source: Caselaw Access Project

author: Mr. Justice McLEAN

license: Public Domain

text:
    Nelson F. Shelton, Appellant, v. Clayton Tiffin and Lilburn P. Perry.
    Where an -individual has resided in a State for a considerable time, being engaged in the prosecution of business, he may well be presumed to be a citizen of such State uhless the contrary appear. And this principle is strengthened when the individual lives on a plantation and cultivates it with a large force, claiming and improving the property as hid own.
    On a change of domicile from one State to another, citizenship may depend upon the intention of the individual. But this intention may be shown more satisfactorily by acts than declarations. An exercise of the right of suffrage is conclusive upon the subject; but acquiring a right of suffrage, accompanied by acts which show a permanent location, unexplained, may be sufficient.
    The facts, that the party and his wife were residents of Louisiana ror more than 'two years before the commencement of the suit; that he was absent only once, on a visit to a watering-place; that he resided the greater part of the time on a plantation which he claimed as his own; that he constructed upon it a more secure and comfortable dwelIi-"¿-house: that he observed to a witness that he considered himself a resident, — are sufficient to justify the Circuit Court of Louisiana in exercising jurisdiction in a suit brought against that party by a citizen of Missouri. .
    Where fraud is alleged in a bill, and relief is prayed against a judgment and a judicial sale of property, a demurrer to the bill, that relief can be had at law, is,, not sustainable.
    Where a citizen of Virginia sued, in the Circuit Court of Louisiana, two persons jointly, one of whom was a citizen of Louisiana and the other of Missouri, and an attorney appeared for both defendants, the citizen of Missouri is at liberty to show that the appearance for him was unauthorized. If he shows this, he is not bound by the proceedings of the court, whose judgment, as to him, is a nuHitv.
    A judgment of a State court, that the'debt had been extinguished, given in ah action which was not brought for the recovery of the debt, and which action, moreover, had been discontinued by the plaintiff, cannot be set up in bar of proceedings in the Circuit Court for the recovery of the debt, which proceedings had been commenced when the judgment of the State court was given.
    Where a worthless promissory note is imposed upon the vendor as part of the cash payment, it would seem that, if any fraud has been practised upon the vendor by the vendee, the amount of the note still remains an equitable lien upon the land.
    This was an appeal from the Circuit Court of the United States for East Louisiana, sitting as a court of equity.
    On the 1st of August, 1837, Clayton Tiffin and Lilburn P. Perry received a deed for a tract of land on the western bank of the Mississippi River, .about five miles above the town of Vicksburg, and containing'six hundred and forty-four acres.
    On the 10th of April) 1838, Tiffin and Perry sold the same land, together with a large number of negroes, to. Samuel Anderson, for the sum of seventy-five thousand, dollars. The sale was stated to be for cash. But in fact the payment was to be made in this way: —
    Funds supposed to be as good as cash, '. . $ 35,000
    Notes secured by mortgage, . . . 40,000
    $75,000
    John M. Perry, the father of Lilburn P. Perry, and father-in-law of Tiffin, became the agent to receive these funds. The $35,000 was again divided into two classes, viz., a debt of $ 13,000, which was due to Anderson by Lilburn P. Perry and John M. Perry, and which debt became thus extinguished, and a note for $ 18,282.65, given by Austin, Ragan, and Bohannon, payable to Anderson on the 1st April, 1839.
    The sum of $ 35,000 being thus arranged, the balance of $ 40,000 was not provided for until some time afterwards, viz. on the 1st of March, 1839, when Anderson gave the following notes: —
    $ 13,333^. On or before the first day of January, 1842, we promise to pay Lilbourne P. Perry the just and full sum of thirteen thousand three hundred and thirty-three , dollars, value received, for land and negroes, purchased of Clayton Tiffin and Lilbourne P. Perry; for the true payment of which we bind ourselves, our heirs, &c., firmly by these presents. Given under our hands and seals, this the first of March, 1839.
    Samuel Anderson, [seal.]
    Ne varietur, July 9th, 1839.
    Richard Chs. Downes, [seal.]

      J. judge parish Madison, Louisiana.

      (Indorsed.)
    For value received, I assign the within note to Clayton Tiffin, October 22d, 1839.
    L. P. Perry,
    For his agent J. M. Perry.
    216. Filed 23d Nov., 1839.
    John T. Mason, Clerk.

    $ 13,333~<&- On or before the first of January, 1843, we promise to pay Lilbourne P. Perry the just and full sum of thirteen thousand three hundred and thirty-three dollars, value received, for land and negroes purchased of Clayton Tiffin and, Lilbourne P. Perry; for the true payment of which we bind ourselves, our heirs, &e., firmly by these presents. Given un-. der our hands and seals, this the first day of March, 1839.
    (Signed,)
    -Samuel Anderson,
    [seal.]
    Ne varietur, July 9th, 1839.
    Richard Chs. Downes, [seal.]

      J. judge parish Madison, Louisiana.

    (Indorsed) 216. Filed Nov., 1839.
    John T. Mason, Clerk.

    $13,333,&&- On or before the first of January, 1844, we promise to pay Lilbourne P. Perry the just and full sum of thirteen thousand three hundred and thirty-three ;dollars, value received, for land and slaves purchased of Clayton Tiffin and Lilbourne P. Perry for the true payment of which we bind ourselves, our heirs, &e., firmly by these presents. Given un-der our hands’ and seals, this the first day of March, 1839.
    (Signed,)
    Samuel Anderson,
    [seal.]
    Ne varietur; July 9th, 1839.
    Richard Chs. Downes, [seal.]

      J. judge of parish Madison, Louisiana.

    (Indorsed) 216. Filed 28 Nov., 1839.
    John T. Mason, Clerk.

    On the 9th of July, 1839, the remaining part of the agreement was carried into effect,’ by Anderson’s executing a mortgage to Lilburn P. Perry, and in favor t>f whomsoever may become the legal holder and owner of the above notes, of. the property, land, and slaves, which had been conveyed to Anderson by the deed from Tiffin and Perry.
    On the same 9th of July, Anderson executed another mortgage, reciting that he was justly indebted to Nelson F. Shelton, of Goochland county, in the State of Virginia, in the stun of $ 45,550, and mortgaging the same property to secure it, — “it being understood that this mortgage is posterior to that granted by’the said Samuel Anderson in favor of Lilburn P. Perry on this day.” This sum of $ 45,550 was divided into two notes, payable on the 1st of January, 1845, and 1st of January, 1846. Whilst upon the subject of this last mortgage, it may be as well to say that another was substituted for it, With' the consent of all parties, on the 17th of March, 1840, in which Robert Anderson, of Yirginia, was also included, as a • creditor to the amount of $ 3,000. This, like the other, referred to the prior mortgage given to Perry.
    It is proper now to go back a few months in the order of time.
    In January, 1839,-Hillery Mosely and William W. Bouldin, citizens of Yirginia, filed a petition in the Circuit Court of the United States against John M. Perry and Lilburn P. Perry, alleging that the Perrys were indebted to the petitioners in the sum of f> 7,560, upon a promissory note. As the proceedings Upon this suit, as far as the appearance of Lilburn P. Perry was concerned, were drawn into question, it is better to go through with this branch of the case entirely before recurring to any other part of it. On the 12th of January, an .order of court was directed to Lilburn P. Perry, commanding him to file his answer within ten days, to which the marshal made the. following return : —
    “ Defendant, L. P.. Perry, could not be found, after diligent Search and inquiry. Returned Feb. 23, 1839.
    “ J. P. Walden, Deputy Marshal."

    A writ of arrest was then issued, directing the marshal to seize the bodies of John M. -Perry and Lilburn P. Perry, and confine them till they should give security not to leave the State without permission of the court, to which the marshal made the following return : —

      Marshal's Return.

    Received 12th January, 1839 ; and, on the 18th same month, arrested and took defendant, John M. Perry, into my custody, from whence he was released by giving bond, with Z. H. Rawlings, Charles Johnson, and H. Lewis, as sureties, in the parish of Madison, 450 miles from New Orleans, in the Eastern District of Louisiana; which bail bond is .herein returned ; and Lilbourne P. Perry could not be found, after diligent search and inquiry, and executing this writ in all other things as the law directs. Returned February 23d, 1839.
    (Signed,)
    J. H. Holland; Marshal.

      After this, B. A. Crawford, calling himself “ attorney for defendants,” filed an answer for John M. Perry and Lilburn P. Perry, and the cause regularly proceeded to trial, Mr. Crawford attending to it .in all its stages as. attorney for both defendants. In June, 1839, it was tried, and the jury found a verdict for $ 7,560. In July, a fi.fa. was issued, the return to which was, “ no property.” In October, an alias was issued, to which the marshal made the following return, viz. : —

      Marshal’s Return.

    Received 23d day of October, 1839, and on the same day made demand of the amount'of the within ji. fa., at the residence of the within-named defendants, -John M. Perry and Lilbourne P. Perry, which was refused. I seized, on the 23d day of November; 1839, a debt due by Samuel Anderson to the within-named Lilboume P. Perry, for forty thousand dollars. There was three notes given by said Anderson to said Perry, and mortgage on fifty , slaves and six hundred and forty acres of land, to receive the payment of said debt to satisfy this fi. fa., and after advertising the said claim ten entire days from the last day of the notice of ¡seizure, and having appraisers appointed according to law, who appraised said property to be worth twenty-eight thousand dollars, cash valuation, on the 10th day of December, 1839, and then, on the' same day, offered the property for sale for cash, and repeatedly crying it, — there was no sale for want of a-bid to the amount required by law, and then I advertised the same property, and sold the same on the 4th day of January, 1840, on a credit of twelve months, when Samuel Anderson became the purchaser thereof for the sum of five thousand dollars, he being the highest and last bidder, for which he gave his hond, with John B. Bemiss and Aaron Lilly as security ; which bond I received, and the said bond is herewith returned; four hundred and thirty miles from New Orleans.
    (Signed,)
    M. Marigny, U. IS. Marshal,
    By John N. Donohue,

      Deputy U. S. Marshal.

