Volume 49 — United States Reports

These two cases were brought, by appeal, from the Court of Appeals for the Territory of Florida, and were argued together. The questions involved were the same in both. The first of the two cases was this. In January, 1844, the schooner Hope W. Gaudy was about to sail from the port of New York to that of St. Augustine in Florida, the vessel being licensed for carrying on the coasting trade.

This was an appeal from the Circuit Court of the United States for the District of Columbia and County of Alexandria, sitting'as a court of equity. The facts of the case were these.

This case came up from the Circuit Court for the Northern District of New York, on a certificate of division in opinion between the judges thereof.

This was an appeal from the Circuit Court of the United States, for the District of Louisiana. ■ It was a possessory action in the sense of the Code of Practice of that State, originally commenced by Lapice and Whittlesey, in the Ninth District Court of the State of Louisiana, in and for the parish of Concordia, against Surgett, who was a citizen and resident of the State of Mississippi; and at whose request it was removed into the Circuit Court of the United States.

<p>This case was brought up from the Supreme Court of the State of Louisiana, by a writ of error issued under the twenty-fifth section of the Judiciary Act.</p> <p>On the 26th of March, 1842, the State of Louisiana passed an act to increase the revenue of the State, the ninth section of which provided that “ each and every money or exchange broker shall hereafter pay an annual tax of $ 250 to the State, in lieu of the tax heretofore imposed on them.”</p> <p>On the 3d of February, 1845, Isaac T. Preston, the Attorney-General of the State, filed a petition in the District Court of the first judicial district, stating that A. M. Nathan was justly indebted to the petitioner in the sum of $ 250, for pur■suing or having lately pursued, within the year 1843, the business of a money and exchange broker. The petition then prayed that he might be cited to appear and answer, and he condemned to pay: also that he might answer the following interrogatories under oath, viz.: —</p> <p>“ Were you a broker, as above stated, in 1843 ?</p> <p>“Did you or not receive brokerage or commissions?</p> <p>“ State clearly the nature of the same; whether received in money transactions.”</p> <p>The same process was pursued to collect the tax for 1844.</p> <p>Op the 19th of April, 1845, the two suits were consolidated and the defendant answered as follows.</p> <p>“ The defendant for answer denies generally all the allegations in the plaintiff’s petition contained. And further answering, lie says, that so much of such parts of ‘ An act to increase the revenue of the State,’ under and by virtue of which this suit is brought to recover of this defendant the tax thereby imposed upon the business of a money and exchange broker, and especially the ninth section thereof, particularly referred to in the plaintiffs petition, so far as the said section and act impose a tax on that part of the business of a money and exchange broker which consists in baying and selling exchange, the same is contrary to and in violation of so much.and such parts of the Constitution of the United States as give to Congress the exclusive power to regulate commerce, and prohibit to the States all interference with the power so granted, and forbid them to impose, without consent of Congress, any duty on imposts or exports.</p> <p>“ And so far as the said section and act impose a tax on that part of the business of a money and exchange broker which consists in buying and selling money or foreign coin, or other currency, the same is contrary to and in violation of so much and such parts of the Constitution of the United States as gives to Congress the exclusive power £to coin money, regulate the value thereof, and of foreign coin.’</p> <p>“ And so far as said section imposes a tax, not uniform in amount with other State taxes on occupations, respondent avers, that the same is contrary to so' much of the treaties, laws, and Constitution of the United States as reserve and guarantee to the inhabitants of Louisiana all the rights, advantages, and immunities of citizens of the United States, particularly that of uniform taxation; and to so much of said Constitution as reserves to the people of the several States all powers not delegated to the States respectively, or to the Union.</p> <p>“ Wherefore he prays, that the plaintiff’s demand be dismissed, with costs, and for all other and general relief which his case may require.</p> <p>(Signed,) Richard Henry Wilde,</p> <p> Defendant's Attorney. </p> <p>££ A. K. Josephs.</p> <p>“ PI. H. Strawbridge.”</p> <p>A. M. Nathan, defendant, for answer to the interrogatories to him propounded in the above entitled suit, says: —</p> <p>££ I was a money and exchange broker in 1843 and 1844 ; I received a brokerage or commissions on money and bills of exchange sold by my agency.</p> <p>“ I will state clearly the nature of the same. My business, like that of money and exchange brokers in general, consists exclusively in negotiating and effecting for others the purchase and sale of exchange on other States or foreign countries. During the thirty years that I have been a money and exchange broker, I believe, — nay, I am certain, — that I have never, as such, sold a single bill drawn from one point of Louisiana on another.</p> <p>“ I make myself acquainted with the current market value of exchanges. The purchasers and the sellers both resort to me for information on the state of the market of exchanges, and make me their common agent in the.purchase and sale of bills, which are purchased for the purpose of making remittances to foreign parts, and usually so remitted immediately. On and out of the price of each bill, I receive a percentage or commission, varying from one fourth to one eighth of one per cent., which is commonly paid on settlement. It is the same in money traiisactions.