FARISH CARTER, APPELLANT,

v.

ARCHIBALD T. BENNETT, APPELLEE

ANDERSON, Chief Justice,

delivered the opinion of the Court.

This was an action of trover brought by the apjoellee against the appellant in the County of Franklin, to recover damages for the alleged conversion of a number of negro slaves.

On the trial in that Court, at the Fall term of 1848, there was a verdict and judgment in favor of plaintiff for the amount of $19,999 66-100.

The case was brought by appeal to this Court. The errors assigned, being twenty-eight in number, we propose to consider in the order presented by the record, and to make such reference to the facts of the case as may be necessary to the proper understanding of the points upon which we are called to decide.

The first and second errors assigned' — which we shall consider together as ' presenting substantially the same question — are in the following words :

“ 1st. The Court erred in giving judgment for the plaintiff below, because the action was brought in December, 1842, in the Superior Court of Franklin County, Territory of Florida, and in said Court continued until the 17th of February, 1845, when it was ordered that this cause be continued, by consent of counsel, until the newt-term, whereby it appears that this cause is yet pending in the District Court of the United States for the District of Apalachicola, (a Court of Federal cognizance and jurisdiction,) unless removed by act of Congress to some other Court, and the Cireut Court has no jurisdiction to give judgment in this case.

“ 2. Because it nowhere appears by what rule, law, authority or order said Circuit Court obtained jurisdiction to hear and determine said cause so commenced and continued in the said Superior Court of Franklin County, Territory of Florida, and the record showing that the canse was so commenced in another Court and another jurisdiction, it must appear, to give validity to the decision of the Circuit Court, thát said cause came into said Circuit Court lawfully and regularly for decision, and not so appearing, said decision must be reversed.”

The facts upon which this denial of the jurisdiction of the Circuit Court is founded, are briefly as follows :

The action was commenced in December, 1842, in the Superior Court-of Franklin County, while Florida was a Territory of the United States.

It -was continued from term to term till the 17th of February, 1845, on which day the following order was made, viz : “ Ordered that this cause be continued, by consent of counsel, until the next term.” On the Sd of March oí the same year Florida was admitted into the Union as a State, and the new State Legislature having proceeded with as little delay as possible to organize a State Judiciary, the State Courts were held in the respective Counties at the Fall terms.

In December, 18,45,' the order of the State Court sitting in Franklin County, in relation to the case before us, was as follows, viz : “ Ordered that this cause be continued.”

At the Spring term, 1846, we find a similar order. At the Fall term, 1846, the parties appeared, by their attorneys, and argued a motion made by the plaintiffto rule out certain depositions, and the cause was again continued.

There was no Spring term held in 1847, and at the Fall term of that year, and the Spring term of 1848, the same orders of continuance were made. At the Fall term, 1848, the parties came, by their attorneys, and a jury being called, they went to trial, which resulted in the verdict and judgment already mentioned.

Upon this statement the enquiry naturally arises as to the mode in which the State Court became possessed of the papers and proceedings appertaining to a cause which had originated in a Court of another power, and of the right of the State Court after obtaining such possession to carry on and complete, without new process and pleadings, a judicial controversy left incomplete by the Territorial or United States Court when it passed out of existence.

The fact is incontestible that the Superior Court of the Territory, though not a constitutional but a legislative Court, according to the distinction made by the Supreme Court of the United States, in the case of the American Insurance Company vs. Canter, (1 Peters’ R. 546,) was a Court 'of the United States, since it derived its existence from the legislation of the United States, acting tinder the powers conferred by the Constitution.

The Circuit Court being a State Court, had no right as such to succeed to the records and jurisdiction of the Superior Courts, although the State Courts were held in the same places, and were found to be in possession of the records and exercised in fact jurisdiction, though somewhat restricted, over the same matters.

One Court was not the successor of the other in any sense not provided for by competent legislation, and the possession of the papers without the sanction of such legislation was wholly impotent to carry with it into a distinct tribunal jurisdiction over the various controversies of which those papers were only the records.

Another consequence may be deduced from the fact that these two Courts derived their existence and their powers from distinct sources, and that is, that the legislation which we have said is necessary to create any relation between the Courts, must have the sanction, express or implied, of both the sovereignties to which they belonged, before such legislation can be binding upon the Courts, either as to their officers or as to the suitors.

As no' legislation of the Congress of the United States could interfere with the records and limited jurisdiction of the State Courts, (except in certain cases where the States have antecedently ceded the right,) without the acquiescence of the State, so can no State legislation, without the acquiescence of Congress, mate the records of a Territorial or United States Court the records of the State Courts, or authorize any proceedings on them.

These propositions as thus stated, seem to require no argument, and were clearly recognized by this Court at its last session, in the case of Innerarity vs. Curtis & Griswold.

