author: Mr. Justice CATRON

text:
    The President and Directors of the Bank of the State of Alabama, Plaintiff in error, v. Robert H. Dalton.
    , A State has power to regulate the remedies by which contracts and judgments are sought to be enforced in its courts of justice, unless its regulations ¿re controlled by the Constitution of the United States, or by laws enacted under its authority.
    Therefore, where a State passed a law declaring that all judgments which had been obtained in any other State prior to the passage of the law should be barred unless suit was brought upon the judgment within two years after the passage of the act, this law was within the power of the State, and not inconsistent with the Constitution of the United States or any act of Congress.
    And this was true, although the person against whom the judgment .was given became a citizen of the said State upon the very day on which he was sued. The Legislature made no exception, and courts can make none.
    This case was brought up, by writ of error, from the District Court of the United States for the Northern District of Mississippi.
    The facts were these.
    On the 7th of February, 1843, the President and Directors of the Bank of the State of Alabama recovered a judgment against Robert H. Dalton, for $ 1,844, with interest and costs, in the County Court of Tuscaloosa County and State of Alabama.-
    On thé 24th of February, 1844, the State of Mississippi passed an act (Hutchinson’s Mississippi Code, pp. 830 et seq.), which provided, amongst other things, that judgments rendered before the pássage of the act in any other State of the Union should be barred, unless suit was brought thereon within two years from the passage of the act.
    On the 10th of November, 1846, the President and Directors of the Bank of the State of Alabama brought a suit against Dalton in the District Court of the United States for the Northern District of Mississippi, held at the town of Pontotoc. It was an action of debt brought upon the judgment recovered in the. County Court of Tuscaloosa County, in Alabama. The writ was -served upon Dalton on the same day that it was issued! The defendant pleaded the statute of limitations of Mississippi in the following manner:.—
    <! And the said defendant, by his attorneys, comes and defends the wrong and injury, when, &c., and for plea says, that the said plaintiff his action aforesaid ought not to have or maintain against him, because he says that the said judgment upon which this suit is founded wás obtained in. a court out of the limits of the State of Mississippi, to wit, the County Court of the County1 of Tuscaloosa, in the State of Alabama, and was rendered up against said defendant on the 7th day of February, 1843, and was then and there, on that day, in full force and effect in said court.

      “ And defendant further says, that by an act of. the Legislature of the State of Mississippi, entitled ‘ An act to amend the several acts" of limitations,’ approved on the 24th day of February, 1844, it is enacted and declared, upon judgments obtained in any court out of the limits of this State, actions shall be commenced within two years after the passage of the said act, and not afterwards; and that this action was not commenced by this plaintiff until the two years had expired, within which the said plaintiff was required to bring his suit as aforesaid, and this he is ready to verify; wherefore he prays judgment, if the said plaintiff ought to have or maintain his aforesaid action against him,” &c.
    To this plea the plaintiff filed the following replication: —

      “ And the said plaintiff, for replication to the plea's qf the said defendant by him first above pleaded, says precludi non, because he says that the said defendant, at and from the time of the rendition of the judgment in said plea and declaration mentioned, and from thence until and within two years next before the commencement of this suit, to wit, on the 10th day of November, A. D. 1846, to wit, at the district aforesaid, was and continued to be a citizen of the State of Alabama, where the said plaintiff resided, without the jurisdiction of this court; and this they pray may be inquired of by the country,” &c.
    The defendant demurred to this replication, and, upon argument, the court sustained the demurrer.
    To review this judgment, the bank brought the case up to this court.
    It was submitted on printed arguments by Mr. Featherston, for the plaintiff in error, and Mr. Adams, for the defendant in error.
    The arguments are very short, and may be inserted.

      Mr. Featherston, for the plaintiff in error.
    ■ This action of debt was brought by the plaintiff to recover of the defendant the sum of .$ 1,844 debt, and $ 110.58 damages, the amount of a recovery had in the Circuit Court of Tuscaloosa County and State of Alabama, on the 7th day of February, 1843, by the plaintiff against the defendant. This suit was instituted in the District Court of the United States for North Mississippi, at Pontotoc, at the December term thereof, 1846. The writ was issued on the 10th day of November, 1846. The defendant at the said December term, 1846, pleaded the statute of limitations of 1844, which provides that no suit shall thereafter be instituted in this State, upon any judgment rendered in any other State of this Union, unless the same, be done withinTwo .yéars after its rendition. To this plea of the statute of limitations the plaintiff replied, that, at the time of the rendition of the judgment in Alabama, the defendant was a citizen of the State of Alabama, and continued so.to be up to the 10th day of November, 1846, the day on which this suit wás brought. To this replication there was a demurrer by the defendant, which the court sustained, upon the ground that the statute barred the action, although the defendant was a nonresident, and beyond the jurisdiction- of this State up to the moment of its institution. It is difficult to apprehend how this decision can be law, and how it' can be reconciled with the hundred and one decisions made by every court in every State in the Union. That no one can avail himself of 'the presumptions that the statute of limitations raises in favor of his having paid his debt, but a citizen of the State where the suit is brought, and that the statute does rfot commence running until the party gets into the State, áre propositions so often decided, and so universally recognized, that it is not believed defendant’s counsel was serious when he first made the defence so successfully set up by him to this action. To suppose the Legislature of the State of Mississippi intended to pass a law closing her courts ágainst debts due between citizens of other States before they should come within her jurisdiction, is preposterous ; that she could have permitted her sovereignty to beoome vindictive and malignant against a particular class of claims, and allowed it, in its petulance, to ‘enact, that hereafter Mississippi should be a State of refuge for judgment debtors,, and leave general creditors to the general statute law, I cannot believe ; but if the decision made in this case is law, she, the State of Mississippi, has done that thing. If the construction given to the statute in.this case be correct,. then debtors of other States áre encouraged to dishonesty, and invited to -flee from their debts. This act Avas passed in February, 1844, and commenced running from its approval • the defendant was then a citizen of the State of Alabama, where he continued until, according to the decision in this case, the judgment, the foundation of this action, was positively barred; although neither plaintiff nor defendant Was Avithin the jurisdiction of the courts of the State, or entitled to peculiar favors from Mississippi, from having rendered her any great public', services. " The' replication shows that the defendant did not come within the- jurisdiction of the State courts until the 10th of November, 1846, over íavo years from the passage of the act of 1844. But suppose the court should think that the bar of. the statute became complete at the end of two years. Still, in the construction of the act of 1844,- they will take it in connection with all the other acts of limitation of the State, and make them harmonize if possible. Now,' the act of 1822 declares, that the time of the absence of the debtor from the State, he being a citizen, shall be deducted in the computation of the time. There can be no inconsistency, then, in deducting the. absent .time in. this case; let this be done, and the court will see that the suit was instituted on the very day he came into the State.

      Mr. Adams, for the defendant in error.
    • The question presented by the plea, ’replication, and demurrer is, Does the fourteenth section of an act of. the Legislature of the State of Mississippi, entitled “ An act to amend the several acts of limitations,” approved February 24th, 1844, apply, to foreigners, or citizens of other States, sued within- the limits of the State of Mississippi ?
    No question is raised as to the constitutionality of the act itself, that point having been so fully settled, upon a similar statute, by the Supreme Court of the United States, in McElmoyle v. Cohen, 13 Peters, 314. The High Court of Errors and Appeals of Mississippi have also enforced it in McClintock v. Rogers, 12 Smedes & Marsh. 702.
    .One of the first English cases in which this point arose was in the construction of the statute of 21 James I.,-where Lord Keeper1 Cowper uses this language: — “ The statute provides that, where the party plaintiff, he who carries the action about him, goes beyond sea, his right shall be saved, but where the debtor or party defendant goes beyond sea, there is no saving in that case. It is plausible and reasonable that the statute, of limitations should not take place, nor the six years be running, until the parties come within the cognizance of the laws of England, but that must be left to the legislature.”
    In the case of Beckford and others v. Wade, 17 Vesey, 88, et seq., this question. is fully examined, and the-same conclusion arrived at by Sir Wm, Grant, then Master of the Rolls, to whose elaborate and able opinion the .court • is respectfully referred.
    In Ruggles v. Keeler, 3 Johns. 283, Chancellor Kent expresses the same opinion.
    In McIver et al., Lessees, v. Ragan, 2 Wheat. 25, which was admitted to be a case within the act of limitations of the State of Tennessee, and not within the letter of the exceptions, Chief Justice Marshall says, — “Wherever the situation, of a party was such as, in the opinion of the legislature, to furnish a motive for excepting him from the operation of the law, the legislature has made the exception. It would be going far for this court to add to those exceptions.”
    And again he adds, — “If this difficulty be produced by the legislative power, the same power might provide a retoedy, but courts cannot on that account insert in the statute of limitations an exception which the statute does not contain.” See also Cocke and Jack v. McGinnis, Martin & Yerger, 361; Patton v. McClure, Ibid. 332; 2 Yerger, 290.
    Applying these principles to the case before us, there can be no doubt that the District Court ruled correctly in sustaining the demurrer to plaintiff’s replication. The act of limitations of the State of Mississippi may be found in the Pamphlet Acts of 1844, p. 101, and in Hutchinson’s Mississippi Code., p. 830, et seq.