</p> <p>(Signed,) A. M. Nathan.”</p> <p>On the 7th of June, 1845, the District Court decreed that the State of Louisiana should recover of the defendant, A. M. Nathan, the sum of five hundred dollars, and costs of suit.</p> <p>An appeal was had to the Supreme Court of Louisiana, which, on the 15th of December, 1845, affirmed the judgment of the District Court. The defendant sued out a writ of error, and brought the case up to this court.</p> <p>contended, that the law of Louisiana was repugnant to the Constitution of the United States, because it interfered with the exclusive power of Congress to regulate commerce.</p> <p>Congress has the exclusive power to regulate commerce. The power to regulate implies the power to preserve. An unlimited power to tax is a power to destroy. A State cannot have the power to impair or destroy that which Congress has the power to preserve and regulate: therefore, a State cannot tax the instruments whereby Congress exercises its constitutional powers. 4 Wheat. 428, 432.</p> <p>Exchange is a necessary instrument of commerce. 4 Wheat. 147; 13 Peters, 531, 548, 563, 606.</p> <p>The mind cannot conceive the possibility of carrying on commerce, in the present state of the world, without bills of exchange.</p> <p>A bill drawn in one State, on the citizen of another, is a foreign bill. Buckner v. Finley, 2 Peters, 586.</p> <p>The sole business of plaintiff in error, therefore, is buying and selling foreign exchange. See answer to interrogatories.</p> <p>There is not a particle of testimony that he deals in domestic exchange, or in money. The court, consequently, in adjudging against him, could only have proceeded, and did, in fact, proceed, upon the ground that, as a dealer in foreign exchange exclusively, he was subject to the tax; and that the act imposing it was constitutional.</p> <p>Now, there is no difference between taxing the article and taxing the faculty to sell it. 4 Wheat. 399; 12 Wheat. 444.</p> <p>. To tax the trade or faculty of selling bills of exchange, then, is the same thing as to tax the bills themselves.</p> <p>To tax bills of exchange is to tax a necessary instrument of commerce, and taxing that without which commerce cannot be carried on is imposing a tax on commerce, itself. It is no answer to say, that the impost is moderate, though in the present case it is, in fact, excessive, because, if the State can tax at all, it may tax indefinitely, and an indefinite power to tax is a power to destroy. 4 Wheat. 428, 432.</p> <p>Exchange is as necessary an instrument of commerce as ships or vessels.</p> <p>Could the State of Louisiana levy a tax, in the shape of a license, to every consignee or ship-broker in the city of New Orleans, prohibiting' captains of vessels, and all others, from acting as consignees without such license ?</p> <p>Would it avail the State to say, such an imposition is not a tax on commerce, nor a duty on ships and vessels, but only a license on the faculty of acting as consignee on the trade of ship-broker?</p> <p>All useful regulation does not consist in restraint or taxation. That which Congress, in the exercise of their constitutional power, think proper to leave free, is as much regulated by them, as that which they restrain or tax. 9 Wheat. 18. Were it not so, it would not be an exercise of the power to “ lay duties,” when certain goods are allowed to be imported duty free. Could a State tax the introduction of such goods?</p> <p>Where there is a repugnancy between the State power to tax, and the Federal power to preserve, regulate, and leave free, the State power must give way. If the State can tax in such a case, Congress is not supreme. 4 Wheat. 429, 432, 433.</p> <p>A State can have no concurrent power over that in regard to which the power of Congress is exclusive. What sort of concurrent powers would those be which cannot exist together? 9 WTeat. 15.</p> <p>Congress has no power of revoking State laws, as a distinct and substantive power. It legislates over subjects, and over those subjects which are within its constitutional province its legislation is supreme, and overrules all inconsistent or repugnant State legislation. 9 Wheat. 30.</p> <p>Its exclusive power to regulate commerce carries with it the power- to regulate exchange as an indispensable instrument of commerce, and the power being exclusive, a concurrent power in the State is a contradiction.</p> <p>“ Commerce in its simplest signification means an exchange of goods : but in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce; the subject, the vehicle, the agent, anti 'heir various operations, become the objects of commercial regulation.” — Mr. Justice Johnson, in Gibbons v. Ogden, 9 Wheat. 229, 230.</p> <p>Thus it has been resolved^ that a steamer employed in transporting passengers is as much engaged in commerce, as a sail vessel freighted with merchandise, and .as much exempt from State legislation obstructing her traffic. Gibbons v. Ogden, 9 Wheat. 215, 219.</p> <p>Congress have not only the exclusive power to regulate commerce, but to make all laws which shall be necessary for carrying into execution that power.</p> <p>(Mr. Wilde then proceeded to show that exchange was an essential part of commerce, and cited many decisions of this court to prove that a State could not retard, impede, or burden, by any device, the operation of the' constitutional laws enacted by Congress.)