The case before us was commenced in the Territorial Court in 1842, and was continued from term to term until the last session of that Court, February, 1845 ; and in the Fall of that year, we find it, without new process, on the docket of the State Court at its first session, and it was considered and continued by that Court from term to term until final trial. As we have alleged in the general propositions already stated, that the validity of this transfer of the cause from one Court to another depends upon the concurring legislation of the State and Congress, we are brought to an enquiry into the character and extent of such legislation.

The Constitution of the State of Florida gives to the Circuit Courts the most extensive jurisdiction. The sixth Section of the fifth Article provides that “ The Circuit “ Courts shall have original jurisdiction in all matters, “ civil or criminal, within this State, not otherwise ex- “ cepted in this Constitution.”

The subject matter of the suit between Bennett and Carter is no where excepted in the Constitution, and was therefore legitimately before the Circuit Court for Franklin County, if properly brought there.

The act of July 22,1845, in section 5th, enacts that “all “ causes, civil and criminal, pending in the Superior Courts, “ and all common law cases pending in the County Courts, “ shall be transferred to the Circuit Courts, to be held in “ the several Counties in which such cases may be so jDend“ing as aforesaid, together with all the papers connected “ therewith or relating thereto, and the said causes shall be “ proceeded in without delay in said Circuit Courts.”

The same act, in its 8th section, makes substantially the same provision for the transfer of papers and the jurisdicr tion of causes pending in the Superior Courts, with the following exception : “ Except all cases cognizable by the “ Federal Courts which may be organized in this State, “ which cases shall be transferred to said Court.”

These provisions of the Constitution and the Laws seem ample to-give to the Circuit Court (so far as the State is competent to give it), jurisdiction over the cause before us, and a right to the possession of the papers connected therewith or relating thereto, unless it comes within the exception just recited, i

If it was a case c^ogpizable by the Federal Courts which might be organized m the State, it would seem by the terms of the 8th section of the act referred to, to be excepted from the operation of this provision for transferring, even though the jurisdiction of the two Courts might be concurrent.

It could scarcely have been within the contemplation of the Legislature to give to the exception this extensive im port; but as the purpose of the law was a transfer of cases from a distinct and independent tribunal, and there was no inherent virtue in the State Court considered in its relation to the Territorial Court to draw, to it, from the latter, its jurisdiction, independently of legislative enactment, we feel constrained to interpret the extent of this exception according to the plain and literal meaning of its terms, and if this case was cognizable by the Federal Courts, to sustain the error here assigned.

Was it then cognizable by the Federal Court? Could the Federal Court, which was organized in this State, have taken cognizance of.it? Let us see.

All the Courts of the United States derive their authority from express grant, and “ can exercise jurisdiction in “ those cases only where it is conferred upon them by act “of Congress.” 1 Wash. C. C. R. 231.

The acts of Congress conferring authority upon the Federal Court organized in Florida (so far as they relate to the subject of our present enquiry,) are the general judiciary act of 1789, and the act of February 22, 1817, which has more direct reference to the Court in this State..

The former act, after providing for the jurisdiction of the Circuit Court in certain cases, in its 12th section provides, “ That if a suit be commenced in any State Court against “ an alien, or by a citizen of the State in which the suit is “brought against the citizen of another State, the matter “ in dispute exceeding five hundred dollars, and the defendant shall, at the time of entering his appearance in “ such State Court, file his petition for the removal of the “ cause for trial into the next Circuit Court, on giving bail, “ &c., the cause shall then proceed as if brought by origi- “ nal process.”

This provision of the act is the only one under which it Us claimed that the case before us -was cognizable by the Federal Court, and the claim rests upon the alledged fact that Carter was a citizen of the State of Georgia. This fact no where ajipears during the progress of the trial, either in the pleadings or the evidence; but after verdict, upon a motion in arrest of judgment, the defendant offered to prove that, at the commencement of the action, and at all times since, ho was a citizen and resident of the State of Georgia, and the fact was admitted by counsel for plaintiff.

The Federal Court deriving its authority solely from express grant, Carter must bring his right to be sued in that Court, within the provisions of such grant: the Court cannot take jurisdiction by mere analogy.

This suit was not commenced in a State Court, nor did the defendant at the appearance term, nor at any term, file his petition for the removal of the cause. Where, then, is the authority of the Court to take cognizance ? The judiciary act gives no authority for the removal of a cause commenced in a Territorial Court, and especially where no motion is made until after verdict; and the authority not being given, it must be denied under the decision already quoted from the Circuit Court Reports, that the Courts of the United States “ can exercise jurisdiction in “ those cases only where it is conferred upon them by act “ of Congress.”

