author: Mr. Justice McLEAN

text:
    Morgan McAfee, Plaintiff in error, v. Thomas C. Doremus, James Suydam, Cornelius R. Suydam, and John Nixon.
    By the laws of Louisiana, a notary is required to record in a book kept for that purpose,.all protests of bills made by him and the notices- given to'the drawers or indorsers, a certified-copy of which record'is made evidence.
    Under these statutes, .a deposition of the notary, giving a copy of the original bill, stating a demand of payment; a subsequent protest and notice to the drawers and indorsers respectively, is gfood evidence.
    The original protest must be recorded in a book. Its absence at the trial is therefore sufficiently accounted for.
    Where .a joint action against the drawers and indorser -was commenced under the statute of Mississippi (which statute this, court has heretofore, 16 .Peters, 89,. held to- be repugnant to an act of Congress), the plaintiffs may discontinue the suit against,the dn/iwers and proceed against the indorser only.
    This case was brought up,' by writ of error, from the District Court of the United States for the Northern District .of Mississippi.
    On the 8th of December, 1839, the following bill of exchange was drawn.
    $4,000.- Locopolis, Miss., Dei. 8th, 1839. .
    Ninety days after date of this my. first of exchange (second -of same tenor and date unpaid), pay to the order of Morgan McAfee, four thousand dollars, valué received, and charge the same to, account of yóur obd’t servants. Clymer,' Polk, & Co.
    Messrs. Keys & Roberts, New Orleans.

    The firm of Clymer, Polk, & Co., consisted of Isaac Clymer, Benjamin C. Polk,'William C. Ivins, and Hiram Clymer.
    McAfee indorsed it, and it came to the hands of .the defendants in error, merchants and partners in New York, trading under the firm of Doremus, Suydams, and Nixon.
    When the' bill became due it was not paid,- and was protested under the. circumstances set forth -in the first bill of .exception.
    In'May,. 1842, Doremus, Suydams, and. Nixon brought 'a. suit against the four makers and also against McAfee, ■ the. indorser. The action was a 'joint one, as. required by a statute .of Mis'sissipi, passed on the l‘3thof May, 1837, which was ás follows..
    “ Section. 1: Be it enacted, by the legislature, of the State of Mississippi,, that in all actions founded upon bills of exchange and promissorynbtes, the plaintiff shall be compelled to sue the drawers and indorsees living and resident in this State in a joint action ; and such suit shall be.commenced in the. county.where the. drawer or drawérs reside, if living in the State ; and if the drawer or drawers bq dead, or reside .out of the State,'the suit shall be brought in the county, where, the first indorser resides.
    Sec. 2. Be it furthereftacted, that in all cases where.any drawer, acceptor) or indorser shall have died before the commencement of the suit, a separate action may be brought against the representatives of such drawers, indorsers, and acceptors.
    “ Sec. 3. Be it further enacted, that the court shall receive the plea of non-assumpsit and no other, as a defence to the merits ,*in all'suits brought, in pursuance of this act; and all matters of defence may be given in evidence under the said plea. And it shall be lawful for the jury to render a verdict against part of the defendants, and in favor of the others, if the evidence .before them require such a verdict, and the court shall enter up the proper judgment in such verdicts against the defendants ; which judgments and verdicts shall not be reversed, .annulled, or set aside for want of form.

      “ Sec. 4. Be it further enacted, that new trials shall alone be granted to such defendants as the verdicts may have been wrongfully rendered against;. and judgments shall be entered against all the other defendants in. pursuance of the verdict!

      “ Sec. 5- Be it further enacted, that the clerk shall issue duplicate writs to the several counties where the various defendants.-may reside, and shall indorse on all executions the- names of the drawers and indorsers, particularly specifying the first, second, and third. .indorsers.

      “ Sec. 6. Be it further enacted,- that.it shall be the duty of the sheriff, in all cases, to make the money on the .executions, out of the drawer of drawers, acceptor or acceptors ; and in no case shall a levy be made on the property, of any security or securities, in--dorser .or indorsers, unless an affidavit from some credible person be made and filed among the papers in the case, setting forth that the principal or principals, have no property in this State, out of which the plaintiff’s money and costs can be made ; and in such event the plaintiff may proceed with the executions against the defendants' next liable, and so on until his executions be satisfied.

      “ Sec. 7. Be it further enacted, that no sheriff, or other officer, shall take more, than one forthcoming bond, in any case, for the same cause of action.

      “ Sec. 8. ■ Be it further enacted, that any plaintiff shall have the right to discontinue his suit against any one or more of the indorsers or securities, that he may sue in any joint action, before verdict, on payment of the costs that may have accrued by joining said defendant in such suit.
    “ Sec. 9' Be it further enacted, that in all suits brought under the provisions of this act,, the defendants shall not be allowed to sever in their pleas to the merits of the action, and ho plea of abatement shall be allowed to be filed in any cause, unless affidavit be made of the truths of the facts pleaded in the plea of abatement..

      “ Sec. 10. Be it further enacted, that if any plaintiff or plaintiffs -shall cause to be levied an execution,, on any security, or théir in-dorsers' or their property, when the principal has sufficient property in this S.taté_tb satisfy-suc'h execution, the parly so offending shall' be deemed a trespasser, and shall be liable' to an action from the. party aggrieved, and exemplary damages shall, in all such cases, be awarded by the jury trying the same; Approved, May 13, 1837.”
    ' This Statute was,' in part, adopted by a rule of court in 1839, as follows : —
    “ Rule XXX. The practice and proceedings in action at law, by the laws of this State, and the rules of practice for the government of the courts of law, made by the late Supreme Court, where not incompatible with the laws of the United States, the rules - which may be prescribed by the Supreme Court of the United States for the government of this court, or with the existing rules of this court, shall be considered the rules and practice of this court: provided', however, and it is hereby expressly understood, that this rule, does not adopt the whole of the act entitled ‘An act to amend the laws respecting suits to be brought against indorsers of promissory notes,’ approved May 13th, 1837 ; but that all of said act, except the tenth section thereof, is, and it is intended to be, adopted.”
    At June term, 1842, McAfee pleaded the general issue.
    In June, 1843, three of the four drawers of the bill having beer, served with process and the remaining one not, the suit was dis continued as to the drawers-, and continued against McAfee alone.
    In December, 1843, the cause came on for trial, when a verdict was found for the plaintiffs. During the trial, however, the two following bills of except' n were taken.

      First Exception.

    Be it remembered, that, on the trial of this causé, on this 8th day of June, 1844, the plaintiffs in this case offered in evidence a bifi of exchange ,iri these words : —
    $4,000=-; Locopolis, Miss., Dec. 8th, 1839.
    Ninety days after date of this my first of exchange (second of' same tenor and date unpaid), pay to the order of Morgan McAfee, four thousand dollars, value received, and charge the same to account of your ob’t servants. Clvmer, Polk, & Co.
    Messrs. Keys & Roberts, Nei» Orleans.

    Having indorsed thereon the following names, three of which were erased : —
    “Pay to Doremus, ■ Suydams, & Nixon, or order. Morgan McAfee, Charleston P. O., Miss.”
    “ A. H. Davidson, Charleston P. O., Miss. ; G. Davidson, Charleston P, O. Miss. ; M. L. Cooper & Co.”
    The plaintiff then proved that the names of A. H. Davidson and G. Davidson had been erased before the maturity .of the bill. ' .The plaintiff then offered in evidence the copy of the^eriginal pro-. test, accompanied by the deposition of the notary public, in these words : —
    United States of America, Eastern District of Louisiana, City of New Orleans-, ss : —
    Be it remembered, that on this thirtéenth day of May, in the year of our Lord one thousand eight hundred and forty-four, before me, M. M. Cohen, a commissioner duly appointed on 'the 19th of April, 1842, by the Circuit Court of the United States in and for the Eastern District of Louisiana, under' and by virtue of the acts of Congress, entitled, “An act for the more convenient taking of 'affidavits and bail in .civil causes depending in the courts of the United States,” passed Feb. 20, 1842, and the act of Congress, entitled “ An act in addition to an act entitled ‘ An act for the more convenient-taking of affidavits and-bail incivil causes depending in the courts of the United States,’ passed March 1, 1817, and the act, entitled :£ An act to establish the judicial courts of the United States;” passed Sept. 24, 1789, personally appeared H. B. Cenas, a person of sound min'd and lawful age, a witness for the plaintiff in civil suit now depending in the District Court of the United States, in and for the Northern District of Mississippi, wherein .Doremus, Suydams, and Nixon are plaintiffs, and Clymer, Polk, & 'Co. (drawers), and Morgan McAfee (indorser) are defendants ;..and the said H. B. Cenas being by me firstr carefully,examined,' and cautioned, and sworn to' testify the whole truth and nothing but the truth, did'depose and say, that he is a notary public, duly commissioned and sworn, in and for the city and parish of New Orleans, - State of Louisiana ; that he held said office' on the tenth day of March, A. D. 1840, on which day, at the request of the Commercial Bank of New Orleans, holder of the original draft, of which-the following is a copy, to wit.: —
    $4,000.J Locopolis, Miss., December 8th, 1839.
    Ninety days after date of this my first of exchange (second óf same tenor and date unpaid), pay to the order of Morgan McAfee four thousand dollars, value received, and charge the same to ae-. count of your obedient servants. Clymer, Polk, & Co.
    Messrs. Keys and Roberts, JVeio Orleans.

