Volume 44 — United States Reports

This case was brought up by writ of error, from the Circuit Court of the "United States for the District of Maryland, and involved the construction of the act of Congress of March 2d, 1833, commonly called .the Compromise Act. Williams was the collector of the port of- Baltimore, and the plaintiffs in error were importing mer chants, who sued to. ecover duties paid under protest. .

Held: .that this notice- or application forms no. part of the title, and is not part of the evidence on -which the general land-office acted, but the patent issued on the plat and certificate of the surveyor, returned to- the recorder’s, office, and which was by him reported to, the general land-office.

<p>This, case came up from the Circuit Court olf the United States for the.middle district of Tennessee, upon a certificate.of division in opinion between the judges. ’ -</p> <p>All the facts which are necessary to" an understanding of-the point are stated in the certificate,,as follows::—</p> <p>' The plaintiffs, at September term, 1837, with the defendant’s-consent, had a judgment of assets• quando acciderint. .On'the 2d of October, -1838, upon their suggestion of-assets come to the defend-. ant’s hands, a scire facias was accorded them to be made known to the defendant to show cause why they should not have execution of those assets. . This scire facias was issued on th&lOth of January, 1839, and after reciting the judgment quando, it contained the-following,and no other, averment of the coming of assets to the'defendant’s hands: — “And whereas, afterwards, to wit, on the 2d day of October, 1838, it was suggested to the said court, on behalf of the said plaintiffs, that goods, chattels, and assets-had come to the hands of the defendant, sufficient to satisfy.the said judgment; and it was thereupon ordered, by said court, that a scire facias issue, -and we therfeore hereby command you, &c.” ■ This-writ was made known to the defendant, and the plaintiffs, .thereupon, by his default, at September term, 1839, had judgment of execution of the intestate’s goods .in the defendant’s hands .to be administered, if so much, and if .not, then the costs de bonis propriis.' £)nthe 9th of October, 1839‘, execution was issued accordingly, and returned to March rules, 1840, nulla bona, except as to the costs, which were levied da bonis propriis. A scire facias was now accorded' against the defendant to show cause why the plaintiffs should not have execution of their demand de bonis propriisand this writ was issued, made known to the defendant, and returned to September’ term, 1840,. when he appeared, and pleaded to it fully administered, and a-special plea, that , the insolvency of the intestate’s estate had been suggested to the proper Tennessee authority, and a bill in equity filed in a. state court.to administer hid effects according to the laws of Tennessee. To these pleas the plaintiffs demurred, and on the argument of the demurrer, the defendant’s counsel, against awarding execution de bonis propriis, showed for cause, that the judgment by default upon the first scire . facias did not establish the fact, that any goods, &c., had come to •the defendant’s hands since the judgment.of. assets quando acciderint; because the said first scire facias did not aver that goods,-&c.,.had comedo the defendant’s, jiands ánce the said judgment quando, but only that those goods had come to his hands, without saying when, and a judgment by default only admits such 'facts as are alleged’; thqt unless the record shpwed that assets had come to his hands since the said 'judgment qiiando, and that such assets had been - eloigned and wasted, no execution c.ould issue'against the defendant to be levied de bonis propriis. „And the counsel for the plaintiffs insisted that advantage should have been taken of the alleged defect, in the first scire facias at "the term to which it was returnable, arid returned, by plea or demurrer; that the judgment by default was a waiver of errors .in the process,- and so that the said error, if it be one, could not be reached by the demurrer. aforesaid 1</p> <p>“ And upon said point; whether advantage’ could be taken of the aforesaid defective averment in the .first scire facids, upon the plain-' tiffs1 demurrer to -the defendant’s pleas to the second scire facias, the opinions of the judges are opposed. - ’</p> <p>“And it is thereupon ordered, that the foregoing statement of facts, involving said point, upon which said disagreement occurs, made under the direction of the judges,-and at the request of the plaintiffs by their attorney, be certified to the Supreme Court for their opinion - upon said point, according to the' act of Congress in that case made ■ and provided.” '</p> <p>who made the -following-points:—</p> <p>1. The first scire Jactas was sufficiently accurate as to form. It avers that bn the-4th of‘September, 1837, Judgment was rendered for the plaintiffs against the assets quando acciderint. It then avers tiiát afterwards, on the 2d of October, 1838, (more than a year,) .the plaintiffs suggested that assets had come into the hands of the defen* daht, sufficient to satisfy the judgment. The two facts together .'form the .connected- proposition, that assets had come into the hands , of.the defendant, since'the.judgment quando. In the case of Platt v. Robins et ah; 1 Johns. C..276; there is no better averment; yet no objection was taken to .the form. “ Diverse goods and chattels which were of- the. intestate, to the-amount of the damages recovered, had come-to the hands-Of the defendants,” is the language in that case.</p> <p>■_ ’ 2. If the averment in the first scire facias be imperfect, the -objection cannot now be taken ;, ittshould have been made by plea, when that writ was returnable: The general rule is, that if a party do. not avail himself of the’ opportunity of pleading matter in bar to the original action, he" cannot . afterwards plead it, either in another action founded.on it, or in a .scire facias.. Cook v. Jones, .2 Cowper, 727; Wheatley v. Lane, 1 Saunders; 216, note 8, -by’ Williams.'</p> <p>3. The-defendant cannot plead any plea to the second scire'facias .which puts his defence upon tiié want of assets; for such plea would be contrary to what is admitted by. his default in thej first scire facias: The defaults’ ah admission of assets. -Treil v, Edwards, 6 Modem; 308; Rock v.. Leighton; 1 Salk. 310; Platt v. Robins et ah, 1 Johns. Cá. 276:- Skelton v. Howling, 1 Wilson, 258; Ruggles et ah v. Sherman, 14 Johns. 446; The People v. The Judges of Erie County, 4 Cowen, 446. This last case shows the practice to be to issue execution de bonis propriis, whether nulla bona or devastavit be returned by the sheriff. Iglehart v. Slate, for the use of 'Mackabin, 2 Gill & Johns. 235; Griffith v. Chew, 8 Serg. &.Rawle¿ Í7. A cognovit actionem, by. executor, is an admission of assets. Den v. De Hart, 1 Halsted, 450.</p> <p>4. The point raised by the special plea is as to the effect of the proceedings in insolvency in the local court's. If the proceeding be in the nature of a commission of insolvency, thén the pendency of such commission is no bar to a seire facias against the administrator, in a judgment had against him. . Hatch v. Eustis, 1 Gall. 160.</p>

