Volume 47 — United States Reports

This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi. In 1835, the following notes were executed: — $ 4,000. Port Gibson, 2d May, 1835. On the fifteenth day of February, eighteen hundred and thirty-seven, I promise to pay, to the order of Passmore Hoopes, four thousand dollars, value received, negotiable and payable at the office of the Planters’ Bank at Port Gibson. H. N. Spencek.

Held: that, so far as the statr ute of Mississippi authorized a summary process against the marshal himself to enforce the payment of the debt, interest, and costs,- for which he was liable by reason of his default, it was adopted by the act of Congress of 1828. But that the courts of the United States could not enforce the payment of a penalty imposed by the State law, in addition to the money due on the execution.

This case came up from 'the Circuit Court of the United States for the District of North Carolina, on a certificate of division in opinion between the judges thereof. In August, 1841, the United States brought an action of trespass on tfre case against the defendants, as executors óf Beverly Daniel, late marshal, and at May term, 1843, a verdict was found for the plaintiffs, subject to the opinion of the court upon the following, case stated.

<p>This case was brought up, by a writ of error, issued under the 2$th section, of the Judiciary Act, from the Supreme Court for the Western District of Louisiana.</p> <p>In 1838, David Stanbrough was appointed, by the local authority in Louisiana, curator of the estate of one Harper, deceased.</p> <p>In 1840, he was sued as curator, in the Circuit Court of the United States for the Eastern District of Louisiana, by the Fanners’ Bank of Virginia. Judgment was rendered against him, which became final on default.</p> <p>On the 6th of February, 1841, Stanbrough, the curator, exposed to sale some property of Harper, the deceased, which was in the inventory taken by the Probate Court of Madison, which court granted the order for a sale. Dougal McCall became the purchaser, for the sum of $ 11,433.66, divided into three payments of $ 3,811.22 each, for which he gave three promissory notes, payable to the order of David Stanbrough, curator, at the Merchants’ Bank of New Orleans, on the 1st of January, 1842, 1843, and 1844. And in order to secure the payment of the notes, he executed a mortgage upon the purchased property.</p> <p>At some time subsequent to this, but when the record does not show, a fieri facias was issued upon the judgment which the Farmers’ Bank of Virginia had obtained against Stanbrough, the curator, and a levy was made upon the three notes above mentioned.</p> <p>On the 31st of December, 1841, David Stanbrough, the curator, filed a petition, in the nature of a bill in chancery, to the Court of Probates in the Parish of Madison,^praying, amongst other things, for an injunction to restrain the marshal from further proceedings upon the execution.</p> <p>On the 10th of March, 1842, the court granted the injunction as prayed for.</p> <p>On the 1st of April, 1842, Stanbrough filed a supplemental petition, stating that the parties enjoined continued to advertise the notes for sale, praying that proceedings might be had against the parties for a contempt of court, that the editor of the paper might be enjoined from further publication of the advertisement, and that Dougal McCall might be enjoined from paying the notes to any person except the petitioner. An injunction was .issued accordingly, on the same day.</p> <p>This injunction being afterwards dissolved, the marshal pror ceeded to sell, on the 9th of April, 1842, the' property levied upon, being the three notes of McCall given to Stanbrough, the curator. The property was offered for sale and sold to Lewis A.' Collier, the plaintiff in error in the present case. A transfer in writing was made of said property by the marshal to Collier. The seizure of the notes was made" by notifying David Stanbrough, in whose hands they were, that they were thereby seized by virtue of the-execution, but they never came to the corporal possession of the marshal. The transfer was returned to the office of the clerk of the Circuit Court of the United States, and there duly recorded.</p> <p>On the 30th of July, 1842, Josiah Stanbrough, the defendant in error in the present suit, filed a petition in the Ninth District Court of the State of Louisiana, stating that the first note of McCall, which became due on the' 4th of January, 1842, had been protested for non-payment; that it had been transferred by the curator, the payee, to one Jesse Stanbrough, and by the said Jesse to him, the petitioner.</p> <p>He therefore prayed for an order of seizure and sale of the property mentioned in. the mortgage, for cash enough to pay the note then due, and upon a credit sufficient to meet the other payments as they should' become due in .succession.</p> <p>On the same day, an order of seizure and sale was issued in conformity with the prayer of the petition.