text:
    Francis West and others, Appellants, vs. Walter Brashear, Appellee.
    The mandate of the Supreme Court to the Circuit Court must be its guide in executing the judgment or decree on which.it issued. The mandate is the judgment of the Supreme Court, transmitted to the Circuit Court; and where the direction contained in it is precise and unambiguous, it is the duty of the Circuit Court to carry it into execution, and not to look elsewhere for authority to change its meaning. But when the Circuit Court are referred to testimony to ascertain the amount to be decreed, and are authorized to take more evidence on the point, it may sometimes happen, that there will be some uncertainty and ambiguity in the mandate; and in such a case, the Court below have unquestionably the right to resort to the opinion of the Supreme Court,..delivered at the time of the decree, in order to assist them in expounding it.
    ON appeal from the Circuit Court of the United States for the District of Kentucky.
    This case was before the- Court on appeals from both the parties, and the. proceedings and decision on the case are reported in 7 Peters, 608.
    The proceedings in the Circuit Court'of Kentucky, subsequent to the mandate issued from the Supreme Court, were the only matters in controversy on this appea.1.
    The mandate of the Supreme Court was as follows: “ Whereas, lately in' the Circuit Court of the United States for the District of Kentucky, before you or some of you,-in a cause between Walter Brashear, complainant,-and Francis West, and John Lapsley, and Samuel Mifflin, and Henry Nixon, trustees of said West, and Thomas M. Willing and Henry Nixon, executors of John Nixon, deceased, defendants in Chancery, the decree of the said Circuit Court was in the following words, to wit: It is the opinion of the Court, that the complainant is in equity entitled to a Credit or set-off against the judgments at law obtained against him in the name of West, for the sum of four thousand and eleven dollars and sixty-eight cents, being the amount of the judgment obtained against the complainant, as special bail for West, by George Anderson; but the complainant is not entitled to any of the other credits or 'set-offs claimed in his bill, and amended bill. It is therefore decreed and ordered, that the said four thousand and eleven dollars and sixty-eight cents, or so much thereof as will extinguish the same, shall be, and is hereby, credited and set off as payment on the 22d of October, 1810, against the judgment at law, not against or not covered by the injunction bond; and that the residue of the said four thousand and eleven dollarsnnd sixty-eight cents, if any, and the costs of the complainant in this suit, shall be, and is hereby, credited and set-cff against s<? much of the other judgment at law; the costs to be credited as of this day: and the clerk is hereby directed to tax the costs of this suit, and make the necessary calculations, and enter said credits accordingly; and it is further decreed and ordered,.’that as to the residue of the said judgments'br judgment* as the case may be, after entering and giving the credits as'aforesaid, the •complainant’s injunction shall be, and. the same ■ is hereby dissolved, with ten per centum damages upon the amount of such residue at the time the injunction was granted, and that the complainants may proceed to recover by execution at law the. said residue and also the damages aforesaid, as by the inspection of the transcript of the record of the said Circuit Court, which was brought into the Supreme Co.urt of the United States by virtue of an appeal, agreeably .'to an act of Congress in such cases made and provided* fully and at large .appears.’
    “And -whereas, at the present térm of January, in the year of our ■Lord one thousand eight hundred and thirty-three, the said cause came on to be heard before the said Supreme Court on the said transcript of the record, and was argued by counsel, on consideration •whereof this Court, was. of opinion that-there is error in the decree of the said Circuit Court in allowing to the sai'd Walter Brashear credit for the money paid, by’ him as special bail for Francis West, at the suit of George Anderson, and also in refusing to allow the said Walter'Brashear ctedit for the‘value of, the ginseng shipped and sold by the said James Latimer, with the assent of the said assignees of Francis West, after the same had been attached in his hands .by the said assignees: It is therefore decreed and ordered that the decree pronounced in this cause by the,Court of the United States, for the seventh circuit, in the District of Kentucky, be reversed and annulled, and that the cause be remanded to that Court, with instructions”to' perpetuate the injunction as to the sum which shall be equal to the amount of the ginseng shipped and sold by the said James Latimer, after the -attachment sued out by Francis West for the use of. Samuel Mifflin, John Lapsley, and Henry Nixon, assignees-for the benefit of his creditors, was levied, to dismiss the bill as to the residue ; and it is further ordered that the parties pay their o wn costs in this Court.
    “ You, therefore, are hereby commanded, that such further proceedings be had in said -cause-, in conformity With -the opinion and de'cree of this Court, ás, according to right and justice, and the laws of the United States, ought to be had", the said appeal notwithstanding.”
    The cause being before the Circuit Court on the' mandate, in November, 1833, it was referred to a commissioner to state the accounts between the parties in conformity thereto; and general leave was also given to take the deposition-of James Latimer.
    Under this order of the Court, the commissioner made a report, and stated that he gave credit to Brashear, under date of May 11, 1809, for two thousand eight, hundred and seventy-three dollars and fifty cents, the amount of ginseng shipped by. Latimer and Redwood. On exceptions filed to this repoii, it was set aside by the Court, on account of a sufficient sum not having been allowed for the' ginseng shipped by Latimer, after a foreign attachment, sued out by West, had been levied on the ginseng in the hands of Latimer. The commissioner, to whom it was recommitted, was instructed to examine and ascertain all the ginseng shipped and sold by Latimer, after the attachment, and all the charges on the same; The commissioner reported the value of the ginseng was five thousand five hundred and ninety-nine dollars and fifty .cents, and. the charges amounting to three hundred and sixty-one dollars and sixty cents.
    Exceptions were filed to this report, which -were overruled; and the Circuit Court gave .a decree in favour of Walter Brashear in conformity with the same.. The complainants prosecuted this appeal.
    The case was argued by Mr. Coxe, for the appellants; and by Mr. Crittenden, for, the appellees.
    For the appellants, Mr. Coxe contended that the mandate of this Court did not authorize the allowance of the whole amount of the ginseng belonging to Brashear, which had been shipped to Canton by Mr. Latimer .; but only that part of it shipped after the attachment laid by the áppeílants. The whole value of it is allowed in the decree of the Circuit Court.
    ■ Mr. Crittenden claimed that by a true interpretation of the mandate, the sura, allowed in the decree was the amount reported by the commissioner.
    . The counsel for both parties supported their allegations by a reference to the report of the case, in 7 Peters,.and to the proceedings of the Circuit Court under the mandate; which are referred to in the opinion of the Court.
   Mr. Chief Justice Taney

delivered the opinion of the Court.

This case was formerly before the Court, and was then fully con* sidered and decided, and is reported in 7 Peters, 608. Upon that occasion the decree of the .Circuit Court was reversed; and a man.date was issued from this Court, directing the Circuit Court to disallow certain credits which had been given to Walter Brashear, the present, appellee, and to allow him a credit equal to the amount of •certain ginseng, shipped and sold by James Latimer, after attachments had been laid in his hands, by Francis West the present appellant, and others.

Brashear' resided in Kentucky, and Latimer was his consignee and agent in Philadelphia, and had received from him, on consignment, a large quantity of ginseng; and had also made advances for him to a considerable amount, but not equal to the value of the consignment. Francis West was a creditor of Brashear’s, and, together with other creditors, laid attachments on his property and credits, in the, hands.of Latimer^ and these were a part of the matters in controversy in the former suit. The mandate ,of this Court will, be found in page 624 of the report above mentioned," and the controversy in this casé turns upon the construction of that mandate.

There is no contest here in relation to the items which this Court directed to be disallowed. But a dispute arose in the Circuit Court .as to the amount of the- sum directed to be credited to Brashear, and some further testimony was taken on that point, in the proceedings under the mandate. It finally appeared, that the value of the ginseng shipped and sold by Latimer,'after the attachments .were laid in his hands, amounted to five thousand five hundred and ninety-nine dollars and ninety' cents; and for this sum Brashear was credited by the decree of the Circuit Court.

The appellants object to this decree, and insist, that although a strict construction of the mandate might justify the credit, yet the mandate must be taken in connection with the opinion pronounced at the same time; and when thus expounded, it will not, as they contend, warrant the decree.

The point of the appellant’s objection consists in this: that although the ginseng shipped and sold by Latimer, after the attachments were laid in his hands, amounted to the sum decreed by the Court below, yet that a part of it had before been taken by Latimer at a stipulated price, agreed.on'betvveen him and Brashear; and that the value of the quantity actually owned by Brashear,.and shipped and sold as aforesaid, amounted only to the sum of two thousand seven hundred and fifty-three dollars and eighty cents; and that the residue so shipped and sold was owned by Latimer as above mentioned. And the appellants contend, that it is apparent from the opinion pronounced by this Court, when the case was formerly before them, that the imputed negligence and misconduct which in the judgment of the Court made them liable to Brashear, was confined to the ginseng seized by the attachment, and did not extend to the -money- düe from Latimer for the quantity taken by him as above mentioned, although that money 'was also subsequently lost by Latimer’s insolvency; and they contend, that the credit allowed Under the mandate ought to have been two thousand seven hundred and fifty-three dollars, and thirty cents, and that the Court erred in allowing more.

