was taken out of the enacting clause by the proviso that the act shall not affect any confirmed claims to the same lands. How "affect" them? If in the sense of simply acting upon them, then his title is excepted from the operation of the act. But this exception is not within the reason of the proviso, and the court is at liberty to adopt another construction, if it may be fairly done, by giving full and just effect to the words used.

The general rule of law is, that a proviso carves special exceptions only out of the body of the act; and those who set up any such exception must establish it, as being within the words as well as the reason thereof. United States v. Dickson, 15 Pet. 165. Why should Congress wish to exclude Dodier's title, if it did not conflict with any other, and was embraced by the general words of the statute? If it was left incomplete by the act of 1807, and completed by the act of 1812, there was certainly no reason for excluding it. It was within the power of Congress to favor the inhabitants of villages over other claimants; and the fact that he had documentary evidence of his title to this out-lot, which the commissioners recognized and approved, affords no ground for supposing that Congress meant to deprive him of the benefit of another law dispensing with this evidence, and still meeting the requirements of his case. This would lead to unjust consequences; for it would discriminate between villagers, and put claims, supported by paper-title with possession, on a less favored footing than those resting only on cultivation and possession. Besides, such a purpose is inconsistent with the avowed object of the law, which is to confirm to the villagers, without discriminating in favor of any class, their rights of property, whether held in severalty or in common. If Congress had intended to exclude confirmed claims, the fair presumption is, that it would have, in terms, excepted them, or by some form of words declared their exclusion. But common fairness required that successful claimants before the board of commissioners should, in any event, be protected, and that the general words of the law should be so limited as not to produce a conflict of title. It would have been wrong, in legislating for the inhabitants of ancient villages, to do any thing prejudicial to those who, having been invited to present their claims to the

board, had obtained its approval of them. This was recognized by Congress; and, to guard against the possibility of conflict, the proviso was inserted. No known rule of law requires us to interpret it according to its literal import, when its evident intent is different. It may be that the words, taken in their usual sense, would exclude the case of Dodier; but if it can be gathered, from a view of the whole law, and others in pari materia, that they were not used in that sense, and if they admit of another meaning in perfect harmony with the general scope of the statute, it will be adopted as the declaration of the will of Congress. Especially is this so when this construction withdraws the least number of cases from the operation of the statute. It is unnecessary to give the various definitions of the word "affect." It is enough to say, that it is often used in the sense of acting injuriously upon persons and things; and in this sense, we are all of opinion, it was used in this proviso. This interpretation accords with the reason and manifest intent of the proviso. It unsettles no confirmed title, and secures to the inhabitants of the villages, according to their respective rights, the protection which Congress in its wisdom thought proper to afford them.

If there were any doubt remaining about the correctness of this construction, it would be removed by a consideration of the act of 1807, which is in pari materia. The various laws, from time to time passed respecting the claims to lands in the Territories of Orleans and Louisiana, were modified as policy required; but they constitute a land system, are all in pari materia, and, in explaining their meaning and import, are to be regarded as one statute. Patterson v. Winn, 11 Wheat. 336. The third section of the act of 1807 (2 Stat. 440) confirms the claim of the corporation of the city of New Orleans to the commons adjacent to the city, and provides, that "nothing herein contained shall be construed to affect or impair the rights of any individual or individuals to the said commons which are derived from any grant of the French or Spanish governments." The word "impair" is dropped from the proviso in the act of 1812, doubtless because it was deemed superfluous and unnecessary. There was no reason why the different provisos should have different limitations. Both had a common

object, -to protect individual rights and prevent conflict of titles. The grants of the New Orleans commons, in the one case, and of the village lots in the other, were simply on the condition that no adverse claimant should be injured by them. If it should turn out that any one was benefited by the grant, he was not barred from availing himself of it because he had given another title in evidence before a regularly constituted board of commissioners.

Strother v. Lucas, 12 Pet. 410, is cited by the plaintiffs as an authority in this case; but it can hardly be considered in that light. It is true that the court treat Lucas's title as "being a grant by the United States, under the confirmation of the commissioners and the act of 1812;" but the effect which that act has on a lot confirmed by the commissioners was not discussed at the bar, or considered in the opinion, nor has it, to our knowledge, been heretofore decided by this court.