    In January, 1840, a capias ad satisfaciendum was issued against both the Perrys for the balance of the judgment after deducting the proceeds of the sale to Anderson, to which writ the marshal made the following return : —

      Marshal’s Return.

    Received Thursday, the 16th January, 1840, and after diligent search and inquiry, the within-named defendants, John M. Perry and Lilbourn P. Perry, could not be found in the Eastern District of Louisiana, — distance five hundred miles from New Orleans.
    (Signed,) M. Marigny, U. S. Marshal.

    By John N. Donohue,

      Deputy U. S. Marshal.

    The marshal soon afterwards executed the following conveyance to Anderson: —
    State of Louisiana, Parish of Madison :

    Whereas I, John N. Donohue, deputy United States marshal in and for the Eastern District of the State of Louisiana, by virtue of a writ of fieri facias issued from the Circuit Court of the United States for the Ninth Circuit in and for district and State aforesaid, at the suit of Mosely and Bouldin v. John M. Perry and Lilbourne P. Perry, I did seize a certain debt owing by Samuel Anderson to said Lilbourne P. Perry, as evidenced by three promissory notes, dated 1st of March, 1839, due in the years 1842, 1843, and 1844, each for the sum of thirteen thousand three hundred and thirty-three dollars, payable by said Samuel Anderson to the said Lilbourne P. Perry, which notes are “ paraphm ” on the 9th of July, 1839, together with the mortgage intended to secure said notes or' debts, recorded in the office of the parish judge of the ■ parish 'of Madison, in the parish and State aforesaid, in the record-book of conventional and legal mortgages, pages 27 and 28, where there are fifty slaves and six hundred forty acres of' land mortgaged to secure the payment of said notes and mortgage, seized as the .property of said Lilbourne P. Perry, and having exposed the same to public sale as aforesaid, on a credit of twelve months, when Samuel Anderson became the purchaser thereof at the price of five thousand dollars, for which he gave his bond with John B. Bemis and Aaron Lilly as his securities, payable in twelve months after the date thereof, all in due form of law, and which bond I hereby acknowledge to have received.
    Now, therefore, know all men by these presents, that I, the said deputy as aforesaid, do, in consideration of the premises, and by virtue of the act in such cases made and provided, grant, bargain, sell, assign, and set over to the said Samuel Anderson, his heirs and assigns', all the right, title, and interest or demand, which the said Lilbo'arne P. Perry had, in and to the said debt, notes, arid mortgage, as before described, on the twenty-third day of November, A.'D. 1839, or at any time since, or to any part thereof; to hold the same to the said Samuel Anderson, his heirs and assigns for ever, hereby subrogating (as far as my act in the premises can) said Samuel to all the rights which the said Lilbourne P. Perry had or has, in, under, and to the aforesaid mortgage ; and the said Samuel Anderson being present hereby accepts this conveyance, and hereby specially mortgages-the above-described debt and mortgage to secure the final payment of the purchase-money, and all interest and-costs that may accrue in the premises.
    Done and passed in .-the State and. parish aforesaid in presence of* John B. Bemiss and Aaron Lilly, competent witnesses, who have signed with me, said deputy U, S. Marshal, and Samuel Anderson, this 4th day of January, 1840 and said Samuel Anderson before signing.
    (Signed,)
    John N. Donohue.
    Having traced this suit to its termination, we must turn our attention to another.
    On the 23d of November, 1839, Lilbum P. Perry, by Martin, Richardson, and Stacy, his attorneys, filed ,a petition in the • District Court in and for the parish of Madison, setting forth Anderson’s indebtedness to him upon the' mortgage and notes above, described for $ 40,000, and stating his belief that Anderson was about to leave the State of Louisiana, and that he. would, unless restrained by the conservative process of the court, remove his property out of the State before the debt or any part of it became payable. He therefore prayed for a writ of attachment to be levied upon the plantation, crops, and negroes. At the time ox filing this petition; Perry filed also the original promissory notes, being three in number, for $ 13,333 each, payable 1st of January, 1842, ’43, ’44. With the petition was filed also the affidavit of John M. Perry, signing himself “ agent for L. P. Perry,” who was stated to be absent from the Staté of Louisiana.
    The attachment was ordered and issued; but on the 27th of- November, John M. Pepry filed in court the following, viz. j —

      Instructions.

    Lilbourne P. Perry

      v.

    Samuel Anderson.
    ) > )
    9th District Court. — An attachment.
    I, John M. Perry, acting as agent for Lilbourne P. Perry, plaintiff in above-entitled suit, hereby direct Thomas B. Scott, of the parish of Madison, to return the writ of attachment now in his hands, in the suit of Lilbourne P. Perry v. Samuel Anderson, No. 216, on the docket of said District Court for the parish of Madison, to the clerk’s office of said court, without making any seizure or service on said writ of ¿ttachment; and I furthermore hereby direct said sheriff and clerk, that all proceedings had, ot to be had, under said attachment, be dismissed and discontinued.
    (Signed,)
    JOHN M. PERRY,

      Agent for L. P. Perry, Clayton Tiffin, J. H. Martin, Geo. W. Grove.

    Received on the 27th November, A. D. 1839, and served on the 28th of same month and year, by handing a certified copy of this ■writ" of attachment to the defendant, Samuel Anderson, in person, at the court-house in Richmond, and then was instructed by] the plaintiff in this case not to levy the attachment, but to return it to the clerk’s office, as will be seen by reference to the within order from, him. Service $ 2.
    (Signed,)
    T. B. Scott, Sheriff.

    The cause remained in this condition for nearly a year, when Anderson filed the following answer, on the 18th of November, 1840 : —
    Lilbourne P. Perry

      v.

    Samuel Anderson.
    The defendant came into-court, and for answer to plaintiff’s petition in this suit filed, denies all and singular the allegations therein contained .and set forth. And for further answer thereto he says, that the notes mentioned and appended to plaintiff’s petition were executed and delivered to the petitioner, as set forth therein ; also, that the mortgage set forth was executed as set forth, and for the purposes as shown in said mortgage.
    This defendant for further [answer] sets forth, that on the 23d day of November, A. D. 1839, John N. Donohue, deputy United States marshal, in virtue of a writ of fieri facias, then in his hands, which issued from the Circuit Court Of the United States for the Ninth Circuit, in the Eastern District of Louisiana, at the suit of Mosely and Bouldin against John M. Perry and Lilbourne P. Perry, seized upon the several promissory notes mentioned in, and appended to, plaintiff’s petition, and the mortgage' securing the same ; and afterwards, to wit, on the 4th day of January, A. D. 1840, proceeded to sell the said notes and mortgage, iff satisfaction of the said fieri facias of Mosely and Bouldin v. John M. Perry and Lilbourne P. Perry, when this defendant became the purchaser of said notes and mortgage, at the last and highest bid. All of which will more fully appear by the annexed copy of said marshal’s sale, which is herewith filed, and made part of this answer.
    This defendant further shows, that, at the time of the seiz- ■ ure of the said notes and mortgage, they were due and payable to Lilbourne P. Perry only, and were his property at the time of said seizure by the deputy marshal as aforesaid. And defendant further shows, that the indorsement made on the back of one of the notes due on the 1st of January, 1842, was not madé at the date thereof, to wit, on the 22d of October, 1839, but was'made after the said seizure so made by the marshal as aforesaid ; and said assignment was only dated for the purpose of evading said seizure. All of which this defendant will be prepared to show on the trial of this .suit.
    This defendant therefore shows and alleges, that by virtue of the purchase made by him at the marshal’s aforesaid, the said debt, mentioned and shown by said note sued on, and the mortgage securing, have been discharged and extinguished by confusion, and by this defendant’s becoming the owner of the said debt and mortgage.
    Defendant therefore prays that plaintiff’s demand be rejected, and that the notes sued on and. mortgage may be decreed to be discharged and extinguished by the confusion created by said sale, as before set forth.
    (Signed,)
    John B. Bemiss, Att'y for def'ts.

    On the 18th of May, 1841, the counsel of Perry made the following motion: —
    L. P. Perry

      v.

    Samuel Anderson.
    Plaintiff' by his undersigned counsel moves that this suit be dismissed at his costs.
    Marti**, Richardson, & Stacy, Attorneys.

    And on the 20th of May, 1841, the following was entered on the minutes of the court.
    Lilbourn P.¿Perry

      V.

    Samuel Anderson.
    Motion filed by plaintiff’s counsel to dismiss this suit at plaintiff’s costs.
    Ordered, that the motion to dismiss be sustained, and that this suit be dismissed at-plaintiff’s cost, by consent of the parties. It is also ordered, that the three notes on file in said suit be not withdrawn therefrom by either party, unless upon an order of this court, previously and contradictorily rendered with the other party, after due notice to him; and defendant has leave to withdraw documents marked A, by leaving a certified copy with the clerk.

      Motion.

    Lilbourn P. Perry )

      v. > 216.
    Samuel Anderson. )
    The defendant herein moves this honorable court for a rule on plaintiff,, to show cause why the notes sued on in above-entitled suit should hot be given up to him upon his leaving a certified copy of said notes, they being the property of said defendant, &c. Bemiss & Pierce,

      Att’ys for defendants.

      Judgment.

    By reason of the law and the evidence in this case, and by reason of a motion of plaintiff’s counsel thereto, it is ordered, adjudged, and decreed, that judgment be rendered, as if nonsuit in this case, and that the notes herein filed be not withdrawn until' leave [be] obtained ; and that the plaintiffs pay the costs of suit, to be taxed. Read and signed in open court, this. 3d day of June, A. D. 1841.
    B. G. Tenny, Judge 9th Dist.

    The cause remained in this position for nearly a year, a bill having' been filed in the mean time, viz. on the 21st April, 1842, in. the Circuit Court of the United States, by Tiffin and Perry against Anderson and Shelton. This bill (which is the present case) will receive particular notice after the history of the proceedings in the Parish Court shall havé been finished. /
    On the 11th of May, 1842, the following motion was made in the Parish Court: —
    Motion to withdraw dotes filed, and it is ordered by the court, that L. P. Perry, the plaintiff in this suit, show cause on Thursday, the 19th instant, why the application should not be granted.

      Answer.

    Lilbourn P. Perry

      v.

