Opinion of the court.

question open to inquiry in a court of justice as to the party to whom the certificate, patent, or confirmation, should

enure.

Now, upon this view of the case, we think the court below erred in ruling, as matter of law, that the plaintiff was not entitled to recover. The question in the case is, whether or not the evidence produced by the plaintiff on the trial before the jury tended to prove that there had been an assignment by the one of forty arpens from Condé to Lamonde, prior to his notice of the claim before the board of commissioners in 1808? If it did, then it should have been submitted to the jury as a question of fact, and not of law. The transaction was ancient, and of course it could not be expected that the evidence would be as full and specific as if it had occurred at a more recent period.

The piece of land is but a moiety of the original conces sion to Condé; and it appears that previous to the change of government, and while Condé was living, Lamonde and his family were in possession cultivating the strip, in the usual way in which these common field lots were occupied and improved. And very soon after the establishment of a board at the town of St. Louis, for the purpose of hearing and settling these French and Spanish imperfect grants, we find him presenting this claim before the board, setting up a right to it as his own, and asking for a confirmation; and in the proceedings of confirmation, the board speak of it as a claim by Lamonde, assignce of Condé.

The title did not become absolute in the confirme, whoever that person might be, till the passage of the act of 1814; and in 1825, Lamonde, for he appears to have been then alive, procured from the recorder of land titles the certificate of confirmation.

We are of opinion that these facts should have been sub mitted to the jury, for them to find whether or not there had been an assignment or transfer of interest in this strip of one by forty arpens from Condé to Lamonde. Especially do we think that the question should thus have been submitted, as it appears that at this early day and among these

Statement of the case.

simple people, a parol transfer of this interest was as effectual as if it had been in writing.

Judgment reveRSED with costs, and cause remanded with directions to issue

NEW VENIRE.

MINNESOTA COMPANY V. ST. PAUL COMPANY.

1. Where a bill in equity is necessary to have a construction of the orders, decrees, and acts made or done by a Federal court, the bill is properly filed in such Federal court as distinguished from any State court; and it may be entertained in such Federal court, even though parties who are interested in having the construction made would not, from want of proper citizenship, be entitled to proceed by original bill of any kind in a court of the United States.

In such a case the question will not be, whether the bill filed is supplemental or original in the`technical sense of equity pleading; but whether it is to be considered as supplemental, or entirely new and original, in that sense which the Supreme Court has sanctioned with reference to the line that divides jurisdiction of the Federal courts from that of the State courts.

2. A railroad company, owning the whole of a long railroad, and all the rolling stock upon it, may assign particular portions of such rolling stock to particular divisions,-certain cars, for example, to one division; the residue of the rolling stock to another,—and mortgage such portions with such divisions, so as to attend them. Whether the company have so mortgaged their rolling stock is a question of intention. In the present case it was decided that they had.

3. Quare: Whether a marshal's sale is valid in any case, unless supported by a judicial order previously made. It is not valid where made under the marshal's wrong interpretation of an order which the court did in fact make; not valid in such a case even where the court confirmed of record the marshal's sale; the court's attention not being specifically directed to the marshal's mistake, nor any issue raised as to what the court really meant, nor decision made, on such issue raised, that the marshal's act should remain firm.

THE La Crosse and Milwaukie Railroad Company was chartered by the legislature of Wisconsin to build a road across that State from Milwaukie to La Crosse, and began

Statement of the case.

to build at Milwaukie, proceeding westward. The legislature also gave the company the right to mortgage, for the purpose of raising money, any particular division of their road separately. Under this provision of the statute, and for the purpose apparently of mortgaging them separately, the company divided the main road into two divisions, nearly equal in length, called the Eastern Division and the Western Division; the Eastern Division extending from Milwaukie to Portage City, ninety-five miles, and the Western from Portage to La Crosse, one hundred and five miles. Upon each

of these divisions of the road, as well also as upon the entire road, AND upon the rolling stock, either of each division, or of the entire road, this exact matter of whether the rolling stock mortgaged did belong to the road as a whole, or to it in its divided character, being one of the questions in this suit,-it gave certain mortgages; among them these:

ON THE WESTERN DIVISION.

