United States v. Peters, 9 U.S. (5 Cranch) 115 (1809)

THE UNITED STATES v.

JUDGE PETERS.

The legislature of a state cannot annul the judg¬ ments, nor determine the jurisdiction, of the courts of the United States.

The Court of Appeals in prize causes, erected by the Continental Congress, had power to revise and correct the sentences of the state courts of admiralty.

Although the claims of a state may be ultimately affected by the decision of a cause, yet if the state be not necessarily a defendant, the courts of the United States are bound to exercise jurisdiction.

AT the last term Gideon Olmstead, in behalf of himself and Artimus White, Aquilla Rumsdale, and David Clark, moved the court for a mandamus' to be directed to the honor¬ able Richard Peters, Judge of the District Court of the United States for the Pennsylvania District, commanding him to order and direct an attachment or other proper process to issue to enforce obedience to the sentence of the said District Court in a civil cause of admiralty and maritime jurisdiction, in which the said Gideon Olmstead and others were libellants, and Eliza¬ beth Serjeant and Esther Waters were respond¬ ents. This motion was made upon a suggestion, supported by affidavit, that a copy of the sen¬ tence had been served upon the respondents, which they refused to obey ; and that applica¬ tion had been made to the judge for an attach¬ ment, which he had refused to grant ; whereupon a mandamus nisi was granted returnable to this term; when the judge made the following re¬ turn :

116] “To the Honorable the Supreme Court of the United States,

“ The subscriber, judge of the District Court of the United States, in and for the District of Pennsylvania, in obedience to the mandamus issued by order of the Supreme Court in the case

it of Olmstead, a rule was granted that Judge Peters should show cause by the next Saturday, why a mandamus should not issue. On Saturday, March 12th, a letter was received by one of the counsel for Olmstead, from Judge Peters, acknowledging- ser¬ vice of the rule ; and stating that an act of the legislature of Pennsylvania had commanded the governor of that state to call out an armed force to prevent the execution of any process to enforce the performance of the sentence. That such being the state of things be should not direct process to issue unless he should be so ordered by this court ; whereupon a mandamus nisi was granted, return¬ able at the next term.

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of Gideon Olmstead and others, libellants, against the surviving executrixes of the late David Rittenhouse, Esq., and to the said district judge directed, begs leave to return,

“ That the proceedings of the District Court in the above cause, which are herewith transmit¬ ted, and respectfully submitted, will show the grounds of the judgment by the said court rend¬ ered. Every opportunity, through the whole course of these proceedings, was given to the parties to litigate the claim, or discuss questions, either on the merits or jurisdiction. Nor was any step taken without due and timely notice.

“The answer of the respondents will show their objections to the claim of the libellants. This answer refers to an act of assembly of the state of Pennsylvania, passed the 26th day of February, 1801, which was not produced or brought under the legal notice of the court.

“No application for execution of the decree was made until within twelve or eighteen months past; nor has it been, till more recently, much pressed.

“By the suggestion tiled by the respondents, their objections to the execution of the decree will appear. They have made an act of assem¬ bly of the state of Pennsylvania a part of their suggestion ; and thus, for the first time, during the pendency of the suit, brought this act under the judicial notice of the court. It is entitled ‘ ‘ An act relating to the claim of this common¬ wealth against Elizabeth Serjeant and Esther Waters, surviving executrixes of David Ritten¬ house, Esq., deceased, passed *April

the second, 1803:” and to this act I pray leave to refer.

“This act, or any of its allegations, has no influence on my opinion. Let this opinion be erroneous or correct, a proceeding, in some of its parts, indecorous, and, in others, unjustifi¬ able, can have no operation in rectifying supposed errors, or convincing my judg- • ment. But from prudential, more than other motives, I deemed it best to ayoid embroiling the government of the United States and that of Pennsylvania (if the latter government should choose so to do) on a question which has rested on my single opinion, so far as it Is touched by my decree: and, under the influence of this sentiment, I have withheld the process required.

If this be not considered a legal cause, it must be deemed a candid acknowledgment that I do not invariably obey a rigorous dictate of duty, or follow' an inflexibly strict construction of law.

• ‘ I entertained a hope that a legislature suc¬ ceeding that by which the act before mentioned was passed, would, under a more temperate view of the subject, have repealed it; and en¬ abled and directed the executive of the state, or some other authority, to put this case in a legal train of investigation : so that the final judgment and decree of the superior tribunal of the United States might have been, in a proper course, ob¬ tained; and thereby any erroneous opinion, or decree, given or made by me, might have been rectified (if any opinion or decree should have been found illegal or erroneous) in a manner more becoming the real dignity of a state, more suitable to the situation of those who execute the duties of a branch of the government of the United States, and more consistent with the good order and peace of the community. This hope was cherished by the proceedings of the

53

117

Supreme Court op the United States.

1809

legislature of Pennsylvania, in other cases wherein the state claimed interests. This ex¬ pectation has been disappointed. There being no other legal mode of obtaining the decision of 118] the superior tribunal of the United States, (the only jurisdiction by which the judgments of inferior courts of the United States can be finally rectified or judicially an¬ nulled,) I have thought it proper, and, under all circumstances, fully justifiable, to obtain that decision, by placing the case under the cognizance of your honorable Court, in its pres¬ ent form.

“ On the merits and justice of the claim of the libellants, I have no doubt ; but remain of the same opinion I have mentioned in my decree.

‘ ‘As to the jurisdiction ; I have never conceiv¬ ed that the allegations on this point, contained in the act of assembly lastmentioned, had legal foundation. It is well known to your honor¬ able court, that third persons claiming interests in pais, cannot, by such claims, constitute them¬ selves, or be judiciall}r considered, parties in suits pending in the names of others. Is or does there no.w exist any legal mode of interpleading, or compelling states to become parties to suits in the courts'of the United States. Yet if your honorable court shall be of opinion that the objections to jurisdiction are relevant, I shall, agreeably to my duty, continue to withhold any farther proceeding. But if, on the other hand, a peremptory direction to execute the decree shall be the consequence of your deliberations, having now the whole case before you, there can be no order or direction, which it is in my legal obligation to obey, to which (impelled by a sense of justice, however I may regret the cir¬ cumstance, as it respects the parties respondents, or other consequences which may flow from it) I shall more cheerfully submit.

“Richard Peters.

“Philadelphia, July 18th, 1808.”

The facts as they appear in the record and documents referred to by the judge, in the above answer, were in substance as follows:

Gideon Olmstead, Artimus White, Aquilla 1 11)] Rumsdale and David Clark, citizens and inhabitants of the state of Connecticut , were, during the revolutionary war, captured by the British and carried to Jamaica, where they were put on board the sloop Active to assist as mari¬ ners in navigating the sloop to New York, then in possession of the British, with a cargo of sup¬ plies for the fleets and armies of Great Britain. During which voyage, about the 6th of Septem¬ ber. 1778, they rose upon the master and crew of the sloop, confine'd them to the cabin, took the command of the vessel and steered for Egg- Harbor, in the state of New Jersey. On the 8th of September, when in sight of that harbor they were pursued, and forcibly taken possession of by Captain Thomas Houston, commander of the armed brig Convention, belonging to the state of Pennsylvania, and, on the 15th of Septem¬ ber, brought into the port of Philadelphia ; when Houston libeled the vessel as prize to the Con¬ vention. A claim was interposed by Captain James Josiah, master of the American privateer Le Gerard, who claimed a share of the capture as having been in sight and by agreement cruis¬ ing in concert with the Convention. A claim was also interposed by Olmstead and others for the whole vessel and cargo, as being their exclu-

54

sive prize. The state Court of Admiralty, how¬ ever, adjudged them only one-fourth part, and decreed the' residue to be divided between the state and the owners of the privateer, and the officers and crews of the Convention and the Le Gerard. From this sentence Olmstead and oth¬ ers appealed to the Court of Commissioners of Appeals in prize causes for the United States of America, where, on the 15th of December. 1778, the sentence of the state court was reversed, and it was ordered and adjudged that the vessel and cargo should be condemned as lawful prize for the use of the appellants, Olmstead and others, and that the marshal should sell the same, and pay the net proceeds to them or their agent or attorney. Upon receipt of a copy of this sen¬ tence, the Court of Admiralty made the follow¬ ing order :

"'“Thomas Houston, Esq. et al., ]

appellees,

ads. “In the Court

‘Gideon Olmstead, Artimus ! of Admiralty, White, Aquilla Rumsdale, | for the state of and David Clark, appellants, Pennsylvania, claimants of the sloop Ac¬ tive and her cargo.