    Samuel Anderson.
    ) > )
    Ninth District Court, parish of Madison.
    The plaintiff, Lilbourde P. Perpy, for cause against the rule taken upon-him by. Samuel Anderson,- why the notes sued on should not be withdrawn, and delivered up to said Anderson, shows, that the plaintiff has taken a voluntary nonsuit in the above cause, after issue joined, which issue has never been either; tried or decided; but that plaintiff now stands on the record as the owner of said notes, and he denies that said Anderson can have an -order of this court for the delivery to him of said notes until it shall have been decided in a suit, regularly brought for that purpose, that said Anderson is the owner of said notes, -which issue he denies can be tried upon the said defendant’s rule-to show cause ; wherefore, and for other reasons equally apparent, he prays that defendant may be discharged at his costs.
    D, S. Stacy, Att'y for pl’ff.

    On the 19th of May, 1842, the court overruled the above - exceptions, and prdered the trial of the rule to proceed; when a motion was made on the part of Perry for a continuance, and an affidavit of John M. Perry filed in support of the motion. The affidavit stated the absence of a material witness, Viz. Crawford, the attorney in the suit of Mosely and Boulding against John M. Perry, and Lilburn P. Perry,, and that he expected to prove by him that Jie, Crawford, put in an.answer-by mistake for the said Lilburn P. Perry, and that he, said Crawford, 'never had any authority from the . said Lilburn P. Perry, or from any duly authorized attorney, or agent of said Lilburn P. Perry, to put in said answer, or to make any answer or plea of any description whatever, or in any manner whatever to represent said Lilburn P. Perry in said suit. John M. Perry also .filéd the following affidavit: —-
    “ John M. Perry, agent and attorney in fact of the plaintiff in the above-entitled suit, makes oath,.that he is the agent of Lilbourn P. Perry, the said plaintiff; that said Lilbourn P. Perry .is absent at- this time from the State of Louisiana, and he, said Lilbourn. P. Perry, resides in the State of -Missouri, and has resided in'said State of Missouri for several years past; that Lilbourn P. Perry has not been within the vicinity of the State of. Louisiana for nearly of quite two years past,, and that ever since the said Lilbourn P. Perry left the State of Louisiana, which affiant believes was in the fall of the year. 1838, and became a resident in the State of Missouri, affiant has been, as he is-now, the agent and attorney in fact of the said Lilbourn P. Perry.
    “ Affiant swears, that not until Wednesday, the 18th day of May, in the year 1842, was affiant apprised that any such motion as that now before the court, made-on the part of Samuel Anderson, had been made, nor had affiant any knowledge, that any such motion was intended to be 'made on the part of. said Anderson, or any one claiming under him.
    “ Affiant swears further, that Bennet A. Crawford, who resides in the city of New Orleans, is a witness whose testimony is material for the substantiation of the claims of the said Lilbourn P. Perry on the trial of said motion; that the said Lilbourn P. Perry cannot go safely to trial without the.evidence of said Crawford, and that he expects to prove by said Crawford such facts as will show the said Anderson has no title in and to said notes.
    “ Affiant swears,-also, that since he was informed of .the existence of said motion, he has not had time to procúre the testimony of said Crawford, and that he cannot procure said testimony of said Crawford in time to go to trial at the present term of this court, but he, affiant, expects to procure said testimony of said Crawford só as to go to trial at the next term of this honorable court; and finally, that this affidavit is not taken for the purpose of delay, but only to obtain substantial justice;
    “ John M. Perry.”
    The court having ordered the trial of the rule to proceed, the counsel of Perry declined to make any further appearance, • and took a bill of exceptions, which was signed by the judge.
    Anderson then offered in evidence the proceedings consequent upon the judgment in the case of Mosely and Boulding against John M. Perry and Lilburn P. Perry, the execution, the sale to Anderson, and the deed to him by the marshal, all of which have been stated above.
    On the 19th of May, 1842, the court rendered the following judgment: —
    “ On a rule to show cause. — By reason of the law and the evidence being in favor of the defendant, and against the plaintiff, Lilbourn P. Perry, and the defendant’s answer to the plaintiff’s petition, and the evidence being considered, and the defendant, Samuel Anderson, having proved to the satisfaction of the court, that he has, since the institution of this suit, become the true and legal owner of the three notes sued on, and the indebtedness set forth in plaintiff’s petition having been extinguished by confusion, it is ordered, adjudged, and decreed,, that the defendant, Samuel Anderson, have judgment in his favor, and against the plaintiff, Lilbourn P. Perry, and that said Samuel Anderson be decreed- to be the true and legal owner of the said three notes, the same being extinguished by confusion, and that the same be adjudged and decreed to be delivered up to said defendant, Samuel Anderson, and that the said L. P. Perry pay the costs of this suit, to be - taxed. Done and signed in open court, this 1842.
    “ Thos. Curry,

      District Judge, Ninth Judicial District.”
    From this judgment an appeal was prayed and. granted to the Supreme Court of the State of Louisiana.
    On the 3d of December, 1842, Anderson received the original notes from the clerk of the court.

      We must now turn our attention to another suit.
    It has been already stated, that on the 17th of March, 1840, Samuel Anderson acknowledged himself indebted to Nelson F. Shelton, of Yirginia, to the amount of $ 45,550, and to Robert Anderson, also of Yirginia, to the amount of $ 9,000; and that he mortgaged all the property which he had purchased from Tiffin ánd Perry to secure those debts, making this last mortgage posterior to that to Tiffin and Perry.
    On the 3d of April, 1841, Nelson F. Shelton and Robert Anderson filed a petition in the Ninth District Court for, the State of Louisiana, holding sessions in and for the parish of Madison, setting forth the mortgage, and praying that the sheriff might be ordered to seize and sell, for cash, so much of the mortgaged property as would pay their respective debts.
    On the 12th of April, . 1841, the judge issued the order, as prayed. 5
    On the 10th of July, 1841, the sheriff returned that he had offered the property at public auction, “ and Nelson F. Shelton, sen’r, and Robert Anderson, the plaintiffs herein, being present, bid for said property the sum of thirty-six thousand dollars, which being the highest bid or offer made, and being over and above two thirds of the cash valuation of the same, the ’said property was adjudicated to Nelson F. Shelton, sen’r, and Robert Anderson, at and for the said sum. of thirty-six thousand ($ 36,000) dollars, subject to all the privileges and mortgages encumbering the same; wherefore, in virtue of the premises herein set forth, and of the law in such case made and provided, and for and in consideration of the price above described, I, Thomas B. Scott, sheriff as aforesaid, do sell, transfer, and convey unto the said Nelson F. Shelton, sen’r, and Robert Anderson, in proportion to the claim of each plaintiff in said writ of seizure, all the right, title, and interest of the said defendant,. Samuel Anderson, in and to the before described, and all the appurtenances thereunto belonging, unto them, the said Nelson F. Shelton, sen’r, and Robert Anderson, and their heirs or assigns for ever.
    “ In testimony whereof, I have hereunto set my hand, at the parish of Madison, State of Louisiana, on this the sixteenth day of June, eighteen hundred and forty-one, in the presence of Alexander T. • Steele and Edmond Cavelier, competent witnesses, who have signed with me the said sheriff.
    (Signed,)
    Tho. B. Scott,

      Sheriff of the Parish of Madison, Louisiana.”
    It is not necessary to insert in this statement two suits which are inserted, in the record, which were cafried on, one in the Circuit Court of the United States by Tiffin, upon his own account, against Anderson, upon three promissory notes, amounting in the whole to $ 12,065, and the other in a court of Mississippi by Anderson, for the use of Clayton Tiffin, against Austin, Ragan, and Bohannon, upon the note for $ 18,282, which Anderson had considered a part of his cash payment, as above narrated. Both these suits ended in judgments which produced no fruits.
    We come now to the suit in the Circuit Court, which was the basis of the present appeal.
    On the 21st of April, 1842, Clayton Tiffin and Lilburn P. Perry filed a bill on the equity side of the Circuit Court of the United States. They state themselves to be residents of the city of St. Louis and.citizens of the State of .Missouri, and file the bill against Samuel Anderson, Robert Anderson, Nelson F. Shelton, Hillery Mosely, and William W. Bouldin. The bill recites the sale to Samuel Anderson,' the deficiency in the cash payment, the execution of the notes and mortgage by Anderson, the suit against him by Lilburn P. Perry, the suit against Perry by Mosely and Bouldin, the judgment, the sale of the whole interest to Anderson for $ 5,000, the /¿reclosure of Shelton’s mortgage with an intent to defraud,, and then avers, that, at the institution of the suit by. Mosely and Bouldin against Perry, the latter was not a citizen of Louisiana, but of Missouri.; that he was never served with process, and never employed any one to appear for him; that the judgment was thereby wrongfully recovered, and is void; that admitting the validity of the judgment, yet the subsequent proceedings were irregular ; that the landjAnd slaves never were the sole property of Perry, and that Anderson knew it; that the first note was specially indorsed té Tiffin as a part of his share; that this was done before it was seized as being the property of Perry. The bill then prayed that the judgment of Mosely and .Bouldin might be set aside, that their mortgage .might be foreclosed, and for general relief, and for an injunction.
    The defendants, Samuel Anderson and Nelson F. Shelton, demurred to the bill for want of equity, which being overruled, they severally pleaded to the jurisdiction of the court, that said Shelton, and all the other- defendants except Samuel Anderson, were citizens of the State of Yirginia. Upon these pleas, evidence was taken on both sides, and on that evidence the pleas were overruled.
    The defendants who had pleaded and Robert Anderson then put in their answers to the bill. The grounds of defence set up and relied upon by the defendants were, —
    1st. That it was part of their original contract of purchase that the complainants would receive, in satisfaction of the cash payment, the debt due to Samuel Anderson by John M. and L. P. Perry, and the note on Austin, Ragan, and Bohannon; that complainants knew the drawers and the value of the note, and that, but for their agreement to receive these notes, he would not have given the. price at which he purchased; and that, therefore, they have no right to claim of him any thing on account of their failure tp collect , said note of the drawers.
    2d. That, before the execution of the three notes secured by the mortgage, Samuel Anderson and John M. Perry gave three note's, for about the aggregate amount of $S 12,000, to the said Clayton Tiffin, with the understanding and. agreement, that thereafter, when the said mortgage notes were executed, one of them was to be given to him for the said three first-mentioned notes, which were then to be surrendered up. That this had not been .done. On the contrary, the complainants retained all the three mortgage notes, and that said Clayton Tiffin had not only not surrendered the three other notes given to him, but had suéd on them in the same United States Circuit Court, and had recovered judgments thereon, and that, therefore, the mortgage debt ought to be credited by the amount of those judgments.
    3d. That Samuel Anderson had, in good faith, purchaséd and paid for the said three mortgage notes, amounting to $ 40,000, when seized and sold on the 4th of January, 1840, by the marshal, under execution from the same United States Circuit Court, on a judgment therein obtained by Mosely and Bouldin against the said Lilburn P. Perry and John M. Perry; that the said Lilburn P. Perry appeared to that suit by a licensed attorney-at-law; that all the proceedings in the suit, and in virtue of the execution, were regular and legal; and that the sale under said execution, and his purchase, had been decided to be valid by the District Court of the Ninth District of Louisiana (a State court), in a suit of Lilburn P. Perry against the said Samuel Anderson; and that thereby the said mortgage debt was “extinguished by confusion,” as was adjudged by the said State court; and that, on the faith of the validity of said proceedings, the said defendants, Nelson F. Shelton and Robert Anderson, had instituted a suit, in April, 1841, in the said District Court for the Ninth District of the State of Louisiana, on a mortgage in their favor, given to them by the said Samuel Anderson (subsequent, however, to the mortgage given to the complainants), and on the 14th of June, 1841, by virtue of an order of seizure and sale in the said suit, caused the said mortgaged property (the same previously mortgaged to complainants) to be sold by the.sheriff, and became themselves the purchasers (at the price of $ 36,000), and took possession under their purchase. To prove all this, they refer to the record of said suit, and rely on these several purchases of Samuel Andérson, and of Nelson' F. Shelton and Robert Anderson, as extinguishing or precluding the claim of the complainants.
    The complainants filed a general replication.
    With respect to the third ground of defence, the testimony of Mr. Crawford was taken, who, it will be recollected, was the attorney who appeared for Lilburn P. Perry in the suit against him by Mosely and Bouldin.

