author: Iredell, Justice.

text:
    *Maxfield’s Lessee v. Levy.  The Same v. The Same.

      Jurisdiction.

    A colorable and collusive conveyance to the lessor of the plaintiff in ejectment, for the purpose of bringing the suit in a federal court, will not give it jurisdiction; and the court will, on motion, dismiss the suit.

    This jurisdiction of a federal court is not primó, fade general, but special.

         An outline of this cause was given in 2 Dall. 381; but I comply with the subsequent request of the presiding judge (whose death was greatly lamented by the bench and the bar), in publishing the opinion of the court at large.

       A deed, executed for the purpose of giving jurisdiction to a federal court, will not avail in that respect. Hurst’s Lessee v. McNeil, 1 W. C. C. 70.

   The opinion of the Court was delivered in this case, in the following terms:

Iredell, Justice.

— A motion was made for a rule to show cause why these ejectments should not be dismissed, upon an allegation that it appeared, by an answer to a bill in equity, for a discovery, in this court, brought by the lefendants in these ejectments, against the lessor of the plaintiff, that they are in reality the suits of a citizen of this state (viz., Samuel Wallis), though under the name of a citizen of another state, to whom it is alleged conveyances were made, without any consideration, for the sole purpose of making him a nominal lessor of the plaintiff in these ejectments. A rule to show cause was granted, and, upon the day appointed, the case was fully heard and argued on both sides, the proceedings in eouity on the bill for a discovery having been exhibited to the court and read.

The importance of the present question is evident, because it concerns the constitution and laws of the United States, in a point highly essential to their welfare, to wit, the proper boundaries between the authority of a single state, and that of the United States. This, not only the constitution itself has been anxious to ascertain, by precise and particular definitions, but the congress, in carrying into effect that part of the constitution which concerns the judiciary, has been solicitous to preserve with the greatest caution. The strong instance of this is a provision in the judicial act, to the following effect:

“ That no district or circuit court shall have cognisance of any suit to re-’ cover the contents of any promissory note, or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange.” (1 U. S. Stat. 79, § 11.)

This I adduce as a strong instance to show the solicitude of congress on this subject, for the regulation extends to a bond fide assignment in the instances specified, as well as to one maid fide: but the provision goes to all, more effectually to prevent any practices of deception by means of the latter.

^Nothing is more evident, than if this be a controversy between citizens of different states, it is a controversy determinable in this L court, and of which, therefore, the court must sustain jurisdiction. On the other hand, if it be not a controversy between citizens of different states, but between citizens of the same state, it not being one of those oases which entitle citizens of the same state to any exercise of jurisdiction by this court it -¿night not to be determined here. But if it shall appear, from a consideration of the facts, that this is not a case which the lessor of the plaintiff was entitled to bring into this court, it will still remain to be inquired, whether the remedy pursued on the present occasion is proper.

The first question, therefore, is, whether it sufficiently appears to the court, that this is a controversy subsisting between citizens of the same state, and not between citizens of different states, so as to authorize a dismissal of the suit, in case the remedy be in point of law a proper one ? The evidence, upon which the charge is alleged, is an answer to a bill filed in the equity side of this court, by the defendants in the ejectments, in order to obtain a discovery by the oath of the lessor of the plaintiff. This is admitted to be competent evidence, on a question at law, and therefore (supposing Ihe method of proceeding in other respects proper), I am only to consider, if it affords satisfactory evidence of the facts suggested :

The facts admitted by the answer, in substance, are these : That there were certain applications to the land-office of this state, for 64 tracts of land, in the county of Luzerne, containing 27,400 acres : That the applications were made (as the respondent has been informed and believes) by and for the use of Samuel Wallis, of the county of Northumberland in this state: That in April 1184, conveyances where executed to Maxfield, the present lessor of the plaintiff, by which the legal title to the lands therein described was conveyed and assigned to Maxfield, as he apprehends and believes. That Maxfield paid no consideration, either pecuniary, or of any other nature, for the lands, and therefore, he apprehends and believes, that the equitable title Ls in Samuel Wallis. That Maxfield consented to stand the trustee of the lands, for the use and benefit of Wallis, and left the management, direction and ■ prosecution of the business to Wallis, by whose direction Maxfield apprehends and believes, that the caveats mentioned in the complainant’s bill were filed, and all subsequent proceedings had.

In comparing the facts thus admitted, with the bill he was called upon to answer, it is very remarkable, that the last interrogatory was expressed in such particular and pointed terms, that if it had been directly and positively answered, it would have *been decisive one way or the other. But it -* is not so answered, and his own counsel now object, that he did not answer directly to the question, and therefore, the only remedy was to except to the answer for insufficiency, and compel a better answer. This objection, I think, may be easily obviated by the following considerations.

1st. If the question had been an improper one, it might have been demurred to. By that not being done, it is confessed that the question, was proper, and of course, it ought to have been answered. And it is little short of an insult on the court, now, to toll it, that the lessor of the plaintiff purposely declined answering a question fairly put to him, which he might and ought to have answered, but by his not doing it he now sets the court at defiance.

2d. If, for want of a fuller answer, no evidence was before the court, the objection might possibly be of weight. But all the-other facts admitted by the answer are open to all proper inferences, as well such as arise from this wilful and insolent omission, as from any other part of -the case. The -object was to effect a discovery, whether certain conveyances were' actually given for the sole purpose of evading the constitutional limits, as to jurisdiction, prescribed to this court. Such a design could be expected only to be disclosed by direct confession, or a number of concurring circumstances.

3d. It does not appear, that he will over give a better-answer. He may choose to go through all the processes of contempt for not answering sufficiently, as he appears already to have done, for not answering at all. He may even submit to perpetual imprisonment. Is the -case never to be decided, until he thinks fit to consent, it shall be ?

4th. The jurisdiction of this court is not prima facie general, but special. A man must assign a good reason for coming here. If the fact is denied, upon which he grounds his right to come here, he must prove it. He, therefore, is the actor in the proof ; and consequently, he has no right, where the point is contested, to throw the onus probandi on the defendant. As this, undoubtedly, is the general principle, I see no reason to depart from it, on the present occasion, when the knowledge of all the circumstances of the case is fully possessed by the lessor of the plaintiff, and he is regularly called upon to disclose them. For these reasons, I am clearly of opinion, that Maxfield’s forbearing to give a fuller answer, is no reason for my not weighing the amount of the answer, which he has thought proper to give; and considering whether it sufficiently establishes the allegations of the defendants in these causes.

But it is objected, that Maxfield’s answer, though evidence against him, is no evidence against Wallis, who is said to be the cestui que trust, and Maxfield a bare trustee. * Answer : Upon the face of these ejectments, Wallis’s name nowhere appears. Maxfield, therefore, is the only person to be considered here. If a cestui que trust has a right to support an ejectment, but is forced, upon legal principles, to use the name of his trustee, he must take the consequences. This court, as a court of law, cannot punish the trustee for a breach of trust, though in another capacity it may. But if it had been material to have made Wallis a party, a great, if not an insuperable difficulty has been alleged in doing it. Wallis and the defendants being citizens of the same state, it is very doubtful, whether a bill in equity would have lain against Wallis, in this court, though it was merely incidental to the suit at law. But it is clear, that the objection in this case is merely frivolous, because, upon the return of the rule to show cause, an ex parte affidavit might be produced. Wallis’s affidavit, undoubtedly, might have been, as well as any others. Why has it not been ? No reason has been assigned, to show it could not be done, or that he desired, or that his counsel wished, he should do it. Nor has time been solicited for his putting in such an affidavit, though it is so seriously alleged, that it was highly important to him to have had an opportunity of answering this charge.

It is alleged, that Maxfield was a trustee, and as such authorized to come into this court. A trustee ! for what purpose ? There is not the least shadow of evidence, that he was a trustee for any other purpose, than that Wallis should have a color for suing in this court, in his name. The deed is not even stated to have been delivered. No fair object of the trust is specified. Wallis lived in Pennsylvania; the land lies in Pennsylvania; Maxfield lived in Delaware. What was he to do ? It appears, from his own acknowledgment, that he has done nothing hitherto, nor does he state he was to do anything.

But it is said, a man is not obliged to specify any object of a trust. He may create a trust from mere whim. Admitted: But the law cannot, without absurdity, permit a man to create a trust, for the purpose of defeating a solemn provision of its own. Nothing could be more ridiculous than such a principle. When the constitution has guarded, with the utmost solicitude, against the exercise of a particular authority, so as that, under certain circumstances, one man shall not sue another in a court created under it, can such a court for a moment support a doctrine, that it shall be in the power of such a man, by any contrivance, expressly calculated to defeat this object, to render it wholly nugatory ? This, indeed, would be to render the laws of our country a farce; to make the constitution a mere shadow j and deservedly to draw upon those entrusted with its execution, an odium which has been industriously, but I hope will ever be in vain, attempted.

*But it is said, the system o£ fictions is not new ; and an attempt has been gravely made, to induce this court, by flattering expressions, to add to the list of fictions in being, one of its own, in the face of the constitution we áre sworn to support, and by every other sacred tie, bound to maintain inviolate. It is true, the courts of law in England have countenanced and supported some fictions. Such (for instance) as a fine and recovery, and an ejectment; and still more exceptionably, fictions to give a jurisdiction, which otherwise could not be maintained. It is sufficient to say of all these, that they originally took place, when very dark notions of law and liberty were entertained; that they are supported now solely on the authority of long usage ; and that no court would now dare to set up a new one. No court in America ever yet thought, nor, I hope, ever will, of acquiring jurisdiction by a fiction. And the only fiction ever in general use in America (perhaps, with a few exceptions as to fines and recoveries), I believe, has been that of proceeding by ejectment, which is a mere form of action, and so modified as to do no possible injury. It cannot substantially affect any man’s right whatever.