It is claimed that the effect of the partition suit is to estop the defendants from setting up title to lands which were not assigned to Labeaume by the commissioners in partition. But the lines of partition were incorrect; for the court finds that the land in controversy is a part of that conveyed to Labeaume by deed from Dodier, and is not within the boundaries of the land set off to him. Besides, neither party recognized the proceedings in partition as binding; nor were they at all necessary, as the deed calls for the whole estate in a specified part of a tract of land. In such a case, the deed ought to and must control the rights of the parties.

It is unnecessary to notice any other assignments of error, for these views dispose of the whole case, and affirm the judgment of the Circuit Court. Judgment affirmed.

KITCHEN v. RANDOLPH.

Unless an appeal is perfected, or a writ of error sued out and served within sixty days, Sundays exclusive, after the rendition of the decree or judgment com. plained of, it is not within the power of a justice of this court to allow a supersedeas.

ON motion to vacate a supersedeas.

This is a motion by the appellee to vacate and set aside an order made by an associate justice of this court, granting the petition of the appellant for a supersede as directing a stay of all proceedings, under a decree of the Circuit Court of the United States for the Eastern District of Pennsylvania, foreclosing a mortgage on property of the Wilmington and Reading Railroad Company, and ordering a sale of the same.

The bill for the foreclosure and sale was filed by Randolph, as holder of coupon-bonds of that company, secured by a certain deed of trust and mortgage against the company, the trustees named in the deed and two other junior mortgages, and the Baltimore, Philadelphia, and New York Railroad Company, as original defendants.

Subsequently, Kitchen, a bondholder under a junior mortgage of the Wilmington and Reading Railroad Company, was allowed to intervene as a defendant and file an answer.

The case was heard on the bill, the answers of the original defendants, and that of Kitchen; and, on the 6th of June, 1876, the court below entered a decree foreclosing the mortgage as against certain of the property and franchises covered by it, and ordering a sale by the trustees, after due advertisements for three months prior to the day of sale.

The sale was accordingly fixed by due advertisements, as prescribed by the decree, for the 2d of October, 1876.

No appeal from this decree, or any part of it, was prayed in the court below by any of the defendants; but, on the 29th of September, 1876, the appellant filed his petition for the allowance of an appeal and for a supersedeas, both of which were allowed on that day by the associate justice, and a citation addressed to the complainant below, returnable on the first day of the present term of this court, was issued.

The motion was argued by Mr. J. Hubley Ashton for the appellee, and by Mr. Samuel Dickson and Mr. Wayne Mac Veagh for the appellant.

MR. CHIEF JUSTICE WAITE delivered the opinion of the

court.

The only question presented by this motion is as to the power of a justice of this court to allow a supersedeas in cases where an appeal was not taken or a writ of error sued out and served within sixty days, Sundays exclusive, after the rendition of the decree or judgment complained of.

The Judiciary Act of 1789 (1 Stat. 84, sect. 22) made provision for a review by this court of judgments and decrees in civil actions and suits in equity in the circuit courts upon writs of error accompanied by a citation to the adverse party, "signed by a judge of such circuit court or justice of the Supreme Court." By the same section it was further provided, that "every justice or judge, signing a citation on any writ of error as aforesaid, shall take good and sufficient security, that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good."

The citation was essential to the validity of the writ, and without it the writ would be quashed. Lloyd v. Alexander, 1 Cranch, 365. The writ brought up the record, and the citation the parties. Cohens v. Virginia, 6 Wheat. 410; Atherton v. Fowler, 91 U. S. 146. As the security was to be given when the citation was signed, there could be no valid writ without the security.

At common law, a writ of error was a supersedeas by implication. Bac. Abr., tit. Supersedeas, D, 4. To avoid the effect of this rule, the act of 1789 (1 Stat. 85, sect. 23) provided that a writ of error" shall be a supersedeas, and stay execution in cases only where the writ of error is served, by a copy thereof being lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of;" and in cases where a writ of error might be a supersedeas no execution could issue for ten days.