      Evidence of Mr. Crawford.

    1st. Are you a counsel and attorney at law, practising as • such at the bar of the State of Louisiana, and were you in the year 1839 ?
    He. answers, Yes.
    2d. Did you appear in your aforesaid capacity in the defence of a suit instituted by Mosely and Bouldin, in , 183 ,
    against John M. Perry and Lilburn P. Perry, in the Circuit Court of the United States for- the Eastern District of Louisiana ?
    To the 2d. He answers, Yes.
    3d. Will you please state if you ever received any authority, either directly or indirectly, from Lilburn P. Perry, or from any one on his behalf, to appear and represent and defend his interest in said suit?
    To the 3d. He answers, he has no recollection of having received any authority, either directly or indirectly, from Lilburn- P. Perry, or from any one on his behalf, to appear and represent and defend his interest in said suit, other than what might be inferred in a letter from John M. Perry, informing him that he would see upon the records of the court of the United States a suit, commenced against him and others by H. Mosely and Bouldin, and his wish to employ him to defend it. In no other part of his letter is reference made to the name of Lilburn P. Perry.
    4th. Were you, or not, employed by John M. Perry alone for his defence, without any direction or request to appear on. behalf -of Lilburn P. Perry; and was, or not, your appearance • on behalf of the defendants in said suit an inadvertence on your part ?
    To the 4th. He answers, he was employed by J. M. Perry in said letters aforesaid, arid without any directions or request to appear on behalf of Lilburn P. Perry, other [than] what may be inferred from the . letters aforesaid. Deponent regards his appearance on behalf of any other person than John M. Perry, in said suit as an inadvertence on his part.

      5th. Did you, or not, know, at the time of your said appearance, that the said Lilburn P. Perry had never been served with process of citation in said suit, and that, at the time of its institution, he was a citizen of Missouri, residing in' the city of St. Louis?
    To the 5th. Deponent did not know, at the time of his said appearance, that Lilburn P. Perry had never been served with process of citation, and only presumed that it has been done ; and accordingly misled him, as far as it has been done in the answer of John M. Perry. Deponent did not know, of his own knowledge, that, at the time of the institution of the said suit, Lilburn P. Perry was a citizen of St. Louis, Missouri.

      Cross-Interrogatories.

    1st. If you filed an answer and amended answer to the suit of Mosely and Bouldin against John M. Perry and Lilburn P. Perry, in the federal court, early in 1839, in the name of both .defendants, did you never receive any instructions from Lilburn P. Perry to do so, or as to the suit? Did he never converse with you about the suit, either before or since ? Did he never write to you in relation to it, either before or since ?
    To the first cross-interrogatory, he saith: In relation to the answers referred, to in the said interrogatory, deponent has no recollection of having received any instructions from Lilburn P. Perry on the subject; nor of his having conversed with him about the suit before filing said answers;' nor of his having conversed with him about the said suit until after the rendition of judgment against him; nor of his having ever written to him in relation to it, either before or since its institution.
    2d; Was not John M. Perry his agent or attorney in- fact ? Did you not see in his hands authority to act for Lilburn P. Perry ?" Have you not reason to believe, and what reason, that he had authority to defend that suit ?
    To the • 2d cross-interrogatory. Deponent does not know that John M. Perry was agent, or attorney in fact; deponent never saw in [his] hands any authority to act. for Lilburn P. Perry; deponent had no reason to believe that John M. Perry had authority to defend the said suit for Lilburn P. Perry.
    3d. Was not John M. Perry the father of Lilburn P. Perry? Was he not his agent generally in Louisiana? Did not Lilburn P. Perry at some time avow and ratify the act done by John M. Perry for him ?
    To the 3d cross-interrogatory. John M. Perry has been regarded as the father of Lilburn P. Perry ; deponent has no knowledge of his being his agent generally in Louisiana; deponent has no knowledge that Lilburn P. Perry ever avowed or ratified the acts done by John M._ Perry for him.

      4th. Was there any defence for Lilbnrn P. Perry which-John M. Perry did not make ? Are you not satisfied that the claim of Mosely and Bouldin against him was perfectly just ?
    To the 4th cross-interrogatory. .1 know of no other defence for Lilburn P. Perry, than what is stated in my answers to the interrogatories of the plaintiff, and in my answers to the foregoing cross-interrogatories. I have no personal knowledge of the claim of Mosely and Bouldin, and have not heard or seen any thing to satisfy me that it is just.
    5th. Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause ? if yea, .set forth the same fully and at large in your -answer.
    To the 5th. I do not know, nor can I set forth, any other matter or thing which may be of benefit or advantage to the parties at issue in this cause, or either of -them, or that may be material to the subject of my examination, or the matters in question in the cause.
    On the 27th of June, 1843, the Circuit Court pronounced the following decree.
    Court, United States. — In Equity, June, 1843.
    This cause came on to be heard at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed, that the complainants are justly, legally, and equitably entitled to payment of the sum prayed for in their bill of complaint, as the unpaid consideration-money for the purchase of the plantation and slaves described in said bill, and purchased from the complainants by the respondent, Samuel Anderson ; that said sum has not been paid, satisfied, or extinguished, notwithstanding the allegations. and matters of defence set forth in the answer of the respondents ; that the entire property mortgaged by the respondent, Samuel Anderson, to the complainant, Lilboúrne P. Perry, is in law and equity subject to the payment of said sums ; that' the lién and mortgage exist upon said property, in the possession of the respondents, Robert Anderson, and Nelson F. Shelton, the third possessors thereof, notwithstanding the matters of defence which they have severally set forth in their answer to the bill of complaint. . And therefore, in order to carry into effect this decree, and secure to the complainants their legal and equitable rights, it' is ordered, that the marshal of this court do forthwith take into his possession the property described in the mortgage from Samuel Anderson to Lilbourne P. Perry, and restore -the same to the possession of the complainants, or their legal representative ; and if, • within sixty days thereafter, the • said respondent shall well and truly pay, or cause to be paid, the complainants, or their legal representative, the sum of forty thousand dollars, with interest thereon from the first day of January, 1842, until paid, the same being the unpaid consideration for the purchase of said property from the said complainants, then said property shall be relinquished to respondents.
    And it is further ordered, that the complainants, upon being restored to the possession of said property, do give bond, in the sum of twenty thousand dollar's, conditioned for the restoration of said property, and the proceeds thereof, from the time of their being placed in possession by the marshal, to- the respondents, in case said respondents shall see cause to appeal from this decree to the Supreme Court of the United States, and the decree of this court be reversed upon said appeal.
    It is further ordered, that the respondents pay the costs of this suit.
    (Signed,)
    Theo. H. McCaleb, U. ¡S. Judge.

    An appeal from this decree brought the case up to this court.
    It was argued by Mr. Jones, for the appellant, Shelton, and Mr. Crittenden, for Tiffin and Perry ; but the length to which this case has already reached renders it impossible to give any other than a very brief sketch of their arguments.

      Mr. Jones, for the appellant, objected to the jurisdiction of the court upon two grounds : —
    1. Four of the five defendants are averred, in pleas and answers under oath, to have been citizens, not of Louisiana, but of Virginia, at the time, of the institution of the suit; and two of them, Mosely and Bouldin, being admitted not Jo have beén citizens of Louisiana, we maintain that the other two, R. Anderson and Shelton, are proved to have been in the same predicament. But we hold the admitted defect of citizenship in the first two above fatal to the jurisdiction, whatever may be the weigh*-of evidence as to the citizenship of the other two.
    2. The case made out by the bill is not one susceptible of relief in equity ; but one wherein a plain, adequate, and complete remedy might have been had at law.
    Taking up the second. point first, he contended that it was not a case where equity would interpose, because the Louisiana code gites. a more simple remedy. The object of the complainants is to set aside the judgment of Mosely and Bouldin against Perry. This can be done by an action of nullity and rescission. Code of Practice, 604-616 ; 7 Cranch, 88, 90.
    1st point. There are five parties here, and four not citizens of Louisiana. But parties must be of the sanie State with each other. 3 Cranch, 267 ; 5 Wheat. 424, 434.
    There is a difference between citizenship and residence in a State. Merely residing there does not confer citizenship. In Louisiana, a person wishing to acquire citizenship must give notice. 2 Dig. Laws La. 308.
    As to setting aside the judgment, the rule is, that a party may justify under a judgment. 6 Peters, 8 ; 10 Peters, 449 ; 6 Cranch, 173 ; 4 Dali. 8 ; 4 Cranch, 328.
    The fact of an attorney’s having authority to appear is not traversable. The only remedy to the party aggrieved is an action against the attorney. 1 Tidd, 95 ; 3 Howard, 343.