There has been some discussion at the -bar as to the principles by which a Circuit Court of the United States is to be governed when executing a mandate from the Supreme Court. • Undoubtedly the mandate must be its guide. It is the judgment of this Court transmitted -to the Circuit Court. And when the direction contained in the mandate is-precise and unambiguous, it is the duty of the Circuit Court to carry it into execution,, and .not to look elsewhere for authority to change its meaning. But -when, as in this ca'se, the Circuit Court are referred to'testimony to ascertain the amount to be decreed, and are authorized to take new evidence on the point, it may sometimes happen that there will be sorpe uncertainty and ambiguity in the mandate; and in such a case, the Court below have unquestionably the right to resort to the opinion delivered at the time, in ordef to assist them in expounding it. And if, in this case it had appeared from the opinion delivered, that in speaking of the ginseng shipped and sold by Latimer, the Court intended to confine the credit to the value of that portion of it owned by .Brashear at the time of the shipment, and to exclude that alleged to have been taken by Latimer,, it would have-.been the duty of the Circuit Court to execute the mandate'in conformity with this intention.

But there is no discrepancy between the mandate, and the opinion pronounced.at the time. It is evident that the Court.were under the impression that all of the ginseng taken by Latimer to pay his oWn debt, had been shipped before the attachments were laid. This appears from a paragraph in the opinion of the Court, in page 610 of the reported case. In stating the facts of the case, as in the judgment of the Court they were proved by the testimony, the Chief Justice who delivered the opinion, says: “Early in the year 1809, he (Latimer) took a large part of the ginseng to himself, as purchaser at six months’ credit, which he shipped on his own account to China in March of'that year. . In the following May he shipped the residue on account of himself and William Redwood.” This latter shipment was made after the attachments were levied, and the Court were manifestly of the Opinion that the- value of the whole parcel thus - shipped was- liable in Latimer’s hands to the attaching creditors. And believing from the testimony, that it was lost by the riegligence and misconduct of these creditors, and the subsequent insolvency of Latimer, they directed Brashear to be credited w'ith. the Whole "amount thus shipped. The' intention of the Court,-therefore, as gathered from the opinion, is in unison with the direction contained in the mandate; and, in our. judgment, the Circuit Court have rightly-expounded it. The decree of the Court below is affirmed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Kem tucky, and was argued by counsel. On consideration whereof, it is now here ordered .and decreed by this Court, that the decree of the 'said Circuit Court, in this cause be, and the same is hereby, affirmed, wfith costs.


source: Caselaw Access Project

author: Mr. Chief Justicé Taney

license: Public Domain

text:
    The Commonwealth Bank of Kentucky, Plaintiff in error, vs. Thomas Griffith and others, Defendants in error.
    Under the twenty-fifth section ofthe Judiciary Act ofl789,' three things are necessary to . give the Supreme Court jurisdiction of. a case brought up by writ of error-’or appeal. 1. The validity of a statute of the United States, or of an authority exercised under' a state must be drawn in question. 2. It must be drawn in question ori the ground that it is repugnant to the Constitution, treaties, or laws ofthe United States. 3. The decision of the state Court must be in favour of its validity. .
    When the decision of a state Court is against the validity (5f a state statute, as contrary to the Constitution of the United States, a writ of error does not lie to the Supreme Court Upon such a judgment. •
    IN error to the Supreme Court ofthe First Judicial District of the State of Missouri.
    Mr. M‘Ginnis, of counsel for the defendant in error,
    moved the Court to dismiss this writ of error for want of jurisdiction.
    .The action was originally instituted in the Ninth Judicial Circuit of the state, of Missouri, on a promissory note given by the defendant in error to the Commonwealth Bank of Kentucky, for the notes of that bank, to the amount of the promissory note. To this action the defendant pleaded several pleas; and among them was one which presented the questions whether the charter of the Commonwealth Bank of Kentucky was a violation of the Constitution .of the United States, and whether the notes of the bank were not “ bills of credit.” The judgment of the Circuit Court was given in favour of the plaintiff, and the defendant removed the cause to the Supreme Court of Missouri by a writ of error.
    In the Supreme Court, the judgment of the Circuit Court was reversed; the Court'deciding, that the notes of the bank were “bills of credit,” and prohibited by the- Constitution of the United States. The Bank of the.Commonwealth prosecuted this writ of error, under the twenty-fifth section of the Judiciary Act of 1789.
    Mr. McGinnis stated that the only question in. the case was, the constitutionality of .the charter of the Commonwealth Bank. The Supreme Court'of Missouri decided that it was void.
    - This is not a case within the twenty-fifth section of the Judiciary Act, The decision brought' up from the state Court was against the validity of the statute of Kentucky; and it is only when the válidity of a state law, as opposed to the Constitution or laws of the United States, has been decided to be in' favour of that validity, that the provision of the section in reference to such questions operates. If the Supreme Court of Missouri had decided in favour of the Kentucky law, the case could come to this Court. • This would be á case in ..which there might be supposed to have be.en an infraction of the Constitution, of the United StatesJ blit there is no necessity for an interference with the decisions of state tribunals, where there is no interference with the Constitution. No principle can be urged which would justify such a construction of the Judiciary Act.' The protection'of the Constitution of the United States was its object; and exclusively so.
    Mr. M‘Ginnis cited Crowell vs. Randal, 10 Pe.ters, 391; and the case referred to in the opinion of the -Court.
    Mr. Crittenden, for the plaintiff in error,
    opposed the motion. He referred to the provision in the twenty-fifth section of the Judiciary Act, which .authorizes writs of error in cases where is .drawn in question the validity of a statute, and the decision is against it.
    The state of Kentucky, in the exercise of its reserved rights, had established the'Bank of the Commonwealth. She claims under this authority, and relies on the clause of the Constitution which declaims all powers not granted by the Constitution to be reserved, She says that by the decision of the Supreme Co-urt of Missouri she' is interrupted in the exercise of her reserved rights. She claims to have these rights guarantied to her, and their exercise protected by this Court.
   Mr. Chief Justicé Taney

delivered the opinion of the Court.

A motion has been made to dismiss the writ of error in this case, upon the ground that this Court have not jurisdiction.

It appears from the record that an action was brought in the Circuit Court of the state of. Missouri, for the county of Calloway, by the. plaintiff in error, in order to recover the amount due on a promissory note given by the defendant and others to the bank. The defendants, among other things, pleaded “ that the note sued on was made by the defendants to the plaintiffs, in consideration of the paper of the said Bank of the Commonwealth of Kentucky, and that the said paper was bills of credit, within the meaning of the Constitution of the 'United States, issued on the credit of the state.” The Circuit Court orverruled this plea, and gave judgment for the plaintiffs. The defendants removed the case to the Supreme Court of the state, where the question above mentioned was again raised;.' and it was then'decided that the notes of the bank were bills of credit, within the meaning of the Constitution of the United States, and that the contract upon which the note .in question was -given was therefore void: and upon that ground the judgment of the Circuit Court was reversed, and judgment entered fjpr the defendants. The point is, can this judgment of the state Court be re-examined here ?

The question depends altogether upon the construction of the second clause of the twenty-fifth section of the act of 1789, which provides that the final judgment or decree of the highest Court of Law or Equity in a state, in which a decision could be had, may be re-examined in this Court up'oha writ of error, «where is drawn in question the validity of a statute of, or dir authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favour of such their validity.”

Under this clause of the-act of Congress, three things must concur to give this Court jurisdiction.

1. The validity of a-statute of a state, or of an authority exercised under á state, must be drawn in question.

2. It must be drawn in. question upon the ground that it is repugnant to the Constitution, treaties, or laws of the United States.

3. The decision of the state Court must be in favour of their validity.

In the case before us, the validity of the statute of the state of Kentucky which chartered the Commonwealth Bank, and the authority exercised under that charter, were drawn in question in the state Court; and they, were questioned upon the ground of their being repugnant to -the Constitution of the United States. But the decision was against their validity, and not in favóur of it; and consequently the third contingency which is necessary to give jurisdiction to this Court has not arisen.

In the:case,of Briscoe and others vs. The Commonwealth Bank, 11 Peters, 257, the decision of the state Court was in favtur of the validity of the statute. The party therefore who denied its validity, and alleged that it was repugnant to the Constitution, of the United States, was entitled to have that question re-exámined in the Supreme Court. But it is otherwise, by the plain words of the law, when the decision of the state Court is against the validity of the. state statute, or the authority exercised under it.

The policy of this distinction is obvious enough. The power given to the Supreme Court by this act of Congress was intended to protect the general government in the free and uninterrupted exercise of the powers conferred on it by the Constitution, and to prevent any serious impediment from being thrown in its way while acting within the sphere of its legitimate authority. The right was therefore given to this Court to re-examine the judgments of the state Courts, where the relative powers of the general and state government had been in controversy, and the decision had been in favour of the latter. It may have been apprehended that .the judicial tribunals of the states would incline to the support of state authority, against that of the general government; and might, moreover, in different stales give different judgments upon the relative powers of the two governments, so as to produce irregularity and disorder in the administration of the general government. But •when, as in the case before us, the state authority or state statute is decided to be unconstitutional and void in the staté tribunal, it cannot under that decision come in collision with the authority of the general government; and the right to re-examine it here is not necessary to protect this government in the exercise of its rightful powers. In such a case, therefore, the writ of error is not given; and the one now before us must be dismissed for want of jurisdiction.