    T . ., Morgan McAfee, Charleston P., 0.

    T . ., Indorsed:- Mesgrs. M< jj_ Co’opER & Co>
    He, the said notary, presented • said draft to a clerk of the drawees at their counting-room (said drawees not being in), and demanded payment thereof, and was answered that the same could not be-paid ;. whereupon he, the said notary, did publicly and solemnly protest said draft for non-payment, and of protest did give notice to Clymer, Polk, & Co., drawers, and to Morgan McAfee* indorser, and Mi D. Cooper & Co., indorsers,- by letters to the drawer and first, indorser severally written and addressed; informing them of said protest, and that the holders looked to them for. payment; which letters he; the. said notary, did direct to the said drawers and said first indorsers,-respectively, as follows the one for Clymér, Polk, &Co.., drawers, ,to them at Locopolis,' Mississippi,- and that - for the said Morgan McAfee, the first indorser,' to him at Charleston P. O., Mississippi; and by delivering tháf for the last indorsers, to themselves. Which lettfers hé, the said notary,- did put into the post office at New Orleans aforesaid, on the day and date of said protest. All of which was done under the hand-of said notary, and recorded in presence of competent wit-nessés/and in diie form of law.
    ■ -The notary’s fees for said, protest and notices amounted to $3.50.
    The document A., M. M. Cohén, United States commissioner,' is sworn to by me,
    H. B. Cenas, Notary Public.

    -United States of America, North.Circuit and Eastern District of Louisiana, City of New Orleans, ss : —
    I, M. M. Cohen, ¿'commissioner duly appointed on the 19th of April, 1842, by the Circuit. Court of the United States for the Ninth Circuit and Eastern District ■ of Louisiana, under and by virtue .of-the acts of Congress, entitled {< An act for the more- convenient taking of' affidavits ánd bail in civil causes, depending in the courts of the-.United States,”, passed February 20th, 1812, and the act . of Congress, entitled c‘ An act in addition to ah act entitled ‘ An act for the more convenient .taking of - affidavits and bail in Civil causes depending in the. courts of the United States,?” passed March, lstj 1817, and the act entitled “ An act to establish the judicial courts of the United States,’’ passed September 24th, 1789, do hereby, certify, that the reason for taking the foregoing deposition is, and the fact is;, that the witness lives in New Orleans, State of Louisiana, more than one hundred miles, from Pontotoc; Statejof Mississippi, the place, of trial of . the cause for and in which said deposition is táken and is necessary? I. further certify, that, nó notification was made out. and served on the' defendants, or adverse parties, their agent or attorney, to be present at the taking of the deposition,, and to. put -interrogatories . if he or they may think fit, and that .no .notification of the time, and'place of taking the said deposition Was made out and served on said defendants or adverse párties", because neither the said adverse parties, nor any attorney ór .agent of said -adverse parties was, at the time of taking said deposition, within (Í0Q) one hundred miles of the said city of New Orleans, the place of - taking the said deposition. I further certify, that, oil this thirteenth day of May,. A,. D. 1844,1 was by'the witness, who is of sound mind and lawful age, and the witness was by me. carefully examined and cautioned, and sworn to testify the whole truth, and the deposition' was by me reduced to writing in the presence of .the witnessand after carefully reading the same to the witness; he subscribed the same in my presence.
    I have retained the' said deposition in my possession for the. ■purpose of sealing up,, directing, and forwarding the same with my own .hands to the court for -which the same was taken.
    I further, certify, that I am not of counsel or attorney to either of • the parties in said-deposition and,caption named, or. in any way interested'in the event of .'the said civil- cause naméd in the caption.
    ' In testimony whereof, I have hereunto set my hand and seal, the words ‘‘‘ aré. plaintiffs ” being first interlined on page 1, ante.

    M. M.-Cohen,. [l'.'s.]'
    -17» S. Commissioner Circuit (Md District Court .United States for the Ninth Circuit <md-Eastern District of Louisiana.

    -Commissioner’s fee, 'flO,' 00 ) Paid % kintiffSi .¡Notary tor copy annexed, 2 59 ) J 1

    M;M, Cohen, 'U. S. C.

    TJnited States of America, State of Louisiana: —
    ' By this public instrument1 of protest be it. known that, on this, tenth'day of March,--in ihe year one thousand eight hundred and fórty,,at the request of the--Commercial Bank of New Orleans,' holder of the original draft, whereof a true copy is on the -reverse hereof-.written,-1,; Hilary Breton Cenas, a notary public .in and for-the.éity and parish.of New -Orleans, State, pf.Louisiana aforesaid^ duly, commissioned and sworn,.presented said draft.to a clerk of the' drawees .'at their counting-room .(said drawees not being in), and. demanded -payment thereof, and was answered that -the same.could' not be paid. 'Whereupon Í, -the said notary, at the request afore-, said, -did' protest, and, by these -presents.' do - publicly and' solemnly protest,- as well against, the -drawer or maker-of-the- said draft; as against aU others whom it doth or may concern, for all exchánge, reexchange, damages, cos-ts, charges,,and interests', suffered of to-be''suffered-,. for-want of payment of the said draft.. Thus done and protested in the presence of-Law.' Doman and Ernest Granet, witnesses.' ...
    In testimony whereof, I grant these .presents .under my signature, ft s 1 an&the ipapréss.of my Seal- of office, at the city of New f ' Orleans, 'on the'day and year first above, written.
    . H. B. Cenas, Notary Public.

    Original signed — Law. D-ornan, E,.Granet. •
    $4,000. Locopolis, Miss., Dec^Sth, 1839.
    Ninety day^'after date, of this my first of. exchange (second of $áme tenof ¿nd daté unpaid) ,:.pay t'o.thé qrder .of Mprgan'MeAfee four thousand dollars, value received,, and charge the same to account [of] your obedient servants.
    CivMEEj Polk, & Co.
    Messrs. Keys & Roberts, JVeio Orleans.

    Indorsed, — Morgan McAfee, Charleston P. Qi, Miss'., M. D, Coopér& Co:
    I, the undersigned notary, do hereby certify that the parties to' the draft, whereof a true copy is émbodied in the accompanying act of protest, have been duly notified of the protest thereof by letters to them by me written and addressed, dated on the day of said protest, and served on, them respectively this day, in the manner following, viz. by depositing those for the drawers and first in-dorsers. in the post office in this city on the same day as this protest, directed to them respectively as follows : — that for .the drawers, to them at Locopolis,- Miss. ; and that for the first indorser, to him' at Charleston P. O., Miss. ; and' by delivering that for the last indorsers to themselves.
    In faith whereof, I hereunto sign my name, together with Law. Doman and Ernest Granet, witnesses, at New Orleans, this 11th. day of March, 1840.
    Original signed, — Law. Doman, E. Granet.
    ■H. B. Cenas, Not. Pub.

    . I certify the foregoing to be a trae copy of the original protest^ draft, and memorandum of the, maimer in which the notices were served on file and of'record in my office.
    In faith! whereof I grant these presents, under my signature, and • the impress of my seal of office', at New Orleans, on this [l. s.] ninth day of November, in the year pf our Lord one thousand eight hundred and forty-three.
    H. B. Cenas, Not. Pub-

    Sworn to before me.
    M. M. Cohen, U. S. C.

    To the introduction of which copy the defendant by counsel-objected, but such objection was overruled by the court,, and said copy allowed to be read'; to which opinion of the court the. defendant excepted', -and this his bill of exceptions, before the - jury retired from the box, was signed and sealed by the court¿ and or-' dered to be made a part of the-record.
    S. J. Ghols'on. [seal.]

      Second Exception.

    The second bill of. exceptions, referrej] to the statute and rale abbvemeritioned, ahd to the discontinuance of the suit against the drawers of the bill, after three Of' them had been served with process. A motion was made in arrest .of judgment, which Was overruled by the court, to which overruling the second exception was taken.

      : The cause was argued by Mr. Chalmérs and Mr. Coxe, for the .plaintiff in error, and by Mr. Stanton and Mr. Z. 'Collins Lee, for the defendants in error.