      Mr. Crittenden-, for the appellees,
    said that the objection to the jurisdiction of the court, founded on the allegation that there was a sufficient remedy at law, could not be maintained. How has this court lost this branch of its' equity jurisdiction ? In Pennsylvania, they try equity cases in an action of ejectment ; but this court has not considered this as a sufficient, reason for waiving its equity jurisdiction. So, in Louisiana, law and equity are all mixed up together. Besides, here is an equitable lien on the property for the cash payment, which can only be enforced in equity.
    As to citizenship. . The proof is, that the parties lived in Louisiana for three years, and built a house upon. the property. We found them there. They claim the option of being citizens. A citizen of the United States residing in any State is a citizen of that State. 6 Peters, 762.
    As to thé judgment of Mosely and Bouldin. Perry was represented in court by an unauthorized attorney, and therefore the judgment does not bind him. 9 Wheat. 829 ; 1 T. R. 62 ; 2 Desaussure, 380 ; Caldwell v. Shields, 2 Rob. ; 6 Johns. 296 ; ibid. 317, 318 ; 2 Watts, 493; 3 Pa. Rep. 75 (Judge Grier says this has been overruled); 3 Robinson, 94; Code of Practice, art. 605.
    Even if the judgment was valid, the sale was not made “according fo law. If the property was immovable, then the requisite notice has not been given. Code of Practicej art. 670.
    ' Slaves are' considered immovable. Civil Code, art. 461. Here every thing was sold, land, slaves, and notes. Civil Code, art. 462, 2424, 3249..
    All formalities must be complied with in a forced sale. 3 La. Rep. 421; 4 ib. 150,207; 11 Martin, 610, 675 ; 8 N. S. 246.

      The thing sold was the entire debt of $ 40,000. But. it did not all belong to the defendant, and was bought for $ 5,000 by ' the very man who owed the $ 40,000, and who must' have known that one half belonged to Tiffin. The evidence shows that Anderson knew that the first note had -been indorsed to Tiffin. (Mr. Crittenden here referred to and commented upon it.)
    By the Civil Code, art. 2622, Anderson must be a trustee for his vendor, who can reclaim • the property by repaying what it cost. Story, Eq. §<§> 789, 1211, 1212, where cases are cited; Grattan’s Rep. 188; 2 Mylne & Craig, 361; 7 Dana, 46 ; Civil Code, art. 21" 1958 - 1960, 2619.

      (Mr. Crittenden then commented upon the proceedings of the parish court.)

      Mr. Jones, in reply and conclusion.
    As to the judgment of Mosely and Bouldin. It is objected, that the defendant never was served with process ; but that is cured by an appearance. Was there one ?■ The record says yes. A sworn attorney appeared and answered for both defendants. If the correctness of this is impeached, it is for the other party to do it, and they must do it clearly. There must be the plainest evidence. Crawford is the only witness. We might object to the interrogatories. They are all. leading ones. But he shows that he bad authority. He was employed to defend the suit. What suit ? Against both defendants. He refers to letters. Why did he not produce them ? Is there any evidence that John M. Perry had no authority to employ counsel ? There is not. Why did he not swear so ? He was as good a witness as Crawford. In an affidavit, John M. Perry swears that he is the agent and attorney of Lilburn P. Perry. A "bond is signed L. P. Perry, “by his attorney, John M. Perry.” Crawford’s evidence is therefore only negative.

      (Mr. Jones then proceeded to reply to the other arguments of Mr. Crittenden upon the facts of the case.)
   Mr. Justice McLEAN

delivered the opinion of the court.

This is an appeal in chancery from the Circuit Court for the Eastern District of Louisiana.

On the 10th of April, 1838, the complainants below sold to one Samuel Anderson a plantation and negroes situated in the parish of Madison, Louisiana, for seventy-five thousand dollars. Thirty-five thousand dollars of this sum were paid in part by surrendering a note which Anderson held against Lilburn P. Perry, the complainant, and his father, John M. Perry, for thirteen thousand dollars; and by the assignment-of a note on H. R. Austin, J. B. Ragan, and Wylie Bohannon, of the State of Mississippi, for eighteen thousand two hundred eighty-two dollars and sixty-five cents, payable to Samuel Anderson on the 1st of April, 1839.

A mortgage was executed on the plantation and slaves, to. secure the payment of forty-thousand dollars, the residue of the purchase-money. At the same time, three notes or bonds were executed to Lilburn P. Perry by Samuel Anderson, each for the sum of thirteen thousand three hundred and thirty-three dollars, payable on the first day of January, 1842, 1843, and 1844.

On the 11th of January, 1839, Mosely and Bouldin, citizens of Virginia, instituted a suit in the Circuit Court against L. P. Perry and John M. Perry, and obtained a judgment against them for seven thousand five hundred dollars. An execution was issued, in virtue of which, under the laws of Louisiana, the marshal levied upon the three notes above stated and the mortgage, which were sold by him, on a credit of twelve months, to Samuel Anderson, the mortgagor, for five thousand dollars.

Some time after this purchase, Robert Anderson, the father of Samuel, and Nelson F. Shelton, his uncle, having procured a judgment against Samuel Anderson in the State court of Louisiana, sold the mortgaged property and slaves, and they became the purchasers thereof and have the possession of the plantation and slaves under the purchase, claiming that the mortgage by Anderson to Perry has been extinguished.

The decree of the Circuit Court was entered against Samuel Anderson, Robert Anderson, and Nelson .F. Shelton et. al., that-within sixty days they should pay to the complainants forty thousand dollars, with interest from the first day of January, 1842, and in default of such payment that they should deliver to the complainants the possession of the plantation and slaves. From this decree Shelton only has appealed.

The defendants pleaded that the Circuit Court had no jurisdiction of the case, as Mosely and Bouldin, Robert Anderson, and Shelton were citizens of Virginia, and the complainants were citizens of Missouri. Shelton being the only appellant, the objection of citizenship must be limited to him.

Under the act of Congress, jurisdiction may be exercised by the courts of the United States “ between a citizen of the State where the suit is brought, and a citizen of another State.” “ But no person shall be arrested in one district for trial in another, in any civil action.” If Shelton be not a citizen of Louisiana, haying raised the question of jurisdiction by a plea, this suit cannot be sustained against him.

In the declaration or bill an allegation of citizenship of the parties must be made, as it has been held that an averment of residence is insufficient. But- the proof of citizenship, when denied, may be. satisfactory, although all the privileges and rights of a citizen may not be shown to have- been-claimed or exercised by the individual.

Shelton and wife, they having no children, became residents of Louisiana in the fall of 1840, more than two years before the commencement of this suit. Since their residence commenced, they have been absent from the State only onee, a short time, on a visit to a watering-place in Mississippi. They have resided the greater -part of the time .on the plantation in controversy, cultivating and improving it by the labor of the slaves. Within this time,- a more comfortable and secure dwelling-house has been constructed. In the winter of 1840 or 1841, Shelton observed to a Witness, that he considered himself a resident of the State of Louisiana.

There is no proof that'he has voted at any election in Louisiana, or served on a jury.' At one time he refused to vote, but that was after'this Suit was commenced. Some-of the witnesses say that he sometimes spoke of returning to Virginia; whether on a visit or to-reside there permanently does qpt appear. ■

■ Where an individual'has resided in a. State for'a considerable ■ timé', being engaged in the prosecution -of business, he may ■well be presumed.-to be a citizen of such State, unless the contrary appear/ -And this presumption is strengthened where the individual lives on a .plantation and cultivates it with a large-force, as in the . case of Shelton, claiming ánd improving the . property as his Own.

. On a change of domicile from' one State to another, citizenship may depend upon the intention of the individual. But this intention may’be shown more satisfactorily by acts than declarations. An exercise of the right of suffrage is conclusivé on the subject;- but acquiring'a right of suffrage, accompanied by acts which show a permanent location, unexplained-, may be sufficient. The facts proved in this case authorize the con-, elusion, that Shelton was a citizen of Louisiana, within • the act of Congress, so as to- give jurisdiction to the Circuit Court.

The defendants also demur to the plaintiff’s bill, on the ground, that the complainants have plain and adequate relief at law. .

The demurrer' is clearly unsustainable. Fraud is alleged in the bill, and relief is prayed against a judgment and a judicial sale of the property in controversy. These and .other matters stated in the bill show, that, if the complainants shall be entitled to relief, a court of equity only can give it.

The great question in the case arises out of the judicial sale of the mortgage debt to Anderson, the mortgagor, under a judgment. obtained by Mosely and Bouldin against L. P. Perry and John M. Perry. If'by this sale the mortgage debt has been extinguished, no relief -can be given to the complainants.

Had the Circuit Court which rendered that judgment jurisdiction of the case ? The plaintiffs were citizens of Virginia, John M. Perry was a citizen of Louisiana, andJU P. Perry, of Missouri. No process was served upon- L. P. Perry, nor does it appear that hé had notice of the suit until long after the proceedings were had, Biff there was an appearance by counsel for the defendants, ¡and defence was made to the action. This being done by a regularly practising attorney, it affords prim'd fade evidence, at least, of ah appearance in the suit by both the defendants. Any individual may waive process, and appear voluntarily.