In order to encourage the court to countenance this scheme, it is said, that no injury can arise from this practice, because the decision in this court will be on the same principles, and it is to be presumed, with an equal regard to justice, in this court, as in a state court. If a serious answer to such an observation is required, it is surely evident, that we are not to assume a voluntary jurisdiction, because, we think, or any others may think, it may be exercised innocently, or even wisely. The court is not to fix the bounds of its own jurisdiction, according to its own discretion. A jurisdiction assumed without authority, would be equally an usurpation, whether exercised wisely or unwisely. But the fact assumed cannot be admitted to be true. If this court exercise a jurisdiction in such a case, it may do so, after all avenues to a state jurisdiction are for ever closed: that is alleged to be the fact in the present instance. There are also other differences, such as regard the place of trial, the venue of the jurors, and other circumstances omitted to be mentioned, because this part of the case is too plain to require any formal discussion.

On this occasion, it may be material to consider whether, on the facts now apparent to the court, Maxfield has any title, either in equity or at law , because, if he has not, it is evident, the title to be contested must be Wallis’s, and not his ; and of course, the subject-matter to be decided, is a title in question between two citizens of the same state.

1st. As to equity. He has none, by his own acknowledgment; he paid no consideration ; he is to perform no duty ; he only permits his name *3351 used, for the support of a fraud on the jurisdiction of the court; a purpose which a court of equity would reject with the highest disdain.

2d. As little, in my opinion, can he support any title at law. 1st. Consider this as a mere bargain and sale. A bargain and sale is of no validity, where no money has been paid. Nothing gives a legal title under the act of Hen. VIII. (concerning uses) which was not an equitable one before that statute. At that time, no bargainee could have compelled a bargainor to convey, who had received no money: therefore, since the statute, no use can arise on such a deed, without some money to support it. 2d. Allowing the highest efficacy to this deed, under the act of assembly. This can only mean, that what a man can lawfully grant, by any form of conveyance, shall be sufficiently granted in this form. Of course, if under any other form of conveyance, owing to technical difficulties, such a purpose could succeed, without redress, a deed, professedly a bargain and sale, is not to have its influence extended, merely that an illegal purpose should take effect, under color of form. The intent of the act certainly was, that the want of form should not defeat the intention of an honest, but unskilful conveyance ; but surely not to smooth the path of injustice, by converting a rightful estate into a wrongful one. 3d. But admitting it to be any form of conveyance you please, then I say, that a court of law will not, any more than court of equity, support a deed formally good, but substantially fraudulent. And whether the fraud be of a moral nature, for the purpose of doing a wilful injustice, or the act be, as the lawyers term it, infraudem legis (that is, to evade some law), the law will equally interpose, to prevent its- own principles from being made mere instruments to defeat its own purposes.

There is no act in law, within my recollection, which fraud will not vitiate. It will vitiate a feoffment, which is a very strict conveyance, requiring no consideration, and passes by an actual livery. It will vitiate a fine, though a solemn transaction in a court of justice, and peculiarly favored. It will even deprive a party of the benefit of a judgment deliberately given. Conveyances to defeat creditors (however formally agreeable to law) are held absolutely void, at least as against them. So also, in the common case of usury, for which so many contrivances have been devised. No contrivance, no color, no form whatever, can protect any transaction, which really appears to have been usurious, from being declared so.

The application of these principles is obvious. If (as I observed before), the deed in question is to be considered as a mere bargain and sale, it is absolutely void for want of a legal consideration (which must be money alone) to support *it. If it is to be considered as any other kind of conveyance, it having no consideration whatever but an illegal one (that of defeating the constitution and laws of the United States in a most essential point), it is at least void as to that purpose, and, therefore, does not authorize Maxfield to come into this court. I, therefore, conclude, without difficulty, that Maxfield has neither a legal nor an equitable title to authorize him to come into this court.

The only remaining consideration is, as to the remedy, which, from the first, was the only difficulty I found. I will venture to lay it down as an unquestionable principle, that no grievance can arise in the law, but some remedy may be applied to it. The present grievance, therefore (which, if unredressed, will, in any case like the present, enable two persons, at their pleasure, to do injustice to a third, and force this court to exercise a jurisdiction never delegated to it), must admit of some remedy.

Only three have been suggested, in the present stage of the proceeding. 1st. The method now under consideration. 2d. A plea to the jurisdiction. 3d. An injunction in equity. I will consider the last two first; for if they are removed out of the way (as I think they must be), it will facilitate oui consideración of the first.

As to a plea to the jurisdiction. This can be of no avail, unless not only the fact, at the proper time of pleading, be known to the defendant, but that he has disinterested proof of it. This, in a thousand instances, would be impossible ; and in no instance, can be expected. To insist on this, therefore, as the only method, would leave the constitution and the law, in almost every instance, open to certain evasion. It, consequently, cannot be admitted, that this is the only method of redress.

"With regard to a bill in equity. I will not say, equity ought not to interpose a remedy in any case. But it seems most proper, that a court of law should support its OAvn jurisdiction, on its own principles, and if proof can be obtained, I conceive it is necessarily incident to every court, to take care that its jurisdiction be not encroached upon, or, in other words, that the court be not made, either voluntarily or involuntarily (if it can prevent it), an usurper of jurisdiction not belonging to it. In this case, the aid of equity may be useful (as it has been on the present occasion), in compelling a discovery; but there, I think, its interference ought to stop, unless the power of the law-court over the action has entirely ceased; as, for instance, after a judgment, in which case (but in which, perhaps, alone), equity might properly grant an injunction, to prevent a party availing himself of his own fraud.

*The only remaining remedy suggested (or which occurs to me), in the present stage of the proceeding, is that now under consideration ; and of course, this must be adopted, if an interference by the court in the present stage of the cause is proper. It is, however, objected, that the court ought not to interfere, at present, but permit the case to go before the jury, who may find for the defendants, if they believe the facts suggested, and apply the law accordingly. If this case had, indeed, gone before the jury, I should have had no difficulty in telling them, that admitting the truth of the facts as stated, the lessor of the plaintiff had, in my opinion, no title ; and if the jury had found accordingly, redress (though late) could be obtained. But, at present, I do not think myself at liberty to submit the ease to the jury, for the following reasons.

1. The court is the proper guardian of its own jurisdiction. It is alone responsible for it, and must, therefore, take care that it neither abandons a jurisdiction rightfully belonging to it, nor usurps that which does not.

2. Admitting that a plea to the jurisdiction is not the only remedy, for the reasons I have given, upon complaint made of any fraud on the jurisdiction having been practised, if the complaint is supported on good grounds, it is just, that an immediate inquiry should be made into it, in order that if any injury to a party has been hitherto unavoidably sustained, by any such fraud, it may be put a stop to, as soon as possible. To compel a party, in such a case, to stay in court, until a jury shall be summoned and convened, to try a general issue, would be a voluntary exercise of jurisdiction, after the court entertained reason to doubt, at least, whether they had any.

3. To swear a jury is an exercise of jurisdiction. With what propriety can I order that, after being fully convinced from evidence, admitted to be competent, that the court hath no jurisdiction at all ?

4. Suppose, the jury in this case should find for the plaintiff, when the court was thoroughly convinced it had no jurisdiction of the cause ? Can the court give judgment for the plaintiff in such a case ? Surely not. If, therefore, a verdict to that effect, could produce no good, why should a verdict be required of them ? Because this would not be an ordinary case concerning a new trial; in which case, after two or three verdicts the same, way, a court might be compelled to stop and proceed no further. But if there were a hundred verdicts in a case, in their opinion, not within their jurisdiction, they could not give judgment, without voluntarily usurping a power not belonging to them.

5. In this case, there is no occasion for a jury to try the facts, because the facts are not denied, and the court surely will *not call a jury to decide a question of law, and a question which, as I have just observed, they could not decide finally. Maxfield’s allegations in this case, are either a direct confession, or as to some points (if the expression is proper) a nil dicit. In neither case, is a jury wanting : a complete denial can alone entitle a party to have facts tried by a jury. There is no denial in this case, but of the merits, upon which a jury can be sworn ; which certainly would be premature when facts had already been confessed sufficient to oust the jurisdiction. Had he positively denied, indeed, the allegations of the bill in equity, the jury must have been sworn ; for as a judge, I certainly could not, in any shape, determine on an issue of fact. But as he has not thought proper to deny them, but, in my opinion, substantially confessed everything to show that the court had no jurisdiction of the cause ; I consider myself bound to order these ejectments to be dismissed, and do accordingly order them to be dismissed, with costs.

Here, one of the counsel interfered, and asked the judge whether he would order costs, in a case where he declared the court had no jurisdiction.

The Judge answered. — That that circumstance did not occur to him; he acknowledged he had committed a mistake in that part of the order. But if it was in his power, he would order double costs.

         The courts of the United States have jurisdiction in a case between the citizens of the same state, if the plaintiff is only a nominal plaintiff, for the use of an alien. Browne v. Strode, 6 Cr. 303. If a citizen of one state should remove into another-state, with a bond fide intention of abandoning his former place of residence, he may maintain an action in the circuit court of the state which he has abandoned; although it should appear, that his- only motive was to enable him to bring a suit in a court of the United states. Lessee of Cooper v. Galbraith, 3 W. C. C. 554.