“The court, taking into consideration the decree of the Court of Appeals in this cause, re¬ versing the judgment or sentence of this court, in the same cause, and further decreeing a con¬ demnation of the sloop Active, her tackle, ap¬ parel, furniture and cargo, as prize, &c., and that process of this court should issue for the sale of the said sloop, her cargo. &c., and for the distribution of the moneys arising from the said sale after deducting costs to the claimants above named, their agent or attorney; after ma¬ ture consideration are of opinion, that although the Court of Appeals have full authority to alter or set aside the decree of a judge of this court, yet that the finding of the jury in the cause does establish the facts in the cause without re- examination or appeal. And therefore the ver¬ dict of the jury still standing, and being in full force, this court cannot issue any process, or pro¬ ceed in any manner whatsoever contradictory to the finding of the said jury. And therefore doth now decree, order and adjudge, that the marshal of this court be commanded to sell at public vendue at the highest price that can be gotten for the same, the said sloop or vessel call¬ ed the Active, her tackle, apparel and furni¬ ture, and the goods, wares! and merchandises laden and found on board her at the time of her capture, &c. , and after deducting the costs and charges of the trial, condemnation and sale thereof, out of the moneys arising from the said sale, that he bring the residue thereof into court, there to remain ready to abide the further order of this court therein. “George Ross.

“ December 28th, 1778.”

*The finding of the jury, alluded to

in the above order, was in these words;

‘ ‘ In the cause wherein Thomas Houston is libellant, and Olmstead and others first claim¬ ants, and James Josiah second claimant, we find as follows :

l-4th of the net proceeds of the sloop Active and her cargo to the first claimants.

8-4ths of the net proceeds of said sloop and her cargo to the libellant and to the second claimants, as per agreement between them. “Nov. 4th. 1778.”

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1809

The United States v. Judge Peters.

121

The warrant which Judge Ross directed to be issued to the marshal to make sale of the vessel and cargo, in pursuance of the above order, and which was accordingly issued on the 28th of December, 1778, after reciting the proceedings in this court, and in the Court of Appeals, pro¬ ceeds as follows : “This court therefore taking into consideration the premises, and being of opinion that consistent with the laws of this state it cannot carry into execution the whole of the said sentence of the honorable the Court of Appeals aforesaid : yet willing, so far as the said sentence appears legal, to carry it into effect, and to prevent, as far as possible, any injuries or losses which the parties to this cause, or either of them, may be liable to by the vessel and cargo continuing in their present situation, do therefore hereby command you forthwith to sell,” &c., “and, after deducting the costs and charges, to bring the residue of the said moneys into court ready to abide the further order of this court.” This warrant was made returnable at a court of admiralty, to be holden at the judge’s chambers on the 7th of January, 1779.

Copies of the above order and warrant being produced, on the same 28th of December, 1778, before the Court of Appeals, it was moved, on 122] the part of the appellants, Olmstead and others, that process might issue to the mar¬ shal of the admiralty of Pennsylvania, com¬ manding him to execute the decree of the Court of Appeals; and after argument the case was postponed for further argument until Monday, 4th of January, 1779, at 5 o’clock P.M. On which day at 8 o’clock A. M. the Court of Ap¬ peals being again convened at the pressing in¬ stance and request of the claimants Olmstead -and others, it was moved and suggested by their ■advocates that notwithstanding the decree of the Court of Appeals, which had been trans¬ mitted to the Court of Admiralty, the judge of that court had appointed the hour of nine on that morning for the marshal to pay into court the money arising from the sale of the sloop Active and cargo, which suggestion was sup¬ ported by the oath of the registrar of the admir¬ alty; whereupon it was prayed that an injunc¬ tion might issue from the Court of Appeals di¬ rected to the marshal of the Court of Admiralty, commanding him to keep the money in his hands until the further order of the Court of Appeals ; which injunction was accordingly granted, reciting the ' sentence of the Court of Admiralty and its reversal, and the decree by the Court of Appeals; the refusal of the judge of the Court of Admiralty to cause that decree to be executed ; and the motion to the Court of Appeals for a writ to the marshal commanding him to execute the same ; the continuance of that motion to the 4th of January, 1779, at 5 o’clock P. M. and the appointment of the hour of 9 o’clock A. M. of the same day, by the special order of the judge of the Court of Ad¬ miralty, for the marshal to pay the money into that court, whereby the effect of the writ payed for, if the court should grant it, would •be eluded.

This injunction was served upon the marshal before he paid the money into the Court of Ad¬ miralty ; but he disregarded it, and paid the money over to the judge, who gave a receipt for it.

‘ ‘ Whereupon the Court (of Appeals) declared ■Crane h 5.

and ordered to be entered on record, that as the judge and marshal of the Court of Admiralty of the state *of Pennsylvania had absolute-

ly and respectively refused obedience, to the decree and writ regularly made in and issued from this court, to which they and each of them were and was bound to pay obedience, this court being unwilling to enter upon any proceedings for contempt, lest consequences might ensue at this juncture dangerous to the public peace of the United States, will not pro¬ ceed further in this affair, nor hear any appeal, until the authority of this court be so settled as to give full efficacy to their decrees and process.

‘ ‘ Ordered that the register do prepare a state of the proceedings had upon the decree of this court, in the case of the sloop Active, in order that the commissioners may lay the same before Congress.”

Upon the writ issued by the judge command¬ ing the marshal to sell the vessel and cargo, and bring the proceeds into court to abide its further order, the marshal, on the 4th of Janu¬ ary, 1779, returned, that in obedience to that writ he had deposited in the Court of Admiralty 47,981?. 2s. 5 d., Pennsylvania currency, on ac¬ count of the cargo of the prize sloop Active; but that the sloop remained yet unsold.

The money was loaned to the United States, and the loan-office certificates brought into court and deposited in the hands of the judge, who, on the 1st of May, 1779, delivered to David Rittenhouse, treasurer of the state of Pennsyl¬ vania, fifty of the certificates, amounting to 11,- 496?. 9s. 9 d., “being the share or dividend of the state in right of the brig Convention in and out of the prize sloop Active, according to the verdict of the jury on the trial of the said sloop Active in the Admiralty Court of that state;” at the same time taking a bond of indemnity from Mr. Rittenhouse, by the name of “David Rittenhouse, of the city of Philadelphia, Gent.,” the condition of which was that ‘ ‘ Whereas the said George Ross hath this day paid to the said David Rittenhouse, treasurer of the state of Pennsylvania, for the use of the said state, the sum,” &c. Now, “ if he, the said David Ritten¬ house, shall make repayment *and

restitution of the said sum of 11,496?. 9s. 9(?. unto the said George Ross, his executors or ad¬ ministrators, in case he, the said George Ross, shall hereafter by due course of law be com¬ pelled to pay the same according to the decree of the Court of Appeals in the case of the said sloop Active; and if he, the said David Ritten¬ house, shall and do in all things well and truly save harmless and indemnified at all times here¬ after the said George Ross, his heirs, executors and administrators, and his and their lands and tenements, goods and chattels of and from all damages, actions and demands which may arise or happen, for or on account of his having paid the money aforesaid, then the above obligation to be void, or else to be and remain in full force and virtue.”

The certificates were afterwards funded in the name of David Rittenhouse, and among his papers was found a list of the old loan-office certificates, and of the new funded stock, at the foot of which was written, in the hand¬ writing of Mr. Rittenhouse, the following memo¬ randum :

“ Note. — The above certificates will be the

55

124

Supreme Court of the United States.

