Opinion of the court.

strictly complied with." In both cases the court did but declare what Lord Mansfield says in Rex v. Coke: *"This is a special authority, delegated by act of Parliament to particular persons; to take away a man's property and estate against his will; therefore it must be strictly pursued, and must appear to be so upon the face of the order."

Now, the power conferred by the private act of the Illinois legislature was a power to sell for the payment of debts. The existence of debts was, therefore, a condition. upon which the power depended, and which the defendant was bound to prove. And this could only be proved by the record of the Probate Court.

The mere order of sale made by the State Circuit Court does not prove the existence of debts. It might, indeed, prove it inferentially, if the order had been made by the State Circuit Court in the exercise of its general jurisdiction, after it had acquired jurisdiction of the persons of the heirs of Crane, by notice served on them or by publication. But as the Circuit Court made that order in the exercise of a special jurisdiction conferred by a private act without any notice whatever, the order can have no such effect. There can be no presumptions of facts not directly asserted by the order, particularly not of facts which, by law, must be esta blished by another court, and which could only be proved in the Circuit Court by the record of that other court.

Mr. Justice GRIER delivered the opinion of the court. The land in dispute, in this case, was sold by order of a court some forty years ago, to pay the debts of its deceased owner. The heirs seem to have acquiesced in the regularity and justice of this proceeding till the plaintiff in error, a few years ago, obtained from them a release of their title, doubtless for the purpose of this litigation.

By the law of Illinois, the lands of one deceased are liable for the payment of his debts. The Circuit Court of the county in which the administration is granted has jurisdic

* 1 Cowper, 25.

Opinion of the court.

tion to order their sale for that purpose. The petition of the administrator, setting forth that the personal property of the deceased is insufficient to pay such debts, and praying the court for an order of sale, brought the case fully within the jurisdiction of the court. It became a case of judicial cognizance, and the proceedings are judicial. The court has power over the subject-matter and the parties. It is true, in such proceedings, there are no adversary parties, because the proceeding is in the nature of a proceeding in rem, in which the estate.is represented by the administrators, and, as in a proceeding in rem in admiralty, all the world are parties. In making the order of sale, the court are presumed to have adjudged every question necessary to justify such order or decree, viz., the death of the owner; that the petitioners were his administrators; that the personal estate was insufficient to pay the debts of the deceased; that the private act of Assembly, as to the manner of sale, was within the constitutional power of the legislature; and that all the provisions of the law, as to notices which are directory to the administrators, have been complied with. "The court having a right to decide every question which occurs in a cause, whether its decision be correct or otherwise, its judgment, until reversed, is binding on every other court." The purchaser, under such a sale, is not bound to look further back than the order of the court, or to inquire as to its mistakes. The court is not bound to enter on record the evidence on which any fact was decided. The proceedings on which the action of the court is grounded, are usually kept on separate papers, which are often mislaid or lost. A different doctrine would (especially after a lapse of over thirty years) render titles under a judicial sale worthless, and a “mere trap for the unwary." These propositions will be found discussed at length and fully decided by us in Grignon's Lessee v. Astor.* Any further argument in vindication of them would be superfluous.

The question raised as to the constitutional power of the

* 2 Howard, 319.

Opinion of the court.

legislature of Illinois to pass the private acts modifying the general course of proceedings in similar cases, was necessarily decided by the Circuit Court of the State, under whose order and supervision this sale was made. The State court is the proper tribunal to construe and determine the validity of the enactments of their own legislature.