      Mr. Chalmers and Mr. Coxe

    contended that the paper admitted in evidence by the court below, purporting to be a copy of the protest of the bill of exchange sued upon, was not duly proved to have been á copy of the protest of the bill of exchange, but a copy of an entry, in the notary’s book, and that it was not duly proved, evén as a copy of the, entry in the book.
    ■ Secondlyj if proved, as a copy, it.was not admissible ás evidence, without laying ground for'it'by showing the loss of the .original, which was not done.
    •A protest is, properly, speaking, a solemn declaration on behalf of the holder'against any loss to be-sustained by non-acceptance or non-payment (Story' on .Bills, §276,-p. 301), must'be in writing, signed, and sealed by thé notary (Chitty on Bills,. 490, 642), and .annexed to the bill itself, if it can be obtained, or otherwise a copy (Chitty on Bills, -362), with all the indorsements transcribed verbatim, with the reasons given by the, party why he does not honor the bill; and this- is so. indispensably necessary, by the custom .of merchants, that it cannot be supplied by witnesses- or .oath' of the party, or in any other' way, and, as is said, is part of the constitution of a foreign bill of exchange, because it • is the solemn declaration of-a notary, who is a public officer, recognized in all parts-of Europe, that a due presentment and dishonor has taken-place, and all counfries give'credit to his' certificate-of the facts. Chitty.on Bills, 490. It must be made according' to the1 laws of the .-place where jhe payment, ought to- have been made.- Story on Bills, p. 105,. §278 -; Chitty on . Bills, 490.- By the, laws of Louisiana, where this bill was payable, .it is - enacted, page. 41, Ballard and Curry’s Digest,-Laws of Louisiana,.that ■
    “ The' notaries shall keep a separate'book in which they shall .transcribe and record, by order of'date,, all the protests by them made, minutes of notices, &c., &c., made by them, which declaration,-. duly recorded under signature of suhh. notary and -two witnesses',” &c.
    •This book, from which the copy admitted was obtained, is.anew transcription of the original-protest, — a copy, wholly inadmissible itself, without' accounting for the non-production of' the .original, and yet the court admitted a copy of this copy, without showing the loss, destruction^ or that the original was not within the control ..of the party offering, the copy. See Sebree v. Dorr, .9- Wheaton, ■ 558 ; Brooks v. Marbury, 11 Wheaton, 78.
    Séco.ndly, the court below erred in overruling- plaintiff in error’s motion to arrest' the judgment. • This -suit in the court- below was commenced jointly against the dráwérs and indorsers of the bill-of. exchange sued upon under and by virtue of.the' provisions of an-act of the Legislature of the State of Mississippi; and a'long count of the declaration is framed upon that act,, which provides, - thatin all actions founded, upon bills of exchange and promissory notes the. plaintiff shall be compelled;to sue. thé drawers and indorsers living and resident within the State in a' joint action.?’ : Act of May 13, 1837, Laws, of’Mississippi, 717 ; and by a rule- of the Disr trict .Courtsof the United States for the State, of Mississippi, this act was adopted, (see Rule XXX.), and, .so ,far- as it- is not inconsistent with the laws of Congress and the . fules of practice prescribed by the Supreme Court .of the United States, became., by that rúlé.the law of the court.. This being th.e case-unless the act of the legislature of Mississippi, in its application to. this casé, was incompatible with the laws of Congress, or . the rules prescribed by the. Supreme Court of the United States, or the exr isting rules of .the District Court for Mississippi, tbe dismissal entered' as. to defendants below, Isaac Clymer, William C. Ivins,' and Benjamin C. .Polk, the makers, and taking judgment against Me Afée j the plaintiff in error'and indorser of the.bÜl suéd upon, was manifest error; for which die judgment should have' been arrested. See; Wilkinson and Turney v. Tiffany', Duvall,Co., 5.Howard’s Mississippi'Reports-, 411. Was the aGt of Mississippi, adopted by the District Court 'in its application to this case, a violation of the judicary act of 1789, ch. 20 ? The eleventh section of that act gives jurisdiction -to the Circuit Courts of suits betwééii a citizen of the State where.the suit is brought and a citizen of another State;, and excepts “.any suit' to recovér the. contents of any promissory noté, or. other'chosen action in favor of an assignee, unless the suit might have, been prosecuted in such court to recovér the contents, if no assignment had been made except in cases of foreign bills of exchange.”- The foundation.of this action was a foreign bill of exchange, and although thé drawers and indorsér all resided in the State of Mississippi, it came within thé exception of the act of Congress, and the District Court-neither- enlarged or diminished , the jurisdiction of .thé court by adopting the rule, nor is the rule in its application to this case incompatible with the laws of Congress, the rules of practice prescribed by .the Supreme Court of the United States, or- the existing rules of tb.e District Court.' The case of Keary et al.. a. The'Farmers and Merchants’ Bank of'Memphis,16 Peters, 89,' was founded upon a promissory note,' the makérs' and indorsér all living in Mississippi, and.the'attempt, under this rule, ■ to join them in the same action was pronounced by this court a violation of the judiciary act, in giving a jurisdiction to the District Court which' that act had not conferred, and that, therefore,1 in that casé the rule, was void. Not so -however in this case, — the foundation, of this suit being a foreign bill of exchange, the application of the rule violates no law of Congress, nor is it incompatible with any. rule prescribed by this court.
    The rule established 'by the District Court, adopting the statute of Mississippi, is of great value to the. citizens of that State; and, so far as it can be made applicable to the just jurisdiction of the District Court of the United States in that State, sound-public policy, respect for her public, functionaries, and the rights and interests of the parties .litigant in the federal tribunals of the State, appeal strongly to. this court to have the act fairly and fully executed.

      Mr., Lee and -Mr. Stanton

    contended that the proof offered was sufficient; that the object of ¿ protest was,-accomplished in giving the indorser notice ; that certified copies of a protest were gener-. ally admissible ; that a notary cannot serve the original protest upon each one of the iñdorsers ; that the absence of the original at the triad was sufficiently accounted for by its being on file in the notary’s office, and cited Story on Bills, 301, 30420 Wendell, 82; 8 Wheaton, 333 ; 4 Term Kep. 175 ; 2 Peters, 179.
    As to. the second exception, they contended: that the plaintiffs' living in New York hád a right to sue the indorser and drawers,' which right could not bé taken away»; that they had a right to discontinue the aetion as they did ; that the plaintiff in error was estopped from making this objection ; that this court has rejected the statute of Mississippi, and cited 1 Peters, 78 ; 11 Peters, 83-85-; 16 Peters, 94 ; 2 Howard,.343,
   Mr. Justice McLEAN

delivered the opinion of the court.

This case is brought before this court by a writ of error to the District Court of the Northern District of Mississippi.

The suit-was commenced on a bill of exchange against Isaac Clymer, Benjámin C. Polk, William C. Ivins, and, Hiram C.lymer, late merchants and partners in trade, under the firm and stylé of Cly-mer., Polk, & Co.,.makers,. and MorganMcAfee,indorser. •Thepro-cess was served on Polk and McAfee-. The latter-pleaded the general issué, and -an alias summons was'issued against the defendants not served. This writ was served on Isaac Clymer and William C Ivins';, and .at the succeeding June term the plaintiffs, by leave of the court, discontimjed the suit against Clymer, Polk, &. Co., leav ing McAfee, the indorser, the only defendant.

Oh the trial the plaintiffs offered the deposition of H. B. Cenas, a notary public at' New Orleans; to prove a copy of the. protest, which was objected to by the defendant; but the court admitted the' evidence, add- this constitutes the first exception.

By the Louisiana acts of 1821 and 1827; the notary is required to record, in a book kept for that purpose, all protests óf bills made by him and the notices given-to the drawers or indorsers ; a certi-f e copy, .of which record is made evidence.

• Under these statutes it is held, in Louisiana, that “ a certified copy of a protest is sufficient without producing the. original.” Whittemore v. Leake, 14 Louisiana Reports, 394.

• It is admitted that in respect to foreign bills of exchange the notarial certificate of protest is of itself sufficient proof of the disV honor of á bill, without any auxiliary evidence. Townsley v. Sumrall, 2 Peters, 179. But the rule is different, undér the principles of the common law, in regard to inland bills.

The pfotest .offered is certified, under'the seal of the notary, “to be a true copy of the original protest, draft, and memorandum of the manner in which' the notices were servéd on file and,of record in his office;” But the deposition of Cenas, the notary, was relied on as proving the protest and notice, The exception taken was not to the deposition, but to the copy of the protest.

It is insisted that the deposition does not identify the protest, and if it does, that it is .not.' competent to. prove the copy without accounting for the homproduction of the original.

In regard to the latter objection,'it appears from die statutes above cited, that the notary records the protest and the manner in which notice was given, and this record is, in fact, the original. It is presumed that nothing more, than a short .memorandum of the demand. and. notice is taken, from' which the record 'is made in due form ; so that there is, strictly* no original except that which is of record;. And. a copy of this' is made, evidence by the statute.. Ndw this sufficiently accounts for the non-production of the original j and a sworn or a certified copy is the only evidence of the protest which can be produced.

And we think that the copy of the protest wás properly considered as a part of the deposition. • It was offered in connection, with it, and is referred to as “ Documeiit A.,” as no other meaning can be given to. that, reference. . The commissioner who took” the deposition states, the copy was sworn to before him, and the exception was to the “ copy;” and.not that it was no part of the deposition.’ And the original being a matter of. record, and of course not within the power of the. plaintiffs in the Circuit Court, a sworn copy was admissible'as evidence.

After the verdict was rendered against McAfee, the indorser, a. motion was ihade in arrest of'-judgment-on the. ground that it appeared from the return of the marshal* the- process had been duly servéd on three of the partners of . the firm pf Clymer, Polk, & Co., who were the drawers of the bill, and that the suit had been discontinued as to them ; which motiop the court overruled, and: to which the defendimt excepted.