         Mr. William Tilghman, one of the counsel for the defendants, quoted a case in Savill’s Reports, p. 12, which Judge Ibbdell thought much in point, and meant to have declared so, in delivering his opinion, but inadvertently omitted it. See Worlay v. Harrison, Dyer 249; 2 Inst. 215; 21 Viner 535, 536, tit. Vacat.

      5) In the case of Browne’s Lessee v. Arbunkle, in the circuit court, at October term 1806 (1W. C. C. 484), it appeared, upon bill and answer on the equity side of the court, that the lessor of the plaintiff was a citizen of the state of New York, and the defendant was a citizen of Pennsylvania; that the former was a member of the population company, who had purchased extensive tracts of land, on the north-western boundary of Pennsylvania; that the land so purchased was held by trustees (all citizens of Pennsylvania), for the use of the company ; that the trustees had convoyed to the lessor of the plaintiff his portion of the land (including the premises mentioned in the declaration), in severalty ; and that the present ejectment was founded upon that conveyance.
      The defendant, upon these facts, and upon the authority of Maxwell’s Lessee ®. Levy, and Hurst v. Hurst, moved to strike from the record this ejectment, and others in the same predicament. But the motion was overruled by the court: and this distinction taken:
      Washington, Justice. — In the cases cited, the deeds were executed, with a collusive intention, to give a jurisdiction to the court, which the court could not possess without them. The objection proceeded on two grounds: 1st. On the equity of the statute provision, which declares, that a suit shall not be maintained in a federal court, by the assignee of a promissory note, or other chose in action (with the single exception of foreign bills of exchange), unless it could have been brought there, by the original party. And 2d. On the manifest attempt, by a fraud, to create jurisdiction. But in the case now under consideration, the lessor of the plaintiff would have had a right, as a citizen of New York, to apply to the equity side of the court, to compel the trustees to convey his share of the trust-estate to him: and if the trustees have only voluntarily made a conveyance, which the court would have decreed, surely we cannot call it a fraudulent deed, or refuse to take cognisance of a suit founded upon it between a citizen of New York and a citizen of Pennsylvania


source: Caselaw Access Project

author: Chase, Justice. Peters, Justice.

license: Public Domain

text:
    *APRIL TERM, 1800.
    Present — Chase, Justice, and Peters, District Judge.
    O’Hara v. Hall.

      Pwi'ol evidence.

    Parol evidence is admissible to explain, but not to alter, a written contract.
    In an action by the assignee of a bond, against the assignor, upon a written assignment, in genera! terms, parol testimony is not admissible, to show that the defendant had expressly guarantied the payment.
    Case. This was an action brought by the assignee of a bond, against the assignor, upon a written assignment, in general terms. On the trial, Ingersoll, for the plaintiff, offered parol testimony to show that the defendant had expressly guarantied the payment of the bond. W. Tilghman objected, that as the contract of the parties was in writing, no parol testimony could be admitted, on a trial at law, to vary its expressions and import. Ingersoll replied, that wherever there is an oral misrepresentation, at the time of a sale or transfer, even though the principal bargain is reduced to writing, the misrepresentation may be proved. A court of equity would, in such case, grant relief; and even the courts of law are now accustomed to regard actions on the case, like the present, as bills in equity. (Moses v. Macferlan, 2 Burr. 1005; 1 Dall. 428.)
   Chase, Justice.

— You may explain, but you cannot alter, a written contract, by parol testimony. A case of explanation implies uncertainty, ambiguity and doubt, upon the face of the writing. But the proposition now, is a plain case of alteration: that is, an offer to prove by witnesses, that the assignor promised something, beyond the plain words and meaning of his written contract. Such evidence is inadmissible; and has been so adjudged by the supreme court, in Clarke v. Russell, 3 Dall. 415. As to the authority of Moses v. Macferlan, it has always been suspected, and has lately been overruled, on the principle, *that the previous decision, there brought into question, was pronounced by a competent court. I grant, that chancery will not confine itself to the strict rule, in cases of fraud and of trust. But we are sitting as judges at common law; and I can perceive no reason to depart from it.

Peters, Justice.

— If we were sitting as judges in a state court, I should be inclined to admit the testimony, in order to attain the real justice of the cause ; as there is no court of equity in Pennsylvania. But there is no such defect in the federal jurisdiction ; and therefore, when the party comes to the common-law side of the court, he must be content with the strict common-law rule of evidence.


text:
    United States v. Cooper.

      Privilege.

    A member of congress is not excempt from the service nor obligations of a subpoena, in a oriminal case.
    The defendant, being indicted for a libel on the President, applied to the court, for a letter to be addressed by them, to several members of congress (congress being in session) requesting their attendance as witnesses on his behalf. In support of the application, a variety of similar cases, arising under the government of Pennsylvania, were referred to.

       See Cooper’s case, in Wharton’s State Trials 659.

   Chase, Justice.

— The constitution gives to every man charged with an offence, the benefit of compulsory process, to secure the attendance of his witnesses. I do not know of any privilege to exempt members of congress from the service or the obligations of a subpoena, in such cases. I will not sign any letter of the kind proposed. If, upon service of a subpoena, the members of congress do not attend, a different question may arise ; and it will then be time enough to decide, whether an attachment ought, or ought not, to issue. It is not a necessary consequence of non-attendance, after the service of a subpoena, that an attachment shall issue. A satisfactory reason may appear to the court, to justify or excuse it.

Peters, Justice.

— I know the-practice in Pennsylvania to be as it has been stated ; for I have received such letters from the supreme court, while I was speaker of the house of representatives, requesting that members might be permitted to attend as witnesses. In the present case, I should have no objection to acquiesce in the defendant’s application, with the concurrence of the presiding judge.

Motion refused.


author: Chase, Justice,

text:
    Murgatroyd v. McLure.

      Illegal contract.

    Replevin cannot be maintained for a vessel, by registered owner, who has received the full value of it from another, for whom he is mere trustee, in fraud of the laws of the United States.
    Replevin, for the ship Mount Vernon. The defendant claimed property, under a capture and condemnation as prize, in the French Court of Prizes, established at the city of St. Domingo, in the island of St. Domingo, under the circumstances stated in the reports of the trials, relative to the same ship. Murgatroyd v. Crawford, 3 Dall. 491; Duncanson v. McLure, ante, p. 308. After hearing the evidence—
   Chase, Justice,

declared, that the whole transaction between Murgairoyd and Duncanson was a mere cover to evade the laws of the United States ; that the former was a mere trustee for the latter; and that having been paid the full price for the ship, he had no property, on which the replevin could be maintained.

The plaintiff suffered a nonsuit.


text:
    Evans, qui tam, &c., v. Bollen.

      Jurisdiction. — Penal action.

    The circuit court i annot take original cognisance of a suit for a penalty incurred by an offence against the laws of the United States: if the offence was committed within a state, it must be tried in such state. -
    This was qui tam action, in which the following declaration was filed:
    October Session, 1797.
    In the Circuit Court of the United States for the Pennsylvania District, of the Middle Circuit.
    District of Pennsylvania, ss.
    George Bollen, late of the district of Pennsylvania, yeoman, was summoned to answer to the United States and to John Evans, who sues in this behalf, as well for the said United States as for himself, of a plea that he rendered to the said United States, and to the said John, who sues as aforesaid, the sum- of $2000, which to them he owes, and from them unjustly detains : and whereupon, the said John, who sues in this behalf, as well for the said United States, as for himself, by Joseph Thomas, his attorney, saith, that the said George, on the first day of April, in the year of our Lord 1797, at the port of New York, to wit, at the district aforesaid, was aiding and abetting, in preparing and sending away from a port within the said United-States, to v/.t, fi'om the port of New York, a certain vessel called the Betsey, intending that the same should be employed for the purpose of procuring from a foreign country, to wit, from the coast of Africa, the inhabitants of such foreign country, to be transported to a foreign country, to wit, to the island of Saint Croix, to be disposed Of as slaves, against the form of the , statute in such case made and provided ; by means whereof, *and by -* force of the statute in such case made and provided, an action hath accrued to the said John, who sues in this behalf, as well for the said United Staten, as for himself, to have and demand of and from the said George, the said num of $2000 : yet the said George (although often requested) hath not paid ‘he said $2000, or any part thereof, to the said John, who in this behalf sues lor the United States as well as for himself, but the same to him to pay hath hitherto wholly refused, and still doth refuse, to the damage of the said John, who sues as aforesaid, $500. And thereof he brings suit, &c.
    Joseph Thomas, attorney for plaintiff.
    The action was founded on the act of congress, “ to prohibit the carrying m che slave trade, from the United States to any foreign place or country” (1 U. S. Stat. 347), of which the following were the material sections, in the discussion:
    Sect. 1. “ That no citizen or citizens of the United States, or foreigner, Dr any other person coming into, or residing within the same, shall, for himself or any other person whatsoever, either as master, factor or owner, build, fit, equip, load or otherwise prepare any ship or vessel, within any port or place of the said United States, nor shall cause any ship or vessel to sail from any port or place within the same, for the purpose of carrying on any trade or traffic in slaves, to any foreign country ; or for the purpose of'procuring, from any foreign kingdom, place or country, the inhabitants of such kingdom, place or country, to be transported to any foreign country, port or place whatever, to be sold or disposed of as slaves : and if any ship or vessel shall be so fitted out as aforesaid, for the said purposes, or shall be caused to sail, so as aforesaid, every such ship or vessel, her tackle, furniture, apparel and other appurtenances shall be forfeited to the United States ; and shall be liable to be seized, prosecuted and condemned in any of the circuit courts or district court for the district, where the said ship or vessel may be foimd and seized.
    Sect. 2. “ That all and every person, so building, fitting out, equipping, loading or otherwise preparing or sending away, any ship or vessel, knowing, or intending, that the same shall be employed in such trade or business, contrary to the true intent and meaning of this act, or any ways aiding or abetting therein, shall severally forfeit and pay the sum of $2000; one moiety thereof to the use of the United States, and the other moiety thereof to the use of him or her who shall sue for and proseeute the same.”
   *The facts were proved, as stated in the declaration, but the de- pi:g44 fendants counsel made two objections to the jurisdiction of the court: *- 1st. That this was a suit under the second section, and the circuit court could not take original cognisance of a case of penalty or forfeitnre, as the judicial act expressly declared, that the district court should have exclusive original cognisance of all suits for forfeitures and. penalties incurred under the laws of the United States.” (1 U. S. Stat. 76, § 9.) 2d. That the offence was committed in the state of New York ; and ought to be tried there, upon the principles of the common law, adopted by the constitution of the United States, and various acts of congress. Const. Art. III., § 2 ; Amend. Const. Art. VIII, IX.; 4 Black. Com. 350; 3 Ibid. 359, 360; 2 Dall. 335.