It is no sufficient answer to this position to say that, from the peculiar circumstances attending the changes which occurred in the year 1845 in the judicial system in Florida, the defendant was never in a situation to avail himself of the privileges secured by the judiciary act to a non-resident defendant, according to the literal provisions of the act, and that he ought not to suffer from this involuntary disability.

It may be a hardship, but the Court cannot make law; and we have seen that the United States Court cannot take" jurisdiction, however meritorious the claim, without express grant. The very statement of the hardship negatives the right.

The laws of Florida, with unwonted and perhaps unguarded liberality, surrendered to the Federal Courts all the pending cases where there was concurrent jurisdiction, wherever the latter could or woidd take cognizance, but the judiciary act of 1789 does not bring this case within its cognizance.

Let us now enquire if the act of Congress of February 22, 1847, passed in more direct reference to the Court of Florida, supplies the omission.

The object of this act was to place under the control and jurisdiction of the District Court organized in Florida, certain records and proceedings in the old Territorial Courts.

The act is too long to be here recited, but a careful examination of it will show that it makes no provision for the transfer of the case in • question. There are several classes of cases enumerated in the act, and transferred to the District Court, and we will briefly describe them.

1st. Pending suits in relation to private land claims under certain acts of Congress.

2d. Causes pending in the Court of Appeals on the 3d of March, 1845.

3d. Causes determined prior to that period, on which writs of error cordd have been sued out or appeals taken to the Supreme Court under existing laws.

4th. Causes determined wherein writs of error had been sued out or appeals taken.

5th. All cases pending in any of the Superior Courts of Florida or in the Court of Appeals on the 3d March, 1845, and not legally transferred to the State Courts of the State of Florida, and which said Territorial Courts continued to hold cognizance of, and proceeded to determine after that day, or which are claimed to have been since pending therein as Courts of the United States.

Gth. All cases of Federal character and jurisdiction commenced in said Territorial Courts after said day, &c.

The case of Bennett vs. Carter was not founded upon any private land claim, and' is not therefore embraced in the first class.

It was not pending in the Court of Appeals, and is not therefore embraced in the second class.

It had not been determined prior to the 3d March, 184$, and is not therefore embraced in the third or fourth class.

The Territorial Courts did not continue to hold cogninance of it, and proceed to determine it after that day; neither was it claimed at the date -of the passage of the act to have been pending in the Territorial Courts as Courts of the United States, and it is not therefore embraced in the fifth class.

The case was not commenced after the 3d of March, 1845, and is not therefore embraced in the sixth class.

It thus appears that this case is no where made cognizable by the Federal Court, and not being cognizable by that Court, it does not fall within the excejstion of the Florida law, so that, so far as the Legislature of the State of Florida could accomplish its transfer to the State Courts, the provision for its transfer is abundantly adequate.

We have yet to show the concurrent assent of Congress to this transfer, but before proceeding to do so, we will advert for a moment to the nature of Carter’s claim to any relaxation in his favor of the strict construction we have felt ourselves constrained to give to the legislative delegation of jurisdiction to the Court.

Dhring the interval between the Spring and Fall Terms in 1845, the case is transferred from the Territorial to the State Court. At the Fall Term it is continued without any objection on the part of defendant to the jurisdiction of the Court. At the ensuing Spring term it is again continued, without any objection on his part. At the next term he appears and argues a motion made in reference to the testimony. And thus he continues to appear from term to' term till three years from his first appearance in the State Court had elapsed. At the end of that time he goes to trial, and after a verdict has been rendered against him, we hear for the first time his objections to the Court, or even that he was a citizen of another State.

If he had any privilege at all, it was purely personal. There is no pretence that the subject matter was not cognizable by the State Court; and, a privilege purely personal may be waived, and if it had ever existed was in this instance waived by repeated acquiescence in the jurisdiction assumed.

But to return to the argument: — We have shown that so far as State legislation was competent to give it, the Circuit Court had full authority to hear and determine this case. Ilad it the sanction of Congress, which we have admitted was necessary to the legal transfer of the records and proceedings therein ?

The act of Congress of February 22d, 1847, was designed to transfer to the United States District Court organized in Florida all such records of the late Territorial Courts as belonged appropriately to that Court. A careful specific enumeration was made of all the classes of cases so to be transferred as we have already mentioned. It was made the duty of the District Judge to take the necessary steps to get possession of these specified records from the Clerks of the old Courts, or other officers or persons having them in their possession, these expressions, other officers or persons, pointing obviously to the Clerks of the State Courts, who had in fact succeeded to the custody of the papers. This precise enumeration of eases to be transferred from the State Courts leads irresistibly to the inference that Congress acquiesced in the retention by the State Courts of all the other cases and the papers belonging to them. The act'of the Legislature providing for the transfer of all these cases not thus enumerated had been passed more than a year, and a half, and the State Courts, under the authority of that law, had possessed themselves of them, and had been adjudicating them for nearly the same period. It is impossible to avoid the conclusion that this act of the Legislature and the action-of the Courts under it received the sanction of Congress in the act of 1847, so far as they were not in conflict with that act.