,. It .appears that :the district judge, by a rule .of court; adopted . nine of the first sections of the statute of. Mississippi, entitled, “ An .actio amend the laws respecting suits to be brought against indor-sers of promissory nptés,” &c., approved,13tk May4837, Which required suit to be brought against the drawers and indorsers of a bill of exchange jointly. Under this statute the suit was brought against the drawers and also the indorser of the bill.

' This statute, as adopted by the district judge, was brought before this court in the case of Keary and others v. The Farmers and Merchants’. Bank of Memphis, 16 Peters, 89, in which the court held that “ the law-.of Mississippi is repugnant to the provisions of the( act.of Congress, giving jurisdiction to the courts of the United States.”

We see no objection, in principle or in practice, to the discontinuance of the suit against the drawers of the bill. Their liability was distinct from that of the indorser! In no respect could the in-dorser,be prejudiced by the discontinuance. As a matter of course ■it was permitted at the cost of the plaintiffs.

In. the case of Minor et al. v. The Mechanics’ Bank of Alexandria, 1 Peters, 46, the court held, that when the defendants sever in their pleadings, a nolle prosequi ought to be allowed against one defendant,” that “ it is a practice which violates no rules of pleading, and will generally subserve the public convenience. In the administration of justice, matters of form not absolutely subjected to authority may well yield to the substantial purposes of practice.”

The judgment of the Circuit Court is ¿firmed, with costs.-

Order.

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


source: Caselaw Access Project

author: Mr. Justice GRIER

license: Public Domain

text:
    Elizabeth Walker, devisee of Robert Walker, deceased, Plaintiff in error, v. Francis T. Taylor, Willaim Robinson, William E. Sablett, Thomas Cook, and John M. Cresup, Trustees of the town of Columbus, Defendants.
    Where the plaintiff below claimed a ferry right under an act of the legislature of Kentucky, and the ground of defence was that the art was unconstitutional and void as impairing vested rights, arid the decision of the highest State court was against the plaintiff, a writ of error, issued under the 25th section of the judiciary act, will not lie. _ .
    _ This court can entertain jurisdiction under that section only whan the decision;of the State court is in favor,of the validity of such a statute. Here, the decision was against its validity.
    . This case ;was brought up, by a writ of error issued under the 25th section of the judiciary, act^ from the Court of Appeals for the State of Kentucky.
    The case was this.
    In 1820, the legislature of Kentucky passed an . act, '«.¿tied “.An act for establishing and laying off a town at the Banks.” 2 Móréhead & Brown’s Digest, ¿044. It recited that the general assembly of Virginia, in. 1783, had authorized the deputátion of officers of the Virginia line to lay off four thousand acres of land 'in such manner and form as they might judge most beneficial for a 'town, on the Mississippi or the waters théreof, and vest the same in trustees for the common benefit and interest.' of the whole ; that trustees were appointed, who located the four thousand acres of land upon the Mississippi, including die Iron Banks, and that said trustees, or a majority of them,, had diéd before executing the trust reposed in them.
    The statute then appointed trustees, who were to cause a survey to be executed for the four thousand acres of land and have die same duly recorded in die office of the surveyor of the lands set apart for the military, bounty on State establishment, but declared that the trustees should not (unless thereafter authorised by law) sell or dispose of the same or any part thereof in any manner , whatever, but hold the same subject to the control and future disposition by thé legislature. It then proceeded to authorize them to lay off a town, divide it into lots, cause a survey" to be made, adopt rules for the government of the town, -and then authorized them- to sell at public sale any number of lots, not exceeding one hundred lots, of half an acre each. All the mbney arising from such sale was to be paid into the public treasury of the State.
    In 1821, an act was passed to amend and repeal, in part, the above act (2 Morehead & Brown, 10'46). This authorized the trustees to appoint a treasurer, who should pay all the money received into the treasury of the State, to be then divided amongst the officers and soldiers of the Virginia lines ; to sell fifty more lots ; to sue trespassers, &e., &c.
    Under these acts', the trustees laid off the town of Columbus into lots, streets, alleys, mid public grounds, and made and recorded a plan therefor, by which they left an open space of ten polesj’ as a common, along the margin of the river, between low water-mark and the lots next to the river, and dedicated this common to public use.
    In 1825, an act was.passed (acts of 1825, chap. 72),.the first section of which authorized the trustees to sell the whole 'of the in and' out lots, provided they should all concur ; and the second section authorized the trustees, or a majority of them, to “fix the rates of ferriage across the Mississippi river, and lease out ferries for any term of years, not exceeding five, and apply the rents to the improvement of the town.”

      In 1829 (.atíís of that year,-page 31) , it was provided, by an act passed in that year,, — “ That, a public ferry be and the same is hereby established at the .warehouse, landing of Owen G. Cates and Robert Walker, fronting their lot, No. 3, in the town of Columbus, across die Mississippi river to the opposite shore, and that said ferry be in the name, and for the benefit, of said Cates and Walker, •their heirs and assigns, foreyer: provided, however,. that said Cates and Walker enter into .boftd, in the Coúnty Court of Hickman,'in the penalty of $.1,000, conditioned for the faithful perform-anee of the duties,required of. other ferry' keepers 'by law in tins commonwealth.”
    At the session of 1830 (acts of 1830; chap. 533, page 148J, an act was passed restoring the ferry privileges to the town of Columbus. The first "section was as follows r&wkey;
    “That so much ofs An act to establish a warehouse at the mouth, of. Jonathan’s creek, in Calloway county,, and for other purposes,’ .as establishes a public,ferry at the warehouse landing of Owen G.. ■ Cates' and Robert Walkpr, fronting their lot, Np. 3, in the town of Columbus, across ..the Mississippi river to the Opposite shore, in the name'of die said-Cates. and Walker, their heirs and assigns, forever, be .and the same is hereby repealed ; it being satisfactorily proved that lot No...3,'in the town of Cplumbus, does-not bind . on. the Mississippi river ; that the margin of said river, opposite the town of Columbus, in laying off .-the Same, was reserved as a public landing, .and belongs-to the trustees thereof, for the use pf the inhabitants.; that, under thé-laws of this State, the trustees of Columbus were vested with ferry privileges from.the, said public ground, on the margip of die. river, acróss. the Mississippi fiver, for the use of the inhabitants ; that said Cates was the lessee of a ferry from the trustees-of Columbus, and die said. Walker his surety, at the time of granting the ferry hereby repealed.; and .that no notice of the ápplicádón Jo the legislature was given to the' said trustees, nor a representation, that a ferfy was already established there, made in their' petition to the- legislature.”
    The sécond section repealed the grant to Cates and’ Walker, and the third section regranted and confirmed to the trustees, and their successors, all the ferry rights and^ privileges from the public ground, and vested them, with power to lease one or more'ferries from, said pnblie ground, from time to time, not exceeding five years at any one time.
    . Cates and Walkér had complied with the- requisition^ of - the act. of 1829, and put. their ferry into operation.. Cates sold his interest to Walker, and he, dying, devised it to his wife., who, continued in the exercise of it until interrupted by the trustees, who • claimed.the exclusive privilege of ferriage.-
    In September,. 1842, Elizabeth’Walker, .the, plaintiff' in error, brought ah action of trespass oh the case against the -trustees, in • the Hickman Circuit Court. The defendants filed five pleas, but it is only necessary to notice the first. That plea' set forth all the aforesaid acts of assembly prior to the act of 1829 ; averred that the legal tide to the land on which the town was situated had been vested for that purpose in trustees, as is above stated ; that, upon the sale of the lots, there was' a reservation made,Of all ferry rights .to the trustees of the town, for its use..; that they had been - constantly in the' exercise of those rights;-that, between lot No. 3' and the river there intervened-a street, ten poles in width, and between that and the river a u common.” From these facts, it deduced and alleged the exclusive ferry right of the defendants, coextensive with the limits.of the town on the river, as incident" to their- allégecT legal title to the common, as secured to them by said reservation on the sale of lots, and as granted to them by .said prior acts 'of assembly.
    And it therefore further alleged; that the act of 1829, granting á ferry to Cates and Walker, “ rvas unconstitutional and void, being an attempt to impair and divest prior vested rights,” &c.;. and sp justified the defendants for the disturbance and ■ trespass complained of.
    To this plea the plaintiff demurred'; and, upon argument, the demurrer -was overruled. The plaintiff, not filing any "replication to this plea, judgment was entered for the defendants, for the want of a replication. •
    Mrs. Walker appealed, to the Court of Appeals; where the judgment of the court below was affirmed, and a writ of. error- brought the. case up to-.this court.
    The cause was argued at the present term by Mr. C.rittenden, for the plaintiff iñ error, and Mr. Cates, fpr the defendants.
   Mr. Justice GRIER

delivered the opinion of the court.

■ This case comes before us by a writ , of error to the- Court of Appeals of the State of Kentucky.

It has been argued.by counsel, on the merits, without noticing the important , preliminary question of jurisdiction.