It was agreed, that a verdict should be given for the plaintiff, subject to the opinion of the court on these points ; and after argument, by E. Tilghman, for the plaintiff, and Levy, for the defendant—

The Couet declared, that they had no jurisdiction of the cause; and directed a non-pros, to be entered.

       The Cassius, 2 Dall. 365; Hall v. Warren, 2 McLean 382.


author: Paterson, Justice.

text:
    *OCTOBER TERM, 1800.
    Present — Paterson, Justice, and Peters, District Judge.
    Hollingsworth v. Fry.

      Construction. — Time in equity.

    The great rule of interpretation, with respect to deeds and contracts, is, to put such a construction upon them, as will effectuate the intention of the parties, if such intent be consistent with the principles of law.

    Equity will not interfere in favor of one who has been guilty of gross laches ; a complainant must use legal diligence in the enforcement of his rights.
    When the time of payment of the consideration-money mentioned in an agreement is made a substantial and not a mere formal circumstance, it enters into the essence of the contract; and a failure to pay at the day, will not be relieved against in equity.

    In Equity. The bill, after setting forth a variety of transactions between the parties, relative to a tract of land, mills and mill-race, in Dauphin county, stated, that on the trial of a writ of partition for the premises, they consented to withdraw a juror, and entered into the following agreement, dated the 19th of November 1790 :
    “ It is mutually agreed, that judgment shall be entered for the defendant, on the day in bank, on the 3d of January next, unless the said plaintiff, or Robert Ralston, his assignee, shall, previous thereto, by such good and unexceptionable sureties, in such sum, and in such manner, as shall be approved of by the honorable judges of this court, engage for, and secure, the payment of one moiety of all moneys which the defendant hath advanced or expended, or shall appear to be reasonably entitled to, for or by reason of his improvement of the lands in question, or for any matter relative thereto, or of any other lands held in common or jointly between the said parties, within six months from the said 3d day of January next. Butin case such unexceptionable security shall be given, and a question shall arise as to the quantum of the moneys to which the defendant shall be entitled, then John Kean, Joshua Elder and John Carson, gentlemen, or any two of them, shall determine the said sum, on full hearing of the said parties, their witnesses and proofs. And in ease of a full conformity thereto, *and the money being *3461 fully Pai<! and discharged as aforesaid, within the said period of six J months, and not otherwise, that then judgment shall be entered in this action, not only for the lands in the declaration mentioned, but of all lands and mills held jointly or in common between them the said parties, by virtue of any article between them, or between them and John Fisher, made. But if the moneys so due shall not be paid and discharged, within the said period, the defendant shall hold the said lands free and discharged from the claims of the said plaintiff, and all persons claiming under him; and judgment shall in such case be entered for him in this action.”
    It also appeared, from the pleadings and exhibits, that the bond required by tbe agreement, was duly executed on the part of the plaintiff ; that the referees undertook the business of the reference; and that on the 13th of April 1791, the following report was filed:
    “ We, the referees, &e., report, that after hearing the parties, their allegations and witnesses, and investigating their accounts and vouchers, we are of opinion, that George Fry is reasonably entitled to the sum of 3646!. Os. 2\d. specie ; that being the one moiety or half part of his expenditures on the lands, mills and their appurtenances in question, after giving John Hollingsworth credit for the money by him expended on the same lands.”
    It also appeared, that the plaintiff filed a number of exceptions, which the supreme court, after argument, overruled, on the 2d of July 1791, and gave judgment on the report; and that on the 26th of September 1796, the complainant sent his son, to tender to the defendant the amount of the report in his favor ; which the defendant refused to accept.
    Upon these general premises, the bill proceeded to complain, that the defendant had appeared in the supreme court, by his counsel, on the 2d of July 1791, alleging the exceptions to the report to be untrue, whereas, the complainant averred that they were true ; that although notice had been given to produce books and accounts, none were produced on the hearing in court ; that the conduct of the referees was improper in various particulars ; that the books, accounts and statements laid by the defendant before the referees, were untrue and fraudulent; that the defendant suppressed several material documents which he alone possessed ; and that the value of a moiety of the property in dispute was at least 10,000!. The bill concluded with a prayer for a perpetual injunction against all proceedings on the judgment; for a discovery and account; for a partition of the premises ; and for general relief.
    *To this bill, the defendant filed a plea and answer: 1st. Plea in p,.„. * bar, a former bill in equity, for the same cause, filed by the com- *- plainant, on the 24th of April 1792 ; demurrer to the bill, and joinder in demurrer ; and a decree, in April term 1796, pronouncing the demurrer to be sufficient, and dismissing the bill; which decree remained unreversed and in full force. 2d. Plea in bar, the judgment of the supreme court of Pennsylvania (a competent tribunal), upon the agreement, reference and report, which judgment remained still in force; with an averment that the complainant did not, within six months after making or filing the report, nor after the exceptions Were overruled (which exceptions contained all the matter alleged in the bill) and the judgment rendered, pay or offer to pay to the defendant, the said sum of 3646!. 6s. 2f<r!. or any part thereof. 3d. Answer, That the judgment was fairly obtained ; that the defendant did not submit to the referees any books, accounts or statements that were untrue or fraudulent, nor suppress any material documents ; that on the 26th of September 1796, the complainant’s son came to him with a bank-bill; but never before that time; and that the defendant had been exposed to all intermediate expenses and casualties, &c.
    A general replication was filed ; and after argument, the following opinion was delivered, Judge Peters declining to take a part in the decision :

       Bradley v. Steam-packet Co. 13 Pet. 89.

       Garnett v. Macon, 2 Brock. 185; Stinson v. Dousman, 20 How. 461; Longworth v. Taylor, 1 McLean 395; s. c., 14 Pet 172; Mason v. Wallace, 3 McLean 148; Lester v. McDowell, 18 Penn. St. 91; Patchen v. Lumborn, 31 Id. 314; Chew v. Phillippi, 32 Id. 205; Waters v. Waters, Id. 307.

   Paterson, Justice.

— The great rule of interpretation with respect to deeds and contracts, is, to put such a construction upon them, as will effecmate the intention of the parties, if such intention be consistent with the principles of law. In the present case, there is no difficulty in coming at the intention, as it is clearly and forcibly expressed in the agreement, and is capable of receiving one construction only. The time of payment is made a substantial, and not a mere formal, circumstance ; it enters into the essence of the contract; and therefore, must be observed. The court cannot decree against the legal and express stipulation of the parties themselves. The situation of the parties, the nature of the property, and the speculative spirit of the project, were powerful inducements for drawing up the agreement, in the plainest and strongest terms, so as to leave no doubt as to the intention, and to render the time of performance a cardinal point.

Again, if the agreement would admit of another construction, the complainant, under the circumstances of the case, comes too late to avail himself of it. The door of equity cannot remain open for ever. The complainant did not make a tender of the money, until a lapse of five years after the termination of the time limited by the contract. So far was he from using legal diligence, that he has been guilty of gross delay. In cases of the present kind, equity will not suffer a party to lie by, until the event of * «1 the *experiment shall enable him to make his election, with certainty J of profit one way, and without loss any way. This mode of procedure is unfair, contrary to natural justice, and in exclusion of mutuality.

There is a strange mixture of legal and equitable powers in the courts of law of this state. This arises from the want of a distinct forum to exercise chancery jurisdiction; and therefore, the common-law courts equitize as far as possible. Whether, if relief be proper, the supreme court of this state could have extended it to the complainant, it is unnecessary to determine. Thus much, however, might and ought to have been done, on the part of the complainant ; he ought, when notice was given for him to show cause why judgment should not be entered, to have laid the equity of the case before the judges of that court, who, if they thought proper, might have deferred the entering of judgment, or ordered it to be entered on terms, to wit, to be vacated on payment of the awarded sum, by a limited period. But the complainant, although he had previous notice, did not avail himself of an appeal to the discretion of the court; but suffered judgment to pass against him, without making any objection.

There being no equity in the complainant’s case, his bill must be dismissed, with costs.

