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Daniel F. Strother, Plaintiff in Error v. John B. C. Lucas, Defendant 410 (1838)

handle is hein.slavery/ussccases0094 and id is 1 raw text is: SUPREME COURT. DANJEL F. STIOTHER, PLAINTIFFIN ERAOR V. JOHN B. C. LucAs, DEFENDANT. Ejectment for two lots of ground in St. Louis, Missouri. The plaintiff )iad brought an ejectment, which was before the Court on a writ of error, in 1832, and the judgment in favour of the defendant was affirmed. 6 Peters, 763. lie afterwards brought another action, of ejectment for the, same land. By the Court-Had this case been identical with the former, as to the merits, we should have followed the deliberate opinion delivered therein; but as one judgment in ejectment is not con- clusive on the right of either -possession or' property in. the premises in contro- versy, the plaintiff has a right to bring a new suit; and the court must conside- the case, even if it is in all respects identical with ho former, though they-may hold it to be decided by the opinion therein given. It is otherwise whenth e second case presents a plaintiff's or defendant's right, on matters of law or fact, matefial to its decision, not before appearing in the record; it then becomes the duty of the Court to decide all pertinent questions arising on the record, in the same manner as if the case came before them for the first time, save such as arise on evidence identical as to the merits. In this case, we deem it a peculiar duty; .enjoined upon us by the nature of the case, the course of the able and learned arguments as to the law of Spain and her colonies, in its bearing on the interest; ing question before us, together with a view of the consequences of our final decision thereon. Were we to leave any questions undecided which fairly arise on the record; or to decide the cause on points of minor importance only; the value of the premises wduld justify future litigation; '~vhich no court of chancery might think proper to enjoin so long as new and material facts could be developed, or pertinent points of law remain unsettled. The sti.te of Missouri was formerly a part, of the territory, first ot rrance, next of Spain, then 9f France, who ceded it to the United States by the treaty of 1803, *in full propriety, sovereignty and dominion, as she had acquired and held it; 2 Peters, 301, &c.: by which this government put itself in place of the former sovereigns, and became invested with all their rights, subject to their concomitant obligations to the inhabitants. Both were regulated by the law of nations, accord- ing to which the rights of property are protected, even in the case of a conquered country; and held sacred and inviolable when it is ceded by treaty, with or With- out any stipulation to au6h effect; and the laws, whether, in writing, or eidenced by the usage and customs of 'the conquered or ceded country, continue in force until altered by the new sovereign. This Court has also uniformly held that the term 1 grant, in a treaty, comprehends not only those which are-made in form, but also any concession, warrant, order or permission to survey, possess or settle, whether evidenced by writing or parol, or presumed from possession; and that in the term laws, is included custom and usage, when oce settled; though it may le comparatively of recent date, and is riot one of those to 'the contrary of which the memory of man runneth not, which contributed so much to make up the common law code, which is so justly venerated. No.principle can be better established by the authol y of this Court, than that the

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