Thé power intrusted to this court, of reviewing tire decisions .of State tribunals, is within narrow and well defined limits, and has been, in sonje instances, looked upon with jealousy. Our decisions may fail to command' réspecf, unless we carefully confine- ourselves within the. hounds prescribed for us by - the constitution- and laws. If they havé'nof conferred jurisdictipn, the consent of parties will riot justify its assumption. ■ The record in this case shows; that- the plaintiff declared, m an action on the case, for a disturbance of her right of ferry ; asserting-an-exclusive right, in herself, by virtue of an act of the legislature of Kentucky,, of the 31st' of December, 1829. Tfie' defendants’ first plea (the only one sustained by the court), after averring a previous grant to themselves, by an act of the 27th of December,' 1820, and other fácts, unnecessary to notice, concludes, as follows : — “ And so the defendants say that tile said act, dated the 31st of December, 1829, purporting to establish a •public .ferry at- the warehouse landing of Owen G. Cates and Robert Walker, fronting their lot No. 3,' in the town of Columbus,, over the Mississippi river to the opposite shore,- is • unconstitutional and void, being an attempt to impair prior vested rights, without '.compensation therefor-; all of which defendants are ready-to verify,” &c.

’.Te. this plea the plaintiff demurred; the defendants joined in demurrer, and the Circuit Court of Kentucky gave judgment for defendants. The plaintiff then, ¿ppealed' to the Court of Appeals of-that State, who affirmed the judgment of the Circuit Court.

The record, therefore, presented this single' issue, — “Whether •the act of.the legislature of Kentucky, of the 21st of December, 1829, under which the plaintiff claimed title, was unconstitutional and void,”' as being repugnant to the constitution of the United States, ánd the decision of the Court of Appeals, is against its validity.

The twenfy-fifth' section of the act of the’ 24th-of September, 1789, which confers on-this court the power of supervision over the State tribunals, so far. as at present applicable, confines it to cases where -is drawn in question the .validity of a statute of, or ah authority exercised under, any State ón -the ground of their- being repugnant to the constitution or laws of the United States, and the decision is in favor of.such their-validity.”- That this case does .not-come within the category, is too plain to admit- of argument 'or require authority. The reason and. policy of granting to this court the power to. revise the decisions of the State .courts when in favor' •of the validity of .their own' statutes, 'and refusing it to us when die judgment is against -their-validity,.are obvious, and are fully stated by the court in die .ease of The Commonwealth Bank of Kentucky v. Thomas Griffith et al., 14 Peters, 56. That case, is precisely in point with the present, and decides that, — “ Under this clause-of the act of Congress, three things must concur to give this court jurisdiction. 1st. .The validity of a statute of a. State- must be drawn in question. 2d. It must be drawn in question upon the' ground that it is repugnant to the constitution, treaties, or laws- of the United States. 3d. The decision- of the State court must be in favor of-their validity.”'

As the judgment of the Court of Appeals of Kentucky was rendered against the validity of the statute in this case, it must be dismissed for want of jurisdiction.

Order.

This cause came on to be heard on the transcript of the record from -the Court-of Appeals for. the State of Kentucky, and was argued.by counsel. On consideration whereof, it is now here ordered and adjudged by-this' court that this writ- of error be and the same is hereby dismissed for the want of jurisdiction.


author: . Mr. Chief justice TANEY

text:
    Samuel Hildeburn, Plaintiff, v. Henry Turner, Defendant.
    When a bill of exchange is made payable at a bank, and the bank .itself is the . holder of (he bill,' it is a sufficient demand if the notary presents it at the bank ■ and demands payment...
    If, therefore, the protest states this and. also that the notary was answered that it could not be paid, it is sufficient^ It.is not necessary for'him to give the name of the person or officer of the bank-to whom it-Was presented, and by whom he was answered.
    .’This case came up ón a certificate of-divisioqin opinion.from the. Circuit Court of the United-Slates‘for. the Southern District of Mississippi.
    The point of difference is fully set forth in the opinion of . the court-. .
    It was argued, by Mr. Brent, for the plaintiff, and Mr. Bibb, for •the defendant.

      Mr. Brent, . for plaintiff.
    The singlé question is oh .the admissibility of the notarial protest; and, if-admissible for any purpose, it is competent evidence. The. .bill of exchange is drawn in Mississippi, payable in Louisiana ; and, ..in s.uch case, the protest is evidence by the laiy'merchant’. ■ 2 .Pet.ers, 593 2 Peters, 691; Waldron v. Turpin, 15 Louisiana Rep. "555 ; 5; Martin’s (N."S.) Rep. 513.. On this head, I also' refer to the statute of. Louisiana, 1827. (Bullard- and Cuny’s Digest, 13, 43)., and to 14 Louisiana. Rep. 394 ; Fráñklin v.' Verbois, 6 Louisiana Rep. 730. The. demand-is-.presumed to be made in. business hours. Fléining v. Fiilton, 6 Howard’s-Miss. Rep; 484. .1 also .réfer.to •the-decision of this' court in Mussón -v:Lake, 4.Hów.. S.. Q. R. 262,.and to Brandon.& Lofftus a. Whitehead,1 4-How.’S. G. R. 127 ; also, to Bank of the United; States;#. Came’al., 2 Peters, 549.

      ¡Mr. Bibb,, for’ defendant.
    The .objection1, taken to the Reading of the protest offered in evidence was, that the prótest.did not contain a sufficient statement of-: tile presentment of the bill for payment.
    The bill was . drawn by. A. G. Bennett, at Cantón, Mississippi^ on, H. F. Bennett, at • same, place, in favor óf Henry .Turner, in New-Orleans, for ‡995.04, payable .at. the Merchants’..Bank of Near Orleans, twelve months after date. Accepted-by £L F. Bennett, indorsed to Samuel Hildeburn by Henry Turner, and -to A. H, Wallace &.Co.,.by the indorsee, Hilderburn.
    The notary in his protest'for non-payment states, — “ At the re? quest of. the Merchants’’.Bank- of New Orleans, holder,” 4‘ I presented said draft to the proper officer, at the Merchants'? Bank, where the same is made payable, and demanded payment, thereof.I was. answered that-the same could not be paid.” ' Whereupon he protested, &c.
    No person is named to whom he presented the bill for payment.
    The notary has undertaken to judge a matter of* law, instead of certifying the name -of the person supposed to be the proper officer of the bank. .'Was. he the president, or the cashier, or a director ? Who was he' ? What was his name ?
    The notary presented the bill to an officer of the holder, and demanded payment of the holder’s servant or agent..
    The notary- should- have exhibited the bill openly and publicly at the bank, and demanded payirient openly and publicly, so that all persons at the bank, or in hearing, might have had notice.
    . A.s the presentment of the bill was not to the acceptor, nor to any person in his employ, the demand of payment, at the place appointed in the body of the bill, should have been general and public, so that any person interested might have taken up the. bill.
    The person, the name of the person, to whom the presentment and demand of payment was. made, should have been stated.
    See .Chitty on Bills and Form of Protest (9 Lond. ed.), 462.
   . Mr. Chief justice TANEY

delivered the opinion of the court'.

This case comes before the court upon a certificate of division from the Circuit Court for the’-Southern District of. Mississippi.

The case stated is this. The plaintiff offered in evidence a bill drawn by A. G. Bennett., at Canton, Mississippi, .'upon Hetiry F.: Bennett, payable , twelve months after date,, to die order of Henry Turner, in. New Orleans, at the Merchants’-Bank thére, for nine hundred and ninety five dollars and four cents, which was-accepted by tire drawee, and-indorsed by Turner, .die-payee, to Hildeburn, the plaintiff. There.were also subsequent indorsements, upon.the bill, .which it is not material to -notice. And in order to" show, that the bill had been .duly presented for payment and refused, .the plaintiff offered to réád the following notarial. protest, upon the back of which was; a‘copy of the. bill and acceptance, and the indorsements thereon.

United States of America, State of Louisiana : —

By- this, public- 'instrument of. protest,,be it .known that, on this fourdi'day of January,- in the year one thousand- eight'hundred and forty one,- at:the. request of thé Merchants’- Bank of -New -Orleans, holder of ,the original’, whereof a true copy is on the reverse hereof written, "Ij Jules Mossy, a notary public in;and for the city and parish of New Orleans* State of, Louisiana*, aforesaid, duly coinmisr siahed' and sworn, presented said-draftito.the proper' officer at the Merchants’ Bank, where the same is made; payable, and/demanded payment thereof. .1 was answered that the same, could not be. paid. Whereupon, I,, the said notary/, at the reqü'est aforesaid; did protest, and by these presénts. do. .publicly and. solemnly.'protest, as well against'the drawer or maker of said draft as against all. others whom it may concern, for all exchange, .reexchange,, daihages, costs, charges, and interests, suffered or to be suffered, for. want of payment of the said draft.

Thus done and protested in. the presence' of George Lanaux.and Jas.. E. Gilly, witnesses.

In testimony whereof, I grant these presents, .under my signature, , ,■ and the impress' of my seal of office,- at- the city of New' Or-. *- ’ S--* leans,- on the 'day and year first above written.

(Signed,) Jules Mossy, Notary Public. .