This cause came on to be heard on the transcript of the record from the Supreme Court of the state of Missouri, holden at the town of Fayette, in the county of Howard, in and for the First Judicial District of said stat'e, and was argued by counsel. On consideration whereof, it is now here ordefed and adjudged by this Court, that this writ of error to the said Supreme Court be, and the same is hereby, dismissed for the want of jurisdiction.


author: ■Mr. Justice Barbour

text:
    The Commercial and Rail Road Bank of Vicksburg, Plaintiff in error, vs. Slocomb, Richards and Company, Defendants in error.
    An action was brought in the Circuit Court of Mississippi, against the Commercial and ■ Rail Road Bank of Vicksburg, Mississippi, by parties who were citizens, of the state of Louisiana. The defendants pleaded in abatement, by attorney, that they are an aggregate corporation, and that two of the stockholders resided in the state of Mississippi. The affidavit to the plea was sworn to by the cashier of the bank, before the “ Deputy clerk.” It was not entitled as of any term of the Court. The plaintiffs demurred to the ’ plea. Held, that the appearance of the defendants in the Circuit ■ Court, by attorney, was proper; and that if any exceptions existed to this form of the plea, they should have been urged to the receiving of it when it was offered, and are not causes of demurrer. Held, that the Circuit Court of Mississippi had no jurisdiction of the casé.
    The artificial being, a corporation aggregate, is not, as such, a citizen of the United States; yet the Courts of the United States will look beyond the mere-corporate character, to the individuals of whom it is composed: and if they were citizens of a different state from-the party.sued, they áre competent to sue in the Courts of the United States; but all the corporators must be citizens of a differentóate from the party sued. The same principle applies to the individuals composing a corporation aggregate, when standing in the attitude of defendants, which does when they are in that of plaintiffs.
    The act of Congress,passed February 28th, 1839, entitled “an act in amendment of the acts respecting the judicial system of the United States,” did not contemplate a change in the jurisdiction of the Courts of the United States, as it regards the character of the parties as prescribed by the Judiciary Act of 1789, as that act has been expounded by the Supreme Court of the United States: which is, that each of the plaintiffs must be capable of suing, and each of the defendants capable of being sued.
    IN error to the Circuit C.ourt of the United States for the Southern District ef Mississippi.
    Cora A. Slocomb, Robert Richards, .and Romanzo W. Montgomery, styling themselves citizens of Louisiana, trading under the' firm of Slocomb, Richards and Company, sued the President, Directors, and Company of the Commercial and Rail Road Bank of Vicksburg, styling them' citizens of the state of Mississippi, living and resident in the Southern District thereof, being a banking company, incorporated by the Legislature of the state of Mississippi, located in the Southern District r aforesaid. The suit was upon a certificate of deposite for three thousand five hundred and forty-one dollars and thirty-four cents.
    To the declaration of the plaintiffs, averring as above stated, the defendants put in the following plea:

      ■ ‘ The said defendants by attorney come and say, that this Coiirt ought not to have or take further cognisance of the action aforesaid,because- they say that they are a corporation aggregate, and were at the time this suit was instituted, and yet sp continue to be, and. that the corporators,- stockholders, or company, are composed of citizens of other, and different states, to wit; That William M. Lambeth, and William E. Thompson, citizens of the state of Louisiana, are now, and were at the time this suit was instituted, stockholders and corporators therein; and this,” &c.
    The following affidavit was subjoined to the pléa:
    “.Tames Roach, acting cashier-for the Commercial and Rail Road Bank of Vicksburg, the defendants in the above case, makes oath, and says, the above plea is true in substance and fact.
    “ Signed, J. Roagh.
    “ Sworn to, and subscribed before me, this 4th day of November, 1839.
    “ Signed, George W. Miller, Deputy Clerk.” ■

    To this plea the plaintiffs demurred, and assigned the following special causes, to wit:
    1. The said plea in abatement is not properly entitled of any term of this Court.
    2. The affidavit in support of said plea is not sufficient, nor is the same properly attested.
    3. The matters set forth in said plea are not sufficient to abate the plaintiffs’ suit.
    The demurrer was sustained and judgment rendered, for the plaintiffs.
    The defendants prosecuted this writ of error.
    Mr. Sergeant for the plaintiffs in' error,
    assigned as error in the judgment of the Circuit Court, the following points:

      1. The alleged defect in the plea in abatement of the defendants ' below, and the want of a proper affidavit, and attestation of the plea, are not causes of demurrer.
    2. If they are causes of demurrer, the plea was legal, and sufficient ; and if not so, the judgment of the Circuit Court.should have been to answer over.
    3. The causes assigned as. sufficient to abate dhe plaintiffs’ suit, and which, being matter of general demurrer, did not require to be specially assigned, is not founded in law. On the contrary, the -facts stated in the plea, and admitted by the demurrer, are sufficient in law to take away .the jurisdiction of the Court, and entitled the defendants to judgment.
    4. That if the plea and affidavit were informal, still the facts stated in them, however and whenever appearing, were fatal to the jurisdiction; which cannot be .maintained bv consent, or by waiver of the parties, or either of them.
    Mr. Sergeant contended that the principal question in this case, whether all the members of a corporation aggregate, should be citizens of the state in’which the suit was‘brought, had been frequently decided by the Court.
    The. jurisdiction' of the Circuit Courts of the United States, the Circuit. Courts having -limited jurisdiction, extended only to controversies between citizens of other states, and those of .the state in which the action was .brought, so far as the law had an application to th¿ case ^before the Court.; It has'also been decided, that although a corporation cannot be considered a citizen of thé state erecting it, yet the Court'will look behind its charter, and if it finds the corporators. citizens of one state, will’recognise the right of those corporators to sue in the Circuit Courts. But'it will apply to them the same principles and rules which are applicable to all parties coming-into the Courts of the United States. ■ All the. corporators must be citizens of the state in which the suit is instituted, to give the Court jurisdiction. Cited, Strawbridge vs. Curtis, 3 Cranch, 267. The Bank-, of the United States vs. Deveaux, 5 .Cranch, 61.
    Ndr did the appearance of the plaintiffs in error, by attorney, in the Circuit Court, deprive them of a right to except to the jurisdiction of the Court. The action was against them, an aggregate corporation, and there could be no appearance but by attorney.
    The counsel for the defendants in error rely on the provisions of an act of Congress passed on the 28th of February, 1839, relating to the judicial system of the United States.
    An examination of 'the provisions of that statute, and a fair construction of them, will satisfy the Court that it was meant to apply, only to parties who,- under the judicial system, were properly parties to’ suits in the [Circuit Court, but who might not have been served with process. The statute was not intended to change the charac- • ter or the nature of the jurisdiction of the Circuit Courts of the'United'. .States.
    Nor could that statute operate in the case before the Court; for the citizens of Loúisiana who were members of the' aggregate corporation sued by the defendants in error, would be affected by the' ■judgment of the Circuit Court, if in favour of the plaintiffs below. The funds of the bank would be appropriated to pay the debt; and to those funds, as stockholders, they had the same right as any other of the corporators.
    The objections to the exceptions of the. plaintiffs below to the plea, and' this affidavit; are left upon the points submitted to the Court. Whatever might be' the value of these objections, had they been, urged to the receiving of the plea, they cannot be assigned as-r causes of demurrer. •
    Mr. Henderson, for the defendants,
    contended that the objections to the jurisdiction of the-Circuit Court had»not been properly brought forward.
    A foreign minister may be sued, if he does not make the objec-' tion4n á proper form. The magistrate, or Court before whom the suit lias been brought, cannot know, of his exemption unless it shall, be.pleaded. It must be ascertained in a judicial form. .Having omitted to plead the exemption, the jurisdiction is admitted. This is the principle which, by the rules of pleading, govern the case. 2 Cranch, 240. 1 Peters’ Digest, 622.
    The plea is defective -because it excepts to the jurisdiction of the Court, without the proper affidavit' to sustain it.. The affidavit should have been made by the persons who áre alleged to have been improperly sued; and it should have been properly sworn to.
    The act of Congress of 1S39, applies to this case, and gave the Court jurisdiction. It provides for the absence of parties who may not have been served with process; and allows the Court to proceed without them, although the cause of action is joint...
    The objection, that it is not stated at what term the plea in abatement was filed, is valid; because as the rule is that no such plea shall be received after an appearance, the period when the-plea was filed ■cannot otherwise be known. Courts are not disposed to. sustain pleas in abatement. A Court will not consider that the defendants sued were out of its jurisdiction, unless this shall be shown by proper pleading'; and by this pleading in proper time. Cited, Story.’s' Pleading, pi. 3. 7. Gold..Pleading, 238. sec. 7. Chitty’s Pleading, 475. Chit'ty’s Archbold, 688. 3 Mason’s Rep. 9..
   ■Mr. Justice Barbour

delivered the opinion of the Court.

This is a writ of error to the Circuit Court of the United States, for the Southern District of Mississippi. It was an action on the case in assumpsit, 'brought by the defendants in error, citizens of Louisiana, against the plaintiffs in error.

The defendants in the Court below appeared by attorney, and pleaded to the jurisdiction of tfie Court; averring in their plea that they were a corpcration aggregate, and that their .corporators, stockholders, or company, were composed of citizens of .other and different states; to wit, that William M. Lambeth and William E. Thompson, citizens of Louisiana, were, at the time that the-suit was instituted, and at the time of filing the plea, stockholders and corporators therein.