'This case was-brought up by writ of error from the Circuit Court of the United States for the District of Columbia, in the county, of Washington. The facts were these.

This case was brought up by writ of error from thé,Circuit Court of the 'United States in and for the- eastern district of Louisiana. Anderson was a citizen of Kentucky, and William Henderson, of •Louisiana. • Henderson was. a partner, in the commercial house of John Henderson,and Co., carrying on business in the town of War-renton, Warren county, Mississippi.

This was an appeal from the Circuit Court of the United States for East Louisiana; sitting as a court of equity. The heirs of Poultney filed a bill in chancery against the City of Lafayette and upwards of two hundred individuals.

This case was brought up, by writ' of error, from the Circuit Court of the United States for the District of Columbia, sitting for the county of Washington. The Supreme Court of the United States having affirmed (12 Peters, 524) the decision of the Circuit Court, awarding a mandamus against Amos Kendall, application was made by Stokes,' &c., to Kendall, that the sum of money mentioned in the proceedings should be carried to their credit on the books' of the department.

'Mr. Treadwell moved for,a writ of habeas corpus to bring up Thomas-W. Dorr, of Rhode Island, under the’ following circutn-stances :•— He stated that Dorr was charged with levying war against the state of Rhode Island, and sentenced to the' state’s prison for life, in June, 1844; that upon the trial a point of law was raised, whether treason could be committed against a state, but the court would riot permit counsel to argué it; that a motion was made to suspend' the…

This case was brought up by writ of error from the Circuit Court of the United States for the southern district of New York.. It was an action brought in the court below by Martin and Coe against Curtis, the collector, for return of - duties upon certain importations of gunny cloth, from Dundee, in Scotland, from April to September, 1841.