The defendant objected to the -reading of this protest,-upon the. ground that it did. not- contain a sufficient statement of the presént-menit of:the, bill for payment, And- upon .this, question the judge*, of the 'Circuit -Court ¡were divided in opinion; aüd-thereupon- ordered' it tó be certifiedto this court. ■

This, protest is not altogether in, the-language usually employed.in' mstruments of that des'",iption, but we. ffink.it contains enough to show that the presentment and. demand were duly made..' .Undoubtedly, the principles of justice,. and the safety'óf thri Commercial community, require that such: instruments - should be carefully , examined, arid should not be. admitted.in.evidence unless they show plainly that every thing was done which the law requires’to charge the indorser. .But in tills case, it appears by- the protest, that.-the. Merchants’ Bank, at which it was.payahle, was. the holder of the Lilij ‘ and that the notary presented it for payment at -the bank, and‘demanded payment thereof, and was ans wered that it could -not be paid.. According-to the current of .authorities, nothingmor’e need'he'stated in the protest of a bill, of this' kind; -payable at a bank, -arid' of which the .Bank..is the'holder., and it is not;-necessary to'.give tbe-riame of the person or officer of the-, bank to. whom it was. presented, or by whom he was answered.:. Néither does the statement in this case, .that it was presented to the proper officer-of. the bank, give any-additional validity to- this protest, .■ For-when the; law requires the bill . to be presented to any particular' person or- officer of abank, the protest mu«t show that it-'was- presented accordingly,.and it would riot be sufficient, to say that.he presented it „to the proper person or proper officer. In this-'case,-however,'the presentment'arid'dé-. ..rnarid;-’at-the place’, where .it--was.-'made payable-is .all that'- ' was necessary, and as this appears .to have been done, the protest ought to.have been received in evidence* and.we shall cause it to be certified accordingly .to. the .Circuit Court.

Order.

This cause came on to. be heard on the transcript of the record from the Circuit Court of the United States for the Southern district of Mississippi,- and on the point ■ and question on which the judges of the said. ■ Circuit Court were opposed -in ópinion, and which were certified to this courf f°r its opinion, agreeably to the act of Congress, in such case made and provided, and was argued by counsel. On consideration whereof, it is. the opinion of this court that.the. protest offered in this case ought to have been received as evidence; wherefore,, it is now,here ordered and.adjudged that it be so certified to the said Circuit Court.


author: Mr. Justice. DANIEL,

text:
    Henry Miller, Administrator of George Miller, deceased, Plaintiff in error, v. Betsey Herbert and Caroline Herbert, Defendants in error.
    ' Under a statute of Maryland passed in 1706, a deed of manumission ■ is not good unless recorded within six months after its date; and this law is in force in Washington county,.District of Columbia.
    The statutes and decisions of Maryland exainined.
    This case' was' bro'ug t up, by writ of error, .’rom the Circuit Court of the District of Columbia, for the coúnty of W ashiington. •
    The defendants in error filed' their petition, in the Circuit Court, by which- they claimed a right to their freedom, under a deed of manumission executed to them on the 28th of February, 1842, by their owner, George Miller, who; was an inhabitant of-Washington county, gt the date of the deed, and at- the time of his death, and on who,se estate the plaintiff in error had taken administration.
    The petition, setting out the character'of. the claim of the defendants- in error, was in the'following words.
    To the Honorable,, Judges of the Circuit Court of the District of Columbia for. Washington County :
    The petition, of Betsey Herbert and Caroline Herbert humbly showeth, that your .petitioners were the slaves of George Miller, late of the city of Washington, deceased ; that the said decedent', in his lifetime, intending to manumit and set free from slavery your petitioners, caused to be prepared a'paper-writing for- that purpose, and sent for-S. Drury, Esq;, a justice of the peace of said county, to take his acknowledgment hereof, and, also Charles Bowerman and John Hoover to witness the execution thereof; that on the 28th day of February, 1842, the said justice and the said witnesses came'tó the house of said George Miller, and the said George Miller did then and there, in the presence of the said witnesses, execute the said paper-writing,’-.and did acknowledge the same before the said justice of the peace ; but the said witnesses neglected to sigh, or did not .understand that they were called upon to sign, the said instrument as witnesses; that the said George Miller retained .the said ‘paper-writing in his possession until some short time before his death, when he gave it to your petitioners, with instructions to place it in the hands and follow the directions of Mr. John McLelland,' of this city, which your petitioners did ; and the said John McLelland, discharging the said trust, placed the said paper-writing in the hands of Joseph' H. Bradley, Esq., an attorney of this court, who lodged the said paper in the Orphans’ Court of the county aforesaid.
    Your petitioners claim that, by the said paper-writing, so executed and delivered, they are entitled to their freedom’,' and they are advised it was not necessary that the said paper should have' been signed by said witnesses, and that the same is a good and operative deed. But if the said deed ought to have been signed by said witnesses, they claim that thisi;court, acting as a court of chancery, will permit the execution thereof to be proved now, and will decree the said deed to be put on record.
    They, further show that, after the delivery of the said deed to your petitioners, the said George Miller departed this life intestate, and that Henry Miller administered on his estate, and now claims ’.theni as part of the personal estate of said George Miller, and they pray that he may be summoned and required to show cause- why the paper-writing - shall not be admitted to record, and your petitioners declared free.
    .Joseph H. Bradley, for Petitioners.

    The counsel for the respective parties then filed tfye followang agreement: —

      Agreement of Counsel.

    •It is agreed, that if this court shall be of opinion that they would have power, sitting in chancery, to decree the record of the deed, the execution of which was imperfect under the law, because the witnesses did not sign it, “ in such case this court shall have the same power to decree or adjudge the said defect to be rectified as it would if sitting as a court of chancery,” it being distinctly understood that.the facts are not admitted,'but proof thereof is required, and the defendant is to offer any legal proof to meet the petitioners’ case ; and' the petitioners are to sustain their petition by competent proof. ’ It being the object of this agreement to avoid the expense of a bill in chancery, and to bring all the*"questions' which may arise at law or in equity before the court under the petition.
    Joseph H. Bradley, for Petitioners.

    William L. Brent, for Defendant.

    The instrument relied on in support of the petition, as the deed of manumission from George Miller, and referred to in the bill of exceptions as paper marked A., was in these words : — .
    To all whom it may concern, be it known that. I, George Miller, of Washington county, District of Columbia, for divers good causes and considerations, me thereunto moving, have released from slavery, liberated, manumitted and set free, and by these presents do hereby release from slavery, liberate, manumit, and set free, my negro women, one named Betsey Herbert, about forty-two years of age, and the other named Caroline Herbert; about seventeen years of age both able to work and gain a sufficient livelihood and maintenance ; apd ffiey, the said negro women, named Betsey Herbert and Caroline Herbert, I do declare to be henceforth free, manumitted, and discharged from all manner of. service or servitude to ■me, my executors or administrators, forever.
    In witness whereof I have hereunto set my hand and seal,/ this” 28th day of February, in the year of our Lord one thousand eight hundred and forty-two. ■
    George Miller. [$eal.j
    District of Columbia, Washington County, to wit:
    .Be-it remembered, and it is hereby certified, that on this 28th day of February, in the year of our Lord eighteen hundred and forty-two, personally appeared before me, a justice of the peace in and for said county and district, George. Miller, and acknowledged the foregoing deed or manumission to be his act and deed for the purposes therein .mentioned, as witness my hand and seal.
    Samuel Drury, J. P. [/Seal.]
    Issue having been joined upon the right alleged in the petition, and a jury been empannelled to try that issue, the following bill of exceptions was, at the trial, sealed by the judges. .

      Defendant’s Bill of Exceptions.

    Betsey and ■ Caroline Herbert, v. Henry Miller, Administrator of George Miller.
    The plaintiffs offered evidence tending to prove that George Miller, who owned and held the slaves, petitioners, sent for a magistrate, Mr'. Drury, and also two witnesses to witness the paper marked A., which paper was signed by said Miller in the presence of said witnesses, and acknowledged before said Drury, but .was not then, and never was, signed by said intended attesting witnesses, before whom and in whose presence said Miller admitted the deed to be his, and desired said witnesses'^) attest to the same ; to the reading of said .paper in evidence the defendant objected, and said objection was overruled and excepted to by the defendant. ■ The defendant then offered evidence ténding to ■ prove that the-paper marked A. was, immediately upon the death of the maker, Miller, which took place about eighteen months after the execution thereof, delivered to Mr. McLelland, by the petitioners, who stated that it was so done by the direction of Miller, and who also stated that they held possession of the paper from the time of its execution until that time, and also that Miller, the grantor in said paper A., died largely indebted, and left no property other than said petitioners, sufficient to pay his debts ; and also, that 'defendant has regularly and duly administered upon the estate in this county of said deceased. Whereupon the defendant, by his counsel, moved the court to instruct the jury that upon the evidence aforesaid the plaintiffs are not entitled to recover ; which instruction was refused by the court,' and the defendant excepts to said refusal, and prays that this his several bills of exceptions may be signed, sealed, and enrolled, which is accordingly done.
    W. Cranch, [SeaZ.]
    B. Thruston. [<SeaZ.]
    The jury, under the instructions given by the court, found a a verdict for the petitioners, viz. that they were free.
    To review these two decisions of the court, the case was brought up by writ of error.
    It was argued by Mr. Coxe, for the plaintiff in error, and Mr. Lawrence, for the defendants in error.