The plaintiffs in the Court'below demurred to this plea, assigning specially several causes of demurrer, as follows: 1. That the.plea was not properly eutitled of any term of the Court. 2. That the affidavit in support of the plea was not sufficient, nor was it properly attested. ' 3. That the matters set forth in the plea were not sufficient to abate the plaintiffs’ suit.

The Court sustained the demurrer, and, gave judgment against the defendants, for three thousand five hundred and seventy-five dollars and fifty-four cents, in damages; being the amount of the principal and interest of a' certificate of deposite, on which the suit was brought, and for the costs. To reverse this judgment, this writ of error is brought.

In examining the correctness of the judgment of the Court upon the demurrer, we throw out of consideration the two fust caused assigned; because if there were any irregularity in the particulars stated, they could at most only be urged as objections to the receiving of the plea: but could not be relied upon as grounds of demurrer ; the office of which is, to'p lit in issue the legal effect of a plea, after it has been received.-

The third eause assigned, which was, that the plea- was not sufficient to abate the plaintiffs’ suits, raises the only question to be decided; and that is, whether, upon the state of the. parties, as appearing upon the record, the Court had jurisdiction of the case.

It wilL be observed, that the plaintiffs were citizens of Louisiana; so averred to be in the declaration; and two of the members of the corporation sued were also citizens of Louisiana. They are so averred to be in the.plea, and the demurrer admits the truth of this averment. The eleventh section of the Judiciary Act of 1789, gives to the Circuit Courts of the.United States jurisdiction in cases'.where “ the suit is. between a citizen of the state where the suit is brought, and a citizen of another state.”

This Court were called upon, at an early period, to construe this section of the Judiciary Act, in relation to the very.question raised by the pleadings in this case.

In the case of Strawbridge and others vs. Curtis and others, 3 Cranch, 267, they decided that where there are two or more joint plaintiffs, and two or more joint defendants, each of the plaintiffs 'must be capable ,of suing each of the defendants in the Courts of the United States, in order to support the jurisdiction. And what is more-particularly applicable to this case, in the case of The Bank of the United States vs. Deveaux and others, 5 Cranch, 61, this Court decided, that a corporation aggregate, composed of .citizens of orje state, might sue a citizen of another state in the Circuit Courts of the. United States; that.Is, they in effect decided, that, although the artificial being, a corporation aggregate, Vas not a citizen, as such, and therefore could not sue in.the Courts of the United States, as such, yet the Court would look beyond the mere' corporate character, to the individuals of whom.it was composed; and if they were citizens of a different state from the party sued, they were competent to sue. in the Courts of the United' States'. But still, upon the principle of Strawbridge vs. Curtis, all the corporators must be citizens of a different state from the party sued. And the.doctrine of both these cases has.ever since been held to be the law of this Court. It is perfectly clear, that the same principle applies to the individuals composing a corporation aggregate, when standing in the attitude of defendants, which does when they are in that of plaintiffs.

The application of these doctrines to this case, would seem to be decisive of its fate; unless there is something in other points which, were' argued at the bar to obviate Iheir force. For it has already been stated that the plaintiffs in the Court below were citizens of the state .of Louisiana, and two of the members of the corporation sued were also citizens of Louisiana; so that some of the defendants being citizens of the same state with the plaintiffs, it follows, that although each of the plaintiffs was capable of suing, yet each of the defendants was not capable of being sued in the Circuit Court of Mississippi.

„ But it was contended at the bar, that whatever might have been the.priginal ground of objection to the jurisdiction of the Court, the defendants had appeared by' attorney; and that such an appearance waived all objection to the jurisdiction of the Court.’ This is admitted to be a well established rule, in pleas of this sort; in Courts of general jurisdiction, where the plea is interposed by individual defendants. We deem it unnecessary, for the purposes of this case, tp inquire what would be the effect of an appearance by attorney of an individual defendant, in pleading such á plea in the Circuit Courts of the United States, which aré of limited jurisdiction. But we are clearly of opinion, that in the case of a corporation aggregate, no waiver of an objection to' jurisdiction could be produced, by their appearing and pleading by attorney: because, as such a corporation cannot appear but by attorney; to say that such an appearance would amount to a waiver of the objection, would be to say, that the party must from necessity forfeit ah acknowledged right, by using the only means which the law affords of asserting that right.

It was further contended, that all objection to the state of the parties in this case was obviated by the act of Congress, passed February 28th, 1S39, entitled, “ An act, in amendment of the acts respecting the judicial system 6f the United States.”

The first section of that act provides, “ That where in any suit at law, or in equity, commenced in any Court of the United-States, there shall be several defendants, any one or more of whom shall not be inhabitants of, or found within the district .where the suit is brought, or shall not voluntarily appear thereto,, it shall be lawful for the Court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly-before it; but the judgment or decree rendered therein shall not conclude or prejudice-other parties, not regularly served with process,, or not voluntarily, appearing to answer.”

We consider the true construction of this'aét to be this;—

-The eleventh section of the Judiciary Act, after having prescribed the jurisdiction of the 'Circuit Courts, as it regards the character of. the parties, by way of personal exemption,-declares, “ That no civil suit shall be brought before either of said Courts against an inhabitant of -tfie United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found,-.at the time of serving the writ.”

Undér .the operation of this clause many difficulties occurred in practice, in cases both in law and equity, in which, by the principles governing -Courts both of law and equity, it was necessary to join several defendants, some of whom were, and others were not, inhabitants of the district in which the suit .was brought.

The act .of 1839 was intended to remove these difficulties; by providing, that the persons not being inhabitants, or not found within the district, may either not be joined at all with those who were, or if joined,- ana they did not waive their personal exemption, by a voluntary appearance, the Court may go on to judgment or decree against the parties properly before it, as if the others had not been joined.

But' it did not contemplate a change in the jurisdiction of the Courts, as'it regards the character of the parties, as prescribed by the Judiciary Act, and as expóunded by this Court.; -that'is, that each of the plaintiffs must be capable of suing, and each of the defendants, 'capable of being sued: which is not the case in this suit; some of the defendants being citizens of the same state' with the plaintiffs.

There is another reason Why'this act of 1839 cannot apply to this casé. It expressly declares, that the judgment or decree shall not conclude or prejudice óther parties not regularly served' with- process, or not voluntarily appearing to answer. Now the defendants in this case being a corporation aggregate, any judgment against them .must be against them in their corporate character: and the judgment must be paid out of their'corporate funds, in which is, included the interest of the tWo Louisiana stockholders; and, consequently, such a judgment must of necessity prejudice those parties, in direct contravention of the" language of the law.

We are of opinion that the judgment of the Circuit Court Was er-. roneous;'in sustaining the plaintiffs’’demurrer to defendants’ plea: it is therefore reversed; and ,'the case is remanded to the Circuit Court, to be proceeded in according to law.

■Thjs cause came on to be heard on the transcript of the record from .the Circuit Court of the United States for the Southern District of Mississippi, and .was argued by counsel. On consideration - whereof, it is n'ow here ordered and adjudged by this Court, that ' the judgment of the said Circuit Court in this cause be, and, the. same is hereby, reversed,with costs; and that this caúse. be,and the same is hereby, remanded to the said Circuit Court, with directions to' proceed therein according to law- and justice, ip conformity to the opinion of this Court;


author: Mr. Justice Wayne

text:
    Henry A. Suydam and William Boyd, Plaintiffs in error, vs. Robert Broadnax and Isaac Newton, Administrators of David Newton, deceased, Defendants in error.
    The plaintiffs, merchants of New York, instituted a suit'in the Circuit Court of Alabama, against the administrators of the drawer of a note, dated in New York, and payable in New York. The act of the Assembly of Alabama provides, that the estate of a deceased person; which is declared to be insolvent, shall be distributed by the executors or administrators, according to the provisions of the statute, among the creditors; and that no suit or action shall be commenced or sustained against any executor or administrator after the’ estate of the deceased has been represented as insolvent, except in certain cases not of the description of. that on which this suit was instituted. Held, that the insolvency of the estate, judicially declared under the statute of-Alabama, is not sufficient in ■ law to "abate a suit instituted in the Circuit Court of the United States, by a citizen of another state, against the representatives of a citizen of Alabama;
    The exceptions in the sixth section of the law of Alabama, in favour of debts contracted out" of the state, prevent the applier u, i of the statute, or its operationy-in a case of a debt. originating in and contracted by tne deceased out of the state of Alabama.
    A sovereign state, and one of the states of this Union,, if the latter were not restrained, by " constitutional prohibitions, might, in virtue of sovereignty, act upon the contracts "of its citizen's, wherever made; and discharge them, by denying the right of action upon them in its own Courts: but the validity of such contracts as were made out of the sovereignty or state, would exist and continue everywhere else, according to the lex loci contractus.
    The constitutional and legal rights of a citizen of the United States, to sue in the Circuit Courts of the United States, do not permit an- act of insolvency, completely executed under the authority of a state, to be a good bar against a recovery upon a contract made in another state.
    The eleventh section of the act to establish the Judicial Courts of the United States, carries out the constitutional right of a citizen of one state to sue a citizen of another state in the Circuit Cou -of the United States; and gives to the Circuit Courts “ original cognisance concurrent with the Courts of the several states, of all suits of a civil nature, at common law and in equity.” ■ It was certainly intended to give to suitors, having a right to sue in the Circuit Court, remedies, co-extensive. with that right. These remedies would not be so, if any proceedings under an act of state legislation, to which the plaintiff was not a party, exempting a person of such state from suit, could be pleaded to abate a suit in the Circuit Court!
    ON a certificate of division from the Circuit Court of the United States, of the Southern District of Alabama.
    An action was instituted in the Circuit Court of Alabama by-Henry A. Suydam and William Boyd, against the defendants, as administrators of David Newton, on a promissory note given by him to the plaintiffs.
    On the trial of the cause the following questions arose, on which the judges of the Circuit Court were divided, and the same were certified to this Coqrt.
    1st. Is the plea that the estate of the said decedent is insolvent, sufficient in law to abate the said action ?
    2d. If the said plea.be sufficient in law to abate said action, can the Circuit Court of the United States for the district aforesaid, refer said cause for adjudication and final settlement to a board of commissioners, to be appointed by a County Court in one of the counties in the state of Alabama, in pursuance of an act of the Legislature of the said state ?
    Mr. Curtis, for the plaintiffs,
    presented the following points:—
    1. The law of Alabama is no defence to. the action, because, it is in conflict with a law of the United States..