1809

property of the state of Pennsylvania, when the state releases me from the bond I gave in 1778, to indemnify George Ross, Esq., judge of the admiralty, for paying the fifty original certificates into the state treasury as the state’s share of the prize.”

In the year 1801, the legislature of Pennsyl¬ vania passed an act requiring the treasurer to call upon the executrixes of Mr. Rittenhouse for the certificates of stock, and to give them a bond of indemnity, but they refused to deliver them up, being advised that they would not be safe in so doing.

On the 4th of January, 1803, the judge of the District Court for the District of Pennsyl¬ vania, pronounced the following final decree in the cause :

“ This is the long-depending case of the sloop Active and cargo. It comes before me by libel 125"] "'filed against the executors of the late Mr. Rittenhouse, who received from George Ross, Esq. , then judge of the state Court of Admiralty, the sums mentioned in the libel, which were invested in the certificates of stock as stated therein. Mr. Rittenhouse, on receiving these certificates, which were proceeds of the sales of the said sloop and cargo, gave a bond of in¬ demnity to Mr. Ross, which is now offered, when payment of these proceeds is made, to be delivered up. The suit is instituted for the purpose of carrying into effect a decree of the Court of Appeals established under the old con¬ federation, a copy whereof appears among the exhibits. In the answer it is alleged that the moneys were received for the state of Pennsyl¬ vania. In the replication this is denied. In a memorandum made by Mr. Rittenhouse, at the foot of the account exhibited, it appears that he intended to pay over these proceeds to the state, when indemnified. No such payment ever has been made, and the certificates and moneys are yet in the hands of the respondents.

“ It appears to me that Mr. Rittenhouse con¬ sidered himself, as I conceive he was, a stake¬ holder, liable to pay over the deposit to those lawfully entitled thereto. His executors con¬ ceive themselves in the same predicament, and have declined paying over the certificates and interest. No counsel have appeared, and re¬ quested to be heard on the part of the respond¬ ents, and I am left to judge from the libel, answer, replication and exhibits which contain the state of the facts. If I should be thought mistaken in the opinion I form on the subject, there is time and opportunity to appeal to. a superior tribunal.

‘ ‘ I throw out of the case all circumstances not immediately within my present view of the duty I have to perform. I have nothing to do with the original question, that has been de¬ cided by the Court of Appeals ; nor does it ap¬ pear to me essential for me to determine with what intentions Mr. Rittenhouse received the 126*] certificates. The fact of the Certificates and interest being now in the hands of the respondents is granted by them in their answer. It has been determined by the Supreme Court of the United States that this court has power to effectuate the decrees of the late Court of Appeals in prize causes, and this court has, on several occasions, practiced agreeably to that decision. There is no doubt in my mind (the authorities in the books being clear on this 56

point) that the process and jurisdiction of this court will reach and extend over the proceeds of all ships, goods and articles taken as lawful prize, found within the district, and legally proceeded against therein. These proceeds are under the same legal disposition, and subject to the same responsibility, under whatever shape they may appear, as the original thing from which they were produced. It is con¬ ceded that the certificates and moneys in ques¬ tion are proceeds of the sloop and cargo in the libel mentioned. These were decreed to the libellants by the judgment of the late Court of Appeals. I am, therefore, of opinion, and accordingly decree, and finally adjudge and determine, that the certificates be transferred and delivered, and the interest moneys paid over by the respondents to the libellants, in execution of the judgment and decree of the Court of Appeals, as stated in the proceedings- in this cause, with costs. I make it, however, a condition that the bond of indemnity be cancelled or delivered to the respondents, on their compliance with this decree,

“Richard Peters.

“January 14, 1803.”

No further proceedings in this cause were had in the District Court until the 18th of May, 1807, when, on motion of Mr. Lewis, in be¬ half of the libellants, Olmstead and others, the respondents were ruled to show cause by the next Friday why the decree pronounced in this cause should not be carried into execution ; and the bond of indemnity referred to in the decree was filed in court ready to be delivered *up, or cancelled, on compliance with

the decree by the respondents.

On the 29tli of May, 1807, to which day the rule had been enlarged, the respondents, appeared and suggested to the court,

That after making the decree in this case, to wit, on the second day of April, A. D. 1803, the general assembly of the commonwealth of Pennsylvania passed an act, which was then approved by the governor of the said com¬ monwealth, in the following words: “ An act relating to the claim of this commonwealth against Elizabeth Serjeant and Esther Waters, surviving executrixes of David Rittenhouse, Esq., deceased.”

Whereas, by an act of Congress for the erect¬ ing of tribunals competent to determine the propriety of captures during the late war be¬ tween Great Britain and her then colonies, passed the 25th day of November, one thou¬ sand seven hundred and seventy-five, it is enacted, in the fourth section thereof , as follows, viz.: “ That it be and is hereby recommended to the several legislatures in the United Colo¬ nies, as soon as possible, to erect courts of jus¬ tice, or give jurisdiction to the courts now in being for the purpose of determining con¬ cerning the captures to be made as aforesaid, and to provide that all trials in such case be had by a jury, under such qualifications as to the respective legislatures shall seem expedient ; ” and in the sixth section thereof as follows, viz. : ‘ ‘ That in all cases an appeal shall be allowed to the Congress, or to such person or persons as they shall appoint for the trial of appeals.”

And whereas, by an act of the general as¬ sembly of Pennsylvania, passed the 9th of

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1809

The United States v. Judge Peteks.

127

September, 1778, entitled, “An act for estab¬ lishing a court of admiralty,” appeals were allowed from the said court in all cases, unless from the determination or finding of the facts by a jury, which was, under the provisions of that law, to be without re-examination 128 ] or appeal: And whereas, by a reso¬ lution of Congress of the 15tli of January, 1780, it was, among other things, ■ declared: ‘ ‘ That trials in the Court of Appeals shall be according to the law of nations, and not by

jury-”

And whereas, the British sloop Active, hav¬ ing been,captured as prize on the high seas, in the month of September, 1778, and brought into the port of Philadelphia, and there libeled in the Court of Admiralty of the said State, held before George Ross, Esq., the then judge of the said court, on the 18th day of the said month of September: And whereas, the libel¬ lants then and there against the said sloop Active, Gideon Urmstead or Olmstead, Arti- mus White, Aquilla Rumsdale and David Clark, who claimed the whole vessel and cargo as their exclusive prize; Thomas Houston, master of the brig Convention, a vessel of war belonging to Pennsylvania, who claimed a moi¬ ety of the said prize for the state of Pennsylva¬ nia, himself, and his crew; and James Josiah, master of the sloop Gerard, private vessel of war, who claimed one-fourth part of the said prize for himself, his owners, and crew : And whereas, all the facts respecting the said capture being submitted to the said Court of Admiralty, and a jury then and there returned, empannelled, and sworn, a general verdict w'as brought in by the said jury, which was confirmed by the court, whereby Gideon Olmstead, Artimus White, Aquilla Rumsdale, and David Clark, became entitled to one-fourth of the said prize; Thomas Houston, for himself and crew, be¬ came entitled to another fourth; the state of Pennsylvania, as owner of the vessel of war, the Convention, to another fourth; and James Josiah, himself and owners and crew of the sloop Gerard, became entitled to the remaining one-fourth part of the said prize: And whereas, the said Gideon Olmstead, Artimus White, Aquilla Rumsdale, and David Clark, being dissatisfied with the verdict and sentence afore¬ said, did appeal from the said Court of Admi¬ ralty of Pennsylvania unto the Court or Com¬ mittee of Appeals, appointed as aforesaid 1 29*] under the ^authority of Congress, notwithstanding the recommendation of Con¬ gress aforesaid of the 25th day of November, 1775, for the appointment of courts of admi¬ ralty in each of the then United Colonies, did expressly provide that all trials respecting cap¬ ture should be had by a jury, and under such qualifications as to the respective legislatures should seem expedient, and notwithstanding the Court of Appeals did decide not by a jury, but by the usage of nations, and notwithstand¬ ing the law for establishing the Court of Ad¬ miralty of Pennsylvania did expressly take away the right of appeal where the facts w7ere found and determined by the intervention of a. jury, and notwithstanding the state was au¬ thorized at the time to make such qualification or provision, taking away the right of appeal in jury cases, by virtue of the recommendation of Congress aforesaid, which allowed and rec-