But assuming the question to be open for our decision, we see no reason to doubt the authority of the legislature to pass such acts as are now complained of, without infringing the Constitution of the State or of the United States. Such legislation is remedial, not judicial. It infringes no contract; it is not ex post facto, nor even retrospective; it is not the usurpation of judicial powers; it authorizes the administrators to sell at private sale, and not at public auction, as by the general law, but not till ordered by the proper court. Every question of a judicial nature was left to the judgment of the court. It must order the sale, and approve it when made. There may have been many reasons why it would be for the benefit of the estate and the creditors that the land should be sold at private and not at public sale. The legislature, by this private act, direct only the manner of sale; the courts are to judge of its necessity. Statutes are to be found in almost every State in the Union giving authority to guardians to sell the real estate of their wards, and usually requiring the supervision and approbation of a court. The power of the legislature to grant such special authority to guardians has been generally admitted. In a case in Illinois,* it is said by their Supreme Court that, "to deny this power to the legislature in this view of its action, would almost annihilate its powers." Yet there was an assumption of power in that case far exceeding anything to be found in the present.

Let the judgment of the Circuit Court be

* Mason v. Wait, 4 Scammon, 134.

AFFIRMED.

Statement of the case and opinion of the court.

COOKE v. UNITED STATES.

1. The mere fact that an act of Congress authorizes a judgment obtained by the Government against a party, to be discharged by the payment of a sum less than $2000, is no ground to ask a dismissal of a case of which the court had properly obtained jurisdiction before the act passed. The party may not choose thus to settle the judgment, but prefer to try to reverse it altogether.

2. When the sum in controversy is large enough to give the court jurisdiction of a case, such jurisdiction once properly obtained, is not taken away by a subsequent reduction of the sum below the amount requisite.

In this case the United States had obtained a judgment for $3796.80 against Cooke, who to the same took a writ of

error.

The Attorney-General now moved the court to dismiss the cause for want of jurisdiction, and assigned for reason that since the issuing and serving of the writ of error, an act of Congress had reduced the amount in controversy below the sum of $2000.

On referring to the act, it appeared to authorize a remission of $2500 from the $3796.80, for which judgment had been obtained; but the remission was offered on condition of payment of the remaining $1296.80: and nothing was put before the court to show that Cooke had availed himself of the offer made.

The CHIEF JUSTICE: It does not appear that the proposition has been accepted; and if not, the amount in controversy remains unaffected. But had the alleged reduction been made by an actual payment, the jurisdiction of the court would not be taken away. The jurisdictional facts existed at the time of issuing and serving the writ of error. By its issue and service the court obtained jurisdiction over the cause, and this jurisdiction once acquired, cannot be taken away by any change in the value of the subject of controversy.

MOTION OVERRULED AND CASE RETAINED.

Statement of the case.

SMITH ET AL. v. UNITED STATES.

I Where several persons sign a bond to the Government as surety for a Government officer, which bond, statute requires shall be approved by a judge, before the officer enters on the duties of his office, an erasure by one of the sureties of his name from the bond—though such erasure be made before the instrument is submitted to the judge for approval, and, therefore, while it is uncertain whether it will be accepted by the Government, or ever take effect.-avoids the bond, after approval, as respects a surety who had not been informed that the name was thus erased; the case being one where, as the court assumed, the tendency of the evidence was, that the person whose name was erased signed the bond before or at the same time with the other party, the defendant. 2. Any unauthorized variation in an agreement which a surety has signed, that may prejudice him, or may substitute an agreement different from that which he came into, discharges him.

AN act of Congress, relating to marshals of the United States,* provides, that "before" the marshal enters on the duties of his office, he shall become "bound" for the faithful performance of the same, before the judge of the District Court of the United States, jointly and severally, with sufficient sureties, "to be approved by the district judge."

With this act in force, Pine was appointed marshal, and gave bond on which the name of Smith and others had been signed, and appeared as sureties. Suit having been brought against the marshal, Smith, and the others, his sureties, in the Circuit Court for the Northern District of Illinois, upon this bond, Smith pleaded that the bond was not his deed.

On the trial the United States offered the bond in evidence. The instrument showed on the face that it had been signed by a certain Hoyne as one of the sureties; but that his name was now erased. The defendants, accordingly, objected to the admission of the bond in evidence, on the ground that there was an erasure and alteration thereon, which it was the duty of the plaintiff to explain. The plaintiff then called the district judge, who had approved the bond. The learned justice testified that when it was brought

* Act of 24th of September, 1789; 1 Stat. at Large, 87.