John M. Péiry acted in some matters as the agent of L. P. Perry; but it does not appear that. he had authority to waive process and delend the suit. And Crawford, the attorney, testified, that “ he had no recollection of having received any authority directly Or indirectly from L. P. Perry, or from any one in his behalf, to defend the suit. He received a letter from John M. Perry, informing him that he would see upon the records of the court of the United States a suit commenced against him and others by Mosely and Bouldin, and he wished to employ him to defend it.” And he says, that “ he regards his appearance on behalf of any other person lhan John M. Perry in said suit as an inadvertence on his part.”

This evidence does .not contradict the record, but explains it. The appearance was the act of the counsel, and not the act of the court. Had the entry been, that L. P. Perry came personally into court and waived process, it could not have, been controverted. But the appearance by counsel who had no authority to waive process, or to defend the suit for L. P. Perry, may be explained. An appearance by counsel under such circumstances, to the prejudice of a party, subjects the counsel to damages; but this would not sufficiently protect the rights of the defendant. He is not bound by the proceedings, and there is no other principle which can afford him' adequate protection. The judgment, therefore, against L. P. Perry must be considered a nullity, and consequently did not authorize the seizure and sale of his property.

An execution' sale under a fraudulent judgment is valid, if the- purchaser had no knowledge of the fraud. But in this ease L. P. Perry was not amenable to the. jurisdiction of the court, and did no act to authorize the judgment. He cannot, therefore, be affected by it, .or by.any proceedings under it.

In this view, it is unnecessary to--consider the objections to the procedure under the execution. The debt of forty thousand dollars was sold as the property of L. P. Perry; when one of the notes had been assigned to Tiffin, and an equal interest in. the other two belonged to him. Of this, Anderson, the purchaser, had notice. It ..would be difficult to. sustain- this sale on legal principles. Anderson, it is insisted, at the marshal’s sale, purchased a “litigious right,” and by article 2622 of the Civil Code, “he, against whom a litigious'right has. been transferred may be released by paying the transferee the real price of the transfer, together with interest from its daté.”

The judgment being void for want of jurisdiction in the court, no right passed to Samuel Anderson under the marshal’s sale; consequently the mortgage remains a subsisting lien. ■ Nor' is this lien affected by the mortgage subsequently executed by Samuel to his father, Robert Anderson, and his uncle, Shelton. After the mortgage to the complainants was supposed to. be extinguished by the judicial sale, Robert Anderson and Shelton procured in a State court a foreclosure of their mortgage which had been previously given on the plantation and slaves, and they became the purchasers at the -sale for thirty-six thousand dollars. If this procedure were bona fide, the purchase was made subject to die prior mortgage.

On the 23d of November, 1839, a bill was filed in the District Court for the parish of Madison, by L. P. Perry, against Samuel Anderson, representing the debt due, secured by mortgage, and that he was in possession of the plantation and slaves;. and,, fearing that he might remove the slaves or other property, an. attachment was prayed. No service was made of this writ, and the suit was discontinued, the 28th of November, .1839. A judgment seems to have been irregularly entered by default, the 17th of November, 1840, and on the next day an answer, was filed by Anderson, setting up the sale and extinguishment. of the mortgage debt, and praying that the notes and mortgage might be decreed as extinguished, and be delivered up. . After-wards, on the 20th of May, 1841, this suit was dismissed by the order of the court. And on the 19th. of May, 1842, motion having been previously, made and argued in the District Court, on proof that “ the defendant, Samuel Anderson, since the institution of this suit has become the true and legal owner of the three notes sued on, and the indebtedness set forth in-plaintiffs petition having been extinguished by confusion, the court decreed that they should be delivered up.” And this, decree is relied on as a bar to the present suit.

. At the time the above decree was made, this suit was pending in the Circuit Court, to enforce the payment -of the .notes directed to be given up by the District Court. The object of the petition before that court was not the recovery of the money, for the notes were not due when it was filed, but to prevent Samuel Anderson from removing the negroes, wasting the crops, &c., on.the plantation; But this petition had been, discontinued'for more than a year, when Anderson filed his answer, setting up his purchase of the notes under a judicial sale, and that the mortgage debt was extinguished. And on this case, made in the answer in no way responsive to the petition, which had long before been abandoned, the parish judge, on motion, founded his decree. that the mortgage debt was extinguished, and directed the notes to be delivered up.

It is difficult to characterize in proper terms this. proceeding of the State court. The petition having been abandoned, there was no pretence of jurisdiction for the subsequent steps taken .at the instance of Anderson. There was nothing in the petition, had it not been abandoned, which would liave authorized such a procedure. The circumstances under which this judicial action was had show a fraudulent contrivance, on the part of Anderson, to defeat his adversaries by the interposition of the State court. The whole case was pending in the Circuit' Court of the United States,-and this interference of the . State court was wholly unauthorized and void..

The Mississippi note for eighteen thousand two hundred and sixty-five dollars, which was assigned to complainants in part payment of the purchase-money, was worthless. The parties to it were insolvent when it was assigned to the complainants, which fact was known to the assignor, Samuel Anderson. Ele acted, fraudulently in representing the note to be good, when he knew it was valueless. By his own confession, after the assignment, the fraud is established.

' It is insisted, that, this note having been imposed upon the complainants as a good note, by the fraudulent representartion of Anderson, they as vendors have an equitable, lien on the plantation and slaves for the amount of it. If the receipt of á note of a third person in payment of the purchase-money be a waiver of ¿n equitable lien on the real estate conveyed, yet it would seem, where a fraud had been practised in .the assignment of the note, there would be no waiver: But however this may be, it is not strongly urged, as it is believed that the mortgage debt, with the interest, will be nearly equal to the .value of the plantation.

■ The history of this case shows a successful course of fraudulent combination, rarely exhibited in a court of justice. Samuel Anderson purchased the plantation and slaves of the compláinant, for seventy-five thousand dollars. He gave up a nóte on L. P. Perry for thirteen thousand dollars, which "was in fact the only payment of any value. The Mississippi note was . worthless, and thé mortgage debt he purchased, on a credit of twelve months, for five thousand dollars. . He must have received more than that sum as the product of the plantation. So that in fact .he acquired the plantation and negroes for thirteen thousand dollars, which he purchased at. seventy-five thousand dollars. By this operation he saved of the purchase-money sixty-two thousand dollars. Such a result must strike every one as having been procured through fraud,.

It is unnecessary to consider the means through which Robert Anderson, the father of Samuel, and his uncle Shelton, acquired title to the above property. The lien of the complainants’ mortgage is paramount to any title or lien which they assert.

No deduction will be made from the mortgage for the five thousand dollars which' Samuel Anderson may have paid to Mosely and Bouldin, under whose judgment he purchased the mortgage debt. He has received from the products of the plantation, while in possession of it, more than that sum. But if this were not the case, his fraudulent act in the transfer of . the Mississippi note is a sufficient ground for the refusal of the credit.

In their decree, 'the Circuit Court directed the sum of forty thousand dollars to be paid, with interest from the first day of January, 1842. In this the court erred. The three notes were, each for thirteen thousand three hundred and thirty-three dollars ; the first being payable the first, of January, 1842, the second, the first of January, 1843, and the third, the first of January, 1844. The interest should have béen calculated bn the notes from the time they respectively became due. With this modification of the decree of the Circuit Court, a decree will be -here entered, to. be transmitted to the. Circuit Court, and if the money shall not be paid within ninety days from the filing of this'decree in the Circuit Court, the mortgage shall be foreclosed, and the complainants put in possession of the property.

Order.

This cause came on to be hekrd on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by. counsel. On consideration whereof, it is the opinion of this court, that the said Circuit Court erred in directing the interest to be computed on the ' ($ 40,000)'forty thousand dollars from the first day of January, 1842, instead of computing the interest on each of the three several notes for ($ 13,333-3-) thirteen thousand three himdred and thirty-three dollars and thirty-three and a third cents from the times the said notes respectively became due; and that if the money shall not be paid within ninety days from the filing of the mandate of this court in the said Circuit Court, that then the said' mortgage shall be foreclosed, and the complainants put in-the possession of the property, and that in that case the equity of redemption therein be for ever barred and precluded; and that if the-said money, with interest as aforesaid, be duly paid as aforesaid, that then the said mortgage should be held discharged, and Nelson F. Shelton put in possession of the said property. Whereupon it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, that each party pay his own costs in this court, and -that this cause be and the same is hereby remanded to the said Circuit Court, to be proceeded with in conformity to the opinion of this court, and’as to law and' justice shall appertain.


author: Mr, Justice WAYNE

text:
    William T. Pease (impleaded with John Chester and Tarleton Jones), Plaintiff in error, v. William Dwight.
    Where a promissory note was payable to the order of several persons, the name of one of whom was inserted by mistake,' or inadvertently left on when the note was indorsed and delivered by the real payees, one of whom was also the maker of the note, the indorsee had a right to recoyer upon the note, although the names of all the payees were not upon the indorsement, and had a right, also, to prove the facts by evidence.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the District of. Michigan.
    On the 1st of January, 1837, the following promissory note was executed.
    Detroit, January .1, 1837.
    Two years from date I promise to pay to the order of Walter Chester and Pease, Chester; & Co. one thousand five hundred dollars, for value received, at' the Farmers and Mechanics’ Bank of Michigan, with interest.
    (Signed,)
    John Chester.
    Indorsed by Pease, Chester, <fc Co., but not by-Walter Chester.
    The firm of -Pease, Chester, & Co. was composed of William T. Pease (the plaintiff in error), John Chester, and Tarleton Jones.