    The first ten sections of this act define the bar of the statute in the cases therein enumerated. The eleventh Section then provides, that, so far as the ten preceding sections aré concerned, suit may be commenced against a party out of the State after his return, and that the time of his absence shall be deducted, &c. This expressly applies,, however, only to those sections /hat precede it. In Ruggles v. Keeler, 3 Johns. 263, before referred to, the court sáy this applies to foreigners as well as citizens, because the statute makes it so. But no such principle applies to the subsequent sections of the act, and certainly, if the legislature had thought' it right as to those sections, or intended it to apply to them, it would have so enacted.
    The seventeenth section expressly provides that, in the construction of this act, no cumulative or additional disabilities shall be added, allowed, &c.
    The eighteenth section provides, that the periods of limitations established by this act shall commence running from the date of the passage thereof, and repeals all acts and parts of acts conflicting with and contrary to the provisions of this act.
    And the nineteenth section enacts that the act shall take effect from its passage. As the act therefore is express in its terms, that no suit shall be cqmmenced upon a foreign judgment unless within two years from its passage, as no exceptions are contained in the act, and by the act they are expressly excluded, the District Court could not have done otherwise than sustain the demurrer to plaintiff’s replication.
   Mr. Justice CATRON

delivered the opinion of the court.

An action was brought by the plaintiff to recover of the de-fendant, then a citizen of Mississippi, the sum of $ 1,84.4 debt, and $ 110 damages, the amount of a recovery had in the Circuit Court of Tuscaloosa County, and State of Alabama, on the 7th day of February, 1843, by the plaintiff against the defendant. This suit was instituted in the District Court of the United States for the Northern District of Mississippi, at Pontotoc. The writ was issued on the 10th day of November, 1846. The defendant, at the December term, 1846, pleaded the statute of limitations of- 1844, which bars (1.) all suits on judgments recovered within the State after the lapse of seven years; and (3.) all suits on judgments obtained out of the State in six years, in cases of judgments thereafter rendered; and (3.) all suits on judgments obtained out of the State before the act was passed are barred, unless suit be brought thereon within two years next after the date of - the act. On this latter provision the defence depends.

' To this plea of the statute of limitations the plaintiff replied, that at the time of the rendition of the judgment in Alabama, the defendant was a citizen of the State of Alabama, and continued so -to be up to the 10th of November, 1846, the day on which this suit was brought. To this replication there was a demurrer by the defendant, which the court sustained, upon the ground that the statute barred the action.

It would seem that the defendant removed his domicile from Alabama, to Mississippi, and was followéd by the judgment, and immediately sued, on reaching there, as he does not call in question the allegation contained in the declaration that he was, when sued, a citizen of Mississippi.

• The stringency of the case is, that the act of limitations of Mississippi invites to the State and protects absconding debtors from other States, by refusing, the creditor'a remedy on his judgment, which is in full force in the State whence the debtor absconded. And it is insisted, on behalf of thé plaintiff, that here is a case where the laws of Mississippi did not operate on either party (plaintiff or defendant), nor on the foreign judgment, until the day on which suit was brought, and that therefore no bar could be interposed founded on the lapse of time, as none had intervened.

That acts of limitation furnish rules of decision, and are equally binding on the Federal courts as they are on State courts, is not open 'to controversy ;- the question presented is one of legislative power, and not practice.

In administering justice to enforce contracts- and judgments, the States of this Union act independently of each other, and their courts, are governed by the laws and municipal regulations. of that State where a remedy is sought, unless they are controlled by the Constitution of the United States, or by laws enacted under its authority. And one question standing in advance of others is, whether the courts of Mississippi stood thus controlled, and were bound to reject the defence set up under the State law, because, by the supreme laws of the Union, it could not be allowed.

The Constitution declares, that “full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” No other-part of the Constitution bears on the subject.

The act of 26th May, 1790, provides the - mode of authentication, and then declares, that “ the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are or shall be taken.”

The legislation of Congress amounts to this, — that the judgment of another State shall be record evidence of the demand, and that the defendant, when sued on the judgment, cannot go behind it'and controvert the contract, or other cause of action, on which the judgment is founded; that it is evidence of an established demand, which, standing alone, is conclusive between the parties to it. This is the whole extent to which Congress has gone. As to what further “ effect ” Congress may give to judgments rendered in one State and sued- on in another does not belong to this inquiry; we have to deal with the law as we find it, and not with the extent of power Congress.may have to legislate further in this respect. That the legislation of Congress, so far as it has gone, does not prevent a State from passing acts of limitation to bar suits on judgments rendered in another State, is the settled doctrine .of this court.. It was established, on mature consideration, in the case of McElmoyle v. Cohen, 13 Peters, 312, and to the reasons given in support of this conclusion we refer.

But the argument here is, that the law of Mississippi carries with-it an exception, for the palpable reason that neither party nor the cause of action was within the operation of the act for a single day before suit was brought.

1. The act itself makes no exception' in'favor of a party suing under the circumstances of these plaintiffs. So the Supreme-Court, of Mississippi held in the case of McClintock v. Rogers, 12 Smedes &. Marsh. 702; and this is manifestly true on the face of the act.

2. The legislature Having made no exception, the courts of justice can make none, as this would be legislating. In the language of this court in the case of McIver v. Ragan, 2 Wheat. 29, Wherever the situation of the party was such as, in the opinion of the legislature, to furnish a motive for excepting him from the operation of tHe.l'aw, the legislature has made the exception, and it would be going far for this court to add to those exceptions.” The rule is'established "beyond controversy. It was so held by the Supreme Court of New York in Troup v. Smith, 20 Johns. 33; and again in Callis v. Waddy, 2 Munf. 501, by the Court of Appeals of Virginia; and also in Hamilton v. Smith, 3 Murph. 115; by the Supreme Court of North Carolina; and in Cocke and Jack v. McGinnis, Mart. & Yerg. 361, in tHe Supreme Court of Tennessee. Nor are we aware that, at this time, the reverse is held in any State of this Union. It is the doctrine maintained in Stowell v. Zouch, found in Plow-den’s Reports, and not departed from by the English courts, even in cases of civil war, when the courts of justice were closed and no suit could be brought.

In the first place, as the act of limitations of Mississippi has no exception that the plaintiff can set up, and as none can be implied by the courts of justice ; , and secondly, as the State law is. not opposed to the Constitution of the United. States or to the act of Congress of 1790, it is our duty to affirm the judgment.

The case of Dulles, Wilcox; and Welsh against Richard S. Jones (No. 108), being in all its features like the one. next above, the judgment therein is also' affirmed, for the reasons stated in the foregoing opinion.

Order.

THis cause came on to be heard on the transcript of the record 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 this cause be, and the same is hereby, affirmed, with costs. -


source: Caselaw Access Project

license: Public Domain

text:
    Joseph H. Dulles, Edward Wilcox, and John Welsh, Plaintiffs in error, v. Richard S. Jones.
   . This case was brought up, by writ of error, from the District Court for the Northern District of -Mississippi:

In its main features it was similar to the preceding case of The Bank of the State of Alabama v. Dalton, and it will be .perceived, by a reference. to the concluding sentence of the opinion ■of the court in that case, that it included the present. No further report need, therefore, be made of it.

Order.

This cause came on to be heard on the transcript of the record 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 this cause be, and the same is hereby, affirmed, with costs.


author: Mr. Justice GRIER

text:
    Henry M. Bayard, Plaintiff in error, v. Israel Lombard and Charles O. Whitmore.
    Where land was sold under an execution, and the money arising therefrom about to be distributed amongst creditors by an order of the Circuit Court, a controversy between the creditors as to the priority of their respective judgments cannot be brought to this court, either by appeal' or writ of error.
    Although the State in which the judgment was given allowed, appeals, by statute, in similar cases arising in the courts of the State, yet it'does not follow from the adoption of the forms of process in execution that the courts of the United States adopted the modes of reviewing the decisions of inferior courts.
    An appeal to this court is given in chancery eases alone.
    Nor is the case a proper one for a writ of error. ' Such a writ cannot be sued out by persons who are not parties to the record, in a matter arising after execution, by strangers to the judgment and proceedings, and where the error assigned is in an ■ order of the court disposing of certain funds in" their possession accidentally connected with the record.
    The creditors should have filed their bill in equity, or stated an issue in due legal form', with proper parties, setting forth the merits of their respective claims, in order to lay the foundation for an appeal or writ of error to this court.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Pennsylvania.
    On the 25th of July, 1845, a judgment was entered on a bond and warrant of attorney, given by Henry M. Bayard to. Israel Lombard and Charles O. Whitmore, in the Circuit Court of the United States for the Eastern District of Pennsylvania, upon which a Svrit of fieri facias was issued, returnable to April session, 1846, which was returned by the marshal- for that district as levied on certain tracts of land, the property of the said Henry M. Bayard, in the County1 of Lancaster, in said district, and which were condemned by the inquisition returned with said writ as not of a clear yearly value beyond all reprises •sufficient within the-space of seven years to satisfy the debt and damages in the said writ mentioned.
    A writ of venditioni exponas was issued, returnable to April session, 1847, upon which the said tracts of land were sold to Ann Caroline Bayard for the sum of $ 61,200 ; -of which the sum of $ 60,333.80, being the net amount, after deducting commissions and costs, was agreed to be considered as paid into court..
    Upon a motion made on behalf of the Dauphin Deposit Bank, to take out of court the amount of the judgment recovered, on the 28th of August, 1845, by the said bank against the said Henry M. Bayard, in the District Court for the County of Lancaster, for $2,500, James Hepburn, Esquire, was appointed by, the court, on the 7th of June, 1847, auditor, to report who are entitled to the moneys so considered as in court, who, on the 20th of September, 1847, filed his report,-which directed that the judgments against the said Henry M. Bayard be paid according to their priority; without regard to the court in which they were recovered.
    As this report examines a point of great interest to the profession throughout the United States, namely,' the extent of the lien upon real estate which is created by a judgment in the Circuit Courts of the United States, and as'the report was confirmed by the Circuit Court of the Eastern District of Pennsylvania, it is thought proper to insert it.
    “ To the Honorable, the Judges of the Circuit Court of the United States for the Eastern District of Pennsylvania..