1856, December 31.-A mort

1854, June 30.-A mortgage

gage to Brenson, Soutter and to Palmer, sometimes called the

Statement of the case.

This

Knapp, commonly called the Land Grant Mortgage. mortgage conveyed also a road, not important to be here spoken of, from Madison, &c.

The descriptive part of this mortgage was as follows:

"All and singular the several tracts, pieces, or parcels of land which now are, or may hereafter be, or constitute the site of the roadway, turnouts, engine-houses, workshops, depots, and other buildings, and all the other lands and real estate which now constitute, or may hereafter constitute, or be a part of the roads of said railroad company from Madison, &c., and from Portage City to La Crosse; and also all and singular the superstructure of said roads, whether now

made, or to be made hereafter, and all the engine-houses, workshops, depots, and other buildings, and all the other improvements on or pertaining to said roads, whether now built and made, or to be built and made hereafter; and also all and singular the locomotive engines and other rolling stock, and all other equipments of every kind and description which have already been, or may hereafter be, procured for or used on said roads, or either of them; and all the materials, tools, implements, utensils, and other personal property which have been, or may hereafter be, procured for or used in connection with said roads, or either of them; and also all and singular the rights, liberties, privileges, and franchises of said railroad company, of every kind and description, relating to said roads."

First, and sometimes the Palmer
Mortgage.

The descriptive part of the mortgage was as follows:

"All their said road, from its eastern termination, in the city of Milwaukie, to Portage City, being ninetyfive miles in distance, constructed, and to be constructed, together with all and singular the railways, land procured or occupied, or so to be, for right of way within the limits aforesaid, together with bridges, fences, privileges, rights, and real estate owned by said company for the purposes of said road, or which may hereafter be acquired or owned by them within the limits aforesaid; and all the tolls, income, issues, and profits to be had from the same, and all lands used for and occupied within the limits aforesaid by depots and stations, with all buildings standing thereon, or which shall be procured therefor, together with all locomotives, engines and tenders, passenger cars and freight cars, shop-tools and machinery, now owned or hereafter to be acquired by said company, and in any way belonging or appertaining to said railroad,

now constructed or to be constructed

within the limits aforesaid, including all its property, real and personal, pertaining to said railroad, within said limits, and all its rights, credits, and franchises thereunto appertaining."

The mortgage went on-after the descriptive part above given to say:

"But nothing herein contained shall be so construed as to prevent the said company from selling, hypothecating, or otherwise disposing of any lands or other property of said

Statement of the case.

company not necessary to be retained for the roadway, depots and stations, nor required for the construction or convenient use of that part of said road, nor from collecting moneys due said company on stock subscription or otherwise; nor shall anything herein contained be so construed as to prevent the said parties of the first part from collecting and appropriating towards the construction, use and repair of the remaining parts of said road westward towards the Mississippi River, all stock subscriptions, donations, or loans of money, lands or other property which may have been, or may hereafter be, made for that purpose; but said parties of the first part shall have full right so to proceed, without let or hindrance from said party of the second part. And the remaining portion of the said railroad which, by the said parties of the first part, may be constructed, shall be held in use by the said parties of the first part, to their own benefit and behoof forever, so far as the claims of the said party of the second part, or his successor, might otherwise be construed as in conflict therewith. It being distinctly understood that the conveyance made by this indenture is only for so much of the present or hereafter to be acquired rights, interest and property of the said company, parties of the first part, as are or shall be vested, or belong or appertain to that part of said railroad extending from Milwaukie to Portage City aforesaid, and being in distance ninety-five miles."

1857, August 17.—A mortgage to G. C. Bronson and T J. Soutter, commonly called the Second Mortgage. This mortgage also conveyed the Eastern Division and a road not important to be