Besides this, Florida had followed many an elder sister into the Union, and the same provisions had been repeatedly made for the transfer of Federal causes to the District Courts, aceomjianied by long acquiescence in the assumption by the Courts of the new States of jurisdiction over causes not federal.

The clearness and force of this inferential sanction of Congress is fully recognized both by the Supreme Court of the United States and by the Supreme Court of this State.

In the case of Benner vs. Porter, 9 Howard R., 235, the Supreme Court say: — “The acts of Congress that have “ been passed in various instances on the admission of a “ State, providing for the transfer of federal causes to the “ District Courts, as in the case of the admission of Florida, “already referred to, and saying nothing at the time “ in respect to those belonging to State authority, may “ very well imply an assent to the transfer of them to the “ appropriate tribunal, “ Even the omission on the part of Congress to interfere “ at all in the matter may be subject to a like implication, “ and a subsequent assent.would doubtless operate upon “ past acts of transfer by the State authority.”

Our own Supreme Court, in the case of Inerarity vs. Curtis & Griswold, (4 Fla. R., 175,) say :—“ Where, as in “ the case of Florida, the act of 22d February, 1847, pro- “ vides for the transfer of the records and proceedings of “ certain classes of cases, saying nothing about other class- “ es, of which the State Courts could take jurisdiction, the “ inference is irresistible that Congress intended that the “State authorities should assume jurisdiction over the lat- “ ter, or if they had already assumed it, the omission may “ well be considered as a tacit acquiescence in and a ratifi- “ cation of the authority thus claimed and exercised.” “So far as Congress, by the act of February 22, 1847, “ claimed to exercise jurisdiction over certain classes of “ records and pending causes, it is in our opinion the ex- “ ercise of a rightful power, and so far as Congress has not “ claimed those records, it may be -considered as the sanction of the General Government to the 'exercise of the “jurisdiction by the State authorities over the subject.”

We have thus shown that the transfer of the case of Bennett vs. Carter from the Territorial to the Circuit Court in which it was tided was made by the Florida Legislature, with the concurrence and sanction of Congress, and the cooperation of these two authorities was sufficient to give legality to the transfer, and jurisdiction to the Circuit Court.

We conclude, therefore, that the first and second errors are not well assigned.

III. The third error assigned is, that the Court ruled out the notes offered in evidence by defendant.

The defendant was endeavoring to show a title to the negroes under a mortgage executed by -one Warren Jordan in favor of the Georgia Railroad and Banking Company, and after having given the mortgage in evidence, he tendered certain notes, which were ruled out by jtlie Court, upon the ground that they did not appear to be the debt of the mortgage.

It is the duty of the Court to decide upon the relevancy of a particular fact when offered in evidence. The Court, in endeavoring to ascertain this, will not always confine its notice to other facts already proven, which, in connection with the fact proposed, will render the latter pertinent to the issue; but it has a right and ought to require the as-, sertion at least of counsel that it will be shown, by evidence-yet to be offered, to be material,

Sucb is tbe approved practice of tbe Courts, (4 Starkie’s Ev., 381,) and without such statement it is no error to re-, ject an isolated fact apparently immaterial, though it may afterwards appear not to be so,

“ If the evidence be irrelevant at the time it is offered, “ it is not error to reject it because other evidence may af-oint presents an objection to the verdict, upon the ground of excessive damages. This was a matter proper to be brought to the attention of the Court below on a motion for a new trial. We have nothing to do with it.

XXVI. The twenty-sixth point is obnoxious to the same objection.

XXVII. XXVIII. The twenty-seventh and twenty-eighth points are mere recapitulations of others already decided upon.

The true elements of this controversy,, when divested of the multitudinous wrappings in which it has been presented to our notice, (the printed record mating a well sized octavo volume,) are very few and very simple. Bennett was in possession of the slaves when they were taken from him by Carter, and converted by Carter to his own use. Whether Bennett’s'possession was rightful or not, Carter had no right to divest him of it manu forti, .without showing that he was a judgment creditor or a mortgage creditor of Jordan’s.. He failed to do both, and stands, before the Court simply as a stranger, intermeddling without authority with the possession of another. Having reviewed in detail the many complicated questions presented upon the record of this case, we conclude-by saying, we find no such error in the proceedings in the Court-below as to require us to set aside the judgment, and we shall accordingly direct the judgment to be affirmed. with CQfttK Note et the Reporter. — In the 8th line of the Head Notes, on page 2S3, instead of "former,” read latter. Let the judgment be affirmed, with costs, and the caso remanded to the Court below.