the same grants would be valid if the terri- | missioners or register and receiver. An appeal tories had remained under the dominion of His is allowed from the decision of the judge of Catholic Majesty." Do these words act direct-the District to this court. No such Act of conly on the grants, so as to give validity to those firmation has been extended to grants for lands not otherwise valid; or do they pledge the lying west of the Perdido. faith of the United States to pass Acts which shall ratify and confirm them? A treaty is in its nature a contract between two nations, not a Legislative Act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an Act of the Legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract-when either of the parties engages to perform a particular act -the treaty addresses itself to the political, not the judicial department; and the Legislature must execute the contract before it can become a rule for the court. The Act of 1804, erecting Louisiana into two territories, has been already mentioned. It annuls all grants for lands in the ceded territories, the title whereof was at the date of the treaty of St. Ildefonso in the crown of Spain. The grant in controversy is not brought within any of the exceptions from the enacting clause. *The Legislature has passed many sub- [*316 sequent Acts previous to the treaty of 1819, the object of which was to adjust the titles to lands in the country acquired by the treaty of 1803. They cautiously confirm to residents all incomplete titles to lands, for which a warrant or order of survey had been obtained previous to the 1st of October, 1800. An Act, passed in April, 1814, confirms incomplete titles to lands in the State of Louisiana, for which a warrant or order of survey had been granted prior to the 20th of December, 1803, where the claimant or the person under whom he claims was a resident of the Province of Louisiana on that day, or at the date of the concession, warrant, or order of survey, and where the tract does not exceed 640 acres. This Act extends to those cases only which had been reported by the board of commissioners; and annexes to the confirmation several conditions, which it is unnecessary to review, because the plaintiff does not claim to come within the provisions of the Act. the said reports appear to be derived from the Spanish government before the 20th day of December, 1803, and the land claimed to have been cultivated or inhabited on or before that The article under consideration does not declare that all the grants made by His Catholic Majesty before the 24th of January, 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and would have repealed those Acts of. Congress which 315*] were repugnant to it; but its language On the 3d of March, 1819, Congress passed is that those grants shall be ratified and con- an Act confirming all complete grants to land firmed to the persons in possession, etc. By from the Spanish government, contained in the whom shall they be ratified and confirmed? reports made by the commissioners appointed This seems to be the language of contract; and by the President for the purpose of adjusting if it is, the ratification and confirmation which titles which had been deemed valid by the comare promised must be the Act of the Legisla-missioners; and also all the claims reported ture. Until such Act shall be passed, the court as aforesaid, founded on any order of survey, is not at liberty to disregard the existing laws request, permission to settle, or any written on the subject. Congress appears to have un- evidence of claim derived from the Spanish auderstood this article as it is understood by the thorities, which ought in the opinion of the court. Boards of commissioners have been ap-commissioners to be confirmed; and which by pointed for East and West Florida, to receive claims for lands; and on their reports titles to lands not exceeding acres have been confirmed, and to a very large amount. On the 23d of May, 1828, an Act was passed supple-day. mentary to the several Acts providing for the settlement and confirmation of private land claims in Florida; the 6th section of which enacts, that "all claims to land within the Territory of Florida, embraced by the treaty between Spain and the United States of the 22d of February, 1819, which shall not be decided and finally settled under the foregoing provisions of this Act, containing a greater quantity Congress has reserved to itself the superviof land than the commissioners were author- sion of the titles *reported by its com- [*317 ized to decide, and which have not been report-missioners, and has confirmed those which the ed as antedated or forged, etc., shall be received commissioners have approved, but has passed and adjudicated by the judge of the Superior no law withdrawing grants generally for lands Court of the district within which the land west of the Perdido from the operation of the lies, upon the petition of the claimant," etc. 14th section of the Act of 1804, or repealing Provided, that nothing in this section shall be that section. construed to enable the judges to take cognizance of any claim annulled by the said treaty, or the decree ratifying the same by the King of Spain, nor any claim not presented to the com Though the order of survey in this case was granted before the 20th of December, 1803, the plaintiff does not bring himself within this Act. Subsequent Acts have passed in 1820, 1822, and 1826, but they only confirm claims approved by the commissioners, among which the plaintiff does not allege his to have been placed. We are of opinion, then, that the court committed no error in dismissing the petition of the plaintiff, and that the judgment ought to be affirmed with costs. This cause came on to be heard on the tran- | not a specific deposit, and the Act of incorporation script of the record from the