</p> <p>The power of taxing persons carrying on a particular business has been often exercised, and the constitutional power of the States so to act has heretofore not been questioned. In Pennsylvania, for instance, the venders of foreign merchandise are compelled to take out a license, for which they pay a sum graduated according to the amount of their business. Act of May 4, 1841; Purdon, 1153, 1154. A similar tax is imposed frequently by State legislatures, and even by the corporate authorities of cities, and is supposed to be unexceptionable as to its legality.</p> <p>The provision of the Louisiana statute, which is now called in question, is to be found in a.single section of a general revenue system act.</p> <p>It does not profess to, nor in fact does it, impose a tax upon a bill of exchange, either in the shape of a stamp duty or otherwise.</p> <p>It does not profess to, nor in fact does it, impose any restraint upon a party having funds in Louisiana, which he desires to remit abroad, from purchasing a bill of exchange as the instrument of remittance.</p> <p>It does not profess to, nor in fact does it, impose any restraint upon a party having 'funds abroad, which he desires to bring into the State, from drawing a bill of exchange or selling it at his own discretion.</p> <p>These operations are left wholly unaffected by this law. The section of the law which is objected to acts only upon' the persons employed in conducting a particular business, — the trafficking in exchange. They are not the drawers of bills of exchange, — as such, they are not taxed ; as buyers, they are not taxed ; but as dealing in them, purchasing and selling, they are. It is as their business consists in buying bills drawn by others, on which they make a profit, — as sellers of bills to others, who require them, on which they make a profit, — that they become subject to the law.</p> <p>That money and exchange brokers are a convenient machine in conducting an extensive commercial business may be true. But they are nothing more. A ship or a steamboat is not only a convenient, but an essential, means of importing foreign merchandise from abroad. Are they the less property, and taxable as such?</p> <p>Stages and other carriages are not less essentially necessary instruments for the transportation of passengers and commodities between the different States of the Union. Are they therefore exempted from taxation by the States ?</p> <p>Stores and warehouses, in which merchandise is deposited on its arrival in our country from abroad, are absolutely necessary for the transaction of commercial business. Are they therefore beyond the reach of the taxing power of the State in which this kind of property is found ?</p> <p>Mr. Hamilton (Federalist, No. 32) says : — “I am willing to allow, in its full extent, 'the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenue for the supply of their own wants; and, making this concession, I affirm that (with the single exception of duties on imports and exports) they would, under the plan of the Constitution, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the general government to abridge them in the exercise of it would be a violent assumption of power, unwarranted by any article or clause in the Constitution.”</p> <p>In this case, the law of Louisiana is not obnoxious to any of the objections which have been heretofore presented to the consideration of the court, growing out of the difficulty of giving a precise definition of the words “ imports and exports,” and “commerce,” or in drawing the almost shadowy lines which mark the boundaries of the exclusive powers of Congress. A bill of exchange is in no sense either an export or import. It is an instrument, rather than a subject of commerce. The dealing in bills of exchange constitutes no' part of the commerce with foreign nations or between the States, however convenient an instrument it may be found in conducting either. The article in which the plaintiff in error deals is a bill of exchange, originating, it may be, within the limits of the State, created and owned by a citizen of the State, and the entire negotiation of which, so far as he is concerned, conducted within the limits of the State.</p> <p>If this law is objectionable because it affects bills of exchange on the ground that they are the subjects of commerce, upon what principle, it may be asked, can the validity of those State laws be vindicated which regulate the protest of such instruments, or prescribe damages for their dishonor ? These are commercial regulations, affecting the interests of all parties to these instruments.</p> <p>Stress seems to be laid, in the argument submitted on behalf of the plaintiff in error, on the circumstance that the business of his client was exclusively confined to buying and selling bills of exchange drawn on foreign countries or upon other States. He refers to 4 Wheaton, 147, in which a learned counsel in his argument says, that the most important medium of foreign commerce is foreign bills of exchange, which are, therefore, important subjects of commercial regulation. The same gentleman, however, adds, that Congress having neglected the duty of legislating on the subject, “ the States may and do exercise it, and their rightful use of this power has been sanctioned by this court in innumerable instances.” If there was any argument in the first citation bearing upon the case at bar, the additional remark makes the authority a strong one in favor of the judgment under review. Indeed, it may be asserted as a general, if not a universal proposition, that the law on the subject of bills of exchange, whether domestic or foreign, is regulated not by Congress, but is dependent on the local law of the several States, which have adopted, with such modifications as were thought expedient, the general principles of the commercial law of Europe.</p>