      “ The undersigned, the auditor appointed by your honorable court, as per certificate annexed, marked A, with instructions-to report who- are, entitled to the moneys in the said certificate mentioned, as being in court, by the agreement of the- parties claiming the same, secured by a sale of the property of thé defendant, situated in Lancaster County, Pennsylvania, by an execution directed to the marshal of this district, in the suit of Lombard and Whitmore v. Henr.y M. Bayard, in this court, respectfully reports: —

      “ That he gave notice to all persons interested in the matter deferred to him, by advertisements published for three weeks in the ‘ Democratic Union ’ at Harrisburg, and in the ‘ Pennsylvanian ’ at Philadelphia, as directed by the order of court, stated in the said certificate, and as will appear from schedule B, hereto annexed ; and that he was attended at the time and place in the said advertisements mentioned, and at the several adjournments of the case, by John M. Read, Esq., who appeared for Lombard and Whitmore, for the use of Haldeman and McCormick ; C. B. Penrose, Esq., who appeared for the Middletown Bank ; Calvin Blythe^ Esq., and W. Harris, Esq., who appeared for the Dauphin Deposit 'Bank; William H. Rawle and William Rawle, Esquires, who appeared for R: H. Bayard; and Mr. Wilson, President of the Farmers’ Bank of the State of Delaware, who attended on behalf of the said bank.
    ■“ The execution above mentioned issued from this court in this case of Lombard- and Whitmore v. Henry M. Bayard, whose real estate in Lancaster County was levied upon and sold by the marshal of this district to Ann Caroline Bayard, on the 9th day of April, 1847,• for the sum of $ 61,200, subject to a mortgage of $> 18,000, the marshal’s deed to which was acknowledged to the purchaser on the 15th day of April, 1847; and the sum of $ 61,200,- the said purchase-money, is the sum considered in court, and • mentioned in the said certificate marked A, and is the subject of reference to the undersigned.

      “ A list of the judgments hereto annexed, marked C, will exhibit the several claims upon the fund, which are stated in the said list in the order of their dates respectively. The question for examination respects the liens of these judgments; and if the judgments in this court are liens upon the lands of the defendant situated in Lancaster County at the time of the sale, theil the judgments are to be paid in the order of their dates, as stated in the list; but if the judgments of this court are not liens on the said lands, then the judgments of Richard H. Bayard, of January 20, 1844, and those of Lombard and Whitmore, of July 25, 1845, and July 29, 1845, are to be postponed as to the fund for distribution.

      “ The case was-submitted to the auditor without argument; and having to depend upon his own research in ascertaining the law involved in the subject of inquiry, the defects that may be apparent in the view of the case now about to be submitted may be the more readily accounted for.
    “ It would seem that the lien of judgments on the real éstate of defendants, obtained in the courts of the United States, was for a long time the subject of doubt. The first case, in point of date, that I have met with, is that of Konig v. Bayard, October term, 1829, 2 Paine’s Rep., decided in the Circuit Court of the United States for the Southern District of New York. In that case, it was held that the judgment created a lien upon the lands of the defendant; from the time it was docketed, according to the rule in the State courts; and that the lands of a debtor were liable to be taken in execution after they had passed into the hands of a bond fide purchaser, by a conveyance subsequent to the judgment, and prior to the issuing of the execution ; and the principles upon which the judge founded his opinion may have weight in the present case. ■
    “ It was held, ‘ that the liability of lands to execution in the courts of the United States does not arise from any act of Congress expressly making them sp liable, but from the operation of the process acts of 1789 and 1792 ; the State law upon the •subject, being thereby adopted, should be considered as also adopting the effect and operation of the judgment as a lien. The repeated decisions in the courts of the United States, although they have not directly decidetfthe point, had proceeded upon the presumption, that the lien created by a judgment in the United States courts upon land, and the mode of proceed-: ing to obtain satisfaction of the judgments, are regulated entirely by the State laws. That Congress, by the process act, adopted both the form and effect of executions as established by the State laws in 1789. That their form and effect in this State [New York] depended upon the State act of 1787, which requires the sheriff to take the goods and chattels of the defendant, and, if sufficient cannot be found, then to make the debt. and damages out of the land, &c., whereof the defendant was seized on the day on which such lands become liable to. such debt. That the execution thereupon extends to, and operates upon, the lands of which the defendant was seized on that day; and that this was its effect, which had been adopted by the process act.’
    “ The next case, in point of time, that I have met with, is that óf Tayloe v. Thompson, in the Supreme Court of the United States, 5 Peters, 35, decided in a case taken up under the' laws of Maryland. It was contended for the plaintiff in error, that no statute of Maryland authorized the sale of lands for debt, and that the statute of 5 George II., antecedent to the Revolution, was the only legislation upon the subject. That that statute rendered lands in the Colonies subject to execution as chattels, and this only in favor of British merchants ; and no execution having issued upon the lands in question before the title to them passed to the plaintiffs, consequently, as in the case of chattels, no lien attached upon the judgment.
    “ The court, in delivering their opinion, said, —1 This statute (5 Geo. II.) has been adopted and in use in Maryland, ever since its passage, as the only one under which lands have been, taken in execution and sold. It has long received an equitable construction, applying it to all judgment creditors. As Congress has made no law on this subject, the Circuit Court were bound to' decide the case according to the law of Maryland; which does not consist merely in .enactments of their own, or the statutes of England in force or adopted by their legislation. The adjudication of their courts, the settled, uniform practice and usage of the State,,in the practical operation of its provisions, evidencing the judicial construction of its terms, are to be considered as part of the statute, and as such furnishing a rule for the decision of the Federal courts. The statute, and its interpretations, form together a rule of title and property, which must be the same in all courts. It is enough for this court to know that, by established usage, the statute (5 Geo. II.) has been, acted on and considered as applying to all judgments in favor of any person ; and that sales made under them have been held valid as titles. Though the statute does not provide that the judgment shall be a lien from the time of its rendition, yet there is abundant evidence that it has always been so considered, and so acted on.’ And the judge concludes by saying, that there was ‘ no doubt that the courts of Maryland had decided it as a rule of property from thé earliest period, that a judgment is a lien per se on the lands of the defendant.’ And, therefore, the lien of the judgment in the Circuit Court was sustained from the date of its rendition.
    “ In the case of the Manhattan Company v. Evertson, 6 Paige, 465, the question that bore upon the doctrine of lien depended upon the question, whether a judgment in the United States Circuit Court for the Southern District of New York vas a lien upon lands lying within the Northern District of the same State ; and in delivering his opinion the Chancellor says, — ‘ There is no act of Congress 'making a judgment in a court of the United States a lien’on lands, either within the general territorial jurisdiction of the court, or elsewhere. The existence of such a lien must therefore depend upon the local law of the State wheré the land is situated upon which such a lien is claimed.
    “ 1 By the common law, a freehold could not be reached by a judgment, except in the case of an heir, upon a judgment bond, or other specialty. The statute of .13 Edward I., which gave the writ of elegit, by which one half of the land of the judgfhent debtor might be taken in extent, did not, in terms, create a lien, so as to prevent a sale by the debtor before execution ; but the uniform construction of the statute has been, to give such a lien, from the entry of the judgment, upon the lands which could be reached by the process of the court. And when the British statute of 5 George II., ch. 7, subjected lands in the Coionies to sale on execution, the same principle was adopted in the Colony of New York, and in most of the Colonies, as to the lien of the judgment upon real estate which might be thus sold; and this lien was held to extend to all freehold lands which could be reached' by ,an execution out of the court in which the judgment was entered. And when a judgment was removed from an inferior into the Supreme Court, and there affirmed, such judgment became a lien upon all lands of the debtor throughout the State, from the time of the docketing of the judgment in the Supreme Court. . Such was the state of the law here [New York] at the time of the Revolution. .
    “ ‘ The act of 1787, which was substituted .in the place of the British statute subjecting lands to execution, recognizes the existence of such lien in the form of the execution which is directed'by the statute to be issued against the lands of the debtor, as the sheriff is directed, in case the personal estate is insufficient to pay the judgment and costs, to levy the same on the lands-and tenements whereof the judgment debtor was seized on the day the lands become liable, or at any time after-wards.
    “ ‘And that a judgment of a court of the United States is a lien upon the real estate of the debtor, in accordance with the local law of the place where the land lies, is settled by the Supreme Court. 5 Peters, 358.
    “ ‘ Upon the principle, which has been adopted by Congress, and by the Supreme Court of the United States, the legal effect of a judgment as a lien upon the real estate of a defendant, whether such judgment is rendered in a court of the State or in a Federal court, where no direction on the subject has been given by the sectional legisláture, must necessarily be governed by the local law, although the mode of proceeding to enforce such lien, where it exists, may not be the same in the courts of the State and Federal courts. I have no doubt, therefore, that, the lien of a judgment recovered in one of the Circuit or District Courts of the United States, within the limits of this State, is a lien upon the lands of debtor lying within. the territorial jurisdiction of such court, for the term of ten years from the docketing of such judgment, in the same manner that a judgment of a court of record in one of the State courts is a lien.
    “ ‘ And the only difficulty is in determining whether the lien, according to the true principle of the local law, extends to all lands which may be reached by the execution-of the court, or only to such as are within the territorial jurisdiction to which the original process of such court extends.’ And the Chancellor concluded by saying, ‘but with some hesitation, that a judgment recovered in the Circuit Court, in either of the districts,-'is a lien upon real property lying in any part of the State within which the Circuit Court is held.’ And he added, that, if a county court were authorized to issue execution throughout the State, the principle of the local law would extend .the liens of the judgments thereafter recovered throughout the State; • that such was the construction of Yirginia, permitting execution upon a judgment in a local court to be issued to other counties; and Cited 2 McCall, 186.
    “ In the case of Konig v. Bayard, heretofore referred to, the same doctrine is held, that the lien of a judgment upon the lands of a defendant existed by virtue of the right to take it in execution and sell it in satisfaction of the debt.
    “ The case of the United States v. Morrison, 4 Peters, 124, was taken up to the Supreme Court of the United States by appeal from the Circuit Court for the Eastern District of Yirginia. The Chief Justice, in delivering the opinion, says, — ,‘ In Yirginia there is no statute which, in express terms, creates a lien upon the lands of the debtor. As in England, the lien is a consequence of the right to take out an elegit. Different opinions seem to have been entertained of the effect of any suspension of the right. By the construction .of the Circuit Court, the party who sued out a fi. fa. could not resort to an elegit until the remedy on the fi. fa. was shown by the return to be exhausted ’; that is, that the lien was suspended until the return of the fi. fa., and the adverse right, having attached in the mean time, was preferred to that claimed under the judgment-..
    “ But soon after the judgment in the Circuit Court, and before the cage came up to be heard in the Supreme Court,' the Court of Appeals of the State decided that the right to take out an elegit was not suspended by suing out a fi. fa., and consequently, that the lien of the judgment was continued pending the proceedings on that writ. And upon the ground of this decision of the Court of Appeals, establishing- the law of the State, the judgment of the Circuit Court was reversed, and the cause remanded ; the Chief Justice observing, that ‘ this court, according to its uniform course, adopts that construction óf the act which is made by the highest ¿ourt of the State.’
    “ The above case recognizes the position, that where a lien is. dependent upon the right to issue execution, and that right is suspended, the lien is suspended also ; and is remarkable for the strong expressions used, by the Chief Justice, in reference. to the deference paid by the courts of the United States to State laws.
    “ The Supreme Court, in the case of Tayloe v. Thompson, rather assign the local law of the State, recognised in its highest tribunals, establishing the lien of judgments, without special regard to the reasons by which it became established, as the ground of their decisions; and in that case the judgment is held to be a lien per se.