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ommended the said courts of admiralty to be established with a jury, under such qualifica¬ tions as to the respective legislatures should seem expedient : And whereas, the said Court of Appeals of the United States, on the 15tli day of December, 1778, did reverse the sen¬ tence of the Court of Admiralty aforesaid , and did decree the whole of the said prize to the appellants: And whereas, the judge of the Court of Admiralty, to wit., George Ross aforesaid, did refuse obedience to the decree of reversal, and did direct Matthew Clarkson, then marshal of the said court, to pay part of the proceeds of the said prize, to the amount of 11,496?. 9s. 9 d., Pennsylvania currency, for the use of the state of Pennsylvania, into the treasury of the state of Pennsylvania, whereof David Rittenliouse was then treasurer, taking a bond of indemnity from the said David Rittenhouse, as treasurer as aforesaid, to save him, the said George Ross, his executors, and ministrators, &c., harmless from the conse¬ quences of such payment, which bond is dated the 1st day of May, 1779 :

And whereas, the said George Ross dying, suit was brought against his executors in the Court of Common Pleas of Lancaster county, by and on the part of the appellants before named for the money whereunto they pretended *title by virtue of the decree aforesaid

of the Court of Appeals reversing the sentence of the Court of Admiralty, whereof the said George Ross had been judge : And whereas, it does not appear that the said David Rittenhouse had any notice or information, or was in any legal way apprized of, or made a party to, the said suit in the Court of Common Pleas of Lan¬ caster county, either in his personal capacity, or as treasurer of the state of Pennsylvania, so that judgment was obtained by default against the executors of the said George Ross without any knowledge of the said David Rittenhouse, or his being able to take any measures on behalf of himself or the state of Pennsylvania to pre¬ vent the same: And whereas, in consequence of the judgment so obtained in the said Court of Common Pleas of Lancaster county, against the executors of the said George Ross, the said ex¬ ecutors brought suit against the said David Rit¬ tenhouse, which, in the year one thousand seven hundred and ninety-two, in the term of April of the same year, was heard and determined in the Supreme Court of Pennsylvania, (on a case stated for the opinion of the court, after verdict taken for the plaintiff, subject to that opinion,) by Thomas M’Kean, Chief Justice, and others, the judges of the said court, who, among other things thereunto relating, did decree and de¬ termine that the reversal, as before mentioned, had and made in the Court of Appeals, was contrary to the provisions of the act of Congress recommending the establishment of courts of admiralty, and of the general assembly of the state of Pennsylvania, in their act for the estab¬ lishment of the said court, and was extrajudi¬ cial, erroneous and void, arid that the Court of Common Pleas of the county of Lancaster was incompetent to .carry into effect the decree of the Court of Appeals, and that the judge of the Court of Admiralty aforesaid, George Ross, was not liable to an action in a court of law for dis¬ tributing money according to his decree, as judge of the said court ; And whereas, at the

57

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Supreme Court of

second session of the third Congress of the United States, held at the city of Philadelphia, 131*] in the month of ^December, one thou¬ sand seven hundred and ninety-three, it was proposed, as an amendment to the constitution of the United States, that the judicial power of the United States shall not be construed to ex¬ tend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state, which, having been adopted ' by the requisite number of states, as appears by the communication to Congress of the then President, John Adams, to this purpose, of January the eighth, one thousand seven hundred and ninety-eight, did become a part of the constitution of the United States :

And whereas, on the twenty-seventh day of May, one thousand eight hundred and two, the said Gideon Olmstead. Arlimus White, Aquilla Rumsdale and David Clark, by their attorney, William Lewis, Esq., did file a bill in the Dis¬ trict Court of the United States, at Philadelphia, for the District of Pennsylvania, before Richard Peters, judge of the said court, against Elizabeth Serjeant and Esther Waters, surviving execu¬ trixes of David Rittenhouse aforesaid, deceased, for the recovery of the moneys, with interest, so paid into the hands of the said David Ritten¬ house by Matthew Clarkson, marshal of the Admiralty Court aforesaid, as proceeds of the prize, the brig Active so captured as aforesaid, and by the said David Rittenhouse and his ex¬ ecutrixes aforesaid formerly and still retained : And whereas, in the answer of the said Eliza¬ beth Serjeant and Esther Waters to the bill aforesaid, it sufficiently and substantially ap¬ pears, that the said money was originally re¬ ceived by the said David Rittenhouse, and was by him detained, as treasurer of the common¬ wealth of Pennsylvania, which commonwealth was, and still is, interested in, and a claimant of, the same, under the decree of the said George Ross, as judge of the Court of Admiralty in manner as herein before stated: And whereas, the said Richard Peters, judge of the said Dis¬ trict Court, on the bill, answer and replication so tiled by and between the said Gideon Olm¬ stead, Artimus White, Aquilla Rumsdale and David Clark, of the one part, against Elizabeth 132] Serjeant and Esther Waters, execu¬ trixes as aforesaid, did, on the fourteenth day of January, one thousand eight hundred and three, proceed to decree as follows, viz. : ‘ ‘ This is the long-depending case of the sloop Active and cargo,” Ac. All which legal proceedings herein before stated, will more fully and at large appear on reference to the records of the respective courts wherein the same were had:

Therefore it hath become necessary for the general assembly of Pennsylvania,, as guardians of the rights and interests of this common; wealth, and ‘to prevent any future infringe¬ ments on the same, to declare, that the juris¬ diction entertained by the court or committee of appeals, over the decree of George Ross, as judge of the Court of Admiralty of Pennsyl¬ vania, in the suit where the claimants of the brig Active, as prize, were the libellants, as herein before stated, was illegally usurped and exercised, in contradiction to the just rights of

58

"he United States. 1809

Pennsylvania, and the proper jurisdiction of the Court of Admiralty established as aforesaid, uqder the authority of this state, and that the reversal of the decree of the said George Ross, in that suit, was null and void; that the juris¬ diction entertained by Richard Peters, judge of the District Court aforesaid, in the suit of Gid¬ eon Olmstead, Artimus White, Aquilla Rums¬ dale and David Clark against Elizabeth Ser¬ jeant and Esther Waters, surviving executrixes of David Rittenhouse, deceased, was illegally usurped and exercised; that the rights of this commonwealth, as a claimant, and as the party substantially interested in the said suit, though apparent on the face of the proceedings, were unfairly passed over and set aside; that the said David Rittenhouse was not and ought not to have been considered in the light of a mere stakeholder, but as the treasurer and agent of this commonwealth, and that the jurisdiction and decree of the said Richard Peters hereon were entertained and made in manifest opposi¬ tion to, and violation of, the last amendment of the constitution of the United States herein be¬ fore stated, and ought not to be supported or obeyed. Therefore,

*Sect. 1. Be it enacted by the Senate

and House of Representatives of the common¬ wealth of Pennsylvania, in general assembly met, and it is hereby enacted by the authority of the same, that the Governor of this common¬ wealth be authorized, and he is hereby author¬ ized and required, to direct the Attorney Gen¬ eral of this commonwealth to apply without delay to Elizabeth Serjeant and Esther Waters, executrixes as aforesaid, and require them forth¬ with to pay into the treasury of this common¬ wealth, the moneys by them admitted to have been received in respect of the premises, in their answer to the bill so as aforesaid filed against them, in the District Court of Pennsylvania, before Richard Peters, judge of the said court, without regard to the decree of the said Richard Peters herein, and in default thereof by the said Elizabeth Serjeant and Esther Waters, to direct the said Attorney General to bring suit in the name of the commonwealth, in the proper court of this commonwealth, against the said Elizabeth Serjeant and Esther Waters, for the moneys aforesaid, and proceed as speedily as the course of legal proceedings will permit, to enforce the recovery and pay¬ ment thereof into the treasury of this common¬ wealth.