District Court of the United States for the Eastern District of Louisiana, and was argued by counsel; on consideration whereof, this court is of opinion that the said District Court committed no error in dismissing the petition of the plaintiffs; therefore it is considered, 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. Action against Bank of Kentucky-State not a party--act of incorporation-certificate of deposit-bills payable to bearer. In an action for money had and received for the recovery of the amount of a deposit made in the Bank of the Commonwealth of Kentucky, acting under an Act of incorporation passed by the Legis lature of that State, the defendant pleaded to the jurisdiction, on the ground that the State of Kentucky alone was the proprietor of the stock of the bank; for which reason it was insisted that the suit was virtually against a sovereign State. is express, that the bank shall pay and redeem "Frankfort, 31st October, 1824. John T. Drake this day deposited to the credit of John Wister, John M. Price, and Charles J. Wister, seven thousand seven hundred and thirty dollars and eighty-one cents, which is subject to The court are of opinion that the question is their order upon presentation of this certificate. no longer open here. The case of the United States Signed, C. G. Waggoner, cashier.-$7,730.81." Bank v. The Planters' Bank of Georgia, 9 Wheaton, 904, was a much stronger case for the plainOn the 6th of November, 1824, Mr. Drake tiffs in error than the present; for there the State presented the certificate to the bank and deof Georgia was not only a proprietor, but a cor-manded payment of the sum mentioned in it, porator. Here the State is not a corporator, since in gold or silver, which was refused by the by the terms of the Act incorporating this bank, "the president and directors" alone constitute the cashier, who at the same time offered the body corporate, the metaphysical person liable to amount in notes on the bank, which were resuit. Hence, by the law of the State itself, it is jected by Mr. Drake. At the time the deposit excluded from the character of a party in the sense of this law when speaking of a corporation. [323] was made, the notes of the bank were of the the court in their opinion, in the case of The Bank their nominal amount. It may be added to the reasons which influenced value of and current in the country at half of the United States v. The Planters' Bank of Georgia, that if a State did exercise the powers in The payment of the amount of the deposit and over a bank or impart to it its sovereign attri- in gold or silver having been thus refused, butes, it would be hardly possible to distinguish Wister, Price, and Wister, brought their action the issue of the paper of such a bank from a direct issue of bills of credit; which violation of in the Circuit Court of the United States for the Constitution, do doubt the State here intended the District of Kentucky. The declaration to avoid. [324] The Act incorporating the Bank of the Com-contained two counts; the first for money had monwealth of Kentucky contains a provision by and received, the second a special count upon which it is enacted, that the bank shall receive the certificate of deposit. money on deposit without being required to give At November term, 1826, the defendants apan obligation under seal to repay it. This enactment must be construed with regard to the prac- peared by attorney, and afterwards filed a plea tice of banking, and the general understanding of to the jurisdiction of the court under the cormankind and must create a liability to the depos-porate seal of the bank. The plea states "that itor by the simple act of depositing, that is, an assumpsit in law, implied from an act in pais. [324] the court ought not to have or take cognizUpon the deposit being made in the Bank of the ance of this *action, because the defend- [*320 Commonwealth of Kentucky, the cashier gave un- ant is a body corporate and politic, created der his hand a certificate that there had been "deposited to the credit of the plaintiffs below, and established by an Act of Assembly of the $7.730.81, which is subject to their order on pre- Commonwealth of Kentucky, and constituted sentation of this certificate." The deposit was by the name and style of 'The President and made in the notes of the bank, and when the same were deposited, and when demand of payment was Directors of the Bank of the Commonwealth made, the notes were passing at one-half their of Kentucky,' and that the whole capital stock nominal value. When the certificate was presented of the said corporation is exclusively and soleto the bank, the cashier offered to pay the amount in the notes of the bank, but they refused to re- ly the property of the Commonwealth of ceive payment in anything but gold or silver. The Kentucky, and that the State of Kentucky, in language of the certificate is expressive of a general NOTE. AS to jurisdiction of Federal courts, dependent upon the residence of the parties and corporations see notes to Glass v. Betsey, 1 L. ed. U. S. 489: Emory v. Greenough, 1 L. ed. U. S. 640 Strawbridge v. Curtiss, 2 L. ed. U. S. 435; Hope Insurance Co. v. Boardman, 3 L. ed. U. S. 36. her political sovereign capacity as a State, is the sole, exclusive, and only member of the said corporation." To this plea the plaintiff's below demurred, and the Circuit Court having sustained the same, the defendants were ordered to answer over. Upon the trial of the cause the plaintiffs proved the facts as stated; and the defendants moved the court to instruct the jury that the plaintiff's had not made out a good cause of action, and that the plaintiff's were not entitled to the nominal amount of the deposit, but to the value of the notes at the time of the demand. The court overruled these motions, and instructed the jury that the plaintiffs were entitled