    “ And in 4 Peters, 366, the Supreme Court have held, that in Kentucky a judgment does not bind land ; that the lien attaches only from the delivery of the execution to the sheriff; and in that State, therefore, the right to issue execution does not carry with it a lien upon lands.
    “ In Ohio, the lien of a judgment is lost, if execution is not sued out and levied within a year from its rendition.
    “ In Tennessee, a judgment of a county court is a lien, for one year after its rendition, on defendant’s lands throughout the State, and prior judgments take precedence of executions. Mart. & Yerg. 26.
    • •“ Judgments in the Circuit Court of the United States, in the State of Ohio; rendered previous to May, 1828, attached as liens upon the lands of defendant throughout the State, in virtue of the adoption by that court of the execution laws of the State in the regulation 'of its practice. Sellers v. Cor Ivin, 5 Ham. ,398.
    “ Here are presented a variety of local laws of different States on the subject of the lien of judgments, some derived from one principle and some from another; and it may be remarked, that the statute of George II., the construction of which by the State courts of New York is the ground of the Chancellor’s opinion above quoted, could have'no application to any State formed since the Revolution, and' after the States were colonies of Great Britain,. ,to whom in that relation alone it applied. But hence the strong propriety of a broader ground .of .decision, on the part óf the Federal courts, to adapt their proceedings to the local laws; and this is comprehended in the view of the Supreme Court, taking the established la>v of the State as the basis of their judgments in matters of local character. And this ground of decision embraces all States, whatever may be the date of their creation or the peculiarity of their laws; and this, I conedive, is the ground taken in the case of Tayloe v. Thompson, before referred to.
    “It is not, however, deemed material in this case whether one principle or the other be adopted, as either will lead, it is believed, to the same conclusion, in accordance with the .local laws of Pennsylvania.

      “Antecedent to the act of the.Pennsylvania Legislature of 1799, a judgment in the Supreme Court of the State was held to bind the lands of the defendant throughout the State ; and tfie powers of the Supreme Court were held to be the same as those of the Court of King’s Bench in England; and that, the liens of judgments in the latter court being only bounded by its territorial jurisdiction, those of the former had equal extent. That act, however, provided that no judgment of the Supreme, or Circuit Court of the State should be a lien on real estate, excepting in the county in which such judgment should be rendered. Purd. Dig. 433.
    “ This is the only act of the Pennsylvania Legislature fixing territorial limits' to the lien of judgments.
    “ There are. several acts familiar to every one, fixing limits as to time, which, it is conceived, have no bearing on this case, and which, therefore, call for no special notice.. The act of 1798, however, limiting the lien of judgments to five years, unless revived by scire fádas, having been considered in this court, and the general argument having, as it is deemed, a bearing upon the question, under discussion, will be presently noticed.
    “The general doctrine of the lien of judgments.has, however, been considered in the case of Krause’s Appeal, 3 Whart. 403, in the Supreme Court .of this State. In that case the court say, that ‘neither the act of Parliament, which1 subjected lands, sub modo, to the payment of debts, nor our acts'of 1700 and 1705, which made them liable to be. sold absolutely, expressly provided that a judgment should be a lien on land. In both countries, however, it was held to bind land. Both there and here, it is expressly assumed by the legislatures of the different countries, and the time when the lien is to commence, and how long it is to continue, and by what proceeding prolonged, are expressly provided by different laws,’ &c. We may content ourselves with saying, that a judgment is in Pennsylvania a lien on real estate, by acts of Assembly, and the nature and extent of the lien are according to the provisions of these enactments.
    “ In the case of Thompson v. Phillips, 1 Baldwin, 373, one of the questions considered by the Circuit Court was,, whether the State law of 1798, limiting the lien of judgments on real estate to five years, was obligatory upon the Federal courts, and it was held that it was, for a variety of reasons. ‘ The terms of the act,’ it was said, ‘extend to all judgments,’ in any court of record, ‘ within this State, and are broad enough to take in those of this court. Its object is declared to be'to pre- • vent the risk and inconvenience to purchasers of real.estate, by suffering judgments to remain a lien for an indifferent time, without any process to continue or revive (he sqme, which applies in whatever courts such judgments are rendered. We can-, not consider it as a mere process act; it is a part of a great system of jurisprudence, for the safety ,and protection of purchasers, &c. The questions arising under it áre those of property, title, and the rights of purchasers for. a valuable consideration. It cannot be doubted that this law should be the rule of decision in a State court, and it is difficult to perceive a reason why a different rule, should be adopted .in this court, merely because the plaintiff, being ar-citizen of another State, may bring his suit here or in the State courts, at his option. Both the courts administer the laws and jurisprudence of the State ; the rules of property and title are the same, as well as the modes of transmission by judicial process; .all regulated by State. laws, there ought to be one uniform course of adjudication upon them.’ ‘ That over the subject-matter Congress possesses no constitutional jurisdiction, nor has, in any manner, assumed its exercise. These are subjects of internal police and State regulation, over which the States have delegated no power to the general government; on which the States can legislate to any extent, and in any manner not prohibited by the constitution of the State or the Union.’ And the judge affirmed that the case came strictly within the thirty-fourth section of the Judiciary Act.
    “ Although the argument of the court in the above case is applied to a question of limitation as to time, yet it is apprehended that its general doctrines are as applicable to a limitation in reference to territory as to that of time;' A restriction imposed upon the lien of a judgment as to territory would enter , as fully into questions of property, title, and the rights of purchasers, as that of a restriction as to the period of its dura- ■ tion; and therefore, if the local law is the rule of decision in the one case in the Federal courts, no reason is perceived why it should not be in the other.
    .“But a State legislature can impose no rule upon a Federal court, directly or indirectly, that cannot be sustained by the' Constitution of the United States. Such legislatures have full power over their own tribunals, where it. is not controlled by the State constitution, and they may enact what rules they please for their government within this limit; and if they were to abolish liens on real estate altogether, obtained through the medium of judgments, I apprehend the United States courts, in accordance with the doctrines of the cases quoted, would be bound by it. But if a State were to restrict the liens of all judgments, obtained in courts of record to the counties in which they were recovered, it might well .be doubted if the Federal courts would be bound by such enactment, literally construed; for, in that Case, the lien of a judgment in these courts would be excluded from every county composing the .district except that in which the court might be located. This, therefore, .Would form a different rule for the Federal courts from that which would operaté upon the. State courts. The rule in the supposed case, it may be observed, can have no reference to locality,as distinct from the jurisdiction intended to be acted upon, and the term county, used in this connection, would be deemed merely a word used to designate the known limits of a given jurisdiction, and would, by applying the rule, instead of a particular word to the Federal courts, embrace the district. If such would not be the construction, there would be no uniformity of decision between the Federal courts and those of the State, and the evils pointed. out in the case in 1 Baldwin, 273, as likely to arise out of a collision between the State and Federal tribunals would be without remedy. The State laws cannot bp made to have any special and direct bearing upon the United States tribunals. The latter merely administer the laws of the State as they find them, and because they are the laws of the Statebut a law that would operate upon a Federal, court ex-, clusively, so as to restrain its action or the efficacy of its judgxnents beyond the restraints imposed upon the State courts, could scarcely be called a State law; and it might well be doubted if there would be any obligation upon the Fedérál courts, either under the thirty-fourth section of the Judiciary Act; or any acknowledged principle, to observe its provisions. This is, however,' supposing a difficulty that does not exist.
    “But it appears that Congress has legislated upon the subject of liens, so far as to designate the period when liens on judgments shall cease.- By the act of July, 1840, c. 20, $ 4, it is provided, ‘ That judgments- and decrees thereafter rendered in the Circuit and District Courts of the United States, within any State,'Shall cease to be liens op real estate, or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such State now cease by law to be liens thereon.’’
    “ These words may be broad enough to comprehend liens in either relation, as regards territory or duration, but the word ‘now? used in the act, according to the construction given to the Process Act in the Federal courts, would confine its -action to the state of things in the several .States to which it refers as existing at the time of its passage.