<p>When ’ an importer tneans to contest the payment of duties, it is not necessary-for him to give a written notice thereof to the collector.</p> <p>The question of notice is-a fact for the jury, and it makes no difference, far the purposes for which it is required, whether it is written or verbal.</p>

Held: that the seizure and'sale of the goods was a wrongful conversion, for which the sheriff was hable in an action of trover at the. suit of the assignee subsequently chosen. Balme h. Hutton, 3 M. & Scott, 1, 9 Bingh. 471, 1 C. & M. $62; reversing S. C. Tyr. 17, 2 C. &.JÍ. 1.9, ü Y. & J. 101, held by seven judges K. B. and C. P..

These two cases came up from the Circuit .Court of the United States for the. district óf Illinois, and involved the right of Gear, the defendant, to a tract of land upon which there was a lead mine.. The first was an action of trespass^twe clausum fregit on the commbn law side of the .court;, and the-second a bill in chancery.,.with a prayer for an injunction to stay waste, on the equity side.

These were kindred cases; -brought up by writ of error from the Court of Appeals of the state of Maryland, under the 25th section of the Judiciary Act of 1789.

Held: “that a state government had no *179 right to tax any of the constitutional means employed .by the. government of the union, to execute its constitutional- powers.” And the Bank of the United States was held to be a means of the government.

<p>In making an entry of land, where mistakes occur which are occasioned by the impracticability of ascertaining the relative positions of the objects-called for, the court will correct those mistakes so as to carry out the intentions of the locator.</p>

Held: atid is still entitled to-hold the same, subject to the repayment of the advances made thereon by William Blackburne & Co., in whose actual possession they then were. And the said John Taylor, jun., further says, that the said.

Held: when Pollard’s title was before it formerly, thaCCongress had the power to grant the land to him by the act of 1836: on this point there was no difference of opinion at that time among the judges.

Held: in the case of Tracy and Balestier v. Swartwout, 10 Peters, 98, 99, that the personal inconvenience to the collector is not to be considered. The collector is liable for money illegally exacted and paid under protest, although the same may have been turned over to the government under the requirements of the acts of Congress.

These two cases depended upon the same facts and principles, and were argued together. They were brought up by writ.of error from the Circuit Court of the United States for the District of Columbia, sitting for the county of Washington.

Held: contains an express prohibition to the judicial power, not to so construe any provision as to annul, destroy, or impair any lien, mortgage, or other security, on property which is valid by the laws of the states respectively-, and not inconsistent with the 2d or 5th sections.

Held: that an attachment would not lie against executors, 2 Dallas, 73; nor against money collected by a sheriff, 1 Dallas, 355. “ A claim resting in damages and depending on a possibility only, is not attachable by foreign attachment.” “ For the same reason, foreign attachment lies not of a claim in covenant, because it sounds merely in damages.” Serg. on Attachment, 76. “ A legacy cannot be attached in the hands of the…

Held: that a final judgment of this court was conclusive upon the parties, and could, not be re-examined.” ' In Browder v. McArthur, 7 Wheat. 58 , counsel applied for a re-hearing; the court refused it, saying a subsequent appeal brought up only the proceedings subsequent to the.mandate, and did not authorize an inquiry into the merits of the original decree. - The same-is said with equal positiveness in the case of the…

Held: that, from the moment of- filing the petition, the bankrupt became incompetent to stand in judgment in the state courts, and that the assignee in bankruptcy has the right to cause,the state process to be stayed, to take the property into his own possession, and to sell it free from the mortgage, leaving to the mortgagee the right to claim the proceeds in the court of bankruptcy, under such rules as that court may…

Held: or for a limited period' after the same *457 were sold. This limited period has reference to the five years’ exemption, which the compact of admission between the'United States and.Ohio secures to purchasers of public lands in that state, after they have made their purchases. No such exemption is stipulated in the compact which admitted Michigan into the union.

Held: that -it was not material whether it -had been settled by frequent decisions, or a single case.

Held: that the assignment, being proved tó be valid and effectual by the, law of Pennsylvania,-, was to be,’deemed equally valid, and effectual to pass the goods), debts, credits, and effects) of the bank, to the assignees in Louisiana, against the attaching creditors,, who had notice of the assigfiment-at the time ofrtheir attachment.