      Mr. Coxe, for the plaintiff in error,
    insisted that there was error. First, in admitting the instrument A. to be read in evidence to the jury; and, second, in refusing to instruct the jury that upon the said instrument, which was not recorded within eighteen months after the date, nor at any time during the life of George Miller, the petitioners could not recover.

      Mr. Lawrence, for defendants in error.
    The only facts which can be taken into consideration, in this case, are those which appear in the record. Those facts afford no ground for the assumption, on the other side, that the deed of manumission, now in controversy, was retained in the possession of the grantor until the time of his death, and there is, consequently, no foundation for the argument that has been advanced, — that although this deed was, on the face of it, to take effect in presentí, yet it was, as matter of fact, to take effect in futuro.

    As to the remarks that have been made upon the double aspect in which the petition in the court below is regarded, that is, as a petition for freedom, and in the nature of a bill in equity, this court is referred to the agreement which is made part of the record, and in which every defect that' a court of chancery is competent to remedy,.is to be considered as having been already remedied. This agreement is . of special importance, in regard to any objection that might arise in consequence of the deed , having been received in evidence in its then existing state.
    The whole argument, for the plaintiffs in error, proceeds upon the ground that there was only one class of deeds comprehended in the act of 1796, or, that if there were two'classes, they were both to be authenticated in the same manner. I maintain that thfere were two classes of deeds to be differently authenticated; the one, to take - effect in presentí,, and to be ‘6 evidenced ” by two witnesses ; the other, to take effect in futuro, and to be acknowledged and recorded. .
    This was a deed of immediate emancipation, and was “ evidenced” by two witnesses, it is to be presumed'that the legislature, in omit'ing the ordinary and- technical words, “ attested and subscribed,” and making use of a word hardly known in'legal phraseology, did so understandingly. This ' is especially the' case, when it- is remembered that prior to the act of 1752 (almost in the same words as that of 1796), there was no restraint in the manumission of slaves. . Those acts were in restraint of a common right. The word “ evidenced” is-a verbal derivative from the term evidence, and is equally extensive in signification; unless there is some technical usage to restrict it. There is no such technical1 usage. Evidence is a word of the largest signification known to the law,' and embraces every kind of proof; Jac. Law Die.; 3 Co. Litt. 487 ; 1 Greenleaf an Evidence, 1 ;‘3 Bl. Com.-367. Wheréver any word implying proof, other than the words “ attested ” or “ subscribed,” has been used, the uniform .decision (except in Maryland) has been, that the subscription of the names is not-necessary. 2 Tuck. Black; 308, note ; Turner v. Stip, 1 Wash. Va. Rép. 322 ; 4 Kent’s Com. 514.; 6 Cruise’s-Dig. (Am. ed.), 44, 47, note's;
    The case of James v. Gaither, 2 Har., and Johns. 176, has been cited as the Maryland construction of the act of 1796, and as decisive of this case. That case is not of local' authority here, ip the sense in- which this court usually defers to the local construction of local laws. By the act of Congress, the. laws of Maryland, then in force, were made the laws of the District of Columbia. But, if it were otherwise, this-court would examine the subject de novo. Fenwick «. Chapman, 9 Peters, 461 ; Wallingsford v. Allen,' 10 .Peters, 593., See opinion of the judges.) seriatim, on the case of James «. Gaither^ in 7 Leigh, 300- et seq. But admitting the construction of' the Maryland Court of Appeals, in James v. Gaither,, .to be correct, it touches this case only in a single point, viz. in the meaning it gives to the term “ evidenced.” That was a case' of future emancipation,- and the court decide, that in such a case the deed'must not only be acknowledged and recorded, but also “ evidenced ” by. two witnesses. But it does not decide that the converse of the proposition is true ; that deeds in presentí must not only be ‘‘ evidenced,” but also acknowledged and recorded. Admit, then, that the act requires the witnesses to subscribe their names, can'a court of chancery require or permit it now to be done ? There is no time'limited, in which it must be done. The act does not, like the statute of wills, require- it to be done at the time.' Whenever done the terms of the law are satisfied. ' What is it that is asked ? -— that the requisitions of the act should be set aside ? that merely fictitious names should be inserted, to present to the eye only a compliance with 'the statute.? By no means. But that those who actually were.witnesses to the deed should be permitted to put their names to it. The deed, when thus perfected, would present a literal, substantial,. and conscientious fulfilment of the requisites of the act.
    But it has been objected^ that- this deed was in prejudice of creditors. To this the answer is, that there is no evidence, in the record, that the grantor was indebted .at all, at the time of the execution of the deed. Proof'of this fact is necessary. It is, indeed, stated .that he died, leaving no other property sufficient to pay his, debts. This is too general from which to infer (if this court could indulge in any inference as to the facts) that he was indebted eighteen months before. The decisions, under the 13 Eliz., have uniformly been, that a voluntary deed cannot be' avoided by creditors, unless it is shown that the grantor'was indebted at the time of. its execution ; and,.in that case, there.is- a personál disability, and the deed is. void, ab initio. 4 Cruise’s Dig, 461, 462; l_Atk,-93, 94 ; 1 Madd. Rep. 459, 420 ; 3 Johns: Cn. Rep. 490, 493/ But, in this case, there was no such disability shown; at the execution of the instrument; The grantór, having done every' thing, ón his part, had parted with all power over ■ the .subject. The act:of subscribing, by the witnesses, was merely formal, and no time limited in which it should be done. And although, until that act should-be performed, freedom might not pass,' still no act of the grantor then, could revoke-the deed. This view is illustrated by the case of. a* bargain and sale, under Stat. 27 Hen. 8,, requiring enrolment before' lands,.- &c., should pass. It has been decided, under that-statute, that if the bargainer' dies, or aliens the land, or marries, or becomes bankrupt, after the execution of the deed, and before its enrolment, -and then within the time limited the deed is enrolled, it overrides any and'all of these intermediate acts, and takes effect, by relation, from the time of its execution. Shep. Touch. 224, 226 r 2 Yin. Ab. 419 ; 1 Bac. Ab. 688 ; 7 Leigh, 696, 711, 712. There can be no difference, as to the law of relation, whether the formal act, remaining to be done, be enrolment or attestation ; nor whether a time he or be not limited in the statute.

      As to the aid which courts of equity will extend in carrying into effect instruments of emancipation, cited 1 Hen. and Muni. 519 ; 2 Ibid. 132; 1 Leigh, 465 ; 6 Hand. 162.
   Mr. Justice. DANIEL,

after having read the statement of the case at the commencement of this report, proceeded to deliver the opinion of the court.

By the statute of Maryland, passed in 1715, cap. 44, § 22, it is enacted, — That all negroes, and other'slaves then imported, and their children, then bom or thereafter to be born, shall be.slaves for life.” Upon examining the legislation of Maryland^ from the period of the law of 1715', a variety of enactments will be seen, showing the policy of this State in the government of her slave population ; and, as entering essentially into that policy, must be considered the several regulations under which she has permitted manumission, either by deed or by will. The enactments here referred to may be found in Kilty’s Laws, vol. 1, session of 1752, cap. 1, where they are collated, by their dates, down to the act of December 31st, 1796, under which last mentioned statute the questions now before this court have immediately arisen. In the interpretation given to these statutes by the tribunals of .the State, one characteristic will impress itself on every mind ; and that is, the strictness with which the laws have been expounded in reference to the power of manumission conferred by them. It seems to have, been thought that very little, or indeed nothing, was permitted by the policy of the State to construction or implication, but that rather the conditions prescribed for the exercise of the power ■ conceded should be fulfilled almost to the letter. Of the propriety of views such as these, on the part of the State, with regard to her own internal policy, no just ground of complaint can be alleged ; but of the reality of those views, a reference to a few of. the adjudications of her. courts will leave no doubt. ,By the Stat. of 1752, cap 1, § 5, manumission was allowed, by writing under bond and seal, “ evidenced by two good witnesses at least.” Under this statute arose the' case of negro James v. Gaither, which was a claim to freedom, upon a •writing signed and sealed, but subscribed by a single witness only. Parol proof being offered to establish the fact,. that the deed was executed in the presence of another witness, who did not attest it by subscription, the Court of Appeals ruled such proof to be incompetent and inadmissible under the statute. See 2 Harris and Johnson, 176.