      “ However this may be, the. act clearly recognizes the existence of liens on judgments in the Federal courts, and as it requires that they shall cease in conformity to the State laws, it is just to infer that, in the contemplation of Congress, they exist in conformity to the same laws, and in this recognizing the doctrine held by the courts.
    “ The foregoing decisions have a bearing on the case under consideration too obvious to call for any remark; and what remains to be said may therefore be said very briefly.
    “ As regards Pennsylvania, the statute of 5 George II. was. never in force that I can ascertain. The act of 1705, passed by the local legislature, was in existence, and had been for several years before the passage of the former act, and superseded it. No local laws existing in the Colonies of New York, Virginia, Maryland, and others, the, British statute became the law, and the construction it received varied more or less in the several jurisdictions. How far the doctrine of lien, as it. grew up in Pennsylvania, was dependent upon the construction given in England to the statute of 1 Edward I., which gkve the writ of elegit, I am not able to trace. But that a judgment in Pennsylvania has been uniformly held to be a lien per se, liable to no suspension or interruption from any cause short of satisfac-' tion, or its equivalent in law, for a very long time, admits, I think, of no doubt. •
    ' “ We therefore find, that the judgments of courts of record' of the several States have liens attached to them binding real estate, but having their origin in different sources, and therefore varying in their effects; and that' the local law is universally adopted in the Federal courts in the decision of local questions, and especially those having connection with real estate; and that the grounds upon which the local.laws have been adopted have varied. In Ohio, judgments of the. Federal courts are held to be liens, because these courts have adopted the execution laws of .the State., In New. York, Virginia, and other States, because of the operation of the Process Act; and in Maryland, because a judgment is a lien per se.

    “Is Pennsylvania an exception to this otherwise universal rule? The only statutory limitation of the liens of judgments in Pennsylvania, as regards territory, is the act of 1799, which has been heretofore referred to, and that act is confined in its operation expressly to the Supreme and Circuit Courts of the State, and cannot be extended, by any construction, so as to affect-such liens on the judgments of any other courts.
    The. case of White v. Hamilton held the doctrine, that the lien of judgments in the-Supreme Court extended throughout the State, because the jurisdiction of the court was thus extensive. The same rule has been .adopted with regard to all other courts of record of the State, without any special legislation in reference to the subject of liens, but as ap incident to the jurisdiction. In all the county courts, there is no other reason perceived why judgments obtained in them are liens throughout the county, but the fact that their jurisdiction extends throughput the county. The mere act of creating a court of record, and specifying the limits of its jurisdiction by State authority, extends the liens of judgments throughout these limits; and the application of the same rule to the Circuit Courts óf Pennsylvania must, in1 accordance with received principles, be attended with like results.
    “ If this is not the rule in the case under consideration, what is the limit as to territory of the lien of a judgment in the Federal courts of this State ? That a lien of some extent attaches upon such judgment has been shown by the authority of decided cases, and by fair inference from acts of Congress. What, then, is its territorial extent ? Philadelphia County, where this court holds its- sessions, is no more specially within its jurisdiction than Lancaster County, or Berks, or Northampton, or any other county of the district.' They are all alike, and equally within the territory assigned to the jurisdiction of the court, and to every intent and purpose are equally within its judicial action; and the same cause of argument that would go. to exclude the lien of a judgment of this court from Lancaster County, would exclude it from every .county of the district, or, in other words, would extinguish it.

      “ Nor is it readily perceived how a lien on land can be obtained in Pennsylvania through judicial action, unless it attach upon a judgment. - In I Baldwin, 268, the judge, in distinguishing between the effect of an execution, in its operating as a lien on real or personal estate, says, — ‘ As to land, the lien attaches by the judgment, and remains, though no levy be made. The sheriff has no right to take possession, or to enter upon it to make a levy; and after levy, he has neither the right of possession, of property, or power to sell-an estate of freehold in defendant, if the property be improved,’ &c. So in 1 Peters, 386, it is held, that ‘ the lien by a general judgment on land gives the right to levy on the same, to the exclusion of adverse interests; and such levy, when' made, relates-back to the .time of the judgment.’

      “ If land can only be levied by virtue of the lien obtained, through the judgment, then the existence of the lien is necessary to sustain the levy; and if the doctrine be true, that no lien attaches upon a judgment of this court, or that such lien does not extend to Lancaster County, then was there nothing to sustain the execution on which the land was sold, and the money raised, which is now the subject of controversy, and the whole proceedings in that connection are void.
    “ And it may be added, that all the reasons alleged for adopting the local law of lien ..by the Federal courts apply to judgments in this case. For, 1st, the courts have adopted the exe-. cution laws of this State, as fully as in Ohio, where this is the ground alleged for adopting the lien law of. that State; 2d, the Process Act applies as entirely to Pennsylvania as to New.York and Virginia; and, 3d, a. judgment in Pennsylvania is as much a lien per se, and forms a rule of title and property in this State, as in Maryland, and. is therefore within the provisions of the thirty-fourth section of the Process Act, which is the reason assigned for adopting the lien law of the latter State.

      “ The auditor, therefore, is of opinion, that the authorities quoted sustain the position, that a judgment of this court is a lien upon the lands of the defendant in Lancaster County; and therefore, that the judgment creditors having prior; liens are entitled to the fund in court, after payment of the costs and expenses upon the judgments as far as they may be covered by the fund, and the expenses of this reference. The judgments to be paid according to their priority, without regard to the court in which, they were recovered, as follows, to wit: —
    1845, June . Judgment in the District Court of Lancaster County in favor of the President, Directors, and Company of the Bank of Pennsylvania,. entered at December Term, 1841, revived to June term, 1845, for . . Interest to 9th April, 1847, the day of sale.
    .$24,100.00
    1844, Jan. 20. Judgment in the Circuit Court of . the United States for the Eastern District of Pennsylvania, in favor of Richard H. Bayard, Jan. 20, 1844. Judgment for . . Interest to 9th- April, 1847, the day of sale.
    .$17,188.00
    1845, July 25. Judgment of Lombard and Whit-more, in the samé court. Judgment obtained July 25, 1845; for . . . . . Interest to 9th April, 1847, the day of sale.
    $24,104.57
    1845, July 29., Judgment in favor of the sanie plaintiffs, in the same court.. Judgment obtained July 29, 1845, for . . . .
    $ 10,000.00
    1845, Aug. 26. Judgment in favor of the Bank of ' Middletown, in the District Court of Lancaster County, August 26th, .1845
    1845, Aug. 28. And another judgment in favor the same plaintiff, in the same court, obtained August 28, 1845.
    . The amount due on both the above judgments, as ascertained by the parties, is . .
    $ 26,550.47
    . But from this amount must be deducted any interest allowed in the settlement of the amount, be-, tween the 9th April and 9th July, 1847, on which last-named day the settlement is dated.
    1845, Aug. 28. Judgment in favor of the Dauphin Deposit Bank, in the District Court of Lancaster County, obtained 28th August, 1845, for . Interest to 9th April,. 1847.
    $ 2,500.00
    1845, Aug. 30.. Judgment in favor of the President, Directors, and Company of the Farmers’ Bank of the State of Delaware, obtained in the Court of Common Pleas of Lancaster County, for . . . . . . ' ’ .
    ■$ 12,000.00
    Judgment obtained August 30, 1845. Interest, from August 30, 1845, to 9th April, 1847.' ■
    *e All of which is respectfully submitted.
    “ James Hepburn, Auditor.”
    Afterwards, on the same day, exceptions to the auditor’s report were filed, which, exceptions are in the words following, to wit: —
    “On'hehalf of the Bank of Middletown and the. Farmers’ Bank of Delaware, we except to the report of the auditor in this case, on the ground that the auditor has erred in deciding that the judgments rendered in this court are a lien on the lands of the defendant in Lancaster County, Pennsylvania, and in awarding the proceeds of the sale of such lands to. said judgments, to the exclusion of the judgments of record in the courts in Lancaster County.

      “ B. H. Brewster,
    Charles B. Penrose,

      Attorneys for Bank of Middletown and Farmer’s Bank of Delaware.”

      u George W. Harris excepts to the report of the, auditor, in the casé above referred, to, in awarding the money in dispute, in the said case, to the judgments obtained in the Circuit Court against Henry M. Bayard, instead of the judgment of the Dauphin Deposit Bank against the said Henry M. Bayard, in the District Court of the County of Lancaster, the. same, being No. 135 of June term, 1845.
    “ George W. Harris,

      Attorney for the Dauphin Deposit Bank.

