Deveaux. That decision brings it strictly within 1824. the letter of the 11th amendment; although I am ready to admit, that, unaffected by that decision, it is not within its purview. Although not responsible for that decision, I acknowledge its obligation, until overruled.
The last question which the pleadings in this cause present, arises out of the nature of the contract, the form of the declaration, and that provision of the Judiciary Act, which precludes suits by an assignee of choses in action, when the suit could not be brought in the Courts of the United States, as between the original parties.
The plaintiff counts upon a number of promissory notes, payable to A. B. or bearer, commonly called bank notes, delivered to A. B., and by him "transferred, assigned, and set over" to the plaintiffs in this action. The plea states, that, as between the original promisor and promisee, suit could not have been brought in the Circuit Courts of the United States; and, therefore, it cannot, as between the present parties, the promisor and assignee. As all the facts are admitted by the demurrer, it is difficult to see on what ground this case is to be excepted from the operation of the provisions of the Judiciary Act on this subject. Whatever difficulties may be suggested, on the technical meaning of the term assignment, it is very clear that he who acquires a chose in action, by mere delivery, has been recognised in the laws of the United States as an assignee. If any considerations could be introduced into the case, besides what the pleadings bring out, there might be
1824. much reason to doubt, whether the case of Bank bills, properly so called, and particularly so declared on, came within the general law applicable to promissory notes; but here, non constat, that the notes declared upon were ever thrown into circulation, as the representative of property, as a currency, a substitute for gold and silver.
But the case does not rest here. This ground of defence depends not on a constitutional provision, but on an act of Congress; and if it be true, that the unrestricted right to sue on all its contracts, be vested in the Bank of the United States, whatever their origin, or whatever their amount, it follows, that such a provision amounts to a repeal of the law here relied on. I rather think, that the improbability of such a provision being intended by the Legislature, operates against the construction that would sustain it. But if such be the legal construction of the incorporating act, there can be no doubt of its being fatal to this plea.
CERTIFICATE. This cause came on to be heard on the transcript of the record of the Circuit Court of the United States for the district of Georgia, and on the questions in said cause, on which the Judges of the said Circuit Court were divided in opinion, and was argued by counsel: On consideration whereof, this Court is of opinion, 1. That the averments in the declaration in said cause, are sufficient in law to give the said Circuit Court jurisdiction in said cause.
2. That, on the pleadings in the same, the plaintiffs are entitled to judgment.
All which is ordered to be certified to the said Circuit Court.
2. A decree of acquittal, on a pro- ceeding in rem, without a certifi- cate of probable cause of seizure, and not appealed from with effect, is conclusive, in every inquiry be- fore any other Court, that there was no justifiable cause of seizure. The Appollon, 362. 367 2. The French Tonnage Duty Act of the 15th of May, 1820, c. 125. inflicts no forfeiture of the vessel for the non-payment of the ton- nage duty. The duty is collecta- ble in the same manner as by the Collection Act of 1799, c. 128. Id. 367 3. The 29th section of the Collection Act of 1799, c. 128. does not ex- tend to the case of a vessel arriving from a foreign port, and passing through the conterminous waters of a river, which forms the boun- dary between the United States and the territory of a foreign state, for the purpose of proceeding to such territory. Id. 369 4. The municipal laws of one na- tion do not extend, in their opera-
tion, beyond its own territory, ex- cept as regards its own citizens. Id.
