Imágenes de páginas
PDF
EPUB

U.S. Bank
V.

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

[blocks in formation]

Planters'

Bank.

U. S. Bank

V.

Planters'
Bank.

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.

INDEX

ΤΟ

THE PRINCIPAL MATTERS

IN THIS VOLUME.

A.

ADMIRALTY.

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

Id.

376

been sold, the gross amount of the

[blocks in formation]

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-

It is

19.

19.

20.

21.

22.

[blocks in formation]

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-

407

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,

f

30.

31.

32.

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

34.

35.

by a Court of justice in this coun-
try? Id.

424

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

« AnteriorContinuar »