to the full sum as expressed in the certificate, with interest thereon, from the date of the demand, in lawful money of the United States. The defendants excepted to the opinion of the court upon all the matters submitted to them, and the case came before this court upon the bill of exceptions. The facts of the case were not controverted. For the plaintiffs in error, Mr. Nicholas maintained, It may also be urged that, as the notes are payable to J. T. Pendleton, or .bearer, there should have been an averment that he was a citizen of Kentucky. The action cannot be supported unless the citizenship was stated; this court not having jurisdiction, unless J. T. Pendleton was a citizen of Kentucky, and averred so to be in the pleadings. *Mr. Caswell, for the defendants in [*322 error. The plea of the president, directors and company of the Bank of the Commonwealth of Kentucky expressly avers an Act of incorporation, constituting them a corporation by that name. That there are no stockholders but the State, the stock belonging to the State of Kentucky only. Thus it appears that the real corporators are the president and directors, citizens of Ken1. That the Circuit Court had no jurisdic-tucky; and this court has decided that it has tion over the cause.. 2. The declaration was insufficient. 3. The court erred in the instructions given to the jury. He argued that, upon the decisions of this court, the jurisdiction could not exist in the case. The courts of the United States take jurisdiction; 1st. According to the subject-matter; 2d. The character of the parties; 3d. In cases arising under treaties, etc. jurisdiction in such a case. That the stock of the bank belongs to the State of Kentucky will not prevent this court form sustaining the suit. The plaintiffs in error are a corporation with all the ordinary powers and incidents of such a body. Among others, to lend money to the Commonwealth of Kentucky. Can it be said that such a body is not suable, and that it is not the corporation, but the State of Kentucky who is the plaintiff In this case the jurisdiction cannot be as-in error; and that her rights as a sovereign sumed, as those principles upon which the State were violated by the suit in the Circuit 321*] courts of the United States *would have Court? jurisdiction from the character of the parties forbid the same. This court will look behind the Act of incorporation to ascertain who are the corporators; and if they find they are not such parties as can sue or be sued in the Circuit Court, they will refuse to acknowledge that the court could exercise jurisdiction. Cited, The Bank of the United States v. The Planters' Bank of Georgia, 9 Wheaton, 904. In this case the State of Kentucky is the only stockholder of the bank; and this appearing, the State is the party, and cannot be sued. It is a sole corporation, using the money of the State, and by its obligations binding the State. The interests of the State are alone in volved in the suit, and the judgment of the court will operate upon the State directly. 2. The declaration is insufficient, because, as the real party defendant is the State of Kentucky, this action should have been so brought, and can only be so sustained. This court has decided that a corporation can bind itself by a provision without seal. In other States of the Union the same principle has been acknowledged; but it is otherwise in Kentucky. In the Supreme Court of that State it has been adjudged that, unless this obligation or promise of a corporation is under seal, it is not binding. Marshall's Kentucky Reports, 1. This has now become a part of the municipal law of the State; and it will be regarded in this court in cases where the decision applies. The certificate of deposit given by the bank was not, therefore, legal evidence of the promise. 3. In this court it has been held that bank notes are not money; and this action, which is for money had and received, cannot be sustained, as the notes of the bank only were received. The plaintiffs in error have a legal entity, independent of the State. They exist under the law, and they pay and receive money, and by themselves make contracts which they must perform. Unless subject to suits upon such contracts, there is no remedy for those who have claims, as no suit can be brought against the State. The amount of the plaintiffs' claim must be that mentioned in the certificate. Had it been the intention of the parties to limit the same to what was the current value of the notes when this deposit was made, this should have been declared. This court can know no other amount but that mentioned in the certificate, or any other money than the lawful money of the United States. In reference to the claim of the counsel of the plaintiffs in error to apply the decision of the court of Kentucky to the contract of the bank, in opposition to the law of this court holding corporations liable under obligations [not under seal, it was argued that this court will not permit the decisions of a State court to contravene the general law, whatever respect it may be disposed to pay to the decisions of such courts upon the statutes or local laws of the place. *Mr. Justice Jonzson delivered the [*323 opinion of the court: The defendants here were plaintiffs in the court below, in an action for money had and received, instituted to recover the amount of a deposit made in the Bank of the Commonwealth of Kentucky. The defendants pleaded to the jurisdiction on the ground that the State of Kentucky was sole proprietor of the stock of the bank, for which reason it was insisted that the suit was | since they are of opinion that the Act by which virtually against a sovereign State. To this The Bank of the Commonwealth of Kentucky plea the plaintiffs demurred, and the Circuit is incorporated, contains a provision which is Court of Kentucky having decided in favor