        а) Although it has been intimated in some cases, that time could not be made of the essence of contract, even by a positive stipulation of the parties, there has been no decision to that effect. In other and later cases, it has been admitted, that parties may make time of the essence of the agreement, and whether they have done so must depend on all the circumstances. McCrelish v. Churchman, 4 Rawle. 26. The principle seems to be firmly established, that time may be a circumstance of decisive importance, but that it may be waived by the conduct of either party. It is incumbent on a plaintiff, whether at law or in equity, to show that he has used due diligence in the performance of his part of the contract, or that if he has not, his negligence arose from some just cause, or has been acquiesced in; but it is not necessary for the defendant to show any particular inconvenience; it is sufficient, if he has not acquiesced in the negligence of the plaintiff. Ibid. In a deed conveying land, and reserving a rent-charge, the grantor covenanted to release and discharge the rent, if the grantee should, within seven years, pay a certain sum; it was held, that after a lapse of eighteen years from the time prescribed, he could not call upon the grantor to perform his covenant. In re Henry Shoemaker, 1 Rawle 89. So, where a judgment in ejectment was entered by agreement of the parties, to be released on the payment of a certain sum, on or before a certain day, time was considered the essence of the contract, and the money not having been paid, on or before the day, the judgment became absolute and indefeasible. Gable v. Hain, 1 P. & W. 264. See also Jordan v. Cooper, 3 S. & R. 564; Roberts v. Beatty, 2 P. & W. 63; Shaw v. Turnpike Co., Id. 454. But see Watson’s Adm’rs v. Lewis, 2 Yeates 467; Decamp v. Feay, 5 S. & R. 323.

       Time, generally speaking, is not essential in equity; but considerable delay, without sufficient reason to account for it, will be considered satisfactory evidence of an abandonment. Bellas v. Hays, 5 S. & R. 443.


author: Paterson, Justice. Peters, Justice.

text:
    Thurston v. Koch.

      Double insurance.

    In cases of double insurance, the assured may, at his election, sue either set of underwriters, and recover a full indemnity;’ and if there bo a recovery against one, the others are bound to contribute ratably, in proportion to the amount insured.

    This cause came before the court on the following case stated by the counsel, Gondy, for the plaintiff, and Ingersoll, for the defendant.
    “ On the 13th of October 17-96, William I. Vredenburgh, of the city of New Yorli, merchant, caused himself to be insured, at the city of New York, in a certain policy of insurance, which was subscribed by the plaintiff, in the sum of $14,500, upon any kind of goods and merchandise, laden or to be laden on board the brigantine Nancy, Ca]>tain King, master, lost or not lost, at and from any port and ports in the West Indies, and at and from thence to New York, and there safely landed, beginning the adventure upon the said goods and merchandises, from the lading thereof on board the said vessel, at the West Indies.
    “ On the 17th of October 1796, the said William I. Vredenburgh, by Jacob Sperry & Co., his agents, caused himself to be insured, at the city of Philadelphia, in a certain other policy of insurance, which was subscribed by the defendant, in the sum of $1300, with other underwriters, in the whole amounting to $12,000, upon all kinds of lawful goods and merchandises, lost or not lost, laden or to be laden on *board the said brigán- „ tine Nancy, at and from Cape Nichola Mole, to any ports and places * in the West Indies, to trade, at and from either of them, to New York, beginning the adventure from and immediately following the loading thereof on board the said brigantine, at Cape Nichola Mole, and so to continue, until safely landed at any ports and places in the West Indies, and at New York aforesaid. The premium demanded upon this policy, was teD per cent., and was duly paid by the said Jacob Sperry & Go., on behalf of the said William I. Vredenburgh, to the defendant and the other underwriters upon this policy.
    “ On the 20th of October 1796, the said William I. Vredenburgh caused himself to be insured, at the city of New York, in a certain other policy of insurance, which was subscribed by the New York Insurance Company, for the sum of $2200, upon all kinds of lawful goods and merchandises, lost or not lost, laden or to be laden on board the said brigantine Nancy, at and from any port or ports in the West Indies, to New York, beginning the adventure from the loading thereof on board the said brigantine, at any port or ports in the West Indies, and so to continue, until safely landed at New York, &c.
    “ On the 12th day of September 1796, the said brigantine Nancy, with the said goods and merchandises so laden, on board, and insured and covered by the said policies as aforesaid, sailed from Cape Nichola Mole, in the West Indies, for St. Marks, likewise in the West Indies, and in the prosecution of the said voyage, from Cape Nichola Mole to St. Marks aforesaid, with her cargo, including the said goods and merchandises, so insured as aforesaid, was captured by a French privateer, and condemned; by which capture, the said goods and merchandises were wholly lost to the insured. Upon this, suits were brought into the supreme court of the state of New York, against the plaintiff, upon the policy by him subscribed, and against the New York Insurance Company, on the policy by them subscribed ; in which suits, the insured, the said William I. Vredenburgh, recovered as for a total loss.

      “ The amount paid by the plaintiff (after the usual deductions) for the loss, was $12,740, with $1783.60 interest, and $418.32 costs. He has likewise paid to the said assured, $1083.60, being the amount of the premium upon the policy subscribed by the defendants (after the deductions allowed in the case of a returned premium), as a consideration for the assignment of the said policy to the plaintiff. The New York Insurance Company have paid to the assured $2156, being the amount of their policy (after the usual deduction in case of loss), with $301.84 interest.. The several sums so paid have completely satisfied the loss, with all the interest and costs.
    *“ Question for the opinion of the court. Is the defendant (one of the underwriters, on the Philadelphia policy, of the 17th of October 1796) liable to make any, and if any, what contribution to the plaintiff, upon the loss so paid as aforesaid by him ? Or, in other words, is the defendant liable to pay more than the amount of the loss, beyond the sum previously insured ? If the court shall be of opinion in the affirmative, then judgment shall be entered for the plaintiff, in such sum as, upon the principles established by the court, shall be found due. But if the court shall be of opinion in the negative, then judgment shall be entered for the defendant.”

       Potter v. Marine Ins. Co., 2 Mason 475; Craig v. Murgatroyd, 4 Yeates 161. This has since been remedied by the introduction into policies of the clause respecting prior insurances. Gibson, J., in Peters v. Delaware Ins. Co., 5 S. & R. 481. The rule is the same in eases of five insurance. Lucas v. Jefferson Ins. Co., 6 Cow. 635.

       In this, the court adopted the English rule, contrary to that adopted in this country, that the other insurers should contribute ratably, and not according to priority of contract. Stacey v. Franklin Fire Ins. Co., 2 W. & S. 542-3, Rogers, J. But to constitute a ease of double insurance, there must be the same risk, and for the same person. Warder v. Horton, 4 Binn. 529; Columbian Ins. Co. v. Lynch, 11 Johns. 233. And see Peters v. Delaware Ins. Co., 5 S. & R. 473; Wells v. Philadelphia Ins. Co., 9 Id. 103; Sloat v. Royal Ins. Co., 49 Penn. St. 14.

   After argument, the opinion of the court was delivered by the presiding judge, in the following terms :

Paterson, Justice.

The case before the court is that of a double insurance ; and the question is, whether the insurers shall contribute ratably, or shall pay according to priority of contract, until the insured be satisfied to the amount of his loss. The law on this subject is different in different nations of Europe, owing to the diversity of local ordinances, which have been made to regulate commercial transactions. By the ordinance of one country, the contract is declared to be void, and a forfeiture superadded; whereas, by the ordinance of other countries, the contract is merely void, without any forfeiture. By the ordinance of Spain, if a policy be signed, on the same day, by several persons, the first signer becomes first responsible, and so on, until the insured receive full satisfaction to the value of his loss ; the posterior insurers being liable only for the deficiency, and that, too, according to the order of priority. But in such case, by the ordinance of France, the several insurers, on the same day, shall contribute ratably to make up the loss; whereas, by the same ordinance, if the policies bear date on different days, the rate of contribution is rejected, and that of priority established; or, in other words, if the first policy absorb the loss, or amount to the value of the goods insured, the posterior insurers are not liable, but shall withdraw their insurances, after retaining a certain per-eentage. The solvency of the first insurer to the full value being assumed, the ordinance is predicated on the principle, that there remains no property to be insured, and of course, no risk to be run.

But suppose, the solvency of the first insurer should become doubtful, what course is to be pursued ? As this is a risk, it ought to be provided against; and accordingly, we find, that some of these ordinances have declared, that such insurer’s solvability may be insured. It is obvious, that this is a point of great delicacy ; for by questioning the solvency of a merchant, you wound his credit, and perhaps, cast him into a state of bankruptcy. Most, if not all, of these ordinances, are of ancient date, and were calculated for the then existing state of commerce in *the several countries which formed them. L

It is, however, evident, that the law-merchant varies in different nations, and even in the same nation, at different times. The course of trade, local circumstance, commercial interests and 'national policy, induce to some variation of the rule. The law in this particular, as it was understood and practised in England, prior to, and at the commencement of, our revolution, was different from the rule which prevailed in France, Spain and other countries, under their local ordinances. A double insurance is, where the same man is to receive two sums instead of one, or the same sum twice over, for the same loss, by reason of his having made two insurances upon the same ship or goods. In such case, the risk must be the same. This kind of insurance is agreeable to the practice and law of England, and is considered as being founded in utility, convenience and policy. In the case of Godin v. London Assurance Company, in February 1758, Lord Mansfield, in delivering- the opinion of the court, expressed himself as follows :

“As between them, and upon the foot of commutative justice merely, there is no color why the insurers should not pay the insured the whole: for they have received a premium for the whole risk. Before the introduction of wagering policies, it was, upon principles convenience, very wisely established, that a man should not recover more than he had lost.’ Insurance was considered as an indemnity only, in case of a loss ; and therefore, the satisfaction ought not to exceed the loss. This rule was-calculated to prevent fraud; lest the temptation of gain should occasion unfair and wilful losses.
“ If the insured is to receive but one satisfaction, natural justice says, that the several insurers shall all of them contribute pro rata, to satisfy that loss against which they have all insured. No particular cases are to be found, upon this head; or, at least, none have been cited by the counsel on either side.
“Where a man makes a double insurance for the same thing, in such a manner that ho can clearly recover against several insurers, in distinct policies a double satisfaction, the law certainly says, ‘ that he ought not to recover doubly for the same loss, but be content with one single satisfaction for it.’ And if the same man, really, and for his own proper account, insures the same goods doubly, though both insurances be not made in his own name, but one or both of them, in the name of another person, yet that is just the same thing; for the same person is to have the benefit of both policies. And if the whole should be recovered from one, he ought to stand in the place of the insured, to receive contribution from the other, who was equally liable to pay the whole.” (1 Burr. 492.)