Sect. 2. And be it further enacted by the authority aforesaid, that the governor of this commonwealth be authorized and required, and he is hereby authorized and required, to pro¬ tect the just rights of the state, in respect of the premises, by any further means and meas¬ ures that he may deem necessary for the pur¬ pose, and also to protect the persons and prop¬ erties of the said Elizabeth Serjeant and Esther Waters from any process whatever issued out of any federal court in consequence of their obedience to the requisition, so as aforesaid directed to be made to them by the Attorney General of this commonwealth, and in the name of this commonwealth to give to the said Elizabeth Serjeant and Esther Waters a suffi¬ cient instrument of indemnification, in case of their payment of the moneys afoi'esaid, in com¬ pliance with this act, without suit brought

Crancli 5.

1809

The United States v. Judge Peteks.

134

134] against them on the part of this com¬ monwealth for the recovery of the same.

Simon Snyder,

Speaker of the House of Representatives.

Robert Whitehill, Speaker of the Senate.

Approved, April 2, 1803.

Thomas M’Kean, Governor of the -Commonwealth of Pennsylvania,

That they, the defendants, being required by proper authority to pay into the treasury of the’ said commonwealth the moneys admitted to have been received as executrixes of David Rittenhouse, Esq., in manner aforesaid, did, on the 19th day of July, 1803, transfer to the treasurer of the commonwealth the certificates of stock above mentioned, ‘and on the 29th of July, 1803, pay into the treasury of the com¬ monwealth the moneys by them received as aforesaid, in obedience to the said act of the general assembly, and to the requisition made under it.

The defendants respectfully further suggest, that the said certificates and money were re¬ ceived by their said testator, as the treasurer and officer of the said commonwealth, as ap¬ pears by the bond of the said David Ritten¬ house, given on the receipt thereof, filed in this court by the libellants, the 22d of May inst. ; and that the same came to their hands,, as his representatives, after such receipt: And, it being expressly insisted by the said act of the general assembly that the said commonwealth had and has a right to the said certificates and money, and these defendants having, as afore¬ said, obeyed the requisition of the said act, these defendants suggest that the said decree of this honorable court ought not to be executed, nor any process issued thereupon against them. 135] Tlie defendants respectfully further suggest that the said decree of this honorable court was pronounced, so far as respects the claims, rights and interests of the said common¬ wealth of Pennsylvania, ex parte, and without jurisdiction,

John Serjeant, attorney for defendants.

After this suggestion, nothing appears to have been done until the application to this court at February term, 1808, when the motion was made for a rule on the judge to show cause why a mandamus should not issue commanding him to issue an attachment, or other proper process, to enforce obedience to his sentence, as before mentioned.

At this term, Rodney (Attorney General), Lewis, and F. S. Key, of counsel for Olmstead and others, submitted the return of the manda¬ mus to the consideration of the court without argument.

February 20. Marshall, Gh. ./., delivered the opinion of the court as follows:

With great attention, and with serious con¬ cern, the court has considered the return made by the judge for the District of Pennsylvania to the mandamus directing him to execute the sentence pronounced by him in the case of Gideon Olmstead and others v. Rittenhouse’ s Ex¬ ecutrixes, or to show cause for not so doing. The cause shown is an act of the legislature of Pennsylvania, passed subsequent to the rendition of his sentence. This act authorizes and requires the governor to demand, for the use of the state of Pennsylvania, the money which had been de-

Cranch 5.

creed to Gideon Olmstead and others ; and which was in the hands of the executrixes of David Rittenhouse; and, in default of payment, to direct the Attorney General to institute a suit for the recovery thereof. This act further authorizes and requires the governor to use any further means he *may think necessary

for the protection of what it denominates “ the just rights of the state,” and also to protect the persons and properties of the said executrixes of David Rittenhouse, deceased, against any process whatever, issued out of any federal court in consequence of their obedience to the requisition of the said act.

If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and. destroy the rights ac¬ quired under those judgments, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tri¬ bunals. So fatal a result must be deprecated by all ; and the people of Pennsylvania, not less than the citizens of every other state, must feel a deep interest in resisting principles so destruc¬ tive of the Union, and in averting consequences so fatal to themselves.

The act in question does not, in terms, assert the universal right of the state to interpose in every case whatever; but assigns, as a motive for its interposition in this particular case, that the sentence, the execution of which it prohib¬ its, was rendered in a cause over which the federal courts have no jurisdiction.

If the ultimate right to determine the juris¬ diction of the courts of the Union is placed by the constitution in the several state legislatures, then this act concludes the subject; but if that power necessarily resides in the supreme judi¬ cial tribunal of the nation, then the jurisdiction of the District Court of Pennsylvania, over the case in which that jurisdiction was exercised, ought to be most deliberately examined; and the act of Pennsylvania, with whatever respect it may be considered, cannot be permitted to prejudice the question.

In the early part of the war between the United States and Great Britain, Gideon Olm¬ stead and *otliers, citizens of Connecti-

cut, who say they had been carried to Jamaica as prisoners, were employed as part of the crew of the sloop Active, bound from Jamaica to New York, and laden with a cargo for the use of the British army in that place. On the voy¬ age they seized the vessel, confined the captain, and sailed for Egg Harbor. In sight of that place, the Active was captured by the Conven¬ tion, an armed ship belonging to the state of Pennsylvania, brought into port, libeled and condemned as prize to the captors. From this sentence Gideon Olmstead and others, who claimed the vessel and cargo, appealed to the Court of Appeals established by Congress, by which tribunal the sentence of condemnation was reversed, the Active and her cargo con¬ demned as prize to the claimants, and process was directed to issue out of the Court of Admir¬ alty, commanding the marshal of that court to sell the said vessel and cargo, and to pay the net proceeds to the claimants.

The mandate of the appellate court was pro¬ duced in the inferior court, the judge of which admitted the general jurisdiction of the court

59

137

Supreme Court of the United States.

1809s

established by Congress, as an appellate court, but denied its power to control the verdict of a jury which had been rendered in favor of the captors, the officers and crew of the Conven¬ tion; and therefore refused obedience to the mandate : but directed the marshal to make the sale, and, after deducting charges, to bring the residue of the money into court, subject to its future order.

The claimants then applied to the judges of appeals for an injunction to prohibit the mar¬ shal from paying the money, arising from the sales, into the Court of Admiralty ; which was awarded, and served upon him: in contempt of which, on the 4th of January, 1778, he paid the money to the judge, who acknowledged the receipt thereof at the foot of the marshal’s re¬ turn.

On the 1st of May, 1779, George Ross, the 138] judge of the Court of Admiralty, deliv¬ ered to David Rittenhouse, who was then treas¬ urer of the state of Pennsylvania, the sum of 11,496£. 9.S. 9 d., in loan-office certificates; which was the proportion of the prize money to which that state would have been entitled, had the sen¬ tence of the Court of Admiralty remained in force. On the same day, David Rittenhouse exe¬ cuted a bond of indemnity to George Ross, in which, after reciting that the money was paid to him for the use of the state of Pennsylvania, he binds himself to repay the same, should the said George Ross be thereafter compelled, by due course of law, to pay that sum according to the decree of the Court of Appeals.

These loan-office certificates were in the name of Matthew Clarkson, who was marshal of the Court of Admiralty, and were dated the 6th of November, 1778. Indents were issued on them to David Rittenhouse, and the whole principal and interest were afterwards funded by him, in his own name, under the act of Congress mak¬ ing provision for the debt of the United States.