This case was brought up by writ of error from the Circuit Court of the United States for the Eastern District of Pennsylvania, having been, carried there from the District Court, in which it originated. It was a suit brought by the United States against Buchanan, who was a purser in the navy, to recover a balance of $11,535.50, alleged to be due by him.

This was an appeal from the district Court of the United States, for the Northern District of Mississippi, sitting as a court of equity. The appellant, Thomas Williams, was complainant below, in a bill setting forth, that letters of administration on the estate of Benjamin J. Baldwin, deceased, were granted to him in October, 1838.

The first two of these cases were appeals from the District Court of Mississippi. One of them, viz., The United States v. The Heirs of Boisdoré, was the same case in which a motion to dismiss was made at the preceding term, as reported in 7 Howard, 658. The third was an appeal from the District Court of Louisiana.

This case was brought up, by writ of error, from the District Court of the United States for the District of Texas. The facts are stated in the opinion of the court. A motion was made to dismiss it for want of jurisdiction, because the sum or matter in- controversy was not of the value of two thousand dollars. •The reasons in support of the motion were the following.

This was an appeal from the. Circuit Court of the United States for the District of Maine, sitting as a court of equity. -The complainant, Veazie, resided at Bangor, in the State of Maine, and the defendants in Massachusetts, viz. Nathaniel L. Williams at Boston, and Stephen Williams at Roxbury. The facts of the case were these.

This case was brought up by a writ of error to the General Court of Virginia. The plaintiff in error had been convicted in the Superior Court for the County of Henrico and City of Richmond, on an indictment for selling lottery-tickets contrary to the act of Assembly of Virginia, passed on the 25th of February, 1834. The case was removed by writ of error to the General Court of Virginia, where the judgment was affirmed.