</p> <p>On the 14th of December, 1842, Collier filed a petition in the same court,-viz. the Ninth District Court of the State of Louisiana, in which he recited the facts in the case, and then alleged that Josiah Stanbrough had illegally and fraudulently obtained possession of the note , then due; that- David Stanbrough, the curator, had become leagued with Josiah. Stanbrough to defraud the petitioner and all other creditors of Harper’s estate ; that if. the petitioner wag not the legal owner of the notes, then they were the property of Harper’s estate; that Josiah Stanbrough never gave any value for them; and, finally, praying for an injunction against all parties concerned, which should afterwards be made perpetual.</p> <p>An injunction • to stay further proceedings was accordingly issued.</p> <p>On the 4th of May,. 1843, Josiah Stanbrough filed his answer, denying all the allegations of the petition, and averring that the property of the succession of Hai-per, whilst administered in -the Probate Court of Louisiana, could not- be legally subjected to any-writ of execution from the federal courts, and claiming twenty per cent, damages.</p> <p>Before the cause was tried, the following admission of facts was filed, viz.: —</p> <p>Lewis A. Collier v. Josiah Stanbrough.</p> <p>Ninth- District Court of the State of Louisiana, for the Parish of Madison.</p> <p>The plaintiff in .injunction relies upon the following facts, and he cannot go safely to trial-without the documents necessary to prove them: —■</p> <p>1. Some two or three years since, a judgment was obtained in the United States Circuit Court for the Eastern District of Louisiana, against David Stanbrough, as curator of the succession of Jesse Harper, deceased, upon a claim against the succession of said Harper, at. the suit of the Farmers’ -Bank of Yirginia (perhaps the suit is styled “ The President, Directors, and Company of the -Farmers’ Bank of Yirginia v. David Stanbrough, curator of the estate of Jesse Harper ”); all which will appear by the judgment.</p> <p>% Some twelve or fifteen months .since, an execution (a fieri facias) issued from said United States Circuit Cotut, at the instance of the plaintiff in said suit, and under said execution a, levy was made on the three notes mentioned in the petition of the plaintiff in injunction; and, after due advertisement, the property was offered for sale, and was sold to Lewis A. Collier, the plaintiff in injunction, and a transfer, in writing, was made of said property, by the marshal, to said Collier. . The seizure of the notes relied on was made by notifying David Stanbrough, in whose hands they were, that they were thereby seized by virtue of said execution, but they never .came to the corporal possession of the marshal; all which will, appear by the execution, the return of the marshal thereon, and the conveyance of the marshal to Collier as aforesaid:</p> <p>3. Said transfer was returned to the ^office of the clerk of said United States court; and there duly recorded.</p> <p>The statement of facts, on which the plaintiff in injunction reliés, as mentioned above, and which facts are hereinbefore enumerated, is admitted by the defendant in injunction to be true.</p> <p>Bemiss, J. Dunlap, B. M. Bbawdeb,</p> <p>■ Attorneys for Defendants.</p> <p>The plaintiff in injunction admits that the notes in eontro-. versy were never appraised, and that the sale was made without appraisement, and that the notes in question belonged to the succession of said Harper, which said succession, at the time the said seizure was made, in maimer stated above, was in due course of administration in the Probate Cotut of the Parish of Madison.</p> <p>R. C. Stockton, Atfy for Collier.</p> <p>The following facts were also admitted, viz.: —</p> <p>Admitted, that Lewis A. Collier is a creditor of Jesse Harper’s estate, and that for two years, at least, the said succession has been insolvent.</p> <p>Admitted, that the judgment in the case of the Farmers’ Bank of Virginia against David Stanbrough, curator of the succession of Jesse Harper, deceased, rendered in the-United States Circuit Court of the Eastern District of the State-of Louisiana, was made final on default.</p> <p>Admitted, that David Stanbrough is now, and has been,-curator of the succession of Jesse' Harper, deceased, ever since the . 1st day of January,1840v</p> <p>Admitted, that David and Jesse Stanbrough are brothers, and Josiah Stanbrough is. the son of Jesse; that they all live within some three or four miles of each other; that Jesse Stanbrough is security for David on his curator’s bond1, as curator of Harper’s estate.</p> <p>Admitted, that' in the estate of Harper there was an inventory taken by the Probate Court of Madison of said succession of Harper, an order of sale, and sale of the property of Harper’s estate, and the notes in dispute are of the proceeds of sale; that all those proceedings took place by order of the Probate Court.</p> <p>It is admitted, that there is no order on the records of the Court of Probates ordering the estate of Jesse Harper to be insolvent.