Among the papers of David Rittenhouse was a memorandum, made by himself at the foot of a list of the certificates mentioned above, in these words: “Note. The above certificates will be the property of the state of Pennsylvania, when the state releases me from the bond I gave in 1778, to indemnify George Ross, Esq., judge of the admiralty, for paying the 50 original cer¬ tificates into the treasury, as the state’s share of the prize. ”

The state did not release David Rittenhouse from the bond mentioned in this memorandum. These certificates remained in the private pos¬ session of David Rittenhouse, who drew the interest on them during his life, and after his death they remained in possession of his repre¬ sentatives; against whom the libel in this case was filed, for the purpose of carrying into exe¬ cution the decree of the Court of Appeals. 139] Wliile this suit was depending, the state of Pennsylvania forbore to assert its title, and, in January, 1803, the court decreed in fa¬ vor of the libellants; soon after which, the legis¬ lature passed the act which has been stated.

It is contended that the federal courts were deprived of jurisdiction, in this cause, by that amendment of the constitution which exempts states from being sued in those courts by indi¬ viduals. This amendment declares, “tliat the judicial power of the United States shall not be construed to extend to any suit, in law or

60

equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”'

The right of a state to assert, as plaintiff, any interest it may have in a subject, which forms- the matter of 'controversy between individuals, in one of the courts of the United States, is not affected by this amendment; nor can it be so construed as to oust the court of its jurisdiction, should such claim be suggested. The amend¬ ment simply provides, that no. suit shall be com¬ menced or prosecuted against a state. The state cannot be made a defendant to a suit brought by an individual ; but it remains the duty of the courts of the United States to decide all cases- brought before them by citizens of one state against citizens of ’ a different state, where a state is not necessarily a defendant. In this case, the suit was not instituted against the state or its treasurer, but against the executrixes- of David Rittenhouse, for the proceeds of a vessel condemned in the court of admiralty, which were admitted to be in their possession. If these proceeds had been the actual property of Pennsylvania, however wrongfully acquired, the disclosure of that fact would have presented a case on which it is unnecessary to give an opin¬ ion ; but it certainly can never be alleged that a mere suggestion of title in a state to property, in possession of an individual, must arrest the proceedings of the court, and prevent their "’looking into the suggestion, and ex-

amining the validity of the title.

If the suggestion in this case be examined, it is deemed perfectly clear that no title whatever to the certificates in question was vested in the state of Pennsylvania,

By the highest judicial authority of the na¬ tion it has been long since decided, that the Court of Appeals erected by Congress had full authority to revise and correct the sentences of the courts of admiralty of the several states, in prize causes. That question, therefore, is at rest. Consequently, the decision of the Court of Appeals in this case annulled the sentence of the Court of Admiralty, and extinguished the- interest of the state of Pennsylvania in the Ac¬ tive and her cargo, which was acquired by that sentence. The full right to that property was- immediately vested in the claimants, who might rightfully pursue it, into whosesoever hands it might come. These certificates, in the hands, first, of Matthew Clarkson, the marshal, and. afterwards of George Ross, the judge of the Court of Admiralty, were the absolute property of the claimants. Nor did they change their character*on coming into the possession of Da¬ vid Rittenhouse.

Although Mr. Rittenhouse was treasurer of the state of Pennsylvania, and the bond of in¬ demnity which he executed states the money to have been paid to him for the use of the state of Pennsylvania, it is apparent that he held them in his own right, until he should be com¬ pletely indemnified by the state. The evidence to this point is conclusive. ' The original certifi¬ cates do not appear to have been deposited in the state treasury, to have been designated in axiy manner as the property of the state, or to- have been delivered over to the successor of David Rittenhouse. They remained in his pos¬ session. The indents, issued upon them for interest, were drawn by David Rittenhouse, and

Cranch 5.

1809

Yiolett v. Patton.

140

preserved with the original certificates. When 141] funded as part of the debt of the United States, they were funded by David Rit- tenhouse, and the interest was drawn by him. The note made by himself at the foot of the list, which he preserved, as explanatory of the whole transaction, demonstrates that he held the certificates as security against the bond he had executed to George Ross; and that bond was obligatory, not on the state of Pennsylva¬ nia, but on David Rittenhouse, in his private capacity.

These circumstances demonstrate, beyond the possibility of doubt, that the property which represented the Active and her car¬ go, was in possession, not of the state of Penn¬ sylvania, but of David Rittenhouse as an indi¬ vidual; after whose death it passed, like other property, to his representatives.

Since, then, the state of Pennsylvania had neither possession of, nor right to, the property on which the sentence of the District Court was pronounced, and since the suit was neither commenced nor prosecuted against that state, there remains no pretext for the allegation that the case is within that amendment of the con¬ stitution which has been cited ; and, consequent¬ ly, the state of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause.

It will be readily conceived that the order which this court is enjoined to make by the higfi obligations of duty and of law, is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty, and therefore must be performed. A peremptory mandamus must- be awarded.

Cited— 1 Pet. 122; 5 Pet. 219; 12 Pet. 750; 14 Pet. 032; 2 How. 550; 24 How. 459; 2 lllack 633 ; 6 Wall. 195, 253 ; 14 W all. 166 ; 7 Bank ; Keg. 426 ; 1 Biss. 12.

142] YIOLETT v. PATTON.

To constitute a consideration it is not necessary that a benefit should accrue to the promisor. It is sufficient that something valuable flows from the promisee, and that the promise is the inducement to the transaction.

A blank indorsement upon a blank piece of pa¬ per with intent to give a person credit, is in effect a letter of credit. And if a promissory note be afterwards written on the paper, the indorser can- hot object that the note was written after the in¬ dorsement.

The English statute of frauds requires that the agreement should be in writing ; the statute of Virginia requires only the promise to be in writing.

Before resort can be had to the indorser of a promissory note in Virginia, the maker must be sued, if solvent; but his insolvency renders a suit against him unnecessary.

It is a question to be ieft to the jury whether a suit against the maker wouid have produced the money.

ERROR to the Circuit Court for the District of Columbia, sitting at Alexandria, to re¬ verse a judgment in an action of assumpsit, brought by Patton, as indorsee of a promissory note, against Violett, the indorser. The note was made by Brooke, payable, in 30 days, at the bank of Alexandria, to the order of Violett, and by him indorsed to Patton.

The declaration had two counts. The first was upon the indorsement, and stated the

Cranch 5.

making of the note by Brooke, for value re¬ ceived; the assignment by indorsement to Pat¬ ton ( but did not state that the assignment was for value received), by means whereof, and of the statute of Virginia, Patton had a right to de¬ mand and receive the money from Brooke ; the demand of payment from Brooke ; his refusal and insolvency at the time of demand; and no¬ tice thereof to Violett, whereby he became lia¬ ble, and in consideration thereof promised to pay, &c.

The other count was for money had and received.

At the trial of the general issue, the defend¬ ant below took two bills of exceptions.

The first was to the following opinions and instructions of the court to the jury, viz. :

That if the jury should be satisfied by the evidence that the defendant indorsed the note with intent to give a credit for the amount there¬ of to Brooke with the plaintiff, and that the body of the note was filled up by the plaintifE before it was signed by Brooke, and that the plaintiff, upon the faith of the note so drawn and indorsed, gave credit to Brooke to the amount thereof; the circumstance *of

such indorsement being made before the body of the note was filled up by the plaintiff and signed by Brooke, is no bar to the plaintiff ’s recovery in this action; although the jury should be sat¬ isfied that no other value was received by the defendant for his indorsement than the credit thus given by the plaintiff to Brooke. And further, that the indorsement by the defendant with the intent aforesaid, if proved, authorized Brooke to make the note to the plaintiff in the form and manner in which it appears upon the face of it to be made; and that the circum¬ stance that the body of the note was in the handwriting of the plaintiff, was wholly im¬ material to the present issue.