      2. The law of Alabama is void, because it is • repugnant to the' clause in the tenth section-of the eleventh article of the Constitution of the United States, which inhibits any state from passing “ any law impairing the obligation of a- contract.”
    3. Even if the law of Alabama be admitted to be valid, it is no defence to the action.
    On the first point, That the law of Alabama is no defence to the action, because it is in conflict with a .law. of the United States, Mr. Curtis said:—
    The plaintiffs, residing in New York, sued, the defendants, residing in Alabama, as-administrators of á deceased person. For the defence, a law of that state is relied on, the clause of which, applicable to the case, is as -follows i “ Nor shall any suit or action be commenced or sustained; against him,” [i.. e. an executor or administrator,] “ after the estate’ - of the testator or intestate is represented insolvent.” Two -exceptions.are- made, which have nothing to do with the present case. Aikin’s -Digest of the .Laws of Alabama, second edition, 1836, 152..664, 8vo.
    The second section of the third article of the Constitution of the United States extends their judicial powers to controversies between citizens of different states. The Judiciary Act of 24th September, 1789, section eleven, (2 Laws of the United States, 60, 61,) gives the Circuit Courts .of the.United States, original cognisance, concurrent with, the Courts of the several stales, of certain classes .of cases, among which arc- cases in which •“ the suit is between a citizen of-the state where the suit is brought, and a,citizen of another state;” and in which “ the matter in dispute exceeds, exclusive of costs, the sum or value-of five hundred,dollars.” It is admitted that the present case has both these requisites for jurisdiction on the part.of •the federal Court. The effect, then, of the defence, if successful, would be to establish the .doctrine, that it is competent for a state legislature, under the Constitution of the United States, to pass a law to oust a! Court of .the United States of a jurisdiction which that Constitution had conferred on it.
    . The mere statement of such a proposition is, one would think, its conclusive refutation.
    The effect claimed for the law of Alabama, would be to give a state exclusive jurisdicfiqn-of cases in.which, by the Constitution and laws of the United 'States, and the judicial expositions of that' Constitution and those.laws, the state has no jurisdiction at all. -“ For,” the Oóurt said, “in cases of concurrent authority, where the flaws of the states or of the Union are 'in direct and manifest collision on the same subject, those of the Union being ‘the supreme law of the land,’- are of paramount authority; .and the state-laws, so far, and so far only, as such incompatibility exists, must necessarily yield.” Per Story, J-., in Houston vs. Mopre, 5- Wheat. 49, 50.
    This passage occurs, it is true; in the opinion of a judge who dissented from the judgment óf the. Court in the .particular case; bpl the difference between the' judges was, not as to the principle, (for it appears never to have been, as Judge Story says, “seriously doubted,”)-but as to its application to the case before them. In the present case no such difference can exist. The law of the' United States says that the.Circuit Court shall try it: tlie law of Alabama says that the Circuit Court shall -not try it. The conflict between the two statutes is direct and palpable. • It is for the Supreme Court to say which is to prevail.
    It rnay not be amiss, on this point of concurrent powers, to cite the principle laid by Chancellor Kent,- after analyzing the case of Houston vs. Moore, and other cases, in which the subject had beer judicially examined: “ It would seem,- therefore, that the concurrent power of legislation in the states, is not an independent, but a subordinate and dependent .power, liable in many cases to be extinguished, and in all cases to- be postponed, to the paramount or supreme law of the Union, wherever the federal and the state regulations interfere with each other.” 1 Kent’s Commentaries, 394. 388 — 393.
    After referring to the doctrine of the Federalist, (No. 82,) that in all cases' of concurrent jurisdiction, an appeal would lie from the state Courts to the- Supreme Court of the United States; that with.out, such fight of appeal, the concurrent jurisdiction of the state Courts, in matters of national concern would be inadmissible,, because, in that case, it would be inconsistent with the' authority and efficiency of the general government; and after analyzing several cases, Chancellor Kent says, (1 Commentaries, 403,) that if-the state Courts “ voluntarily entertain jurisdiction of cases cognisable under the authority of the United States, they assume it upon the condition, that the appellate jurisdiction of the federal Courts shall apply.” .This proposition is irreconcilable with the assumption of the Alabama law, that the federal Courts shall have no jurisdiction at all in the present case-
    The same learned judge lays it down as a principle, and sustains it by abundant authority, that “ no state can control the exercise of any authority under th© federal government.” (I Kent’s Commentaries, 409 — 412.') Yet this is exactly what the state of Alabama seeks to do here.
    In Fisher vs. Blight, 2 Cranch, 397, the Supreme Court emphatically assert “ the supremacy of the laws of the United States, on all subjects to which the legislative power of Congress extends.”
    In a cage-in which the states of Virginia and Kentucky had made a compact, by the terms of winch certain rights to land were to be finally decided according to the, latys of Virginia, the Supreme. Court said :
    “ The Constitution of the United States, to which the .parties to this compact had assented, gave jurisdiction to the federal Courts in controversies between citizens of different states. , The same Constitution vested in this Court an appellate jurisdiction in all cases where original jurisdiction was given to. the.inferior Courts; with only such exceptions and under such regulations as the Congress shall make. Congress, in pursuance of the Constitution, has passed a law on the subject, in which the appellate jurisdiction of this Court is described in' general terms, so as to comprehend this case; nor is there .in that law any exception or regulation which would ¿xclude' the case of a caveat from its general provisions.. If, then, the compact between Virginia and Kentucky was even susceptible of the Construction contended for, that construction could only be maintained on the principle that the legislatures of any two states, might,-by agreement among themselves, annul the Constitution of the United States.- The jurisdiction of-the Court being.perfectly clear, it remains to inquire which of the parties has the better right.” Wilson vs. Mason, 1 Cranóh, .91, 92. See' also, Sergeant’s Constitutional Lqw, 44. 275,276 — 278. 287 — 290, second edition, and the cases there cited.
    - The laws of the several states, as to rights, furnish rules of decision for the federal Courts under certain qualifications; but as to remedies, they have no binding force in these Courts. Campbell, Boaden and Company vs. Claudius, 1 Peters C. C. Rep. 484.
    The statutes of limitation of the different states do not bind the United States in suits in Courts of the United States; and cannot be pleaded in bar in a suit by the United States against individuals. United States vs. Hoar, 2 Mason, 311.
    “ It has been generally held, that the state Courts have a concurrent jurisdiction with the federal Courts, in cases to which the judicial power is' extended, unless the jurisdiction off the federal be rendered exclusive .by the words of the third article. If the words, ‘ to all cases give exclusive jurisdiction in cases affecting foreign ministers, they may also give, exclusive jurisdiction, if such be the will of Congress, in cases arising under the Constitution-, laws, and treaties of the United States.”, . Cohens vs. Virginia, 6 Wheat. 397.
    It has already been shown, that the conflict of the.law of -Alabama with the law of the United States, covering-this case, makes the grant of jurisdiction in the latter to the federal Court a grant of' exclusive jurisdiction, quoad this case.
    The Judiciary Act of the-24th. September, 1789, in section thirty-four, (2 Laws of the United States, 70,) declares that the. laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require; or provide, shall be regarded as rules of decision in trials at common law, in , t{ie Courts of the United States, in cases where they apply.