*In the case of Newby v. Reed, at sittings after term, in 1763, 2 W. Bl. 416, the same doctrine is laid down, agreed to, and confirmed. For, “ it was ruled by Lord Mansfield, Chief Justice, and agreed to be the course of practice, that upon a double insurance, though the insured is not entitled to two satisfactions ; yet, upon the first action, he may recover the whole sum insured, and may leave the defendant therein to recover a ratable satisfaction from the insurers.”

These cases have never been contradicted, and must be decisive on the subject. The law, as stated in the above adjudications, is recognised by Park and Millar, two recent and respectable writers on marine insurances. Such being the law of England, as to double insurances, before and at the commencement of our revolution, it was also the law of this country, and is so now. It is of authoritative force, and must govern the present case. Besides, if the court were at liberty to elect a rule, I should adopt the English regulation, which divides the loss ratably among the insurers. It is the most convenient, equal and consonant to natural justice, and has been practised ujion, nearly half a century, by the first commercial nation in the world. I am not clear, that the practice of France is not in conformity with this rule ; for it is probable, that they open but one policy, bearing the same date, though signed at different times, or different policies of the same date; in either of which cases, by the French ordinance, the insurers contribute ratably to satisfy the loss sustained by the insured. If so, it is precisely the English and American rule. Equality is equity : this maxim is particularly applicable to commercial transactions ; and therefore, the rule of contribution ought to be favored. The pressure, instead of crushing an individual, will be sustained by several, and be light. The result is, that the defendant must contribute ratably to make up the loss of the insured.

Peters, Justice.

— The point in this cause is, whether in a case of double insurance, the policies are to be taken according to priority ; that is, whether the second is answerable, before the first is exhausted, if the loss is greater than the sum covered by the first ? And if the loss is fully covered by the first, whether, if it be paid by the insurers on the first, they can oblige those on the second to contribute pro rata ?

To be respectable abroad, and to facilitate and simplify mercantile business at home, we should have a national, uniform and generally received law-merchant. The custom or practice of one state, differing, perhaps, from that of another, must yield to general and established principles. There is, however, no custom of merchants, in this or any other district of the United States, stated in the case, and we cannot travel out of the statement, in giving our judgment.

I mention, as an extraneous fact, of which I have been informed by persons intelligent in business of insurance, that the rule in New York, where they followed the British practice, for a great length of time, was variant from that they now use. The custom in Philadelphia has been, for a long course of years, to settle losses, where there are double insurances, according to priority of policy in date, without regard to time of individual signature : that is, not to call on the second set of underwriters, if those on the first policy were competent, or had paid the amount of subscription or loss. In this event, those on the second policy return the premium, retaining one-half per cent. If this bo so, and I have no reason to doubt, it is one of the very few subjects, in which I have been able to discover a decided and universal custom of merchants here. It may have originated, when the British rule was more similar to that of many other nations, than it is now, and was at the time of our revolution. It appears to me, that the custom here is agreeable to the general maritime custom and law of Europe, in this particular. The authorities produced in this cause, on the part of the defendant, warrant me in this opinion. All the European nations, it is true, do not agree : there may not, in every detail, be an exact conformity among any considerable number. But I conceive, that where the greater number of particular ' laws are coincident in a general principle, this will establish what is called general law. In the point before us, there are exceptions in the laws of Spain, and those of England, to what seems to be the general principle and rule among other trading nations. And the arrangements of those two countries differ from each other.

The law or custom of merchants in England was, formerly, more agreeable to the general custom and maritime law of other nations, than it has been decided, in latter times, to be. It is contended, that the British authorities do not show direct decisions of their courts on this point; yet, they are sufficient to satisfy me, of what the law there is. It appears to me, to be clearly settled as law, in England, that in cases of double insurances, if all the policies cover the same risks, there shall be a ratable contribution. It was so settled, at the period of our independence. It was their law-merchant, which, being part of the common law, was binding on us ; and is now en-grafted into our maritime code. The cases, before our declaration of independence, clearly show that the law was then so settled. And in cases since that declaration, it is recognised and agreed to be the law. Our insurances in that country being still considerable, the rule is yet useful, on that account, among others.

In France, agreeable to an ordinance of Louis XIV., the first policy is to be exhausted, before the second operates, if dated at different times. But different policies, of the same date, are considered as one, and there is a ratable contribution. In Spain, the date and time of individual subscription are attended to, and insurers are called on, according to priority of subscription, even on the same policy. I have had frequent occasions to recur to Spanish regulations. There is, in most of the Spanish maritime laws and customs, a peculiarity which creates an exception, rather than a rule, on many general principles.

I cannot see, that it will be materially disadvantageous to commerce, to settle this question, in either way contended for in this cause. It is of most importance, that the point should bo clearly decided and settled in one or the other way; that merchants may know, and accommodate their affairs to the decision. This court can, at least, commence the means of final decision.

I believe, with Professor Smith, in his “Wealth of Nations,” cited in this cause, that distributing the burden of losses among the greater number, to prevent the ruin of a few, or of an individual, is most conformable to the principles of insurance, and most conducive to the general prosperity of commerce. The wisdom and experience of the British nation, grown out of their more modern and extended state of commerce, have given additional value to this opinion. Whatever respect (and it is not slight) I may entertain for the laws of other nations, I deem myself bound to follow what was the established law and custom of merchants in England, at the time of oux becoming an independent nation : not because it was the law merely of that country ; but because it was, and is, our law.

There is sufficient evidence in my mind, in the cases produced out of the British books, to this point, to satisfy me of the law and custom there established on this question. I, therefore, conclude, according to the case of Newby v. Reed (W. Black. 410), that “ the insured may recover the whole sum ; and leave the insurer to recover a ratable proportion, from other insurers, on ‘ a double policy,’ and the insured may elect which set of insurers, or which of the individuals, he will sue for the amount of actual loss; beyond which he cannot recover, as he can have but one satisfaction.”

On the point stated (the details of which merchants can best adjust), I am of opinion, that the defendant is liable to pay to the plaintiff, a contribution, upon the loss paid by him as stated. This contribution must be made by all the insurers, on all the policies, ratably, as their respective subscriptions bear a proportion to each other, and all of them to the actual losa The defendant, of course, must pay to the plaintiff his ratable proportion, on these principles, according to the amount of his subscription.

Judgment for plaintiff.

       But see Aitcheson v Lohre, 4 App. Cases 755, where it is said, that a policy of marine insurance is not a contract of mere indemnity.

       In the last edition, this opinion was printed in the appendix; it has now been transferred to its proper place.


author: By the Court.

text:
    *MAY TERM, 1801.
    Present — Tilghman, Chief Justice, and Basset and Griffiths, Circuit Judges.

    Hurst’s Lessee v. Jones.

      Costs of former suit.

    A defendant cannot, be compelled to proceed to trial, until payment of the costs of a former action, between the same parties, for the same cause, which had been non-prossed.

    A former ejectment, between the same parties, for the same land, had been non-prossedbut the costs of suit remained unpaid.
    The defendant’s counsel objected to the trial of the present ejectment, until the costs of the former were paid.

      Rawle, for the plaintiff. E. Tilghman, for the defendant.

       This was the court established under the act of 13th February 1801 (1 U. S. Stat. 89), under the Adams’ administration. Hon. William Tilghman (afterwards and for many years Chief Justice of Pennsylvania) was commissioned as its president judge, on the 3d March 1801, to hold his office, during good behavior, as provided by the constitution. But on the 8th of .March 1802, on the coming in of the Jefferson administration, the act was repealed (1H. S. Stat. 132), and the judges were deprived of their offices, without the imputation of a fault. It is known, that Chief Justice Tilghman’s opinion was against the validity of the repealing law; for, in a very able protest, published by Judge Basset, in which the breach of the constitution was strepueusjy asserted, he remarks: “ If any difference between me and my associates in office exists, it relates merely to the point of time for expressing our sentiments. I can confidently assert that, on deliberation, they coincide with me in other respects.” It is said, that Judge Tilghman, in after life, never alluded to the circumstance of his having been a judge of that court. Binney’s Eulogium, 16 S. & R. 441. Its decisions are chief reported in Mr. JohnB. Wallace’s reports, originally published in 1801, by Asbury Dickens. The constitutionality of the repealing act was mooted, in the case of Stuart v. Laird, 1 Cr. 299, but the judges avoided any expression of opinion upon the question.

   By the Court.

— The objection is reasonable and just. The defendant cannot, under such circumstances, be compelled to proceed to a trial.

The cause continued.


author: The Court,

text:
    Hollingsworth v. Duane.

      New trial.