This was an appeal from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Alexandria, and sitting as a court of equity. The object of the bill was to reclaim the possession of certain slaves, and to compel an account and compensation for the value of certain other slaves, all of which were alleged to be the property of the complainant and appellant, in his character of administrator. The facts were these.

This was an appeal from the Circuit Court of the .United States for the District of Georgia, sitting as a court of equity. The bill was filed in the Circuit Court by Charlotte Taylor, formerly Charlotte Scarborough, a resident of the State of New Jersey, to set aside a deed which she alleged had been obtained from.her in an illegal and fraudulent manner.

Held: that debt on award was named in the statute, and therefore not barred. So in 2 Mod. Rep. 212, we find: — Debt on a sheriff’s return of fieri facias. The court say, — . “ This is an action of debt founded on the breach of a legal duty as an officer of the court, and not on a contract.

This case was brought up, by writ of error, from the Supreme Court of Iowa. It was a proceeding in the nature of an ejectment, to recover 640 acres on the right bank of the Mississippi River. The suit was brought by the heirs of Reddick against one Kilbourn, who was the tenant in possession.

Held: upon full consideration of the question, that, under the statute of Mississippi, the holder of an inland bill of exchange was entitled to recover of an indorser the amount due on the bill, with interest, upon giving the customary proof of default and notice; and that the protest was necessary only for the purpose of enabling him to recover the five per cent, damages given by the act.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Massachusetts. It was an action upon a policy of insurance against fire. The plaintiffs in error, who were also plaintiffs below, resided at Malone, in the county of Franklin and State of New York, and the insurance company was at Boston, in Massachusetts.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maine. A motion was made by Mr. Moor, upon his own account and also as counsel for the City Bank, at Boston, to dismiss the appeal, upon the ground that it was a fictitious case, got up between said parties for the purpose of settling legal questions upon which he, the said Moor and the City Bank, had a large amount of property depending.

This case was brought up, by writ of error, from Louisiana, and a motion was made by Mr. Henderson to dismiss it, upon the grounds stated in the opinion of the court.

This case came up from the Circuit Court of the United States for the Eastern District of Pennsylvania upon a certificate of division in opinion between the. judges thereof. It is not necessary to do. more than insert the- statement of facts and point of division, as they are found in the record. - Statement of Pacts and Point of Division of Judges. United States of America, Eastern District of Pennsylvania. .

This case was brought up, by writ of error, from the Circuit Court of the United States for the ’Eastern District of Pennsylvania. ■ It was an ejectment brought by .the. lessee of Cheesman, &c., to recover certain lots in the city of Philadelphia. As the defendant below offered no evidence but contested the validity of the title shown by the plaintiff, it is necessary to set that forth.

Held: leases from Jacob Kittredge, and entered under them, remained in possession after his death, they should properly in law be regarded as tenants holding at will, or by sufferance of or under his heirs; and if the tenants saw fit, for any part of the time, to pay rent to Mrs. Kittredge, the mother, or did it by mistake, and afterwards paid it to the heirs, or their guardians, and took deeds from them, such payments to…

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Missouri. It was one. of those cases Arising from a conflict between an old Spanish .concession and a title otherwise acquired. The acts of Congress, passed from time to time to regulate these claims, are all set forth in the report of the case of Stoddard v. Chambers, 2 Howard, 317, and need not be repeated.

This case was brought up, by writ of error, from the Circuit Court of the United States for. the District of Missouri. It was one of those land cases which arose from a conflict of title between an old Spanish concession, confirmed under the various acts of Congress upon the subject, and a title derived under a New Madrid grant.

Held: that “ a location under the law of the United States ” must be “ in conformitjr with it.’? But this, it is insisted, is not the true construction of the proviso. That “ undpr the law ” does not mean, “ in pursuance of it,” or “ in conformity with it,” but an act assumed to be done under it. The word under has a great variety of meanings.