      “September, 20, 1847.”
    On the 11th. of October, 1847, the exceptions: were argued, and overruled by the court. The report was confirmed, and distribution ordered in accordance therewith.
    The counsel for the Bank of Middletown then moved the court to allow the entry of an appeal from the order of the court distributing the proceeds of the execution in this case; which motion, after the hearing of counsel, was overruled by the court.
    The counsel then filed an affidavit, made by Simon Cameron, the cashier of the bank, that, the appeal was not intended, for delay ; and caused Simon Cameron and Alexander Cumming to enter into a recognizance for the prosecution of the appeal with effect. The following note was attached to it by. the presiding judge* viz.: —.
    “ N. B. — The above affidavit and recognizance have been sworn and acknowledged before me, at the request of counsel, valeant quantum valeant, the court having previously refused, on motion of said counsel, to allow an appeal, on the ground that the party offering to appeal was not entitled to such remedy.
    “ October 30, 1847. R» C. Grier.” .
    On the 15th of November, 1847, Mr. Penrose moved that a final decree or order be entered, which motion was overruled by the court.
    On the 17th of November, 1847, the following praecipe for a writ of error was filed, viz.: —
    “Henry M. Bayard, a Citizen of Pennsylvania, Plaintiff in error, v. Israel Lombard and Charles O, Whitmore, Citizens of Massachusetts, &c., Defendants in error.
    “ Sir, — Issue writ of error to the Circuit Court of the United States for the Eastern District of Pennsylvania, to remove the record and proceedings in the suit or action wherein the said Israel Lombard and Charles O. Whitmore, citizens of the State of Massachusetts! copartners under the firm-, of Lombard and ' Whitmore, &c., are plaintiffs, and Henry M. Bayard, ¿ citizen of the State of Pennsylvania, is defendant, No. 28, April session, 1845, including all the final process issued therein, and the proceedings thereupon, and particularly the decree of ithe said Circuit Court making distribution of. the money raised by the sale of the real estate of the defendant, the said Henry M. Bayard, and also the costs taxed therein, the appeal therefrom, the exceptions filed thereto, and the order of the court thereupon.

      “Nov. 17th, 1847. B. H. Brewster,
    Chas. B.-Penrose,

      Att’ys for Plaintiff in error, and of the Bank of Middletown, and the Farmers’ Bank of the State of Delaware.

    “George Putt, Esq,-, Clerk of Circuit Court United States, E. D. P.”

      An affidavit and recognizance were filed on behalf of the Bank of Middletown, to which a memorandum was attached, similar to the one just mentioned.
    Upon the writ of error thus issued, the case came up to this court. The following assignment of errors was filed.

      Errors Assigned.

    1. The court erred in confirming the report of the auditor in this case, and in ordering distribution according to that report.
    2. The court erred in ordering distribution of the fund raised by the sale of real estate, in Lancaster County, to be made to judgments entered of record in. the said Circuit‘Court, in the County of Philadelphia, instead of to the judgments in favor of the Bank' of Middletown and the Farmers’ Bank of Delaware, respectively entered of-record in the County of Lancaster, which were liens on the land sold.
    3. The court erred in assuming jurisdiction to make an order for the distribution of the fund, raised by the sale of the real estate, of the defendants below, among the judgment creditors of the defendants, some of such creditors haying judgments of record in the State courts of the County of Lancaster, and "in refusing to the Bank of Middletown, one of these creditors, an appeal to the Supreme Court of the United States, under the act of the General Assembly of the Commonwealth of Pennsylvania, passed the 16th April, 1827, entitled “An act relative, to the distribution of money arising from sheriffs’ and cproners’ sales,” &c.; which gives such jurisdiction to State courts.
    4. The court erred in overruling the. exceptions to the costs taxed by the clerk of the court, and in allowing the sum .of two hundred and fifty dollars to the auditor, and a commission to the clerk on money not deposited in court, amounting to the sum of , to be deducted from the fund.
    5. The court erred in refusing to enter a final decree in the
    Filed 7th January, 1848.
    The case was argued by Mr. Brewster, for the plaintiff in error, and Mr. John M. Read, for the defendants in error.
    Both the counsel went into an elaborate investigation of the nature and extent of a lien upon land created by a judgment in the Circuit Court; but as the decision of this court rested upon a collateral point, it is not deemed necessary to take further notice of these arguments. The right of appeal was more briefly discussed.

      Mr. Brewster, for the plaintiff in error,
    thus noticed that point.
    The fifth exception is, that the court erred in refusing to enter a final decree in the case.
    The plaintiff in error contends that the decree rendéred in this case was in the nature of a final - and absolute decree and judgment, and as such upon it a writ of error or an appeal will lie, under, the twenty-second section of the statute of 1789. In Pennsylvania, at one time, by the practice of our courts, when the sheriff was ruled to pay into court money, arising from the sale of real estate, all disputes between conflicting claimants were heard by the court itself; this becoming a burden upon' the courts, they adopted the method of referring these questions .to auditors, whose decisions were reported to the court by whom they were appointed; this continued till 1827, when the following statute was passed: —

      “ In all cases of sheriff’s or coroner’s sale, where there are or may be disputes about the distribution of moneys arising therefrom, the respective Courts of Common Pleas, District Courts, and Courts of Nisi Prius within, this Commonwealth, are hereby declared to have full power and authority to hear and determine all such cases according to law and equity.” Act of 16th April, 1827, Pamph. Laws, 471.
    By this statute, if an issue in fact was raised and tried by a jury, the judgment in the issue was subject to a writ of error, and if decided by the court without the intervention of a jury, the party aggrieved by the decision might appeal to the Supreme Gourt.

      The court in this very case adopted the method of practice used in the State courts under this^ statute of 1827, ana by appointing an auditor to distribute the money, they have incorporated the provisions of the statute into their code of practice,, and, as the plaintiff alleges, thereby adopted the whole of the statute, which, as has been before said, gave a writ of error and an appeal to the Supreme Court of the State. That statute of Pénnsylvania in effect makes such a decree of the. court a final judgment, and as the parties and their rights are concluded' by it, they are entitled to the advantage of a hearing in a court of review. The act of Congress of 1828 authorizes this adoption of our State practice, and by its adoption the Pennsylvania act of 1827 has become a part of the law of the Circuit Court. Mayberry v. Thompson, 5 Howard, 126; Boyle v. Zacharie, 6 Peters, 648.

      Mr. Read, for the defendants in error,
    contended that the case was not regularly before this court.
    1. It is not here by.appeal, nor are either of the banks in any manner parties in this court. This has been already stated.
    2. A writ of error does not lie to the distribution of money under the sale of a marshal. This was the settled law of Pennsylvania prior to the act of 1827. 17 Serg. & Rawle, 278.
    The defendant below has no error to complain of, because his property is paid to his creditors in discharge of their debts, and it is immaterial to , him in point of law which one is paid in preference to the other.
    No judgment creditor can sustain a writ of error, because he is not a party to the suit, which is a common law proceeding. Therefore, neither the Bank of Middletown nor the Partners’ Bank of Delaware could bring this writ of error, nor are they in any manner parties thereto.
    These points are made as a matter of duty to the court, but the defendants in error have the fullest reliance on the correctness of the decision of the Circuit Court upon the real question in the cause.
   Mr. Justice GRIER

delivered the , opinion of the court.

This case has been brought here, both by writ of error and appeal, for the purpose of reviewing the decision of the Circuit Court for the Eastern; District of Pennsylvania, with respect to the lien of judgments obtained in that’ court. But as we, are of opinion that the ruling of the Circuit Court on this subject ■is not properly before us on the record, we cannot consent to volunteer an expression of oiir judgment upon it, however much it may be desired by. the partiés.

. A brief statement of the history of the case, and of the peculiar practice of the courts of Pennsylvania on this subject, will make it apparent that the decision of the court below involving this question is not properly before us, either by the appeal or the writ of error.

The record shows, that Lombard and. Whitmore obtained a judgment against Bayard, the nominal plaintiff in error in this case, on a bond for $ 62,420, conditioned for the payment of '$31,210. An execution on . this judgment was issued, returnable to April term, 1846, on which the marshal returned a levy on certain lands of the defendant situate in Lancaster County, and within the Eastern District of Pennsylvania. An inquisition was held, and the property condemned, according to the practice and laws of that State. A venditioni exponas was afterwards issued, on which the marshal returned, that he had sold the property levied on for the sum of $ 61,200. These proceedings are admitted to be all regular, and according to law.

In Pennsylvania, a judicial sale discharges the land sold from all liens, except (now) prior mortgages. When, therefore, land is once sold on execution, and converted into money, all persons who claim to have liens upon- it by judgment or otherwise (with a few exceptions) are compelled to follow the money or lose their security. Hence it, often happens that, when money is made by sale of land on a junior judgment, the plaintiff does not obtain satisfaction, and is sometimes involved in a fresh-litigation with creditors- claiming to have prior liens. In these contests the defendant is Usually an indifferent spectator. For many years there was no settled practice, as to the mode in which’ these new disputes should be litigated.

In .some districts the sheriff paid the money in his hánds to such parties as he thought best entitled to it, and took an indemnity against other claimants, who were thus, compelled to seek their remedy by suit on his.bond.. In other districts, thé. sheriff avoided responsibility by paying the money into- court, and leaving the claimants to settle their controversies in such manner as the court might order, or the parties elect. In such cases, the court usually disposed of the money on the motion of the parties interested, by ordering the liens to-be paid in the order of their priority, as certified by the clerk. But as it not unfrequently happened that the junior judgment creditors contested the validity of the lien of the older judgment, because it was not regularly revived, or for other reasons; or challenged it for fraud and collusion; or insisted that it had been .paid in whole or in part, it became necessary that the court should in some way try and decide these questions thus raised by new parties before any proper disposition could be made of the money. Im such cases, where the counsel expected, questions to arise which they might desire to have reviewed by writ of error, they took care,- by the form of an amicable action, or by case stated in the nature of a special verdict, tp shape the proceedings in such form and with such parties that a writ of error would lie in favor of those who felt aggrieved by the decision of the court.

But it was conceded by all, that, if the money was distributed by the court on motion, a writ of error could not reach the proceeding, and the decision of the court was conclusive on all parties. (See Gratz v. Lancaster Bank, 17 Serg. & Rawle, 279.)

Such was the practice in the courts of Pennsylvania, till the year-1827, when an act of Assembly was passed, requiring the court to direct aft issue in such cases, at the request of any claimant, and to give notice to all persons interested ; and allowing a writ of error where the issue was tried by a jury, and an appeal when the question was submitted to the court.