370 5. A scizure for the breach of the mu- nicipal laws of one nation, cannot be made within the territory of an- other. Id. 371. 6. It seems, that the right of visitation ́ and search for enforcing the reve- nue laws of a nation, may be ex- ercised beyond the territorial ju- risdiction upon the high seas, and on vessels belonging to such na- tion, or bound to its ports. Id. 371 7. A municipal seizure cannot be jus- tificd or excused, upon the ground of probable cause, unless under the special provisions of some statute. Id. 372 8. The probable profits of a voyage, either upon the cargo or freight, do not form an item for the computa- tion of damages, in cases of ma- rine torts. 9. Where the property is restored, af- ter a detention, demurrage is al- lowed for the detention of the ship, and interest upon the value of the cargo. ld. 377 10. Where the vessel and cargo have
been sold, the gross amount of the
12. A libel of information does not re- quire all the technical precision of an indictment at common law. If the allegations describeth offence, it is all that is necessary; and if founded upon a statute, it is suffi- cient if it pursues the words of the law. The Emily and the Caro- line, 331 J. An information, under the Slave Trade Act of 1794, c. 187. [xi.] 3. 1. which describes, in one count, the two distinct acts of preparing a vessel and of causing her to sail, pursuing the words of the law, is sufficient. ld. 387 14 Stating a charge in the alternative, is good, feach alternative consti- tutes an offence for which the thing is forfeited. ld. 387 15. Under the above act, it is not ne- cessary, in order to incur the for- feiture, that the vessel should be completely fitted and ready for sea. As soon as the preparations have proceeded so far as clearly to manifest the intention, the right of seizure attaches. Id. 388 16. The former decision of this Court, in the case of the Emily and the Caroline, (7 Cranch, 496.) recon- ciled with its determination in the present case. Id. 387 17. The technical niceties of the com- mon law are not regarded in Ad- miralty proceedings. It is suffi- cient, if an information set forth the offence so as clearly to bring it within the statute upon which the information is founded. not necessary that it should con-
A municipal seizure, within the territory of a foreign power, does not oust the jurisdiction of the District Court into whose district the property may be carried for adjudication. Id. 402, 405 The prohibitions in the Slave Trade Acts of the 10th of May, 1800, c. 205. [li.] and of the 20th of April,, 1818, extend as well to the carrying of slaves on freight as to cases where the per- sons transported are the property of citizens of the United States; and to the carrying them from one port to another of the same foreign empire, as well as from one foreign country to another. Id. 403, 404 Under the 4th section of the act of the 10th of May, 1800, c. 205. [li.] the owner of the slaves trans- ported contrary to the provisions of that act, cannot claim the same in a Court of the United State although they may be held in ser- vitude according to the laws of his own country. But if, at the time of the capture by a commis- sioned vessel, the offending ship was in possession of a non-com- missioned captor, who had made a seizure for the same offence, the owner of the slaves may claim; the section only applying to per-
sons interested in the enterprise or voyage in which the ship was employed at the time of such cap- ture. Id. 23. A question of fact, under the Slave Trade Acts. Condemna- tion pronounced. Id. 409 24. The claim of seamen, for wages,
on a voyage undertaken in viola- tion of the Slave Trade Acts, out of the proceeds of the forfeited vessel in the registry, rejected. Id. 414, 415 25. The claims of seamen, for wages, and of material men, for supplies, where the parties were innocent of all knowledge of, or participa- tion in, the illegal voyage, prefer- red to the claim of forfeiture on the part of the government. Id. 416 33. 26. Material men have a lien, which may be enforced by a proceeding in the Admiralty, in rem, for ne- cessaries or supplies, furnished in a port to which the vessel does not belong. Id. 417 27. A transfer of a registered vessel of the United States, to a foreign subject, in a foreign port, for the purpose of evading the revenue laws of the foreign country, with an understanding that it is to be af- terwards reconveyed to the for- mer owner, works a forfeiture of the vessel, under the 16th section of the Ship Registry Act of the 31st of December, 1792, c. 1. unless the transfer is made known in the manner prescribed by the 7th section of the act. The Mar- garet, 421 28. The statute does not require a be- neficial or bona fide sale; but a transmutation of ownership, " by way of trust, confidence, or other- wise," is sufficient. Id. 424 29. Quære, Whether, in such a case,
a reconveyance would be decreed
by a Court of justice in this coun- try? Id.
The proviso in the 16th section of the Ship Registry Act, being by way of exception from the enact- ing clause, need not be taken no- tice of in a libel brought to enforce the forfeiture. It is matter of de- fence to be set up by the party in his claim. Id. 425, 426 The proviso applies only to the case of a part owner, and not to a sole owner of the ship. Id.
426 The trial, in such a case, is to be by the Court, and not by a jury, in seizures on waters navigable from the sea by vessels of ten tons burthen and upwards. Id. 427,
428 A registered vessel, which con- tinues to use its register, after a transfer under the above circum- stances, is liable to forfeiture under the 27th section of the act, as using a register without being actually entitled to the benefit thereof. Id.
429 In a libel of information, under the 67th section of the Collection Act of 1799, c. 128. against goods, on account of their differing in de- scription from the contents of the entry, it is not necessary that it should allege an intention to dé- fraud the revenue. 200 Chests of Tea, 430. 436 A question of fact, as to the rate of duties payable upon certain teas, imported as bohea. That term is used in the duty act in its known commercial sense; and the bohea tea of commerce is not usually a distinct and simple sub- stance, but is a compound, made up in China, of various kinds of the lowest priced black teas. Id. 436
36. But, by the duty acts, it is liable
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