      . The caso at bar is the very exception. It is a suit lor which a statute of the United States has “otherwise” provided: and far “ otherwise” than the law of Alabama has done; for the federal law says expressly, that the suit may be brought, and the state law says expressly, that the suit shall not be brought.
    . This thirty-fourth section of the Judiciary Act of 1789, has no application- to the practice of the Courts, nor in any manner calls, ■upon them to pursue.the various changes which may take place from time to time in the state Courts, with respect to their processes, and modes'of proceeding under them. United States Bank vs. Halstead, 10 Wheat. 54.
    So far as the act of Congress of the '8th May, 1792, (2 Laws of the United States, 299, 300,) called the “ Process Act,” perpetuating the former act of 29th September, 1789, (2 Laws of the United States, 72,) adopts the state laws as regulating the modes -of proceeding in suits at common law, the adoption is expressly confined to those in force in September 1789. The act of Congress does not recognise the authority of any laws of this, description which might be afterwards passed by the states. Wayman vs. Southard, 10 Wheat. .41.
    If a state law cannot affect the course of causes in the federal Courts, after' they have passed to judgment, how can it prevent them,’ when regularly prosecuted under a law of the United States, from passing the judgment ?
    On the second point it was argued, that the law of Alabama is void, because it is repugnant to the clause in the tenth section.of the first article of the Constitution of the United States, which inhibits a state from passing “any law impairing the obligátion of contracts.”
    This Jaw manifestly impairs the obligation of a contract, because it destroys the. creditor’s remedy, in toto. It disables him from bringing a suit at all,' and makes him an outlaw. See as to this point, Sturgis -vs. Ciowninshield,•’ 4 Wheat. 122. M‘Millan vs. M'Neill, 4 Wheat. 209. Ogden vs. Saunders, 12 Wheat. 213. 1 Kent’s Com; 419.
    On the third point, Mr. Curtis contended that, even if the law of, Alabama be admitted, for the .sake of argument, to be valid, it is no •defence, to the action.
    The words of the law- are, “Nor: shall any suit or action be commenced or sustained against him, after the estate of the testator or intestate is represented insolvent.”
    • Whether the words “ commenced” and “ sustained’* are, as here used, synonymous, or not, is a question on which philologists may differ. Dr. Johnson gives seven definitions of the word “sustain;” the first of which is, “ to bear; to prop; to hold up:” the second, “to-support; to keep from sinking under evil:” the third, “to maintain; to. keep :” and the-fourth, •“ to help;.to relieve; to .assist.” Mr. Richardson, on the contrary, says that'“ sustinére,” from which he derives it, means, not to hold up, but to hold or keep under, as well as to support; and defines “ sustain” as meaning “ to bear or carry; to bear, to suffer, toendure;” These are his only senses of the word; and they coincide with the remaining three given to it by Dr. Johnson'. None of Richardson’s definitions of the word “ sustain,” can, it is clear, help out the defence, so far as it rests on that word in the law. It is a word generally used loosely in statutory and judicial language; and it has even been “represented” that the legislature of Alabama is more remarkable than other legislatures for critical elegance or-precision. The probability is, that the word “sustained” was thrown into the law in question as amere pleonasm. If so, the law prohibits such suits only against an executor or administrator as are commenced after the estate of the testator or intestate is represented insolvent. Now, in the case at bar, the representation of insolvency was after the suit, instead of the suit being after the representation. The suit, therefore, was- a proper one, even under the law of Alabama.
    But, let it be conceded that the word “sustained” has a substantive meaning in the law, and bars actions properly “ commenced,” ón a representation of insolvency made “ pendente lite;” still the law would be inoperative to oust a jurisdiction which had once vested. “Where,” says Chief Justice Marshajl, “jurisdiction of the federal Court has once attached, no subsequent change in the relation or condition of the parties in the progress of the cause will oust the jurisdiction.' The strongest considerations of utility and convenience require, that the jurisdiction once vested, the action of the Court should not be limited; but that it should proceed to make a final disposition of the subject.” U. States vs. Myers et al. 2 Brock. C. C. Rep! 516.
    • This principle has been repeatedly announced by the Supreme Court of the United States.' See Morgan’s heirs vs. Morgan, 2 Wheat. 290. 297. Molían vs. Torrance, 9 Wheat. 537. Dunn vs. Clarke, 8 Peters, 1. Clarke vs. Mathewson et al. 12 Peters, 164.
   Mr. Justice Wayne

delivered the opinion of the Court.

This case has .been sent to this Court upon a certificate of division of opinion between the judges of the Circuit Court of the Southern District of Alabama.

Suydam and Boyd, partners in trade, citizens of the state of New York, sue the defendants as administrators of David Newton, upon a promissory note given by the intestate to the plaintiff, dated New York, September 1st, 1835, payable in twelve months.

The defendants, as we are left to gather from a most imperfect record — for- the pleadings, except the declaration, are not given— plead in abat .cut of the suit, that the estate represented by them has been declared, under proceedings of a statute of Alabama, to be insolventand in such case, that they are not liable to be sued. -

The judges of the Circuit Court were opposed in opinion upon the question, “Is the plea that the estate of the said'deceased is insblvent, sufficient in law to abate,the said action?”

The statute of Alabama will be found in Aikin’s Digest of the Laws of Alabama, 151. The second section of it declares, that the estates of persons altogether insolvent shall be distributed among the creditors in proportion to the sums respectively due, after the payment of debts due for the last sickness and necessary funeral expenses. For the purpose of ascertaining such insolvency, the executor is permitted to exhibit to the Orphans Court an account and statement of the effects of the estate, including in it also the lands, tenements,and hereditaments of the testator or intestate: and if it'shall appear.to the Orphans Court that such estate is insolvent, then, after ordering the lands, tenements, and hereditaments of .the testator or intestate to be sold, the Court shall appoint two or more commissioners, with power to receive and examine the claims of creditors of the estate; and'-the commissioners are directed to give notice of the times and places of their meeting, by notifications posted up in such public places, and in such newspapers, as, the Orphans Court, or Chief Justice, thereof may direct. Six months, and not more than eighteen months, shall be allowed by the Court to creditors to bring in and .prove their claims before the commissioners. The commissioners, at the end-of the time limited, are to make a report, on oath, to the Orphans Court, of all the claims which have been laid before them, with the sums allowed by them on each respective claim. The Court then shall order the residue of the estate, personal and real — the real estate being sold according to law — to be paid and distributed among the creditors whose claims have been allowed by-the commissioners, in proportion to the sums respectively- due. Provision is then made, either at the instance of a creditor, or executor, or administrator, either being dissatisfied with the report on a particular claim, under an order of the Orphans Court, to refer 'that! claim to a Court of Referees, whose report upon it, when returned to the Orphans Court, and approved, is declared to be final and conclusive. And it is further declared, that no suit or action shall be commenced or sustained against any executor or administrator, after the estate is represented insolvent, except in certain cases not necessary to be now noticed. But.the statute further provides for the-liability of the execu tor or administrator to the creditors for their respective shares in-the distribution; and then declares that the' claims of creditors which have not been put before the commissioners within the time limited, or which have not been allowed in the other' modes directed by the statute, shall be forever barred; unless such creditor shall find other estate of the deceased; not inventoried 'or accounted for by the executor or administrator, before distribution.

’ Is then the insolvency of the estate, judicially declared under the statute, sufficient in law to abate the suit of the plaintiff?

.We think such an insolvency cannot abate the action upon which this division of opinion has been certified to this Court. The statute itself contains a-provision which meets-the question. The sixth section declares that “all claims against the estates of deceased persons shall be presented to the executor or administrator within eighteen months after the same shall have accrued/’ or within eighteen months after letters have been granted, and not after: and all claims not presented within that time,shall beforever barred from recovery:” but excepts, among other exceptions* debts-contracted out of Alabama. Now, if an estate may be- declared insolvent under the statute, in less than the longest time allowed, to creditors to present their claims; and creditors,, fqr debts contracted out of the state, are not limited to that time to present their claims; it follows, as a necessary consequence, that an estate having been declared to be insolvent within the shorter time, cannot exclude such creditor from maintaining a suit against the executor or administrator. .And in cases of insolvency, declared after eighteen months, creditors of debts contracted out of the state cannot be included in ,the exclusion from the right to sue; for no time is limited for such claims to be presented.: and in an action to enforce them, a recovery can only be prevented by such defences as would prevail in any other suit.

We think-this, a. conclusive interpretation of the sixth section; and on this ground, that-the plea of the estate being insolvent is not sufficient to abate this action.

But if the sixth section was not in the statute, our Opinion 'would be the same, from the rule which must be applied to interpret such a statute. Statutes, are mandatory, except of the established rules for.the interpretation of them.

This is a statute which, by the exemption it gives to executors and administrators from suit, would seem- to imply a denial to creditors of the intestate the right to sue, without respect, to the foreign, country or state, in our own .Union, where the debt was contracted. It is a general statute, without a direct application to contracts made out of Alabama; and its construction cannot be extended to such contracts. Ratiotest, quia statutum intelligit semper disponere de contractibus factis intra et non extra territorium suum. Casaragis Disc. 13d, sec. 14—16. 20. 22. A sovereign state, and' one of the states of the Union, if the latter were -not restrained by constitutional prohibitions, might, in virtue of sovereignty, act upon the contracts if its citizens, wherever made, and discharge them, by denying a right of action upon them in its Courts. But the validity of such contracts as were made out of the .sovereignty, or state, would exist and continue everywhere else, according to the dex loci contractus.' This show's the reason for and force of the rule just given-; and it may be laid down as a safe position, that a statute discharging contracts-or denying suits upon them, .without the particular mention of foreign contracts, does not include them;

We do not mean, however, to decide this quéstion solely by the interpretation which has been given .to the statute.

It may be put upon other grounds, making our conclusion equally certain. They are such as. are connected with the constitutional and legal rights of the plaintiffs to sue in the Circuit Courts of the United States; and upon the law which under our system does not permit an act of insolvency, completely executed under the authority of one state, to be a good bar against the recovery upon a.'contract made in another state.

