this question depends on the amount in controversy. If it be less than $2,000, the judgment of the district court was final, and cannot be revised by an appeal. The judgment of condemnation was entered on the 9th of April, United States v. Eighty-four Boxes of Sugar. 7 P. 1831, and on the 28th of the same month, under the order of the court, the marshal sold the property. On the 19th of April, an appeal was prayed, and an order was made that the district attorney should show cause, on the 23d of the same month, why an appeal should not be granted. In his opinion against the right of the claimants to an appeal, the district judge says that "the supreme court has lately, in the case of Gordon v. Ogden, decided that the defendant cannot support an appeal from a judgment obtained against him in the court below for a less sum than $2,000, because that judgment is the only matter in dispute." "In this case," the judge says, "the thing demanded on one side was the forfeiture of a specific quantity of sugar, [*460] and on the other the restoration of the same article, the value of which did not amount to $2,000." "There was no demand of duties, nor could such demand have been taken into consideration in the case then before the court. There was no contest about the duties." It will be observed that, at the time the judgment of condemnation was entered, and also when the appeal was prayed, the sugars remained in the hands of the proper officer. Suppose the judgment had been given for the restoration of the property, in what form. should it have been entered? Could any part of the property have been detained for the payment of the duties? The duties were not then due, and could the court have directed them to be paid by the sale of a part of the property? This A judgment in favor of the claimants in the district court should have directed the property to be restored to them on the payment of the duties, or securing them to be paid, according to law. would have given to the claimants the whole amount of their property, as though no seizure of it had been made. Under the law, they were entitled to a credit for the payment of the duties, on the condition of giving bond and security. Does it not thus appear that the whole of the property was the amount in dispute, and would have gone into the possession of the claimants had the judgment of the court been in their favor? How, then, could it be said in the court below that the duties must be deducted from the value of the sugars, as forming no part of the controversy, and that by such deduction the value of the property was reduced below the amount which entitles the claimants to an appeal? If the claimants had given bond for the payment of the duties, and a judgment of restoration had been entered by the court before any part of the duties became payable, should the court have directed |