The second bill of exceptions stated, that the defendant prayed the court to instruct the jury that if they should be satisfied by the evidence that Brooke, at the time the note became pay¬ able, or at any time previous to the commence¬ ment of this action, had property sufficient to pay the debt claimed by the plaintiff, and that both he and the plaintiff lived in the town of Alexandria at the time the note became due, and that the plaintiff brought no suit against Brooke to recover the amount of the note, but suffered him to leave the District of Columbia, without suing him: or if the jury should be satisfied that the plaintiff and Brooke have, since the note became due, both lived in the county of Fairfax, in Virginia, and have con¬ tinued to reside there until the bringing of the present suit, and that the plaintiff has not brought suit against Brooke in Virginia, then the defendant is not liable in this action. But the court refused to give those instructions as prayed.

E. J. Lee, for the plaintiff in error.

of paper, and delivered with intent to give credit to Brooke, but without an express au¬ thority to him to fill up the paper with a prom¬ issory note, did not authorize him so to fill it up. But if Brooke was so authorized, Patton was not. There does not appear *to

have been any communication between Patton and Violett upon the subject.

(51

144

Supreme Court of the United States.

1809

The cases of Russel and Langstaffe (Doug., 514), and Collins v. Emett (1 H., Bla., 813), do not apply; because in those cases it appears that the body of the note was filled up by the person authorized, and who was to use it for his benefit ; and because the principles of those cases are not drawn from the common law, but from the custom of merchants, which is not applicable to promissory notes in Virginia, which are there placed upon the same footing as bonds, and subject only to the same common law principles.

to Violett. The defendant in error must show a good and valuable consideration. (Chitty, 9; 4 Mod., 242; 1 Strange, 674; Buller, 274; 2 Bl. Com., 445; 1 Fonb., Eq., 331, 332, 335, 336; 7 Term Rep., 350, Rannv. Hughes.)

A consideration which will support an assump¬ sit must be either a benefit to the defendant or a prejudice to the plaintiff; but here Violett received no benefit, and Patton no prejudice.

It does not appear that Patton gave a credit solely in consequence of Violett’s indorsement. On the contrary, there wras no communication between them, so that there was no undertak¬ ing on the part of Violett to Patton, except what the law implies from the indorsement; and that implication is founded upon a pre¬ sumption that the indorser received value, and can be extended no farther than the value re¬ ceived.

It does not appear that Patton would not have credited Brooke without Violett’s indorsement.

a writing signed by him; and the undertaking being to pay the debt of another, is void by the statute of frauds of Virginia.

1 4-5"] *At common law the holder of the paper had no right to fill up the indorsement so as to make it a promise in writing. Such a right in mercantile cases is founded only on the custom of merchants. The undertaking in writing- must set out the precise terms of the promise, as well as the consideration. (Prec., Ch., 560; Strange, 426; 1 Atk., 13; 5 East, 10, Wain v. Warlters.) Brooke was clearly liable for this debt. And it is laid down as a principle, that if he for whose use the goods are furnished be liable at all, the promise of a third person must be in writing, or it is void. (Roberts, 209.) But if this is a parol promise, it must be made to appear that the credit was given to Violett alone. (1 H., Bla., 120; 2 Term Rep., 80.)

time the note became due, and at the time the suit was brought, had property sufficient to pay the amount of the note, and Patton did not at any time bring suit against Brooke.

In Mackie v. Rams (2 Wash., 219), it is de¬ cided that the holder of a bond must use due diligence for the recovery of the money. In Lee v. Love (1 Call, 497), the assignee of a note must sue the maker before he can resort to the indorser.

The case of Fenwick v. Barkesdale, decided in the Court of Appeals in Virginia, in October, 1803, affirms the general doctrine laid down in Mackie v. Davis, and shows that a suit is neces¬ sary, and is the only kind of diligence which is meant.

It also proves that it is not sufficient to show that the maker of the note was not able to pay

62

all his debts ; but the plaintiff must go further and show that he was not able to pay the par¬ ticular debt due to him by the note.

The oath which is taken under the insolvent law of Virginia, shows what is meant by the term insolvent. *He must swear that [*14:6 he is not worth 30 dollars, exclusive of his wear¬ ing apparel.

The insolvency of the drawee of a bill is no excuse for neglect to give notice of its dishonor. (Chitty, 88; Doug., 497, 515.)

Swann, contra.

The case of Russell and Langstaffe (Doug. , 514), is clear as to the authority given by an indorsement on a blank piece of paper.

It is a letter of credit. The defendant has given the bearer of it authority to use it, and cannot deny the authority when it is executed. This is a mercantile transaction depending upon good faith, in which the want of consideration can never be alleged. (3 Burr., 1663, Philans <(• Rose v. Van Mierop & Hopkins.) It is a prom¬ ise in writing, which is sufficient to take it out of the Virginia statute of frauds. The defend¬ ant cannot be permitted to say that the indorse¬ ment was blank, and the plaintiff had no authority to fill it up, unless he can show that the confidence he placed in Brooke and the plaintiff has been abused.

If the maker of a note be insolvent when the note becomes due, it is not necessary that the holder should bring suit against him. Brooke might have had property enough to pay this note, and yet be insolvent : And it does not follow be¬ cause he might have paid this note, that he would have paid it if suit had been brought, or that he could have been compelled to pay it.

Youngs, in reply.

Ho action can be sustained upon the in¬ dorsement of the note. The act of assembly- respecting promissory notes gives no action against the indorser. It only gives the assignee a right to recover in his own name against" the maker. The action *against the indor-

ser is only at common law, upon the ground that the consideration paid for the note has failed. The legislature of Virginia did not mean to extend the liability of the indorser farther than that. They had the statute of Anne before them, but they did not choose to adopt it; they preferred to place notes in the class with bonds rather than with bills of exchange. The indor¬ ser is liable only upon the principle of money had and received to the plaintiff’s use. (1 Cranch, 298, Mandeville v. Riddle; 2 Wash., 219, 221, Mackie v. Davis; 2 Wash., 148, Norton v. Rose.) If there be no consideration, if the defendant has never received value for the note, he is not liable upon any of the grounds stated in those cases. Between immediate parties the want of consideration is always a good defense, even in England. (Kyd, 276.)

In an action against a surety for money had and received, you cannot recover if the money were received by the principal, although the surety join in giving a receipt for it. (2 Term Rep., 366, Stratonv. Rastall.)

In a written agreement to pay the debt of another, the consideration must be stated as well as the promise. (5 East, 10, Wain v. Warlters.)

Marshall, Ch. J. Do you mean to state that if A writes a letter to B stating that if B

Cranch .5

1809

VlOLETT V.

will let C have goods, A will pay for them if C does not, A would not be bound ?

Youngs. Probably in that case it would be considered that the letter did state the consid¬ eration.

In the case of Clark v. Russel (3 Dal., 415). it was decided by this court that the whole agreement must be in writing, and that noth¬ ing can be supplied by parol. It must be a complete agreement, or it will not support an action at law. And upon the count for money had and received, you must prove a considera- 148 ] tion in money actually received by the defendant, and can then recover only the amount of that consideration. Suppose a note indorsed for accommodation at the bank, and the bank refuse to discount it. If the in¬ dorsee puts it in circulation can the holder recover upon it against the indorser?

If the promise be in writing, there must still be a consideration, and you can recover only to the extent of that consideration. (7 Term Rep., 350, Rann v. Hughes.)

Marshall, Ch. J. The question seems to be whether the declaration must not state the consideration ?

Washington, J. In Mackie v. Davis there was a special consideration.

Livingston, J. The case of a promissory note is the only case where you need not state a consideration in your declaration.

Marshall, Ch. J. My impression is very strong that in Virginia there has been a general practice to consider an indorser as liable upon an implied promise; and to declare upon it without averring a consideration.

Youngs. If there must be a consideration to support the assumpsit, it must be averred in the declaration. (Simms v. Cook, 2 Call; Winston v. Francisco, 2 Wash., 187; Taliaferro v. Robb, 2 Call, 258.)

February 23. Marshall, Ch. J., delivered the opinion of the court as follows:

This case comes on upon two exceptions ; one to the opinion of the Circuit Court given to the jury, and the other to the refusal of that 149] court to give an opinion which was prayed by the counsel for the defendant below.