. This case was brought up, by writ of error, from the Circuit Court'of the United-States for the district of Missouri. • The defen/dants in errpr were citizens of the state of New York and partners in trade under the name arid style of Doremus, Suy-dams and Nixon. The plaintiff in error was the surviving partner of the mercantile house of John B.'and Marbel Camden, which carried on business at St. Louis-under the name' and firm of J. B. and M. Camden.

Held: in the.-case of Terrett and Taylor, .that .the reedgnition of a power to contract is equivalent to a fresh' grant of power.-- A bond between A. and B., for the use of C., admits C.’s interest, and suit must be brought in the name of the obligee.

. A suggestion was made, in this case, of diminution in the record, and a motion for a certiorari to bring up the charge which the court delivered to the jury on the trial of the 'cause in the Circuit Court of the United States for the Eastern District of Pennsylvania.

This case canie up, on a certificate of diviáon, from the Circuit Court of the United States, for the district of Massachusetts.. It was to test the right of the defendant in error who was also the. defendant below, to certain pay, allowances, and emolumentsj which he claimed as being an officer of the marine corps. The questions which were certified to this court-were the following:— “1.

This was an appeal from the Court of Appeals in-Florida, .and grew out of the following circumstances ::— There were two vessels, o e called the Globe, and the other the George Washington,, engaged in the business 'of assisting vessels which were wrecked, or in. danger of becoming so, oh the coast of Florida. Between these two there existed the agreement of con-sortship, which will b.e spoken of presently.

Held: (as is remarked by Judge Story, Com. on Bail. sect. 35, 2d edition,) “ that upon a promise by a bailee,1 with-. out reward to keep or- carry safely, he is not responsible for injuries ' or losses occasioned by the acts of wrong-doers, arid á fortiori, that he is not responsible for a theft not- caused by his own neglect.”. -In the same section, Judge Story remarks, “ Mr'.

<p>This court has not jurisdiction, under the 25th section of the Judiciary-Act; of ¿ .question whether an ordinance of the corporate authorities of New Orleans does or does not impair religious'liberty.</p> <p>The Constitution, of the United States makes-no provision for protecting the • citizens bf-.the respective states-in their religious liberties; this is, left to the state constitutions and laws. • - ’ .</p> <p>The act of February 20th, :-1811j authorizing the people of the territory of - . Orleans to form a-constitution,and state government, contained, in the third section thereof, two provisoes; one in the nature of instructions how tpe constitution was to be formed, and the other, reserving to the United States the property in the public lands, their exemption from state taxation, and the - common right to-navigate the' iflississippi.</p> <p>The first of these provisoes was fully satisfied by the act of 1812, admitting Louisiana into the union, “on an equal.footing with the original states.” The conditions and terms refen-ed to id-.the act of admission referred solely to the second proviso, involving rights of property and navigation.</p> <p>The act of . 1805, chap.'83, extending to the'inhabitants of the Orleans territory the rights, privileges and advantages secured to the North Western territory by the ordinance of 1787, had ho further force after the adoption of the state constitution. of Louisiana,-than other acts- of Congress, organizing the territorial government,-and standing in connection with the ordinance. They are none of them'in force unless'they-were adopted by the state constitution.</p>

This was an appeal from, the Superior Court oí East Florida, and a sequel to the case reported in 10 Peters; 308.

Held: that it had: But so far from holding that no bar existed, the contrary is rather tó be inferred; the direct question was neither decided or intended to be. • For the reasons stated,/we order the decree of the Superior .Court of ‘East Florida to be reversed, and .direct that the appellees? petition be dismissed.

Held: but by the appointment of the wfil only. The husband, therefore, had all the possession of this *631 vested legacy at the time of his marriage of whieh the legacy was capable; and the law required nothing more of him.to perfect his . title-jure mariti. 3 flow. Miss. Rep, 313.