      The note having passed into the. hands of William Dwight, a citizen of Massachusetts, (the defendant in error,) and. not being paid at maturity, Dwight brought suit .in the Circuit Court against Peasé, Chester, arid Jone?.. The course which Pease took will be stated presently. Chester pleaded bankruptcy, which was demurred to, but the demurrer overruled, and the. plea sustained. Jones was a citizen. of Iliinais, and could not be found. .
    There were several counts in the declaration, but the only one upon, which ¡judgment. was rendered, and. which it is material now to state, was the following: — . '
    “ For that whereas one John Chester heretofore, to wit, on the first day of January, in the year of our Lord one thousand eight hundred and thirty-seven, at Detroit, in said district, made his certain promissory note in writing, bearing, date the same day and year aforesaid, and thereby then and there promised, two years from the date thereof, to pay to the order of Walter .Chester and the 'said defendants, under the copartnership name and style of these said defendants, Pease, Chester, & Co., one thousand five hundred dollars, for value received, at the Farmers and Mechanics’ Bank of Michigan, with interest ; and then and there delivered the said promissory note to the defendants; who then and there, using their copartnership name and style of Pease,. Chester, &. Co., indorsed said note, and delivered the same to the plaintiff ; and the said- plaintiff avers, that the said John Chester was one of the said persons using the name and style of Pease, Chester, & Co., and ^that the name of the said Walter Chester was inserted in the said promissory note as one of the persons to whose order the-said sum of money .should be payable by the said John Chester,- for the! purpose of, and with the intention on the part of the said John Chester, of procuring the said Walter to indorse the' slid' note for the accoinmodation and benefit of the said John Chester, and for no other purpose; that the saidhiote was never delivered to the said Walter Chester, and that the’ said Walter. Chester never had at any time any interest or property, or any rights therein, or to the money specified and mentioned therein. ,

      “ That the said note was by the said John Chester delivered to the sáid.Pease, Chester,. & Co_. alone, who received the same and indorsed’it solely, who waived the indorsement of the said Walter Chester, , and having solely indorsed the same, delivered the said note, so indorsed as aforesaid, to the said plaintiff. And -the said plaintiff avers, that afterwards, and when the said, promissory note became due and payable, according to the tenor and effect thereof,. to wit, on the fourth day of January, in the year eighteen hundred and-thirty-nine, at the. said Farmers and Mechanics’ Bank of Michigan, the said note was presented and shown to and at the said hank for paymént thereof, and payment thereof requested; hut that neither the said John Chester,, nor any other person, did or would pay the said sum of money therein specified, hut then and there wholly neglected and refused to do so.; of all which said several premises the . said defendants then and there had due notice.”
    Pease demurred to this count, and filed the following causes of demurrer:-—
    “ 1st. Because it is not averred in said first count, that Walter Chester, one of the joint payees of the said promissory note described in said counts, ever indorsed or delivered the sanps. to the said plaintiff, or any other person whatever. *
    “2d. For that said first count is-in other respects informal, insufficient, and defective.”
    Dwight' put in a joinder in demurrer.
    - In November, 1845, the Circuit Court overruled the demurrer, entered up judgment, for the plaintiff, and assessed his damages at 2,427 and costs. To review this judgment, a writ of error brought the case úp to this court. >
    It was argued by Mr. Bates, for the plaintiff in error, Pease, and by Joy and Porter., with whom was Mr..Ashtrmh, for the defendant in.error, Dwight.
    The argument on behalf of the plaintiff in error was as follows.
    The first count Of the declaration sets forth the particular ' circumstances under, which the note was made and indorsed, and the demurrer of course admits them to be true. John Chester, the maker of the note, was one of the firm of Pease, Chester, & Co.; he made the note with the intention of procuring the indorsement of Walter Chester and Pease, Chester, &. Co., as accommodation indorsers for his benefit. Walter Chester declined to indorse the note, and then John Chester indorsed his note with the copartnership name of Pease, Chester, &• Co., and delivered it to De Garmo Jones, who delivered it to the plaintiff.
    The demurrer which was originally interposed to the first and second counts (the second having been subsequently nolle pros'd) sets forth as the ground of demurrer, that the first count does not set forth a right of action in the plaintiff, as there was ho indorsement Or transfer of the note by Walter Chester, one of the joint payees thereof, and that no right of action can be acquired to a promissory note, made-payable to order of joint payees, without the indori ment hy them and each of them; that in no other manner can there be a legal transfer of such a . note, or the caúse -of action thereoh. This is the only point involved in the decision of the court, below, and which this court is now called upon to revise. The plaintiff claims to recover 'as the holder of a negotiable note; and such is the instrument declared on in the count under examination.'' He does not seek to recover on a special contract, but. on a note, transferred and. delivered by the single indorsement of one of the joint payees, (Does the first count show a right to. recover as against the other joint indorsers?) He claims to recover,, too, against William T. Pease, one of the firm of Pease, Chester, & Co., who, he states, were- mere accommodation indorsers - of John Chester.. It is quite unnecessary to cite to this tribunal the general rule laid down in all the'books: — “If a bill or note be payable to several persons not in partnership, the right to transfer is. in' all collectively, not in any individually ;. and an. indorsement by and in the name of one only will not give the indorsed a right to sue.” (Bayley on Bills, 49.)
    Chitty on Bills., page 123, says:— “ If a bill has been made or transferred to several persons not in partnership, the right of transfer is in all collectively, and 'not in any individually.” Carvick v. Vickery, 2 Douglass, 653, p. 134, note; Smith v. Whiting, 9 Mass. Rep. 334; 7 Cowen, 126 ,• 9 Greenleaf, 85. Story, in his volume on Promissory Notes, page 131, section 125, lays down the same 'rule in the following language: — “If a note be made payable or indorsed to several persons not part- - ners, as to A, B, and C, then the transfer can only be by á ‘joint indorsement ’ of all of then!.” In Story on Bills, section 197, page 218, the same rule is again laid down in the following language: — “ If a bill be made payable or indorsed to several persons not partners, as to A, B, and C, then the transfer can only be by a ‘joint indorsement ’ of all of them.”
    Such is the rule established by all the elementary writers, and the decisions of the courts of England and this country, on the subject. It is not pretended, nor does the count de- . murred to set forth, that Walter Chester was a partner of Pease, Chester, & Co. Such was not the fact, and the. pleadings show it. Of course this note could only be transferred or assigned to' the plaintiff by the indorsement of both Waltér Chester', and Pease, Chester, <fc Co., the joint-payees thereof.
    Let us now examine briefly the only case cited by the attorneys of the plaintiff on the argument of this demurrer in the court below, the only case on which that, decision can be sust tained,.and the court will see, by a glance, at the- facts, that it ■ has no real application to the present case, that it contains no exception whatever to the general rule cited from the authors above referred to.
    What are the facts of that case, as set forth in 4 Carñngton & Payne’s Reports, 466, Leaf and others v. Gibbs. That was an action brought by the payee of two promissory notes made by the defendant and two ladies, named Gibbs and White, which were given in payment of an account due from Gibbs arid White. The defendant signed the notes, with the understanding, at the time of his signature, that his mother should sign them with him; as a joint arid several promisor; but she refused to do so. The notés were, so. far as we can discover fióm the report of the case, joint and several notes, to which the defendant had placed his name.- On the trial, the plaintiffs and the payee proved that the defendant had placed his name there with the understanding that his mother was to unite as a maker. The defendant was liable on the face of the notes by their tenor as a- joint and several maker. He sought to establish as a defence, that, at the time of the making, he agreed to sign with his mother, a fact of course known' to the payees; and the court properly charged the jury, that, if they Were satisfied from the evidence.adduced that he had not waived, by his own conduct, the joint and' several signatures of his mother, they must find for him, the defendant. In this case, we insist there is no legal liability of the defendant on the note set forth in the declaration, without the joint indorsement of Walter Chester, which was never obtained. There can be no legal liability, as indorser of the note set forth in this case, without the joint indorsement, of all the payees of it. There can be no legal transfer to the plaintiff, or any one else, of the note-set forth in the first count, unless-it is done by the joint indorsement of Walter Chester and Pease, Chester,- & Co. In the case.of Leaf and Gibbs, the defendant was liable on the fane of the note itself; here the defendant is not; there he set up facts dehors the note, to. show that he was discharged; here we rely on the face of the note itself. Thé two cases are as entirely dissimilar in the facts set forth as they are in the principles of law which govern them. The case cited in no particular sustains the principles contended for by the plaintiff’s counsel in the present case.
    The argument on behalf of Dwight, the defendant in error, was as follows.
    The declaration in this cause is against the defendants as indorsers of a promissory note made by John.Chester, payable to the order of Walter .Chester and the defendants, and avers that the note was made by John Chester, payable to. the order of Walter Chester and.the defendants,, with the intention of procuring Walter Chester to indorse the same as an accommodation indorser j that the said note never was delivered to said Walter Chester; that he had no property therein, had ho interest in the moneys specified therein, and was in no way whatever interested in the said note; but that the said note was delivered to, the said defendants alone, who indorsed and delivered the same to the said plaintiff, and expressly waived the indorsement of the said Walter. Chester. The presentment and notice axe also alleged in the usual form.
    The facts stated by Mr. Bates in his brief, as to Mr. Chester’s .indorsing the copartnership name of the. defendants and transferring the note to Jones,, and that Walter Chester declined to indorse the note, axe not in the declaration, and axe not true..
    The facts-Slleged in the declaration are admitted to be true by the demurrer, and are unquestionably true.
    The question, then, is, whether, upon the facts alleged and admitted to be true, the plaintiff is entitled to recover; and of this we think there can be no question.
    . It strikes us that the question is simply this, viz.: —Whére a promissory note has been made payable to four individuals, with the intention to procure all to indorse it, and three actually.conclude to indorse it without the other, can they strike out the name of the other payee, and whose name was inserted only for the purpose of procuring him to indorse for accommodation ? This is the legal effect of indorsing and delivering the note without his joint indorsement, and an express waiver of his indorsement at the time, which is tantamount to an agreement by the three to become liable without him. The making of a prómissory note is. not the making of a contract, nor is an indorsement for accommodation a contract; it is the delivery which gives effect to all; . it is then that the contract becomes Cperative. Now, what was the contract at the time of delivery to the plaintiff? Chester had.made,his note payable to the order of Walter Chester and the defendants, with the intent to procure Walter to indorse Solely and only for his accommodation. The defendants, among whom was John Chester, the maker of the note, finding some difficulty in procuring Walter’s indorsement, conclude to forego it, he. having no interest whatever in the matter, and indorse it themselves without him f the plaintiff agrees to take the note with their indorsement alone. Now up to this time there is surely no contract at all in virtué of the.paper'; but now it is delivered and accepted,.upon the full understanding by all parties that Walter Chester should be no party to the security, although, in the hurry of a commercial transaction, the pen was not drawn across his name before delivery.
    Now, was he ever in any way a party to the note, either as payee or indorser ?'- He had no interest in it which would entitle him to have it delivered to him. It was not delivered to him, or to another for his benefit, which alon'e would make him a party to it. It is not by delivery, then, that he is a party to it. He did not indorsé' it, which would hare made him a party. In-legal effect, therefore, he never did become a party to it; and the transaction, so far as he isxoncerned, is precisely the same as if his name had never appeared upon the paper, or had been struck out at the time of delivery.
    It was delivered to the defendants, which made them, parties to it. It was by them indorsed, and with a waiver of the indorsement of Walter-Chester. It was accepted with a waiver, What was the contract, then, which took effect ? •
    Let it -be remembered that the maker of this note is one of the firm of Pease, Chester, & Co., the indorsers; that it was payable by one of the firm to the, order of the copartnership and another person, whose name was to be procured to strengthen the note; that it never passed from the hands of the maker, and therefore never took effect, till the maker, together with his copartners, indorsed and delivered it, and waived the indorsement of the other intended surety.
    How can it be pretended that Walter Chester was ever a party in any way to this note ? and how can the doctrine of the cases cited on the other side, which say that all parties to a note as payees must indorse it in order to transfer it, apply ? It. is undoubtedly true, that parties jointly interested in a promissory note as payees, holding property in the note, must join in the indorsement' to pass the property in the note. Two cannot transfer the. property of three. A1Í this is clear and unquestionable. But here Walter Chester-never was in-law a party, and never had any property in the note in fact, as- admitted by ■the defendants themselves, in their demurrer.
    In this view of the facts, it is similar to the case of a bond, reciting in the body that one person is bound as principal and four .others as sureties, evincing an intention,, at the time of writing the bond, of procuring four sureties. The bond in fact is signed by only three. sureties, and by them is executed and delivered with the knowledge that the other does not execute it, and whose execution of it by the others is waived, but whose name is through inadvertence not struck out of the instrument. This point has been decided. See Duncan v. United States, 7 Peters, 443.