In the case before us, the marshal paid the money into court, and motions were made by the Bank of Middletown and others for leave to take it out of court, which were resisted by Lombard and Whitmore, the plaintiffs in the judgment. The court appointed an auditor to make report as to the parties entitled to the money, with directions to give notice to all parties concerned. The auditor made a report, giving, a preference to the judgments according to their priority in time. The Bank of Middletown, and others who had junior judgments in the State courts of Lancaster County, excepted to the report, alleging that judgments in the Circuit Court of the United States were not liens on the lands of defendánt in Lancaiter County, or out of the County of Philadelphia.

This exception was. overruled by the court, and the report of the auditor confirmed. From this decision of the court the Bank of Middletown appealed,.'and on suggestion of a doubt by the court whether an appeal would lie, a' writ of error was also sued out by counsel professing to act as attorneys for plaintiff in-error, and for the. Bank, of Middletown and the Farmers’ Bank of Delaware.”

But no errors have-been assigned in this court, to the judgment or execution, on b.ehalf of the" plaintiff in, error. As against him, all the proceedings are admitted to be regular and legal, It is a matter of indifference to him whether the money raised by the sale of his lands on the execution is awarded to defendants in error or to the banks. The assignment of errors in this case is on behalf of persons who are not parties.to the record, and of a matter arising after execution executed, on a motion by strangers to the judgment and proceedings, and an order of the court disposing of certain funds in their possession accidentally connected with this record.

It is a well settled maxim of the law, that no person can bring a writ of error to reverse a judgment who is not a party or privy to the record.” “ A writ of error lies when a man is griev.ed by an error in the foundation, proceeding, judgment, or execution ” in a suit. Co. Lit. 288, b ; see also Boyle v. Zacharie, 6 Peters, 655, and cases cited. The judgment or order of the court on a summary motion, or a collateral question arising like the present on the suggestion óf a third party, is not reexaminable on a writ of error issued on the judgment with which it may happen to be connected.

The Circuit Court of the United States has adopted the forms of process in execution of the State courts, and the laws and practice of Pennsylvania, for taking lands on execution and disposing of their proceeds. But it is not a consequence of their adoption of them that the modes of reviewing the decisions of the Circuit Court by this court should be conformed to the laws or practice of the State. For it cannot be pretended that acts of Assembly of Pennsylvania can give jurisdiction to this court not to be found in the Constitution and acts of Congress of the United States.

The absence of courts of equity in Pennsylvania has compelled them to adopt modes of practice in their courts of common law anomalous in their character, and unnecessary in a court possessing the full powers of a court of chancery. . An appeal to this court is given in chancery cases alone. And the writ of error given by the Judiciary Act is governed by the provisions of that act and the principles of the common law, as regards the judgments and questions which may be reviewed under it. . The persons complaining in this case should have filed their bill in equity, or stated an issue in due legal form, with proper parties, setting forth the merits of .their respective claims, if they intended to prosecute an appeal or writ of error to this court. This coirld have been done with less expense and trouble, and in less time, than in the mode pursued. But having submitted the question on which their claim depended to the court below, on a motion collateral to the record, the decision of that court .is final and conclusive, and cannot be reviewed by this court.

Therefore, as no error appears on the record, the judgment of the Circuit Court must be 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 Eastern District of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjiidged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.


author: Mr. Chief Justice TANEY

text:
    Benjamin H. Lambert and Lewis McKenzie, Plaintiffs, v. William Ghiselin.
    In an action upon a bill of exchange brought by the holder, residing in Alexandria, ' against the indorser, a physician residing in Maryland, the bill upon its face not being dated at any particular place, it was sufficient proof of due diligence to ascertain the residence of the indorser before sending him notice of the dishonor of the bill, that the holder inquired from those persons who were most likely to know where the residence of the indorser was.
    Where a notice is sent, after the exercise of due diligence, a right of action immediately accrues to the holder, and subsequent information as to the true residence of the indorser does not render it necessary for the holder to send him another notice.
    This, case came up from the Circuit Court of the United States for the District of Maryland, upon a certificate of division in opinion between the judges thereof.
    It was a suit brought by Lambert and McKenzie, carrying on business as partners in Alexandria, Virginia; against William Ghiselin, the indorser of the following bill of exchange.
    [Stamp 75 cents.] April 21, 1846.
    Ninety days after date pay to the order of William Ghiselin fifteen hundred dollars -¶2^, value received, and charge the same to account of your obedient servant,
    Robert Ghiselin.
    To John R. Magruder & Son, Baltimore.

    (Indorsed,) John R. Magruder & Son.’
    (Indorsed,) William Ghiselin, Lambert & McKenzie..
    Pay to the order of C. C. Jamison, Cashier.
    John Hoff, Cashier.

    Jamison was the Cashier of the Bank of .Baltimore, who caused the bill to be presented, when due, to the acceptors in Baltimore, and to be protested for non-payment.
    In November, 1847, the cause came on for trial in the Circuit Court, when the plaintiffs offered the bill in evidence, together with the notarial protest.
    The plaintiffs then further gave in evidence, by William H. Lambert, a competent witness, that on the 24th day of July, 1846, he was the assistant clerk in the counting-house of the plaintiffs, who were then, and still are, doing business in Alexandria, now in the State of Virginia, under the náme and style of Lambert & McKenzie ; and that on the said 24th day of July, 1846, the witness saw’- inclosed in a letter addresséd to the defendant, at Nottingham, Maryland, the original notice, whereof the paper marked A is a,true copy.

      Copy of Notice of Protest.

    (Copy A.) “Baltimore, July 23, 1846.
    “ Mr. William Ghiselin : — Sir; Please to take notice that Robert Ghiselin’s bill of exchange on John R. Magruder & Son, for § 1,500 (by them accepted), dated April 21, 1846, and payable ninety days after date to' your order, and by you indorsed, is delivered to me by the President, Directors, and Company of the Bank of Baltimore, to be protested for non-payment; and the .same, not being paid, is protested, and will be returned to the said president, directors, and company, and that you are held liable for the payment thereof.
    “ Samuel FerNandis, Notary Public.”
    That said witness on said day deposited the said letter, inclosing the said notice in the said post-office, at said Alexandria, in time to go in the mail of that day.
    And the plaintiff further gave in evidence, by Captain Thomas Travers, a competent witness, that he arrived in his vessel at the port of Alexandria aforesaid, early in the morning of the said 24th day of July, 1846; and that immediately after his arrival at the wharf, the plaintiff, Lambert, inquired of him if he knew the residence of the defendant; to which said witness replied, Nottingham, — that he resided at Nottingham, and a post-office was kept there.
    And further gave in evidence by said witness, that he had been engaged from the year 1821 to Í842 in sailing a vessel, in which the plaintiffs were part owners, between Nottingham and Alexandria^ previous to 1842 ; that during said time no other vessel was engagéd regularly in trading between said places, except a vessel commanded by one Isaac Wood, in which the plaintiffs were also interested; that after 1842 there was no vessel regularly trading between Alexandria and Nottingham, which last place is a small village on the head-waters of the Patuxent River, in Prince George’s County, Maryland ; and that up to the time when the witness ceased to trade there, the defendant resided in Nottingham, where he'practised medicine, and had kept house there, and the said Travers had never heard of his removal from thénce ; that he, the defendant, was raised in the immediate neighbourhood of Nottingham, where his brother, Robert Ghiselin, and his mother and other relations resided.
    And also further gave in evidence by said Travers, that he was, in July, 1846, well acquaintéd in Alexandria, and knows of no one in said town who was better qualified to furnish information, or was more likely to have furnished information, as to the residence of the defendant, than himself; that in 1842 the vessel owned by the witness and Lambert & McKenzie, and commanded by witness, as well as the vessel' commanded by Isaac Wood, ceased to trade between Alexandria and Nottingham, and commenced trading or running regularly between Alexandria and Baltimore city, in which trade they have been ever since constantly engaged, as was well known to the plaintiffs ; that since 1842 the witness had never been at Nottingham, nor seen the defendant.
    The plaintiffs further gave in evidence, by Isaac Wood, a competent witness, that he has resided for a great many years in Alexandria, and is well acquainted withr.'the inhabitants thereof, and he knows, of no one in said town to whom the plaintiffs could have applied for information as to the residence of the defendant more likely than Captain Travers to afford correct information, or himself, who was absent at the time.
    And said witness, Thomas Travers, on .cross-examination, repeated, that he believed the defendant in 1842 resided in Nottingham, and was very confident that he had seen the defendant there on several occasions in the course of the year 1840, but could not affirm positively that he saw the defendant there at any time during the year 1839, or 1841, or 1842. .
    And the defendant also proved, by Thomas S. Alexander, that he. is well acquainted with the defendant, being connected with him by marriage, and knows the defendant moved from Nottingham in the slimmer of 1839; that he first went to the city of Annapolis, distant about thirty miles from Nottingham, proposing, that he should - remain there .until he had found a place of permanent settlement, and that, having purchased a farm on West River, he took up his residence there towards the pnd of 1839 ; that said witness had frequently been at the residence of defendant* oh West River, and, from his (witness’s) knowledge of the surrounding country, would have been prepared to affirm that “West River” post-office was the post-office of defendant ;■ and, moreover, that he has accompanied the defendant to the said' named post-office for his (defendant’s) letters, and has frequently, prior to the making and indorsement of the bill on which this action is founded, been informed by said defendant that’his post-office was “ West River ” ; that “ West River” post-office is within two miles of the residence of the defendant, and’Nottingham is distant from said residence at least twelve miles; and on cross-examination, the said witness stated that defendant had relations residing in and about Nottingham, and witness was satisfied, from statements of defendant and othefs, that defendant had visited said relations frequently since his removal in 1839, and that witness Lad seen him on several occasions with said relations.
    And defendant likewise proved, by John R. Magruder, junior, one of the acceptors, that he is well acquainted with the defendant, being his relation; and that John R. Magruder, senior,, was at one time, the commission agent of defendant; that shortly after the 23d of July, 1846, (he is confident within a fortnight, and he believes that it was within a week, thereafter,) the plaintiff, Lambert, called at the counting-house of John R. Magruder & Son, the acceptors, and then and there inquired of the witness where the defendant’s post-office was; the said witness answered, he believed it was West River, but was not certain, as John R. Magruder & Son were not at that time the agents of the defendant, and that he would go out and inquire of Bat.tee & Sons, the defendant’s agents at that time; that witness- accordingly went out, and being informed by Battee & Sons that West River was defendant’s post-office, he returned' and communicated that fact to the plaintiff.
    The drawer of the bill of exchange, upon which the present suit was. brought, it was in proof, resided near Nottingham, Prince George’s County, Maryland, and that the drawers and acceptors resided in the city of Baltimore, and the.defendant at West River, Anne Arundel County, Maryland, and there was at this time a daily mail between Baltimore and Alexandria.
    Upon the testimony above stated, the question occurred whether due diligence had been used by the plaintiffs, the holders of the bill, to give to the defendant, the indorser thereof, notice of the dishonor of said bill.
    Upon, which question the opinions of the judges being opposed, the point, upon the request of the plaintiffs’ counsel, is hereby- certified to the Supreme Court.
    R. B. Taney,
    U. S. Heath.
    Upon this certificate, the cause came up to this court.
    It was argued by Mr. May, for the .plaintiffs, and Mr. Meredith, for the defendant.