Held: there, that the deed of a. feme co.vert to convey her inheritance, or even her dower, must not only be executed in the mode, and with the solemnities required by th.e statute laws, Phillips et ux. 'v. Green, 3 Marshall, 12; Steele v. Lewisj 1 Monroe, 49; Roberts’ heirs v. Elliott’s heirs, 3 Monroe, 397; Smith v. White, 1 B. Monroe,. 19: but it miist be actually recorded, together with the certificate of her privy…

This case was brought up, by writ of error, under .the twenty-fifth.section of the Judiciary Act, from the' Supreme Court of the state of Alabama. It was an ejectment, brought by the plaintiffs in error to recover acres of land, in the possession of Clements as the tenant of Hunt. The plaintiff claimed title through a patent to James Ethe-ridge, and the defendants through a patent to W. D. Stone.

Held: claimed,'and occupied, 'the, land, as their own, for upwards of. twentyrfivé years before the commencement of this5 suit;; but mo evidence was .introduced by either of the defendants, conducing to prove that either of them, or any other' person, had- given any expres$ notice to the patentee, Clymer, in his lifetime, or either.of the trustees named in the will of said Clymer, that they, or any of them, held the land…

<p>When an issue is directed by a court of chancery, to be .tried by a court of law, and in the course of the trial at law, questions are raised and bills of exceptions taken, these questions must be.brought to the nbtice and decision of. the court of chancery which sends' the issue.</p> <p>If this is not done, the objections cannot be taken in < dppellate court of chancery.</p> <p>If the chancery court below refers matters of account to • master, his report cannot be objected to in Uhe appellate court, unless exceptions to it have been filed in the court below in the manner pointed out in the seventy-third '.chancery rule of this court.</p>

This case was broüght~up by writ of error, under the 25th section of the Judiciary Act, from the-' Supreme Court of the state of Louisiana.

<p>A law of the state of Indiana? directing “that r eat and personal estate, taken in execution, shall sell, for the best price the same will bring at public auction and outcry, except that the fee-simple of real-estate shall not be. sold to satisfy any execution or.executions, until the rents and'profits for the term of seven ‘ years of such real estate shall have been first offerpd-for sale at public auc- . tion and outcry; and if-such rents and profits will not sell for a sum sufficient to satisfy such'execution or executions, then .the feé-simple shall be sold,” is not merely directory to the sheriff, but restrictive of his power to sell the fee-simple.</p> <p>If he sells the fee-simple without having previously offered the refits and profits, his deed is void.</p> <p>The law of Indiana, passed after the execution was issued, also required that the property should be appraised. The sheriff’s deed was not void, because ‘ of there being no.appraisement.</p>

This case was brought up, by writ' of error, from the Circuit Court of the United States for the southern district of Mississippi. McFarland had recovered a judgment against one Passmore for the sum of $9763 10, and. on the 6th of July, 1839, issued a fieri facias. On the 1st of November, 1839, the execution was levied upon sundry pieces of property by the marshal.

This casé was brought up under the 25th section of the Judiciary Act, by writ, of error, from the Supreme Court of Ohio! It involved the construction of the- acts of Congress and the state of Ohio, relative to the cession of the'Cumberland road,- which are narrate'd in a preceding part of this volume, in the case of Searight v. Stokes et ah, p. 151. It is proper, however, to state the law of Ohio with more particularity than it was necessary to do in the report of that case.

This case was brought up, by writ of error, from the Circuit. Court of the United States, for the southern district of Mississippi. It was an ejectment brought by Hickey’s lessee against the defendants, as the heirs of Robert Starke, for two thousand acres of land in the state*of Mississippi. The facts in the' case are fully -set forth in the opinion of the court.

Held: That the paper in question continued the property of the New England Bank, notwithstanding the endorsement, these having been made to enable the agent to collect. 2.

moved to dismiss this case for want of jurisdiction, tinder the circumstances stated in the opinion of the court, which was delivered by

<p>.Where a bill was- filed on the equity side of the court below, to enjoin the marshal from levying an execution upon certain property, which execution was for a less sum than two thousand dollars, an appeal from a decree dismissing the bill will,not lig. to this court, although'the entire value of the property may be more than two thousand dollars.</p> <p>The jurisdiction of the court does not depend upon the amount of any contingent loss or damage which one of the parties may sustain by a decision against him, but upon the amount in dispute between them.</p>

This case was brought up, by writ of error, from the Circuit Court of the United' States.for East Louisiana.