    A verdict will not be set aside, on account of the alienage of a juror. Semble, that it is a cause of challenge, before he is sworn.
    In this case (which was an action for a libel), the defendant filed a plea to the jurisdiction of the court, on the ground, that he, as well as the plaintiff, was a citizen of Pennsylvania. Issue being joined on that fact, it was found by the jury, that the defendant was not a citizen; and thereupon, in consequence of a previous agreement, a venire issued to ascertain the quantum of damages, which the verdict settled at $600. After *the verdiet was given, it appeared, that one of the jurors was an alien ; and *-
      Dallas obtained a rule to show cause, why the verdict should not be set aside for that reason.
    On the argument in support of the rule, it was contended : 1st. That the trial by jury, entire, was anxiously adopted by the United States, as well as by this state ; including the right and causes of challenge as at common law, in civil and in criminal cases. 1 Dall. Laws, App. 55, § 9, 11; Ibid. 58, § 25; 3 Ibid. 36, § 9, 6; 4 vol. Acts Cong. p. 25, art. 8, 9; 1 Dall. Laws, 134, § 4; 2 Ibid. 802, § 2; 3 Ibid. 606, § 16; 2 Ibid. 264, § 9, 12, 3; 1 vol. Acts Cong. 113, § 30; Ibid. 68, § 29. 2d. That on principle, as well as on authority, alienage was a cause of challenge to a juror, before verdict. 3 Dall. Laws, Const. art. VIII.; 1 Acts Cong. Const. art. VI.; Ibid. 67, § 29; 1 Roll. Abr. 657; Co. Litt. 156 b; 3 Bl. Com. 362; Gilb. P. C. 94.; 1 Dall. 74. 3d. That if the cause of challenge was unknown, when the jury was qualified, it may be used to set aside the verdict, as for a mistrial. 3 Dall. 515; 11 Mod. 119; 2 Wood. 352; An. Reg. 1790, p. 46; 2 Ld. Raym. 1410; 1 Str. 640; 1 Acts Cong. 6, § 17; 2 Str. 1000, 593.

      E. Tilghman and Ingersoll,

    in ■ opposition to the rule, contended, 1st, That, in Pennsylvania, alienage was not a cause of challenge to a juror. But 2d. That the objection was too late, after the juror was sworn, and the verdict was given.

       s. c. Wall. C. C. 47, 51, 77,141.

   The Court,

after a long advisement upon the subject, seemed to think, that alienage might have been a cause of challenge, before the juror was sworn ; but upon an extensive review of the authorities, they decided, that advantage could not be taken of it, after verdict.

Rule discharged.

         Since the discussion of this case, the marshal has been directed not to return aliens upon the panel; and, in many instances, when aliens have been returned, the state, as well as the federal, courts have discharged them, upon their own application.


text:
    Penn v. Butler. Butler v. Penn. Penn v. Penn. Same v. Same.

      Possession of securities.

    The survivor of two joint obligees, is, at law, entitled to the possession of the joint securities; and a court of equity will not interfere with the disposition of them, unless some ground is laid for its interposition.
    These were bills in equity, involving a great variety of facts, respecting the disposition of the estates of the late proprietary family : but the principal object of all of them, was submitted for the opinion of the court, on the following agreement :
    “ It is agreed, that these suits be submitted for the opinion of the court upon the following statement of facts, admitted by :!:all the parties, -* except the fact, that Anthony Butler, for his own accommodation, and without the consent, knowledge or approbation of John Penn, the elder, took, inter alia, in part payment of certain sales hereinafter mentioned, certain bonds and mortgages, in the joint names of John Penn, the elder, and John Penn, the younger, as obligees and mortgagees ; which fact, it is agreed, shall be decided by the court, on evidence to be produced; and that such formal decrees be eventually drawn and entered in each, as will effectuate the opinion which the court shall pronounce.
    Case. John Penn, the elder, and John Penn, the younger, after the act of assembly of Pennsylvania, passed November 27th, 1779, entitled “ an act for vesting the estates of the late proprietaries of Pennsylvania in this commonwealth,” remained seised and possessed, as tenants in common, of all their manors, reserved tracts, &c., in Pennsylvania, with power to sell in fee : three-fourth parts being the property of John Penn, the younger ; and one-fourth part being the property of John Penn, the elder. On the 19th of November 1787, John Penn, the elder, appointed John F. Mifflin his attorney, with power to sell and convoy, &c., to receive payment for lands sold, either in money or securities ; and to substitute any agent or agents ; and on the 23d of December 1787, John F. Mifflin substituted Anthony Butler. On the 29th day of June, in the year 1787, John Penn, the younger, appointed Robert Millegan and John F. Mifflin his attorneys, with power to sell and convey, &c., to receive payment for lands sold, either in money or securities ; and to substitute any agent or agents. And on the 29th day of June, in the year 1787, Robert Millegan and John F. Mifflin substituted Anthony Butler. John Penn, the younger, afterwards revoked the power of attorney, which he had granted to Robert Millegan and John F. Mifflin ; and on the 29th of April 1788, John Penn, the younger, appointed the said Anthony Butler his attorney, with power to sell and convey, and to receive in payment money or securities.
    By virtue of the several powers above stated,” Anthony Butler did, at sundry times, sell several tracts of land belonging to the said John Penn, the elder, and John Penn, the younger, as tenants in common, in the proportions aforesaid ; and in payment therefor [inter alia) took, for his own accommodation, without the consent, knowledge or approbation of the said John Penn, the elder, certain bonds and mortgages, in the joint names of John Penn, the younger, and John Penn, the elder, as obligees and mortgagees. After the time of taking the said bonds and mortgages, to wit, on 9th of February 1795, John Penn, the elder, died, leaving Anne Penn and John F. Mifflin, executrix and executor of his last will and testament.
    * “ There are in the hands of Anthony Butler a number of bonds *- and mortgages, taken as aforesaid, in each and all of which bonds and mortgages, the said John Penn, the younger, is interested three undivided fourth parts ; and the aforesaid executors of John Penn, the elder, are interested the other one undivided fourth part.
    “ Questions. 1st. Whether John Penn, the younger, as surviving obligee and mortgagee, is entitled to have and receive from Anthony Butler, all the said bonds and mortgages, for the purpose of collecting and distributing the money thereby secured and made payable, according to the respective interests of the parties ?

      “ 2d. Or, whether the executors of John Penn, the elder, are entitled to receive one-fourth part in value of the said specific bonds and mortgages, for their separate use and benefit ?
    “ 3d. Or, whether the court will consider the bonds and mortgages, under the circumstances of the case, as several, as well as joint, to be followed with the consequences inferrible from such principle ?”

      On tbe bearing, Mr. Butler’s testimony stated, “that be was, at first, tbe separate agent o> Jobn Penn, tbe younger, when Mr. T. Francis was tbe separate agent of John Penn, tbe elder ; that during tbis period, tbe bonds for purchase-money of lands sold, were separately taken, according to tbe interest of tbe parties; that in September 1787, be became tbe agent of botb tbe Penns, but continued, for some time, to take separate bonds ; that tbe purchasers complained of tbe expense of giving separate bonds and mortgages, and be then determined to take them for the joint use of bis principals ; that be received no instructions upon the subject, from either party ; and that be was nc t, in fact, aware of any difference between taking tbe bonds jointly, or severally.” It also appeared, that Mr. J. R. Coates bad been appointed tbe agent of John Penn, tbe younger ; and tbe general question was, whether Mr. Butler should be directed to deliver up tbe joint bonds and mortgages to him, as tbe agent of tbe surviving obligee ?

      Ingersoll and Mifflin contended,
    against the claim of tbe surviving obligee : 1st. That it was founded merely on tbe mistake and misapprehension of tbe agent, acting for two parties, having distinct interests, and giving separate powers. 2d. That, under such circumstances, a court of equity can and ought to apportion tbe securities, by a fair division of them; so that each party may possess tbe entire interest and remedy in bis proportion. 3d. That even if an apportionment could not be made, tbe court will appoint a receiver, to collect and divide tbe joint fund, in tbe regular proportions. On these points, tbe following books were cited: 3 P. Wins. 158; 21 Vin. Abr. 509, pl. 4; Carth. 16; 1 Eq. Abr. 293; *3 Ves. J jr., 628, 631, 399; 2 Com. Dig. 255, 258; 1 Eq. Abr. 290 a.

      Rawle and Dallas,

    in support of the claim of the surviving obligee, urged, 1st. That the point of law is clearly in favor of tbe claim ; and to set aside a plain rule of law, there must be strong, controlling principles of equity, in favor of tbe opposite party. 2d. That tbe act of talcing joint securities was not a mistake or error ; but a deliberate act, for tbe accommodation of purchasers. 3d. That there was no suggestion of a fraud, a breach of trust, wilful laches, or probable insolvency, in reference to tbe surviving obligee. 4th. That there is, therefore, no foundation for tbe interposition of tbe court to appoint a receiver; nor to justify a court of equity in compelling tbe parties to accede to an arbitrary apportionment of tbe securities. On these points were cited, Yelv. 177; Vent. 34; 3 Dyer 350; Sheph. 363, 356; 2 Brownl. 207; 1 Eq. Abr. 290; 2 Pow. 263; Ambl. 311; Wallace v. Fitzsimons, 1 Dall. 248; 2 Com. Dig. 110, 209, 213, 255; 2 Vern. 556.
   The Court were decidedly of opinion, that, at law, tbe surviving obligee was entitled to tbe possession of tbe joint securities, that be might recover the amount; and that there was no ground laid, on tbe present occasion, for tbe interposition of a court of equity.