The case of Wicks v. Chew et al., 4 Har. & Johns. 543, .a case arising under the statute of 1796, is yet more strongly illustrative of the rule abovementioned. By the statute just referred to, chap. 67, § 29 (Kilty’s; Laws), deeds of manumission are required to be recorded within six months from théir date. By another statute of Maryland, passed in 1785 (Kilty’s. Laws, chap. 72), it is provided, in the third section thereof, — “ That in case ’any deed hath been or hereafter shall be executed, to the validity ofrwhich deed recording is necessary, and such deed hath not been or shall not b.e recorded agreeably to Jaw, without any fraudulent intention of the party claiming under the same, the chancellor, upon petition of. the party to whom the said deed was executed, or of his, her, or their legal representative, or of any of them claiming the land or other thing conveyed or intended to be conveyed by such deed, and without the appearance or hearing of the defendant orideferidants, shall. have power to decree the recording of the said deed jn the county or general court- records, within such time from the date- of the decree as it ought originally to have been recorded from the date of the deed giving to the deed, when thus admitted to record, the same effect it would have had if the irregularity thus cured had never occurred. Chew and others, claiming freedom under a; deed from Darnell, against Wicks and others, heirs and devisees of. Darnell, filed their petition with the chancellor, stating that Darnell had died without putting the deed on record within the six months prescribed by law, and praying the chancellor, upon due notice to the heirs and devisees, to decree that the deed be recorded, that thereby validity might he restored to it.- . The chancellor, deeming himself so authorized by the third section of the act of 1785, decreed that the deed be admitted to' record within six months from the date of his decree. The Court of Appeals reversed this decision of the chancellor, and the reasoning of the court conclusively shows the principle on which they place these instruments of manumission,-and on winch they distinguish them from transactions with a-party who is sui juris. They declare that the statute of 1785 embraces only cases of mutual but inchoate rights, but still pf rights founded on some valid consideration, such as courts can take notice of and enforce ; that manumission by the laws of. Maryland is a mere gratuity, and until evidenced by all the ácts or requisites the law prescribes, has no legal existence, and can have created no faculty in the contemplated object of that gratuity. The language of the Court- of Appeals is as follows:.— “The acts of assembly referred to (i. e. by the chancellor .in support, of his decree) are not intended to give relief in cases which were before without remedy, but to give an additional remedy by enabling a party, acquiring equitable rights under a deed not operative in law for want of recording,- to perfect those rights, by applying to', the chancellor to order the original instrument to be recorded,-.and thus to give it the effect which by law it would have had if recorded in due time, instead of going into chancery to compel a conveyance, or enforce a specific performance. They are intended»- o give an accumulative remedy to persons able to contract, and who by deed acquire rights which equity will protect, with the power to-prosecute those rights. But-by the laws of this State, a negro, so long as he is a slave, can have no rights adverse to those of his master f he can neither sue nor be sued, nor can he make any contract' or acquire any rights under a deed which a court of law or equity can enforce. And as It is the recording of a deed of manumission, within the time prescribed by law, which entitles him to his freedom, he continues a slave and can acquire no'rights under such an instrument until it is sore-corded, and consequently cannot go either into a court of law or equity for relief of any kind.” Again) the court say in this case, that— “ A master , may execute and acknowledge a deed of manu.mission, and afterwards destroy it or keep it, and refuse to have it recorded, and the slave remains a slave without redress.” Another striking instance of • the rule of interpretation of their own statutes, adopted by the courts , of Maryland, is found in the case of negro Anna Maria Wright v. Lloyd N. Rogers, reported, in 9 Gill & Johns! 181. In-this .case,- Tilghman, the owner, of the female slave,1" executed and deliv'eréd to her, in 1832, a deed of manumission, which was duly acknowledged but not recorded. Subsequently, Tilghman sold and conveyed the same slave by bill of sale, duly acknowledged and recorded, to a> purchaser who had notice at the time of the previous deed of manumission. • This purchaser af-terwards sold the slave to Rogers, to whom, in 1833, he executed and delivered a bill of sale, which was acknowledged and recorded according to law.' The legislature, at their session, December, 1834, passed a special law, authorizing the deed of manumission to be recorded, providing further that the same when recorded should be as valid and effectual for every purpose as if it had been duly recorded according to law. After the deed’, had been recorded pursuant to this law, the negro filed her. petition for freedom ; the judgment of the County Court was against her title, and that judgment was affirmed by the Court of Appeals.

By the 29th section of the statute of 1796 (Kilty’s Laws,1 chap. 67), the power of manumission by writing under seal'was reenacted from previous statutes, enumerated, and repealed in the 31st section of the act of 1896. In the 29th section, many of the conditions contained in the prior laws are prescribed, and amongst these are the requisitions, that the slave to, be emancipated shall be sound in mind and body, and not over 45 years of age'; that the .deed of manumission shall not be in prejudice, of creditors.; that it shall be acknowledged before a magistrate, and entered amongst the records of the County Court where the person or persons granting such freedom shall reside, within six months from the date of such instrument of writing. Upon the construction of this section of the act of 17-96 arose the questions presented to the court below, and now brought here for adjudication. These questions are various, as appears by the bill of exceptions;, sealed by. the judges of the Citcuit Court, and by the assignment of, errors upon the record ; but they are all necessarily subordinate to a decision upon the validity of the instrument of manumission- as affected by the failure to., record it within six months from its date. This omission is admitted in the petition for freedom, and is made out by the proofs «upon which the instruction prayed by the defendant in the court below was asked and refused, and it remains to be. considered how far such omission operated to destroy all foundation, of the right sought to be asserted in this case. This inquiry, as a question of Maryland law, we think is without difficulty. The decisions already quoted, are clear and explicit. They treat the right asserted-and the instrument alleged in evidence thereof as having no legal existence, as nullities to all intents and purposes, and therefore as nothing of which common law or equity can take cognizance, until that right and the pretended evidence of it can be brought forward, attended with every mark and attribute of being, which the statute has called for, and one'of these, as clearly defined as any other, is admission to record. This indeed is treated as the great, the capital test of existence,.for it is this which places the transaction definitively beyond the control of the máster, and proclaims, beyond the power of denial, both the intent and its consummation. And why should this not be treated as a question of Maryland law. The statutes of Maryland in being at the cession of the District of Columbia were adopted as the laws of the county of Washington, to be there enforced until altered by authority df Congress, and the rights of person and of property vested or existing un¿er those laws, and all interpretations of those laws by the supreme tribunál of Maryland, became in like manner the rules of right within the same county. This case, too, is one of a right sought to be maintained under a Maryland státute, a right which seeks today its foundation in' the terms of. that statute, and no where else. ' But whilst it is conceded as a general proposition that the laws of Maryland, at the period of the cession of the District of Columbia, are laws of the county of Washington till changed by the authority of Congress, it has been urged- that, in instances in which the Maryland statutes have received no settled interpretation by the Maryland courts, anterior to the cession of this district, the:’ federal courts are free to interpret the provisions of those statutes as they would be to pass upon any other subject of original cognizahce, and would not be bound by decisions of the State courts made posterior to the cession. This position is not deniedit has indeed been sanctioned by this court in the cases of Fenwick v. Chapman, 9 Peters,'461, and Wallingsford v. Allen, 10.Peters, 583. But admitting this position fully, still we. must also admit that the courts of the United States would feel great respect for the decisions of the State courts upon questions essentially connected with the general internal policy of the State, nay, would yield to those opinions upon matters of doubtful construction, or wherever well ascertained and paramount obligations did not forbid such an acquiescence. But the statute of 1796 was anterior to the cesteion of the District of Columbia and although the cases of Wicks v. Chew et al., 4 Har. & Johns., and of Anna Maria Wright v. Rogers, 9 Gill & Johns., were posterior to that event, still these cases cannot be correctly understood as deciding any new. question, .or as introducing any principle not well settled long before it. The case of James v. Gaither occurred under the statute of 1752, and upon an instrument of manumission executed in 1784 ; the statute of 1796, too, is a reenactment of provisions of other statutes, going back as far as the year 1752, and the decision in James v. Gaither, and in' the subsequent cases, are nothing more than the repeated expositions pf a settled policy or rule of interpretation of the Maryland statutes, viz.- that the conditions prescribed by them must be strictly fulfilled ; that withou* such fulfilment any pretended instrument of manumission must be treated as a nullity, and can impart no rights, can give no standing in court, either at law or in equity. We think then that this is a question of Maryland law, -which has been settled by the courts of Maryland, and should..not now be disturbed ; that in conformity with decisions of those courts, the .recording of the deed of manumission in this case, within the time prescribed by the statute of!796, was an indispensable prerequisite to confer any rights on the petitioners in the court below, or to give them any standing in a court of law or equity; that in. accordance with, this interpretation of the statute, the Circuit CourCshould have given the. instruction asked for by the counsel for the defendants ; that in-refusing to give such instruction that court has-erred, and therefore its decision should be reversed.

In reference to the agreement signed by counsel and annexed to the record in this case, and by which all the powers that a court of equity could properly exert in aid of instruments defectively executed'were' conceded to the Circuit Court as if sitting as a court of equity, we remark that the grounds presented by that agreement are entirely covered by the opinion above expressed of the absolute, nullity of the deed in question, it being no. more within the powers of a court of equity-than it is within those'of a court of law,, to set up'and establish that which is illegal oí wholly void.

Order.

This case cáme on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court,, that the judgment of the. said Circuit Court in this cause be and the same is hereby reversed, with costs, and.that.this cause be and the same is hereby- remanded to the said Circuit Court, with directions to award a venire facias de'novw