conclusive upon this question. We mean the of its jurisdiction, that decision is made the 8th section, by which it is enacted, that the first ground of error in the present suit. bank shall receive money on deposit without requiring them to give an obligation under seal to repay it. This enactment must be construed with regard to the practice of banking, and the general understanding of mankind; and must create a liability to the depositor by the simple act of depositing; that is an assumpsit in law, implied from an act in pais. But this court is of opinion that the question is no longer open here. The case of The United States Bank v. The Planters' Bank of Georgia, 9 Wheaton, 904, was a much stronger case for the defendants than the present; for there the State of Georgia was not only a proprietor, but a corporator. Here the State is not a corporator, since, by the terms of the Act incorporating this bank, Kentucky Acts of 1820, page 55, sec. 2, "the president and directors" alone constitute the body corporate, the metaphysical person liable to suit. Hence, by the laws of the State itself, it is excluded from the character of a party in the sense of the law when speaking of a body corporate. The two remaining questions arose upon a bill of exceptions, the material facts on which were these: *The deposit was proved by an in- [*325 strument of writing, in these words "J. T. Drake this day deposited to the credit of J. Wister, J. M. Price, and C. J. Wister, the plaintiffs, $7,730.81, which is subject to their order on presentation of the certificate. Signed, O. G. Waggoner, cashier." value; and that on presentation of the certificate, the cashier offered bills of the bank to that amount, but the agent of the defendants refused to receive payment in anything but gold or silver. On the subject of an interest in the stock of a bank, the language of this court, in the case cited, is this: "It is, we think, a sound prin- It was admitted that the deposit was made ciple, that when a government becomes a part-in bills of The Commonwealth Bank, that bills ner in any trading company, it devests itself, of that bank were then, and at the time of deso far as concerns the transactions of that command, passing current at half their nominal pany, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the In behalf of the bank it was moved that the business which is to be transacted. Thus, court instruct the jury that the plaintiffs below many States of the Union which have an in- had not made out a good cause of action, and terest in banks, are not suable even in their were not entitled to the nominal amount deown courts, yet they never exempt the corpo- posited, but only to the value of the notes. The ration from being sued. The State of Georgia, courts overruled the motion, and instructed the by giving to the bank the capacity to sue and jury that the plaintiffs below were entitled to be sued, voluntarily strips itself of its soverign receive the full sum as expressed in the certifi324*] character so *far as respects the trans-cate, with interest from the date of the demand, actions of the bank, and waives all privileges in lawful money of the United States. In this of that character. As a member of a corpora- instruction it is now insisted that the court betion, a government never exercises its sover- low erred. eignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation than are expressly given by the incorporating Act." To which it may be added, that if a State did exercise any other power in or over a bank, or impart to it its sovereign attributes, it would be hardly possible to distinguish the issue of the paper of such banks from a direct issue of bills of credit; which violation of the Constitution, no doubt the State here intended to avoid. The next question in the cause is on the sufficiency of the declaration; and on this point it is insisted, that in Kentucky a corporation can only assume under seal, whereas the assumpsit here laid, is general and without seal. On this subject the counsel admitted that every other court in the United States had decided otherwise, but that it had been so ruled in the courts of Kentucky, and was there held as an established law. It cannot be denied that the case of The Frankfort Bank v. Anderson, 3 Marshall's Rep. 1, fully sustains him in his position; but this court declares it unnecessary at this time to enter into the inquiry how far its decisions and those of other States upon a question of a general, not a local case or character, are to be controlled by those of any particular State, i 1. Because nothing but a receipt of money can prove the basis of a recovery for money had and received. 2. Because, if entitled to recover at all, the plaintiff's below could recover no more than the value of the thing deposited. On both these points we are of opinion that the form of the certificate, and the Act of incorporation furnish a conclusive answer. The language of the certificate is expressive of a general, not a special deposit; and the Act of incorporation, section 17, is express, that the bills of the bank "shall be payable and redeemable in gold or silver." The transaction, then, was equivalent to receiving and depositing the gold or silver; if the bank did not so understand it, nothing would have been easier than to refuse to take the money as a formal deposit; and the holder of their bills would then have been put to his action upon the bills themselves, *in [*326 which case he would certainly have received the gold or silver to the amount upon the face of the bill. There are two other points which the cause has been supposed to present, and which the court notices to avoid the imputation of letting them escape their attention. The first is that the refusal of the bank to pay on the presentation of the cashier's certifi- against them, and a trial was had and a