         On this clear intimation of the opinion of the court, Mr. Coates liberally declared, that if the executors of John Penn, the elder, would concur in giving him immediate possession of the securities, he would not charge a commission for collecting and paying their proportion of the amount; and the proposition was, accordingly, agreed to


text:
    *MAY TERM, 1802.
    Present — The same Judges.
    United States v. Conyngham et al.

      Execution. — Constructive fraud.

    Goods, though chiefly household furniture, suffered to remain in the possession of the defendant, for more than a year after a levy, are liable to a subsequent execution.

    This cause came before the Court, on a case stated for their opinion, in the following terms :
    “At the term of September 1798, judgment was obtained in the supreme court of Pennsylvania, at the suit of John Travis et al. v. Francis and John West, for 1865?. 8s. 9c?. debt, and 6c?. costs. A fieri facias issued under the said judgment, returnable to December term 1798, under which certain goods and chattels,  belonging to the defendants, were levied on and taken in execution, by the sheriff of the county of Philadelphia, on the 8th day of January 1799. The 8th of January 1799, the said John Travis and others, plaintiffs in the said action, for a full and valuable consideration, to them paid by the defendants in this action, assigned the judgment, and all the moneys due thereon, to them, the said David H. Conyngham and John M. Nesbitt. The goods and chattels so as aforesaid levied upon, were, with the assent and approbation of the said plaintiffs in the said judgment, before the said assignment, and by the defendants in this action, since the said assignment, and by the sheriff, with the assent and approbation aforesaid, permitted to be and remain *in the possession of the said Francis and r*ggg John West, until the levying of the execution hereinafter mentioned.
    “At the August sessions 1797, of the district court of the United States for the Pennsylvania district, judgment was obtained, at the suit of the United States, against the said Francis and John West, under which judgment, a writ of fieri facias was issued, and on the 18th day of January 1800, was levied on the same goods and chattels, then being in the possession of the said Francis and John West, or one of them. On or about the 20th day of April 1801, after a time had been fixed, by the marshal of the United States, for the sale of the property so levied on by him, at the suit of the United States, and after advertisements had been put up in the most public places of the city of Philadelphia, notifying the time and place of such sale, the present defendants, for the first time, gave notice of the prior execution before mentioned. Notice was given to the marshal, that if he proceeded on the sale, an action would be brought against him ; and it was, therefore, agreed, that the goods should be appraised by sworn appraisers, which was done, and the value thereof, according to the appraisement, amounting to $1557.75, is admitted to be in the hands of the defendants in this action.

      “ The question submitted to the court is, whether, on the preceding circumstances, the execution issued by John Travis et al. can be supported against the execution subsequently issued by the United States. If the court shall be of opinion in the affirmative, then judgment to be given for the defendant, otherwise, for the plaintiff. ,
    “January 30th, 1802. A. J. Dallas, for plaintiff.
    Moses Levy, for defendant.”
    The question was discussed by Rowle and Dallas, for the plaintiff,
    and by Lewis and Levy, for the defendant; the former relying on the authorities in the English books: 1 Ves. 245-6; 1 Wils. 44; 7 Mod. 37; 10 Vin. Abr. 561, 568; Peake N. P. 65; 1 Salk. 320; Carth. 420; 2 Vern. 238; Ld. Raym. 251; Cowp. 712; 1 T. R. 729; 1 Esp. 205. And the latter relying on the decisions of the courts of Pennsylvania, varying the English rule of law, according to the peculiar circumstances of the country. See ante, p. 165, 208, 213.

         It was agreed, on the argument, to state, that the goods were principally household furniture.

       s. c. Wall. C. C.178.

       See the remarks of Judge Duncan, in Dean v. Patton, 13 S. & R. 346

       See further, on this subject, Pritchett v. Jones, 4 Rawle 264.

   The Court,

after great deliberation and research, delivered elaborate opinions, seriatim, upon the principles and authorities connected with the discussion ; expressed their regret at differing from the decisions of the state courts ; and unanimously gave judgment for the plaintiff.


text:
    *Knox et al. v. Greenleaf.

      Jurisdiction. — Citizenship.
    A citizen of one state, removing to another, purchasing real estate, paying taxes and residing in the latter for about four years, becomes a citizen thereof, so far as regards the jurisdiction of a federal court; notwithstanding a temporary absence, during which he acquired and exercised municipal rights in a third state.
    Case. The defendant filed the following plea in abatement:
    “The said James Greenleaf, who is impleaded by the addition and description of a citizen of the state of Maryland, by Jared Ingersoll, his attorney, comes and defends,the force and injury, &c., and says, that he, long before the arrest in the present action, and at the same time, as well as twelve months preceding the said arrest, and continually afterwards, was, and yet is, a citizen of the state of Pennsylvania, having his permanent domicil and residence in the said state or district of Pennsylvania, and not a citizen of the state of Maryland. And the said James Greenleaf, by his attorney aforesaid, furthur saith, that according to the constitution and laws of the United States, a citizen of Pennsylvania cannot be impleaded or compelled to answer by another citizen of the same state, before the judges oí the circuit court, but only in the courts of the state, having competent jurisdiction of the ease. And this he is ready to verify: therefore, he prays judgment, if he ought to be compelled to answer the said William to the said plea in court, &o.

    The plaintiffs filed a replication, averring that the defendant was a citi-

      zen of Maryland; and issue being thereupon joined, the question was tried before Griffiths and Basset, associate judges, the Chief Judge declining, on account of a family connection with the defendant, to take judicial part in the cause.
    Upon the evidence, it appeared, that the defendant was a native of Massachusetts ; that he came to Philadelphia in 1796, and purchased a valuable house in Chestnut street, in which he lived, until his pecuniary embarrassments and consequent imprisonment occurred, in 1798 ; that his clerks and servants continued afterwards to live there, until the house was sold to Mr. Tilghman; that being discharged by the Pennsylvania insolvent acts, in March 1798, he went to the southward, and returned to Philadelphia before the yellow fever of 1798 had subsided ; that between the 5th of November 1798, and the 20th of January 1799, he applied to the legislature of Maryland, styling himself of that state, for the benefit of an insolvent act, in the nature of a bankrupt law, that on the 10th of January 1799, an act was passed accordingly, in which he was described as “ of Prince George county,” and by which it was provided, that the chancellor, before granting the benefit of the act, should be satisfied, by competent testimony, that the defendant was, at the time of passing the act, “ a citizen of the United States, and of this state;” *that the defendant was discharged under [*881 this act, on the 30th of August 1799 ; that he returned to Philadelphia in February 1800 ; that he removed from Philadelphia to Northampton county, in June of the same year, had paid taxes there, and had never left the state since ; and that he was arrested, in the present suit, on the 20th of February 1801.
    The principal point discussed, upon these facts, was, whether the defendant was a citizen of Pennsylvania, so as to exclude the jurisdiction of the federal court, the plaintiffs being themselves citizens of that state ?

    For the plaintiffs, it was contended, by Moylan,

    that the defendant could only be regarded as an inhabitant, not as a citizen, of Pennsylvania ; that he had represented and proved himself to be a citizen of Maryland, in August 1799, or he could not have enjoyed the benefit of the act of that state ; and that he had not, upon the most liberal calculation of time, resided in Pennsylvania long enough to acquire the rights of permanent citizenship, upon the principle of the constitution. (1 U. S. Stat. 78, § 11; Const. Penn. Art. III. § 1.)
    For the defendant, it was contended, by Ingersoll and Dallas,

    that a citizen of one state was constitutionally entitled to be a citizen of every state; that the acts of congress prescribe a mode for naturalizing aliens; but none for communicating the municipal rights of citizenship to a citizen removing from one state to another ; that as to the naturalization of aliens, Pennsylvania leaves the subject to the acts of congress ; and for the exercise and enjoyment of every right of citizenship, her constitution only stipulates, that the party shall be a citizen, shall have resided for a specified time, and shall have paid taxes ; that the three requisites must be complied with, in the case of a native, as well as of an adopted citizen, for the purposes contemplated ; that, being a citizen, absence from the state does not disfranchise, except as to the right of electing and being elected, which depends on residence as well as citizenship ; that a citizen of Massachusetts, coming into Pennsylvania, with a view to settle, acquiring real estate, and paying taxes, is a citizen of Pennsylvania, to every purpose, but that of electing or being elected, within the respective periods prescribed by the constitution; and that the laws of Maryland communicate, instanter, the rights of municipal ¡cocol citizenship, *to a citizen going thither from another state, without impairing the permanent domiciliated citizenship, to which he is entitled in his own state. (Const, art. IV. § 1; 2 Dall. 370; Const. Penn, art. I. § 3, 8; art. II. § 4, 8; art. III. § 1; art. IV. § 1; art. IX. § 20, 21; 4 Dall. Laws, 332, § 1; 1 Dall. 152, 158, 241; Maryland Laws, July 1779, ch. 6; Nov. 1789, ch. 24; Nov. 1792, ch. 14; Nov. 1793, ch. 26.)

       s. c. Wall. C. C. 108; which is a report of the case, onamotion to discharge the defendant on commo” hail.

         This action was brought against Mr. Greenleaf, as indorser of notes issued by Morris & Nicholson, which he had pledged as security for his own notes, given to the plaintiffs. His own notes wore due, before he was discharged under the insolvent act; but the notes of which he was indorser, became due afterwards. This afforded matter for argument, but did not appear to enter into the decision of the court. The plaintiff’s counsel cited Howis v. Wiggins, 4 T, R. 714

   The Court were clearly of opinion, that the defendant was entitled to be considered as a citizen of Pennsylvania ; and the jury found a verdict accordingly.

Verdict for the defendant.