</p> <p>Admitted, that Mr. Stockton, a creditor for $ 1,000, has never received from the estate of Jesse Harper but $ 250.</p> <p>On the 16th of May,. 1843, the court made the following decree:—</p> <p>“ By reason of the law and the evidence being in favor of the defendant, Josiah Stanbrough, it is ordered, adjudged, and decreed, that the injunction sued out in this case be dissolved; and it is further decreed, that the defendant recover of the said plaintiff, Lewis A. Collier, and his surety, Archibald Matthews, in solido, the sum of four hundred and twenty-seven dollars damages, being ten per cent, upon the amount of said defendant’s claim, w;hen enjoined, and that said plaintiif pay the costs of this suit to be taxed.”</p> <p>From this-decree an- appeal was had to the Supreme Court of the State, which-affirmed-the judgment of the District Court, with costs.-'. "</p> <p>A .writ"of error was sued out to bring the case up to this court, and the following assignment of errors filed.</p> <p>“Plaintiff assigns for cause, for which the judgment of the' honorable theNupreme Court of Louisiana ought to be reversed by the honorable fhe Supreme Court of the United States, and a judgment -rendered in his favor, as prayed for in his original petition, as follows, to wit ■: —</p> <p>“ 1. The decision of the Supreme Court of Louisiana denies to the Circuit Court of the United States for the State of Louisiana the power to execute judgments rightfully rendered by said Circuit Court against the representative of a succession, by proceeding to sell the property of the same, by a writ of fieri facias, or otherwise.</p> <p>“2.- The Supreme Court of Louisiana erred in assuming authority to inquire into the validity of a judgment or execution from the said Circuit Court, or the manner in which said execution was proceeded on, the constitution and laws of the United States guarantying and conferring on said Circuit Court the power to take cognizance of such cases as that whereon execution issued (to wit, the case of the ‘ Farmers’ Bank of Virginia®. David Stanbrough, curator,’ &c.), which necessarily includes the power to execute judgments so rendered.</p> <p>. “3. The Supreme Court of Louisiana erred in sustaining the law of that State which requires money demands against a succession to be prosecuted exclusively in the Probate Court, which law, the plaintiff avers, contravenes the constitution and laws of the United States; so far as it requires foreign creditors to prosecute their demands as aforesaid in said State court only is, therefore, so far null and void.</p> <p>“ 4. The judgment aforesaid of the Supreme Court of Louisiana is, for other reasons, illegal and erroneous, and ought to be reversed.”</p> <p>The cause was argued by Mr. Bibb, for the plaintiff in error, and by Stockton Steele . and Mr. Henderson (in a printed argument), upon the same side. No counsel appeared for the defendant in error. The following points were made and argued by the counsel for the plaintiff in error.</p> <p>1. The decision of the Supreme. Court of Louisiana denies to the Circuit Court of the United States for the State of Louisiana the power to execute judgments rightfully rendered by said Circuit Court against the representative of a succession, by proceeding to sell the property of the same by a writ of fieri facias, or otherwise.</p> <p>2. The Supreme Court of Louisiana erred in deciding that a judgment of the Circuit Court of the United States must be presented to the Probate Court of Louisiana for classification, and that said judgment of the Circuit Court was a mere recognition that the deceased owed the plaintiff on said judgment the sum therein adjudged to him, and . thus forcing a foreign creditor into a State tribunal to settle the question of the rank which his claim shall hold.</p> <p>3: The Supreme Court of Louisiana erred in assuming authority to inquire into the validity of a judgment or execution from the said Circuit Court, or the manner in which said execution was proceeded on, the constitution and laws of the United States guarantying and conferring on said Circuit Court the power to take cognizance of such cases as that whereon execution issued (to wit, the case of the “Fanners’ Bank of Virginia ®. David Stanbrough, curator,” &c.), which necessarily ■includes the power to execute judgments so rendered.</p> <p>4. The Supreme Court, of Louisiana erred in sustaining the law of that State which requires money demands against a succession to be prosecuted exclusively in the Probate Court; which law, the plaintiff avers, contravenes the constitution and laws of the United States; so far as it requires foreign creditors to prosecute their demands as aforesaid in said State court only is, therefore, so far null and void.</p> <p>5. The judgment aforesaid of the Supreme Court of Louisiana is, for other reasons, illegal and erroneous, and ought to be reversed.</p> <p>But as the Court avoided a decision upon these important points, resting it upon one which was in some measure collateral,- it is deemed proper to omit the arguments of counsel.</p>