vercate, may be imputed to the failure to accom-dict of judgment rendered for the plaintiffs bepany it with a check from the principals. But low for the whole debt, with damages for the on this subject the majority of the court are of detention from the commencement of the suit. opinion that the bank put its own construction The bill of exceptions presented the same on the sufficiency of the demand and the mean- points to the court as in the former case, and ing of their cashier's certificate, when they ten- the only question which was argued before dered, upon its presentation, all that they ad- this court was upon the effect of an omission mitted to be due upon it. to describe one of the sixty-eight bank notes in the declaration, the verdict and judgment having been given for a sum including the note, as if the same had been so described. The other point has relation to the form of the bills, which are made payable to individuals or bearer, concerning which individuals there is no averment of citizenship, and which, therefore, may have been payable, in the first instance, to parties not competent to sue in the courts of the United States. But this also is a question which has been considered and disposed of in our previous decisions. This court has uniformly held that a note payable to bearer is payable to anybody, and not affected by the disabilities of the nominal payee. The counsel for the defendants in error, Mr. Caswell, stated that a remittitur would be entered for the amount of *the note which [*328 had not been set out in the declaration, if the court would permit the same. The debt and detinet in the declaration, stated correctly the amount of the plaintiffs' claim, and the verdict. and judgment were in conformity therewith. Mr. Nicholas, for the plaintiffs in error, replied that this court cannot amend the declararation, and that the plaintiffs here have a right Amendments The judgment is affirmed with costs. This cause came on to be heard on a tran-to avail themselves of the error. script of the record from the Circuit Court of the United States for the District of Kentucky, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and is hereby affirmed with costs. may be made in the courts from which the case sion of those courts; but this writ of error has is brought, while the record is in the possesamend in the Circuit Court no longer exists. brought up the whole record, and the power to See S. C. 3 Pet. 431. 327*] *THE PRESIDENT, DIRECTORS AND COMPANY OF THE BANK OF THE COMMONWEALTH OF KENTUCKY, Plaintiffs in Error, V. Mr. Justice Johnson delivered the opinion of the court: This was an action of debt instituted upon the bank notes of the Commonwealth Bank, in which the defendants have recovered judgment for $6,350 with interest. The bank filed the same plea to the jurisdiction of the court below as was filed in the case of Wister, Price and Wister. The decision, therefore, delivered in that case, renders it unnecessary to remark upon this part of the pres JOHN ASHLEY and John Ella, Defendants. ent cause. No other plea having been filed, Practice-Amendment. judgment went by default for the sum claimed by the writ. But upon examining the declara The declaration purported to count upon sixty-tion, which purports to count severally upon eight bills of the Bank of the Commonwealth of sixty-eight bills, it appears that one of the sixKentucky, and it appeared that one of the bills had been omitted to be described, so that the declara-ty-eight has been omitted. Of consequence, the tion made out a less sum than the writ claimed or declaration makes out a less sum, and one debt the judgment gave. The defendants in error, plaintiffs below, moved for leave to cure the defect by entering a remittitur of the amount of the bill so admitted and damages pro tanto. This court thinks itself authorized to make a precedent in furtherance of justice, whereby a more convenient practice may be introduced, and to allow the party to enter his remittitur; but on payment of the costs of the writ, if error is prosecuted no further after such amendment made. [329] ERROR to the Circuit Court of Kentucky. less in number than the writ claims or the judgment gives. This is error; but the plaintiffs now move for leave to cure it by entering a remittitur of the debt so omitted, and damages pro tanto. And this court has taken time to consider the motion. That the party would have had a right to remit in the court below cannot be questioned. It is every day's practice sustained by the gravest precedents. And the right extends, not only to the amount of damages, but to several This action was in all respects similar to that causes of action, distinct debts, distinct acres of the President, Directors and Company of the of land, and distinct pleas. Cro. Jac. 146; Hob. Bank of the Commonwealth of Kentucky v. 178; Raym. 395; 3 D. & E. 659. And the right Wister, Prince and Wister (ante, page 318), is recognized as existing after error brought, with the exception only, that it was founded and while the cause is depending in [*329 on the notes of the bank payable to bearer, the court above, and the court of error will susand usually denominated bank notes. The dec-pend its judgment to give time for the defendlaration contained counts in debt on simple ant in error to amend in the court below. 3 contract, averring that the plaintiffs in the case | D. & E. 349, 659, 749, etc. were the holders of the notes, and that they be- But the difficulty consists in this, that the came their property by delivery, and that pay-writ of error here does not bring up the origiment had been demanded and had been refused. nal record, but only a transcript, as in the case The defendants entered the same plea as in of error to the House of Lords. In error to the the case referred to, which was adjudged | King's Bench, that court will permit a remitti |