      it is the same as if the note had read, “ We, John Chester as principal, and Walter Chester and Pease, Chester, & Co. as suircies, agreo to pay to the order of William Dwight,” &c., and the parties had signed it except Walter, and delivered it, waiving- his 'signature and consenting to become bound with: out him. There can be no doubt in such a case. See Leaf et al. v. Gibbs, 4 Car. & Payne, 466; same case, 19 English C. L. E. 475.
    In the case before the court, it- having been the understanding clearly of all parties, that Walter’s signature or indorsement should be -waived, it was competent for Dwight to strike his name out of the body of the note, as being no party to it; and in legal effect he is no more a party to the note than if his name had been struck out at the time of delivery. His name has been permitted to remain, though legally there never was any contract with him; and we may recover upon the facts as well as if we had .struck out his name, arid declared upon the note as payable to- Pease, Chester, & Co. alone, which in legal effect was the ease.
    But we may set out the instrument in the declaration, either as it is written, and let the court say what the .legal effect is, or we may set it out according to its legal effect.
    This, too, is an action against the men who indorse and deliver the note, and waive the indorsement-'of the other party. They deliver the note in its present shape as a-good contract, and now resist a suit upon the ground -.that there is no. transfer. They dp not deny the contract, but say we cannot sue the maker, because Walter Chester has not indorsed. We say they have contracted, and therefore we sue them. They ought to be, if they are not, estopped from denying our right to maintain an action against them.
   Mr, Justice WAYNE

delivered the opinion of the court.

We think that the.only point presented by the-record in this case for the decision of the court was rightly ruled by the Circuit Court. .

That point is, whether a promissory note payable to.the order of several persons, one of. whom inceptively refused -to be a payee of it, and who was treated by the drawer and other payees, boih in the delivery of the note and in its negotiation, as no party and having no interest in it, can be transferred by the indorsement of the real payees, so as to give the ownership of it to the indorsee, and a right, of action upon it ex directo, under the statute of 3 & 4 Anne, c. 9.

The statute is, that “ any person, to whom a promissory note that is payable to any person or. his order is indorsed or assigned, or the money therein mentioned ordered to be paid by indorsement thereon, shall and may maintain an action for such sum of money, either against the person signing such note, or against any of the persons who indorsed the same, in like manner as in cases of inland bills of exchange.” .

The statute requires a transfer , to be made by the indorsement of the person to whom the note is payable, and' the interpretation of it is, that, where a note is payable to the order of several persons not in partnership, all must separately sign their names as indorsers. The object being, that, before. an indorsee shall recover the contenté of the. note in his own name, he shall- show he has acquired a property -in it, by a transfer from those who were the. original payees, or from others who were their indorsers. The statute is not merely a form,, requiring all the payees to indorse, but a substantial requisition, upon the presumption that all the payees upon the face of the paper have an interest in it, and that they have indorsed it. We have, then, the rule, and the reason of the rule. And-it seems to us, that to permit it to comprehend a case of an undertaking between the,'real parties, because a name'had been mistakenly inserted, or had been inadvertently left upon the face of the paper, when the note was delivered to the ’•eal payees by the drawee, would be to wrest the statute out of its meaning, and to sacrifice the substantial intention of it merely to form. The statute meant to deal with real parties. The omission to erase the name in such a case does not lessen the drawer’s obligation to pay his note to the real payees, or their right of action upon it. against the drawer as a note of hand. If, then, the real .payees shall indorse the note to a third person, they are within the words of the statute as indorsers, and the indorsee, in an action against them or the drawer, may be permitted to prove the real character of the undertaking,' by showing that, the name of a person had been inadvertently left upon the paper as a payee, who had refused to be such, and who had been waived as a party to the note, both by the drawer and the real payees, when, the contract, had been completed between them by the- delivery of the note. In the case before us, the declaration recites the particular circumstances under which' the note was made and indorsed. The demurrer admits them. That is, that the paper had been indorsed by the real payees of it, but not by the nominal payee, who never was an actual payee nor ever had any interest in the note by being in any way a party to it. It would really be going very far to say, that the statute giving the indorsee a right of action for such sum of money, either against the person signing such note or against any of the persons who indorsed the same, did not mean it tó be exercised because a person’s name was upon the face of the paper who never had been a party to it. No such decision, has been made. It may be because no case of this kind has ever occurred before. We can find none like it. In the absence of all- authority against our conclusion, we must take upon ourselves the responsibility of announcing it as an original application of the statute to this case, and for any case of, a like kind which may occur, without intending it to go further. We think, however, that the interpretation is sustained by what has been the practice under the statute in some other particulars, -— that it is within the spirit of the principle upon which the statute has been administered. For instance, the statute requires the indorsement of a note to be made by the person to whom, it is payable, and one of several partners may indorse in- the. partnership name .; but though a note be made payable to a partnership, a transfer in the name Of one partner alone will pass the partnership interest, if it be proved that it has been the practice of the firm to indorse for them, in the name of one only. South Carolina Bank v. Case, 8 Barn. & Cres. 436. So if one partner, transfer in the name formerly used by the partnership. Williamson v. Johnson, 1 Barn. & Cres. 146 ; 2 D. & R. 281.

Also, where, a bill is drawn-upon a firm, and one .partner' Writes “ Accepted,” adding only his own name, it will bind the firm,. if they were in partnership, at the time of the acceptance. An indorsement by the cashier of a bank of a note payable directly to the bank- is good* upon the ground that he represents the interest of the bank in -it, though he is not officially or otherwise a payee upon the face of the note. In Goddard v. Lyman, 14 Pick. 268, it is said, a negotiable note payable to three persons. may be legally transferred by indorsement by two of them to thé third payee and a stranger, and, if this were doubtful, the indorsement, of the third payee to the stranger wifi, clearly pass the .property to him. In Snelling v. Boyd, 5 Monroe, 173, it is said, one of several joint holders of a bill of exchange may transfer the whole interest in it by indorsement. Where the-maker of a promissory note indorsed the same, for his own benefit, in the payee’s name, .by virtue of a parol authority for that purpose communicated to him by the payee, it was'held to be. Well indorsed, and that the payee was liable upon such indorsement in the same manner as if it had been made by himself in his own hand. Turnbull v. Trout, 1 Hall; 336. The. foregoing, it will-be perceived, áre all of them cases in Which parol, proof has been admitted to show the character of the agencies by which notes or bills have been transferred or accepted, without any one of the notes having been indorsed within the exact letter of the statute, though all of them áre within its spirit.

But we rely altogether in this case upon the fact, that the note was transferred by the indorsement of those who were its real payees, — by those who had the absolute property in it. We think the true meaning of the statute is, that such as have the property in the note have the right to indorse, though there shall be a name upon the paper of another person, which was inserted by mistake as a payee, or inadvertently left in when the note-was delivered, and that in an action by the indorsee he should .be permitted to prove such a .fact. Upon this point of the- right of those to indorse who have the absolute property in a bill or noté, we will cite what was said by the learned Chief Justice Willes’in the conclusion of his opinion in the case of Stone v. Rawlinson, Willes, 562 : — “ On the strength of this case I think I may make a syllogism, which will be conclusive in the present case. Whoever has the absolute property in a bill, made payable to one or his order, may assign it as he pleases, within the provision of the statute, and such assignee may maintain an action in his own name; the executor or administrator of a person to whom such bill is made payable has the absolute property in it, and therefore he may assign it to whomsoever he pleases, and such assignee ■ may maintain an action in his own-name.” This was said in answer to an objection, that an executor'or administrator cannot assign a promissory note, made payable to a person or order, so as to enable the indorsee to bring an action in his own name. So, a bill or note made payable or indorsed to a feme .sole, who afterwards marries, or where it is made during the coverture, the right of transfer vests in the husband, so as to give his indorsee a right of action upon it in his own name, and" the husband may be sued as an indorser. Neither the case of the executor nor that of the husband is within the letter of the statute, but both are according to the spirit and intention of it, to permit indorsements to be made by those who have a property in promissory notes, so as to enable their. indorsee to maintain an action in his own name.

The judgment of the Circuit Court is affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Michigan, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this eourt, that the judgment of the said Circuit Court , in this cause-be and the same is hereby affirmed, with costs and damages at the rate of six per^centum per annum.