Held: if drawn up at any time'before the trial, it will be sufficient. (Chitty on Bills, 334, 436, and cases. Ed. 1842.) The minute contains a brief record of1 the facts which transpired on. presenting-the bill, and the protest, as subsequently made out, is but an extension of them in the customary form. The time of the extension, therefore, would seem to be-of no great importance.

This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi. In 1838, the two following notes were executed, viz.: — $ 10,715f$r. Brandon, March 17th, 1838. Nine months after 1st April, 1838, we, or either of us, promise to pay to Briggs, Lacoste, H. K. Moss, W. H. Shelton, Sec'ty. R. A. Patrick, Charles Lynch. Indorsed, “ Briggs, Lacoste, & Co.” $ 10,876-^r. Brandon, March 17th, 1838.

This case came up from the Circuit Court of the United States for the District of Michigan, on a certificate of division in opinion between the judges thereof. The facts were briefly these.

• This case was brought up, by .writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana. The history of the case is this.

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. All the circumstances of the case are fully set forth in the opinion of the court,, as delivered by Mr. Chief Justice Taney, from the commencement of which the Reporter extracts the following statement. A motion has been made to dismiss this case, which is brought here by writ of error directed to the Circuit Court for.

This was an appeal from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.

This was an appeal from the Superior Court of East Florida. 'The case being dismissed for want of jurisdiction, it is unnecessary-to do more than refer to the circumstances, which are fully stated in the opinion of the court. Mr. Mason; then Attorney-General, had moved at a preceding term to dismiss this case, upon the ground of its being irregularly brought up. It was now argued by Mr. Clifford, Attorney-General, for the motion, and Mr. Yulee, against it.

This case, was brought up, by Writ of error, from the Circuit Court of the United States for the District of Columbia! hold-en in and for the county of Washington. It was an application to the Circuit Court for a mandamus,, under circumstances which are thus stated by that court in its opinion.

<p>An order of the District Court, sustaining a demurrer to a petition because it was multifarious, and because the nameB of the persons claiming or in possession of the land which the petitioners alleged to belong to them were not set forth, was not a final judgment or decree from which an appeal lies to this court.</p>

This was an appeal from the District Court of the United States for Louisiana, involving the title to a large body of land in that State. The proceedings of the District Court are sufficiently set forth in the opinion of the court and in the argument of Mr. Curry, to which the reader is referred. Mr. Curry moved to dismiss the appeal, as having been irregularly brought up.

Held: or an, equivalent to their value at the time of the judgment, seem equitable on these allegations, thus admitted. The respondents can, ex cequo et bono, claim to stand in no better condition than the bank. If there was a further good defence against the bank, there was against them.

This was an appeal from the Circuit Court of the United States for the District of Rhode Island. The record was very voluminous, -being a printed volume of more than five hundred pages, which contained numerous letters and accounts relating to trading voyages to different and distant parts of the world, from October, 1820,' to November, 1826.

This was an appeal from the Court of Appeals for the Territory of Florida. All the material facts in the case are set forth in the opinion of the court. The case wets argued at the preceding term by Mr. Webster and Mr. Berrien, for the appellants, and by Mr. Westcott and Mr. Jones, for the appellees. Mr. Webster opened the case, on the part of the appellants, by stating all the circumstances of it.

This was an appeal from the Circuit Court of the United States for East Louisiana, sitting as a court of equity. On the 1st of August, 1837, Clayton Tiffin and Lilburn P. Perry received a deed for a tract of land on the western bank of the Mississippi River, .about five miles above the town of Vicksburg, and containing'six hundred and forty-four acres. On the 10th of April) 1838, Tiffin and Perry sold the same land, together with a large number of negroes, to.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of. Michigan. On the 1st of January, 1837, the following promissory note was executed. Detroit, January .1, 1837. Two years from date I promise to pay to the order of Walter Chester and Pease, Chester; & Co. one thousand five hundred dollars, for value received, at' the Farmers and Mechanics’ Bank of Michigan, with interest. (Signed,) John Chester.

This was an appeal from the Circuit Court of the United States for the District of Louisiana. The facts in the case are set forth in the opinion of the court. , Mr. Sergeant moved to dismiss the appeal, because the decree of the, court below- was not final, and because the appeal was not regularly brought up. On. the second point, he said .that there were several defendants, one only of whom had appealed. Rut all the parties must join. 7 Peters, 399.