This case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Pennsylvania. The case was this. In August, 1839, the attorney of the United States filed an information in the District Court of the United States for the Eastern District of Pennsylvania, against thirty-five remnants of pieces of cloths and cassimere, that had'been seized at th"' store of James Lynd, Jr. & Co. The information contained thirteen counts. 1.

Held: at the time of the attachment, the beneficial interest only in the residue of the proceeds of sale thereof, to be made by Gibson, when the property reached him, after satisfying his advance thereon, with commissions and all other charges. IV. McQueen & McKay acquired a vested legal title in said pork and flour, by their purchases.

Held: residuary devisee also. Ellen Mandeville, who intermarried with Joseph Smith pending the suit, was a legatee under that will for $> 3,000. One of the clauses of the will was this. “ If my personal property should not cover the entire amount of legacies I have or may give, my executors will dispose of so much of my real estate as will fully pay them.” Mandeville, the testator, died in July, 1837.

• This was an appeal from the Circuit Court of the United States for the District of Maryland, under the following circumstances.

This was an appeal from the Circuit Court of the United States for the District of Columbia and County of Alexandria. It was a controversy respecting the right to certain .kegs of nails, which were in the hands of William Fowle & Sons, in Alexandria. On the 14th of March, 1843, the following was the position of the several parties who had any concern in the matter.

Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850), is a ruling by the Supreme Court of the United States holding that Congress may restrict the jurisdiction of the lower federal courts by limiting the subjects those courts may hear, even if those subjects fall within the federal judicial power defined by the United States Constitution.

Held: that “ a scrawl with the pen, of L. S., at the end of the name, was not a seal.

Held: that, if the indorsee receive a bill in payment or discharge of a preexisting debt, he holds it exempt from all equitable defences; but not if he has taken it merely as collateral security for such a debt. See Munn v. M’Donald, 10 Watts, 270 . The opinion of Story, J., in Swift v. Tyson, on this point; is obiter, and is not sustained by the authorities in England or-America.

. This case was brought up, by a writ of error issued under the twenty-fifth section of the Judiciary Act, from the Supreme Court of Louisiana. The Widow Collard, who was the plaintiff in error, resided at Metz in the kingdom of France, and was the universal legatee of her brother, Jean Mager, who died in Louisiana.

Held: and he, the petitioner, as trustee, stand .and be possessed thereof in trust, for the benefit, of the lawful issue of the petitioner who shall be living at the death of him, the petitioner, according to the trusts upon which the unsold moiety of the said premises at Greenwich aforesaid, in the aforesaid acts of the Legislature méntioned,'are or shall be held; and so, and in such manner, that the said interest and…

This case was similar to the preceding one, in which the same facts and principles were involved. The only difference between them was, that the following point was certified in this case, which was not in the preceding, viz.: — 8. Whether the defendants, who derive title bond fide, and for'a valuable consideration, by purchase through the grantees of George De Grasse, as set forth in the case, have a valid title as against the plaintiffs.

This case was similar to the two preceding ones in all the •leading facts. It will be perceived, however, that all the children of Thomas B. Clarke now united as plaintiff's. Upon the trial in the court below, the will of Mary Clarke, .the acts of the Legislature of the State of New York, the orders of the Chancellor of that State, and other facts, were shown, as in the case of Charles A. Williamson and Wife v. Joseph Berry.

Held: that the establishment and regulation of ferries across navigable streams is a subject within the control of the government, and not .matter of private right; and that the government- may exercise its powers by contracting with individuals.

Held: u that the Circuit Court was bound to carry the decree into execution, although the jurisdiction of that court be not alleged in the pleadings.” The judgments of inferior courts, technically so called, are disregarded, unless their jurisdiction is shown. ' But this is not. the character of the Circuit Courts of the United States.

Argument for the Libellant upon the Question of Jurisdiction. The case presented is a claim by the owners of a ship against an owner of the cargo, to recover contribution for an injury voluntarily clone to the ship on the high seas, for the common benefit, by which the property, from the owner of which contribution is sought, was preserved from destruction by an impending peril.