The eleventh section of the act tó establish-the Judicial Courts of the United States, carries out the constitutional right .of a citizen of one state to sue a citizen of another state in the Circuit Court of the United States; and givés to the Circuit Court “ original cognisance, concurrent with the Courts of the several states, of all suits of a civil nature, at commoii law, and in equity,” &c. &c. It was certainly intended to give to suitors having a right to sue in the Circuit Court, remedies eo-extensive with these rights. These remedies would not be so,if any-proceedings under an act of-a state legislature, to which a plaintiff was not a party, exempting a person of such state from suit, could be pleaded to abate a suit in the Circuit Court. The division of opinion too, as it is presented in the record, is brought within the decisions of this Court, in Sturges vs. Crowninshield, 4 Wheat. 122, and Ogden vs. Saunders, 12 Wheat. 213. It must be remarked, however, that the statute of Alabama is one for the distribution of insolvent estates, not liable to the objections of a general law; and is only brought under the cases mentioned, by an attempt to extend its provisions to a citizen of another state.

In Sturges vs. Crowninshield, it is said, Every bankrupt or insolvent system in the world must partake of the character of a judicial investigation. Parties whose rights are affected, are entitled to a~ hearing. Hence, any bankrupt or insolvent system professes to summon the creditors before, some tribunal, to show cause against granting a discharge to the bankrupt. But on what principle cama citizen of another state be forced into the Courts of a state for this investigation.? The judgment tobe passed, is to prostrate his rights; and. on the subject of those rights, the Constitution exempts him from the jurisdiction of the state tribunals, without regard to the place where the contract may originate.” In Ogden vs. Saunders: “A bankrupt-or insolvent-law of any state, which discharges both the person of the debtor and his future acquisitions of property, is not a law impairing the obligation of contracts, so far as respects debts contracted subsequently to the passage of the law. But a certificate of discharge cannot be pleaded in bar of an action brought by a citizen of another state, in the Courts of the United States- or of any other state than that where the discharge was obtained.”

Though this is a statute intended to act upon the distribution of insolvent estates, and not a statute of bankruptcy-; whatever"exemption it may give from suit to an executor or administrator of an insolvent estate against the citizens of Alabama, a citizen of another state, being a creditar of the testator or -intestate, cannot be acted upon by any. proceedings under the statute, unless he shall have voluntarily made himself a party in them, so as to impair his constitutional and legal right to sue an executor or administrator in the Circuit Court of the United States.

Let it then be certified to the Circuit Court of. the United States for.the Southern District of Alabama, as the opinion of this Court, that the plea that the estate of the decedent is insolvent, is not sufficent in'law to abate the plaintiffs’ action.

This cause came on to be heard on the.transcript of the record from the Circuit Coürt of the United States for the Southern District of Alabama, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case .made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that “'the plea that the estate of the'said decedent is insolvent, is not sufficient in law to bate the plaintiffs’ action.” Whereupon, it is now here ordered and adjudged by this Court, that-it be so, certified to .the said Circuit Court accordingly.


author: Mr. Justice Catron

text:
    William A. Carr, Appellant, vs. Samuel H. Duval and others, Appellees.
    A decree for a specific performance of a contract to sell lands, refused, because a definite and certain contract was not made; and because the ¡rarty who claimed the performance had failed to make it definite and certain on his part, by neglecting to. communicate by the return of the mairconveying to him the proposition of the vendor, his acceptance of the terms oifered.
    The "case of Eliason vs. Henshaw, 4 Wheat. 225, cited, and the principles'of the decision re-affirmed.
    If it be doubtful whether an agreement has been concluded, or is a mere negotiation, Chancery will not decree a specific performance.
    ON appeal from the Court of Appeals for the Territory of Florida.
    The case is fully stated in the opinion of the Court.
    Nto cause was argued by Mr. Coxe and Mr, Webster, for the appellant; and by Mr. Jones and Mr. Crittenden, for the appellees.
   Mr. Justice Catron

delivered the opinion of the Court.

In October 1825, William Harris, of Montgomery, Alabama* made his will, devising to his two sons, William and Stephen, the tract of land in. controversy ; lying on Lake Jackson, in Florida. Stephen and William, at their father’s death were both minors; and William soon after died, leaving two brothers and three sisters, who are his heirs; and two of whom were infants when this bill was filed, and two of them married women.- The land was unimproved and undip ded. In the fall of 1835, William A. Carr, the complainant desired to purchase the land, and applied to Stephen W; Harris for the purpose, by letter; he Carr, residing in Georgia. The letter of Carr, opening the correspondence, is not in the record, but the answer to it is sufficiently explanatory. The answer is dated August 17th, 1835; in which Stephen W. Harris says, his father left the land to his young brother and himself, that his-brother had died long since, and he had just come of age, and was entitled to half the land, which could be divided at any time; “ and my half,” says he, “ is for sale, but it has first to be divided; my price for that is ten dollars per acre.’ “ The remaining half is owned by the brother and sisters of said brother, and I believe they are willing to sell, and their price', I expect, is ten dollars'. Before any part of the land, short of the whole tract could -be sold, it would first have, to be divided; -the whole could be sold so, and our price is ten dollars.”'

The .next letter-from Stephen W. Harris to complainant, is dated December 15th, 1835, acknowledging the receipt of one the day before from complainant, requesting to be informed of the quantity of the land. The answer stated it to be two thousand one hundred and thirty-one and one-fourth acres; and proposed .to take Carr’s offer for it, with interest on the last note, having two years- to run.

On January 2d, 1836, Harris acknowledged the receipt of another letter from Carr, dated the 25th December, preceding. “ I have,” says he, “come to the determination to sell you the land on the terms .you mentioned:” and then asks to be informed when, and where they shall meet to fnake the necessary árrangements;

The letter of Carr of the 25th December, referred to, offers to exchange some lands of his in Georgia, (which, he says,- he had previously described,) rated by him at twenty-thousand dollars, for the Florida lands, he giving three thousand dollars difference; or, he would make the same offer he had previously done. What this offer was, appears by Harris’ letter of the 16th January, 1836; and as this letter is the conclusion of the correspondence, so far as Harris was concerned, and is the principal evidence relied on to establish the agreement, it becomes -necessary for the purposes of its proper understanding, and to ascertain the sense in which , the parties understood it, to set it forth, together with the answers to it, of the 3d and 19th of February.

Montgomery, January 16th, 1886.

“Mr. William A. Carr.

“Sir — Yours of the 12th instant, is just received, and in reply, have only to remark, that I will accede to your first proposition, as stated in my last letter: that is, one-third cash, the balance in two equal instalments, with a'mortgage on the land — the last two payments to be made in cash — and as all the heirs live in the neighbourhood of this place, it will be the only place where we can conveniently meet to close the bargain; I wish to know your decision per return mail, as I have three other offers for the land, and can sell it immediately if you do not wish to take it.”

Jit hens, February 3d, 1836.

“ Mr. Stephen W. Harris.

“Dear Sir — Yours of the 16th January, I received upon my return from Augusta, and, according to your request, hasten to answer it, and, for answer, say, that I am still as desirous as. ever of taking the land, and have considered myself bound to you for the money, and you as equally bound to me for the ’ titles to the land; but as there was in my mind, at least, some doubt to which of my propositions you had acceded, I thought it best to write again, and be definitely informed on that subject, for the reasons stated in my last. It will be out of ’my power to go to Montgomery, as my family is sick: my wife, -who has been confined, took cold, by leaving her room too soon after her confinement, and upon my arrival at homé. found her quite sick;’ although better, is still too unwell for me to leave home just at this time; arid our Court commencing here next week, I. shall have to remain until that is over: then I am compelled, if my wife’s health permits, to go immediately to Florida, as you have, no doubt, beard of the, distressing situation of the, country there in consequence of the Indian hostilities; so you will have to get all the parties interested in the land together, which I suppose you can easily do, as you say they all live in the neighbourhood, and have the titles perfected, to me; and in doing so, the titles must be. conjointly by all the heirs interested in the land, made ánd executed; and those who have families, their wives must assign over and relinquish'their right of dower to the same; and when it is, that is,-the title, properly executed, one of you can carry it or send it to me, or some agent at Tallahassee, and receive the first payment for the same, and my notes for the balance of the purchase' money, and the mortgage on the land, which suits me better than personal security; and in order that the business may be more properly executed, yourself and Judge Field had better be in Florida, for I' shall require the boundaries, of the land to be defined, so that I may know where the land lies, and when I am on my own land; as well as avoid getting on any of my neighbour’s land. Will you be pleased to state what are the offers made you, and by whom, as you say in your last letter you “have three other offers for the land;” be good enough to state explicitly by whom they are made, what is the amount of each offer, and the payments. I ask this as it cannot now make ,any difference to you, as I consider this matter closed between us; in other words, I consider the trade as made between us, which puts the land entirely out of the market. Any further communication between us will have to be sent to me to Tallahassee, Florida,'as the mail communication between this and Montgomery, is so uncertain, that an answer would not reach here until I should be-gone to Florida. If you would prefer to remain at home until you know certainly when I would be in Florida, I .will write, on my arrival there, to you, and inform you when to meet me or go on there; the latter plan will, perhaps, be more desirable to you. I must here inquire if any part of this tract has been taken off or sold to any person, as I have understood by some it contained two thousand three hundred, and by others, two thousand four hundred acres; but you always told me in our correspondence you would not divide it. Shall I hear from you at Tallahassee, as an answer would reach me there by the tíme I reach there ?”