The declaration contains two counts. One upon the indorsement of a promissory note, and the other for money had and received to the plaintiff's use. The question arising on the first bill of exceptions is, whether the court erred in directing the jury respecting the liabil¬ ity of the defendant below, on the indorsement which was the foundation of the action.

The indorsement was made before the note was written ; and it appeared that the body of" the note was filled up by Patton. The opinion of the court was, that, if the jury should be satisfied, from the testimony, that Violett in¬ dorsed this paper for the purpose of giving Brooke a credit with Patton, and that, upon the faith of the note so drawn and indorsed, Patton did credit Brooke to the amount there¬ of, the circumstances, that the note was made subsequent to the indorsement, without any consideration from Brooke to Violett, and was filled up by the plaintiff, did not bar the action; and, further, that the said Brooke was to be considered as authorized by the said Violett to make the note to Patton.

This opinion is said to be erroneous; because, Cranch 5.

Patton. 147

sideration.

2. It was made on a blank paper.

ment in writing.

In support of the first point, the counsel for the plaintiff in error have cited several cases, intending to prove that an indorsement made without consideration, though it transfers the paper to the indorsee, creates no liability in the indorser; and that *a promise in writ-

ing, made without consideration, is void.

So far as respects the immediate parties hav¬ ing knowledge of the fact, and so far as relates to an indorsement under the statute of Virginia, this is correct; but the real question in the cause is, does the testimony prove a sufficient consideration for the promise created by the in¬ dorsement? This is not intended to compre¬ hend any writing on which an action of debt is given.

To constitute a consideration it is not abso¬ lutely necessary that a benefit should accrue to the person making the promise. It is sufficient that something valuable flows from the person to whom it is made; and that the promise is the inducement to the transaction. In the com¬ mon case of a letter of credit given by A to B, the person who, on the faith of that letter, trusts B, is admitted to have his remedy against A, although no benefit accrued to A as the con¬ sideration of his promise. So in the present case, Patton trusted Brooke on the credit of Violett’s name, and Violett wrote his name for the purpose of giving Brooke that credit with Patton. It was, in effect, and in intention, a letter of credit. The case shows that this was both the intention and the effect of Violett’s giving his name to Brooke. In conscience, and in substance, then, it is a letter of credit, upon which the money, it was intended to secure, was advanced; and although in point of form the transaction takes the shape, and was in¬ tended to take the shape, of an indorsement, yet, so far as respects consideration, the in¬ dorsement has the full operation of an under¬ taking in the form of a letter of credit.

It is common in Virginia for two persons to join in a promissory note, the one being the principal and the other the security. Although the whole benefit is received by the principal, this contract has never been considered as a nudum pactum with regard to the security. So far as respects consideration, no *dif-

ference is preceived in the cases. Violett has signed his name upon this paper for the pur¬ pose of giving Brooke a credit with Patton, and his signature has obtained that credit. The consideration is precisely the same, whether his name be on the back or the face of the paper.

ment preceded the making of the note.

This objection certainly comes with a very bad grace from the mouth of Violett. He in¬ dorsed the paper with the intent that the prom¬ issory note should be written on the other side; and that he should be considered as the indorser of that note. It was the shape he in¬ tended to give the transaction ; and he is now concluded from saying or proving that it was not filled up when he indorsed it. It would be to protect himself from the effect of his prom¬ ise, by alleging a fraudulent combination be-

63

151

Supreme Court of the United States.

1809

tween himself and another to obtain money for that other from a third person. The case of Russel and Langstaffe, reported in Douglass, is conclusive on this point.

memorandum of the agreement in writing.

The argument on this point is founded on the idea that the statute of frauds in Virginia is copied literally from the statute of Charles II. This is not the fact. The first section of the act of Virginia differs from the 4th sec. of the statute of Charles II. in one essential respect. The statute »of England enacts that no action shall he brought, in the cases specified, ‘ ‘ unless the agreement on which such action shall he brought, or some memorandum or note thereof shall be in writing,” &c. The Virginia act en¬ acts that no action shall be brought in the specified cases, “unless the promise or agree¬ ment on which such action shall be brought, or some memorandum or note thereof shall be in writing,” &c. The reasoning of the judges, in the cases in which’ they have decided that the 152] consideration ought to be in writing, turns upon the word agreement, of which the consideration forms an integral part. This rea¬ soning does not apply to the act of Virginia, in which the word “ promise” is introduced.

It was thought proper to notice this differ¬ ence between the act of parliament and the act of Virginia, although the opinion of the court is not determined by it. In this case the assign¬ ment does express a consideration. It is made for value received.

It is unnecessary to decide in this case, whether the declaration ought to have alleged that the indorsement was made on considera¬ tion. With that question the jury had no con¬ cern, and the direction of the court was not affected by it. There being no demurrer, it could only occur in arrest of judgment. But on a motion in arrest of judgment, the defendant ' below could not have availed himself of this error, if it be one, because there are two counts in the declaration, one of which is unquestion¬ ably good, and the court cannot preceive on which the verdict was rendered. By the act of jeofails in Virginia, there is no error if any one count will support the judgment.

The second exception is to the refusal of the Circuit Court to give the opinion prayed for by the counsel for the defendant below.

When the error alleged is, not that the court has misdirected the jury, but that the court has refused to give a particular opinion, the opin¬ ion demanded must be so perfectly stated, that it becomes the duty of the court to give it as stated.

In this case, the opinion required by the counsel consists of two parts. The first is to instruct the jury ‘ ‘ that if they shall be satisfied, from the evidence, that Richard Brooke, the maker of the note in this case, had, at the time the note became due, or at any time previous to the commencement of this suit against the de- 153] fendant, property sufficient to pay the debt claimed, ” &c. , and the plaintiff brought no suit, then this action is not maintainable.

This court conceives that the Circuit Court ought not to have given this opinion. Had Richard Brooke possessed property before the making of the note, and not afterwards, the opinion, in the terms in which it was required, 04

would have been a direction to find their ver¬ dict for the defendant. So if Richard Brooke had been in possession of property for a single day, and had the next day become insolvent, the court was asked to say that, in such a case, the indorser could only be made liable by suit against the maker. Such a direction, in the opinion of this court, would have been im¬ proper.

The second branch of the opinion the Circuit Court was required to give, is in these words: “ Or if the jury shall be satisfied that the said plaintiff and the said Brooke have, since the said note became due, both lived in the county of Fairfax, in Virginia, and have continued to reside in the county of Fairfax until the begin¬ ning of the present suit, and the plaintiff hath not brought suit against the said Brooke in Virginia, then the defendant is not liable in this action. ”

If the plaintiff had sued Brooke elsewhere than in Virginia, or if Brooke had become in¬ solvent previous to the making of the note, and had continued to be so, the opinion of the court, if given as prayed, would have been, that, still, a suit against the maker of the note was necessary to give a right of action against the indorser.

This is not understood to be the law of Vir¬ ginia. It is understood to be the law, that the maker of the note must be sued, if he is solvent, but his insolvency dispenses with the necessity of suing him. It is not known that any decis¬ ion of the state courts requires that this insol¬ vency should be proved by taking the oath of an insolvent debtor, nor is it believed that this is the only admissible testimony of *the

fact of insolvency. Other testimony may be admitted. It would therefore have been prop¬ er to leave it to the jury to determine whether it was, at any time, in the power of the plaint¬ iff to have made the money due on this note, or any part of it, from the maker by suit; and their verdict ought to have been regulated by the testimony in this respect.

This opinion was not required.

This court is of opinion that there is no error, and that the judgment is to be affirmed with costs.

Cited— 5 C ranch 50, 5a; 15 Fet. 314; 3 How. 533; 30 How; 361 ; 33 How. 43 ; Id. 108 ; 9 Wall. 553 ; 33 Wall. 507; 3 Otto 339; 1 Craneh C. C. 574; 3 Id. 310; 3 McLean 107 ; 3 Brock. 73.