      Mr. May contended, that from the evidence it was apparent that the. plaintiffs used due and reasonable diligence to transmit the notice to the supposed post-office of the defendant, and the following authorities will be relied on, viz. Harris v. Robinson, 4 Howard, 345; Story on Promissory Notes, § 316; Chitty on Bills, 453; 1 Barn. & Cress. 245.
    Supposing, then, that the plaintiffs used due diligence when they sent the notice, it is immaterial whether it was received. Story on Promissory Notes, § 328.
    Nor could the evidence in this record; that, some weeks after this notice was sent, the plaintiffs were informed of the’ proper office to which it ought to haye been sent, have any influence on this question, . because the right of action,, once vested by-reason of the transmisson of the notice after due diligence at that time, could not be divested by subsequent laches, nor do the cases require the transmission of a second notice when the first was sent after due diligence.

      Mr. Meredith, for the defendant,
    contended, —
    1st. That, upon the evidence, the plaintiffs did not use due diligence to discover the residence of the defendant, at the time the bill was protested, and before they sent notice of the protest addressed to the defendant at Nottingham, Maryland.
    2d. That having, as was.proved, ascertained within a week or a fortnight after .the-said bill fell due. and was protested, that the defendant did noCreside at Nottingham, but that he resided oil West River, in Anne Arundel County, Maryland, and that West River post-office was the post-office at which, the defendant received his letters, the plaintiffs ought then to have given notice to the defendant of the dishonor of said bill, by sending the same, addressed to him át West River post-office, or otherwise ; and there being no evidence that, they gave such notice, the plaintiffs are not entitled to recover.
    Upon the. first point the following references were made: Chitty on Bills (10th American from 9th London edition), 452, 453, 454, and notes; Story on Promissory. Notes, 370, note 1; Beveridge v. Burgis, 3 Camp. 262; Barnwell v. Mitchell, 3 Conn. 101; Hill v. Varrell, 3 Greenl. 233; Story on Prom. Notes, 368; Hartford Bank v. Stedman, 3 Conn. 489; Bank of Utica v. Mott, 13 Johns. 432; Johnson v. Harth, 1 Bailey, (S. C.) 482; Chitty on Bills, 433, 488, 489, 490; Bayley on Bills, ch. 7, § 2, pp. 280 to 283 (5th edit. 1830); Planters’ Bank v. Bradford, 4 Humph. 39.
    Upon the second point, Chitty on Bills, same pages, and 451, 452, and note o; Baldwin v. Richardson, 1 Barn. & Cress. 245 (8 E. C. L. 66); Browning v. Kinnear, 1 Gow, 81 (5 E. C. L. 471); Bateman v. Joseph, 2 Camp. 461; Firth v. Thrush, 8 Barn. & Cress. 387 (15 E. C. L. 242); Williams v. Bank of U. States, 2 Peters, 96, 100; Galpin v. Hard, 3 McCord, 394; Preston v. Dayson, 7 Louis. Rep. 7; Sturges v. Derrick, Wightwicke’s Exc. Rep. 76, 77.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

The facts upon which'the question certified has arisen are not, disputed. The sufficiency of the notice is therefore a question of law. And it is of the first importance to the commercial community, that the rules which regulate the rights and liabilities of parties to negotiable instruments in courts of justice should be plain and certain, and conform to the established usages of trade.

„ Two objections have been taken to the sufficiency of the notice in this case. 1st. That due diligence was not used by the holder to áscertain the residence of the indorser before the notice was sent to Nottingham. And 2d. If reásonáble diligence was used at that time, yet the information he afterwards received-in Baltimore imposed on him the obligation of giving a-' further notice to the defendant himself, or of sending itby\ mail to his nearest and usual post-office.

As regards the first question, the court is óf opinion that due diligence was used before the notice was sent to Nottingham. The case shows that there was very little, if any, trade between Alexandria and Nottingham at the time of this transaction, and but- few persons, therefore, in Alexandria would be likely to know whether the defendant did or did not.reside in Nottingham. The bill of exchange was not .dated at any particular place, and the. acceptors residéd in Baltimore. The defendant was not engaged in. trade, but was' a physician residing in the country, and it does not appear that he was in the practice pf visr iting Alexandria, or of; having any business transactions there. And the proof is, that Travers, of whom the holder inquired,» from' the-nature of the trade in which he had been many years. engaged, — first to Nottingham and afterwards to Baltimore, — was as likely as any other person in Alexandria to give the information which the plaintiffs were seeking to obtain, if not more so. The answer he received was direct and positive, both as to the knowledge of Travers and the residence of the indorser, and he had a right to rely upon it. And although Travers was mistaken, and the notice was not sent to the nearest or usual post-office of the defendant, yét the plaintiffs used all the diligence which the law requires, and had sufficient reason to believe that the notice would be received. The liability of the indorser was therefore fixed. The case of Harris v. Robinson, 4 Howard, 345, is conclusive on this point.

The second objection taken in the argument has not been so directly settled by judicial decision on the point, but is, we think, equally clear upon established principles.

We have already said, that the liability of the indorser was fixed by the notice sent to Nottingham. The plaintiffs had acquired á right of action against him by this notice, and might have brought their suit the next day. Could that’ right be divested by the information .which was subsequently given to them ? We think not, and that all of the cases in relation to this subject imply the contrary. The books are full of cases where mistakes of this kind have been committed, and suits afterwards brought when the residence of .the party was discovered. Yet it does not seem to have been supposed in any of them that a second notice was necessary, nor are we' aware that such a point has ever been raised. Yet if a notice thus given, after diligent inquiry, is not equivalent to actual notice, knowledge subsequently obtained would be a defence to the,action, even if the holder had brought suit before he learned what was the nearest or usual post-office of the defendant.

The case of Firth v. Thrush, 8 Barn. & Cress. 387, which was much relied on in the argument, depended, upon different principles. In that case, the holder knew that notice had not been given to- the indorser. He had been engaged in making inquiries for his residence, without being ableito obtain any information upon which he might have acted. Arid the question there was not whether a second notice should be given, but whether due diligence was used' in sending the first.

The rule contended for by the defendant would produce much uncertainty and difficulty in transactions of this kind. .For if a second notice must be given, is it to be required in all cases where there has been an error in the information as to the defendant’s, post-office ? Certainly the practice of the courts has been otherwise. And if it is not to be required in all cases, it would be impossible to , fix any certain limits as to time or circumstances. The subsequent information might come to him casually, when his mind was occupied with other engagements ; he might not confide in it as much as in that which he had before received; it might come to him in a few days, or months might elapse before he obtained it. The rule would be loóse and uncertain in its application, and constantly lead to litigation, where the residence of the indorser was unknown, or an error committed as to his usual post-office; It would also be contrary, the court think, to the usages of commerce, and to the uniform practice-in courts of justice. In the case of Harris v. Robinson, before referred to, no second notice was given; nor did the court intimate that any was necessary.

The law does not require actual notice. It requires reasonable diligence only, and reasonable efforts, made in good faith, to give it. And if sufficient inquiries have been molde, and information received upon which the holder has a right to rely, a mistake as to the nearest post-office or usual post-office does' not deprive him of his remedy. He has done all that the law requires ; and the notice thus sent fixes the liability of the indorser as effectually as if he had actually received it. This we think is the true rule, and the only one that can give certainty and security in transactions in commercial paper, .

We shall therefore certify, that reasonable diligence was used by the plaintiffs to give the defendant notice of the dishonor of the bill.

Order.

This cause Came on to be heard on the transcript of the record fro/n the Circuit Court of the United States for the District of Maryland, and on the- point or question on which the judges of the said Circuit Court were opposed in .opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such- .case made and provided, and was argued by counsel. On consideration whereof, it is* the opinion of this court,, that, upon the facts in this case, due diligence had been used by the plaintiffs, the holders of the bill, to give to the defendant, the indorser thereof, notice of the dishonor of said bill. Whereupon, it is now here ordered and adjudged byjhis court, that it. be so certified to the said Circuit Court. ^