“Macon, February 19th, 1836.

Mr. Stephen W. Harris.

“Dear Sir — You will perceive, by the date of my letter, I am thus far on my way to Florida, where, if-no accident prevents, I shall reach there in the course of five days more, where. I hope to see. you and have our business brought to completion, where I can pay you the first payment, most of which I have Had for some time, and take a title to the land. I have been delayed starting, as early as contemplated, from circumstances entirely beyond my control; but soon-, now, I hope, I shall be able to comply? on my part, and hope,.ere this, you have received my last letter, and had the title completed according,to directions, viz.,to have all the heirs interested in the land to join you in the title, and those who have wives, tó have them, their wives, to assign over and relinquish dower to the same; and you can start for Tallahassee as soon as you please.”

The letter of Harris, when taken in connexion with the former letters, has no ambiguity in it; he was acting not for himself only; but his sisters and a brother, without any express authority from them; he could have none such from three of the joint owners — two infants and one a feme "covert.

There was therefore only one probable way in which the bargain could be closed; that is, by a title bond, or deed, on the part of Stephen WV Harris, his brother and brother-in-law; the married adult sister joining in the deed, should one be made, and a covenant by others, as sureties, that the infant heirs shouldconvey when they came ot age. This would have been a very responsible suretiship, and not at all likely to have been undertaken by others than the family or neighbours of the parties; and hence, at Montgomery, was the only place (in the language of the letter of the 16th January) where the bargain could be conveniently closed; indeed, it was the only place where there was the slightest probability of closing at all.

It is obvious, Stephen W. Harris had carried on the correspond-ence upon his own judgment, without consultation with most of the other defendants, as to details; under the general understanding in the family that they would take for their portion of the land the same price he saw proper to take for his. In the correspondence, the price and times of payment were stated; and it was required that a mortgage should be given on the land for the two last annual installments; but whsit other security would be required was left open: so it was left open, what security would be given to Car: for the. title. Where and how it should be made was die great difficulty in closing the agreement. So far as the infant sisters were concerned, it was a difficulty that Stephen W. Harris had probably not seriously thought of; and was first met with when he set’about making deeds in pursuance of the complainant’s letter; with which Harris found it impossible to comply. He was taught by experience, what would at first have prevented most men of age and business habits from proposing to contract for the sale of the lands of.infant sisters, who would probably marry before they became of age; and if the land should increase in value, their husbands would refuse to sanction the contract.

But was the letter of the 16th of January an agreement on behalf of Stephen W. Harris? Complainant’s purpose was to establish a cotton farm, or to procure lands fit for such an establishment. He obviously did not wish to purchase iands in an undivided state; nor did he make any proposition .to purchase Stephen W. Harris’s undivided interest; it would .have been unfit for occupation in this condition. The proposition was, to purchase the whole ;’nor did Stephen W. Harris offer to sell less than the whole, before a partition should be made between him and his sister and brother. The idea of encumbering the title of the latter with a tenant in common, in possession, and cultivating the land in an undivided state, was of course rejected by Mr. Harris: so he distinctly informed Mr. Carr.

' The idea of a partial sale and purchase not entering into the contemplation of either party, we must construe the letter of the 16th of January in reference to this undoubted intention. Mr. Carr was bound to know that the statute of frauds was in force in Florida, and no doubt did knowHhe fact; we take it for granted he did, and that the agreement for the sale of the land must be in writing, signed by the parties to be charged. How then was it possible he could understand'the letter of the 16th of January to be a complete and concluded agreement, even had it been simply accepted ? He is told, all the heirs reside in the neighbourhood of Montgomery, and in effect'.that it is the only place where they can meet to .close and conclude the bargain. Now if the.bargain was already made, as the bill assumes^ why meet to close it ? The truth is prominently apparent from the face of the letter, what the intention of Harris was; and nothing but the serious aspect- given to it by the pleadings and arguments, would have induced the Court to explain this note of a few lines, which it must be admitted is almost as likely to be obscured as elucidated by the attempt. We think no man of ordinary capacity could have been so far mistaken as to believe the heirs of WilliamHarris bound by the letter of the 16th of January; nor even that Stephen W. Harris was bound thereby: the object of the purchaser and vendor being a joint sale, and that only; the owners’ of foiir-tenths of the estate being no parties to the letter; two of them infants, and another a married woman, who were incapable of assent, and gave none in fact, so far as this record furnishes any evidence. We therefore think it clear that this was" merely a treaty for a salé and purchase of the land, not perfeated into an agreement; 11 Ves. 599; and that the letter does not import to be a contract. 2 Simons and Stuart, 194.

But suppose the letter of the 16th January had bound Stephen. W. Harris, and if it was possiblé under the circumstances to compel him to partial performance so far as he had title; what effect did the letters from complainant to him of the 3d and 19th February, have on that of the 16 th January ?

On the 3d of February, nineteen days after the proposition was made in the letter of the 16th of January, (and which demanded an answer by return of mail,) the complainant replied; not that he accepted the proposition as made; (an indispensable part of which was that he should immediately come to Montgomery, and there close the bargain;) but that his family was sick; that he had a Court to attend; then, if his wife’s health permitted, he had to go to Florida : and of course, could not come to Alabama at all; and “ so,” says he, “ you will have to get all the parties interested in the land together, which. I suppose you can easily do, as you say they ah live in the neighbourhood, and have the titles perfected to me ;' and in doing so, the titles must be conjointly by all the heirs interested in the land, made and executed; and thosé who have families, their wives must assign over and relinquish their right'of dower.” And then complainant instructs Stephen W. Harris to send or bring the deed- to Tallahassee, to complainant, or to some agent of his. He also requires, that the boundaries of the land shall be defined; and concludes by asserting that he deems the agreement closed, and the land out of the market. The first payment complainant proposed' to make at Tallahassee, in Florida; and there to execute the contract on his part, by giving his notes for the two remaining instalments, and a mortgage on the' land.

The "additions to this acceptance of the proposition of the ,16th •January, are-.so numerous and important as to hardly need comment ; when it is recollected that complainant was dealing for the property, in part, of infants and married women.

It. was impossible a conjoint deed could be executed: three of the parties had no power to make such a deed; and complainant required a conjoint one by all the heirs interested in the land, and this made and executed before .he would undertake to comply with his part of the proposed agreement. Furthermore, it was to be made in Alabama; the're signed, sealed, and,witnessed, and then to'be delivered in Florida. ’

The infants, of course, could only act in receiving the money by guardian; of course, the guardian in Alabama might well question his authority in Florida.

That the land should be defined, was also a change-; but whether amounting to a rejection of the proposition of the 16th of January, was there no other objection to the acceptance, we shall not stop to inquire.

But if nothing else stood in the way, the time of the acceptance' is conclusive of the complainant’s claim. The letter of the 16th January desired an answer by return of mail; why, is distinctly stated. Three other propositions to purchase the-'land had been made. No.answer came by return of mail: and’not until twenty days after was an answer put in the mail; and by that the parties were directed to meet complainant at Tallahassee, not immediately, but presently, of which he was to give them information..- By the terms of the acceptance the time of meeting rested in the discretion of the complainant. He claimed, by his letter of the 3d February, the contract to-have been concluded; and, therefore, could, according to his construction of it, take his own time to order the respondents to meet him in Florida: and by his note of the 19th February, he does give them vague instructions of the time.

We think the assumption of the complainant thus to construe his acceptance utterly unwarrantable. The rule laid down by this Court in Eliason vs. Henshaw, 4 Wheat. 228, is, that an offer of a bargain by one person to another, imposes no obligation upon-ihe former, unless it is accepted by the latter, according to the terms in which the offer is made; and that any qualifications of, or departure from the terms, invalidates the offer, unless the same be agreed to by the person who made 'it. Until the terms of the agreement have received the assent of both parties, the negotiation is open, and imposes no obligation on either. The party offering to sell or buy has the right to dictate, the terms in regard to the time when the proposition shall be accepted, as well as to other material circumstances; nor would the Court be astute to inquire after the reasons why a timé for acceptance was fixed. The case cited from 4 Wheaton is full to this point. In the case before the Court, the reasons lie at the surface. Three other persons were offering to purchase, and it was all-important to know the determination of the complainant at the earliest day. A stronger case for a prompt answer could hardly be presented. Nor do-the circumstances setup in excuse by the complainant, such as the situation of his family, the necessity of attending a Court, or of going to Florida; alter the case. The complainant, Stephen W. Harris dictated, as he'had the power to do, an answer by return of mail; and if no answer was had by the return of mail, he was free to contract with another.

If it be doubtful whether an agreement has been concluded, or is a mere negotiation, Chancery will not decree a specific performance; the principle is a sound one, and especially applicable in a case like this, where the party attempting to enforce the contract has done nothing upon it. Haddleston vs. Brisloe, 11 Ves. 522.

It is useless to inquire, in this suit, under what circumstances, partial performance, with compensation, could be decreed, as no case is presented for splitting up the contract. Stephen W. Harris offered to sell the whole, and complainant to buy the whole. Nor need we inquire wnether Duval and Shepherd were innocent purchasers; the other defendants having had the right to sell, Duval and Shepherd had the right to buy, of which the complainant had no just grounds to complain.

We, therefore, order the decree to be affirmed, with costs.