Posten

Murray, C. J., concurred.

1. The first objection of the appellant, relates to the form of the deed. It is insisted, that as it was executed while the Mexican laws were in force, that to give it validity, it should have been executed according to the forms prescribed by those laws. The objection comes too late. It ought to have been taken on the trial at nisi prius. It *469 would then have given an opportunity to the defendants to prove that custom had changed the law. This would be perfectly legitimate, according to the rules of the civil law, and would be called a custom beyond the law. Indeed, it may be a question, (not now necessary to decide,) whether, when a well established custom, extending over a large territory, has changed the general law, the Courts are not bound judicially to take notice of the change, especially when the change was eo-extensive with their jurisdiction.

2. It is next objected that the power of attorney from Southard to Parker, was destroyed by fire before the latter sold the lots by virtue of its authority, and that therefore the authority was gone, To this the answer is apparent, that it was not the paper which gave the power, but the will of the…