This was an .appeal from the Circuit Court of the United States for the District of Louisiana, the circumstances of which am stated in the opinión of the’ court. for want of jurisdiction, because the decree of the Circuit Court was not a final decree. The motion was opposed by Mr* Mayer and Mr. Coxe. The record shows that the appeal taken in this Case is Upon an interlocutory decree to account, and before any account taken or any final decree made.

This was an appeal from the Circuit Court of the United .States for Eastern Virginia. The circumstances of the ease axe stated in the opinion of the court. It was argued by Mr. Lyons, for the plaintiff in error, and Mr. Brooke and Mr. Myers, for the appellees. It is not deemed necessary to insert the arguments of counsel upon the merits, of the case.

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. It was the same case which was before this court at January term, 1843, and is reported in 1 Howard, 234. It is unnecessary, therefore, to state again the facts of the case which existed prior to that report.

Held: that such proof ivas admissible, although in' the mortgage the wife stated the loan was made to her. Article 2256 declares, “ that parol evidence shall not be admitted against or beyond what is contained in the acts,” <fcc. But this was held not to apply to contracts made in fraudem legis.

Held: that, where the indorser lived within three miles of the post-office, notice put there was not sufficient. In that cáse the brief and lucid exposition given by the court of the law merchant on the.subject of notice, taken in connection with Story on Promissory Notes, as to the legal identity of the noticing party with his agent, fully sustains the rule as we assert it.

Held: it did not spread them on the record.” — Maundrig v. Rig-by, 4 Howard, Miss. 222.

Held: where>.the obligation is joint, all the obligors must be made parties to the, j3uit. But that was not a case of suretyship. The action was' brought against one of three indorsers. On the grounds above stated, the judgment of the Circuit Court is reversed, and the cause remanded for further proceedings, conformably to this opinion.. Order.

The following statement of the case was the brief of Mr. Howard, who argued it. This was an appeal from the Supreme Court of Iowa Territory, sitting as a court of equity, under the following circumstances.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana. It was formerly, in a preliminary stage of it, before this court, and is reported in 11 Peters, 25. The facts of the case are sufficiently set forth in the opinion of the court. It was argued by Mr. Coxe, for the plaintiff in error, and Mr. Jones, for the defendant.

Held: and that the defendants in error, the plaintiffs below, take nothing by their writ, and that the suit is abated.” The charter'of the.Mississippi Railroad Company was conferred by an acb-of the legislature of Mississippi, approved February 26th, 1836, entitled “ An act to incorporate the Mississippi Railroad Company.” By the first section of a supplementary act, passed May 12th, 1837, the company'were “authorized and…

<p>A decree of the Circuit Court of Rhode Island affirmed, which was a judgment upon a libel in personam against a steamboat'company for the loss of specie carried in their boat by one of the persons called “express carriers,” and lost by fire in Long Island Sound.</p>

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 a suit for the violation of a patent-right, and the writ of error was allowed under the seventeenth section of the act of 1836.

This casé was brought up, by a writ of error issued under the twenty-fifth section of the Judiciary Act, from the Supreme Court of the State of Louisiana. The facts in the case are fully set forth in the opinion of the court. It was argued by -Mr. Johnson and Mr. Clay,.for the plaintiffs in error, and Mr. Sergeant, for the defendants in error.

Held: or supposed to be held, by grant from the State. If it cannot be taken for public use in a proper case, and in a proper way, under the .restriction of the State, constitution, then it cannot i>e taken at all, and the right of eminent domain is gone. That this right still remains in the several States is not now to be questioned. Rogers v. Bradshaw, 20 Johns. 742 ; Beekman v.< Sar. and Schen.

Held: and hereby is deemed and held, to have purchased the. property in question with full' notice that the said sale at auction under ■ the pretended authority of the said defendants and their said act of sale to Correjollas were illegal, null, and void,- and in fraud of the rights of the person or persons entitled to the succession of the said Daniel Clark.

This was an appeal from the District Court of the United States' for Louisiana, under the act of Congress passed on the 17th of June, 1844, providing for the adjustment of land claims within the States of Louisiana, Arkansas, &c. A motion was made by Mr. Baldwin, whose name appeared as counsel for the appellees, to strike out his appearance, and in support of the motion he filed the following affidavit and letter. “ Harvey Baldwin, of the city of Syracuse in the State of New…