U. States

V.

1824. present instance, require quarterly accounts and settlements, a mere omission to account is to be deemed a breach of the bond, for which a suit Kirkpatrick. must be immediately brought, upon the peril of loss from imputed laches; the Collectors and their sureties would be oppressed with the most expensive and vexatious litigation; and their whole real estate, which by law is subjected to a licn, upon the commencement of a suit, would be perpetually embarrassed in its transfers. This consideration of public or private inconvenience, is not to overrule the settled principles of law, but it is certainly entitled to great weight, where a new doctrine is to be promulgated. It is admitted, that mere laches, unaccompanied with, fraud, forms no discharge of a contract of this nature, between private individuals. Such is the clear result of the authorities. Why, then, should a more rigid principle be applied to the government? a principle which is at war with the general indulgence allowed to its rights, which are ordinarily protected from the bars arising from length of time and neg. ligence? It is said, that the laws require, that settlements should be made at short and stated periods; and that the sureties have a right to look to this as their security. But these provisions of the law are created by the Government for its own security and protection, and to regulate the conduct of its own officers. They are merely directory to such officers, and constitute no part of the contract with the surety. The surety may place confidence in the agents of the Government, and rely on their fidelity in office; but he has of this the same means

of judgment as the Government itself; and the latter does not undertake to guaranty such fidelity. No case has been cited at the bar, in support of the doctrine, except that of The People v. Jansen, in 7 Johns. Rep. 332. In respect to that case, it may be observed, that it is distinguishable from the present in some of its leading circumstances. But if it were not, we are not prepared to yield to its authority. It is encountered by other authorities, which have been cited at the bar; and the total silence in the English books, in a case of so frequent occurrence, affords strong reason to believe, that it never has been supposed, that laches would be fatal in the case of the Government, where it would not affect private persons. Without going more at large into this question, w eare of opinion, that the mere laches of the public officers constitutes no ground of discharge in the present case.

of payments.

The last ground respects the manner in which Appropriation the Court below laid down the law respecting the appropriation of payments. In our opinion, there is no error in the charge on this point. The general doctrine is, that the debtor has a right, if he pleases, to make the appropriation of payments; if he omits it, the creditor may make it; if both omit it, the law will apply the payments, according to its own notions of justice. It is certainly too late for either party to claim a right to make an appropriation, after the controversy has arisen, and a fortiori at the time of the trial. In cases like the present, of long and running accounts, where debits and credits are perpetually occurVOL. IX.

93

Osborn

V.

1824. ring, and no balances are otherwise adjusted than for the mere purpose of making rests, we are of opinion, that payments ought to be applied to extinguish the debts according to the priority of time: so that the credits are to be deemed payments pro tanto of the debts antecedently due.

U.S. Bank.

Upon the whole, it is the opinion of the Court, that for the error of the District Court, on the question of laches, the judgment ought to be reversed, and a venire facias de novo awarded, with directions, also, to allow the parties liberty to amend their pleadings.

[CONSTITUTIONAL LAW. CHANCERY.]

OSBORN and others, Appellants,

V.

The PRESIDENT, DIRECTORS, AND COMPANY OF THE
BANK OF THE UNITED STATES, Respondents.

The act of incorporation of the Bank of the United States gives the Circuit Courts of the United States jurisdiction of suits by and against the Bank.

This provision in the charter is warranted by the Sd article of the Constitution, which declares, that," the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority."

It is unnecessary for an attery or solicitor, who prosecutes a sait for the Bank of the United States, or other corporation, to produce a warrant of attorney under the corporate seal.

Whatever authority may be necessary for an attomey or solicitor to appear for a natural or artificial person, it is not a ground of re

versal for error, in an appellate Court, that such authority does not
appear on the face of the record. It is a formal defect, which is
cured by the statute of jeofails, and the S2d section of the Judi-
ciary Act of 1789, ch. 20.

In general, the answer of one defendant in equity cannot be read in
evidence against another. But where one defendant succeeds to
another, so that the right of the one devolves on the other, and
they become privies in estate, the rule does not apply.
Where the defendant is restrained by an injunction, from using mo-
ney in his possession, interest will not be decreed against him.
An injunction will be granted to prevent the franchise of a corpora-
tion from being destroyed, as well as to restrain a party from vio-
lating it, by attempting to participate in its exclusive privileges.
In general, an injunction will not be allowed, nor a decree rendered,
against an agent, where the principal is not made a party to the
suit. But if the principal be not himself subject to the jurisdic-
tion of the Court, (as in the case of a sovereign State,) the rule
may be dispensed with.

A Court of equity will interpose by injunction to prevent the transfer
of a specific thing, which, if transferred, will be irretrievably lost
to the owner, such as negotiable securities and stocks.
The Circuit Courts of the United States have jurisdiction of a bill
brought by the Bank of the United States, for the purpose of pro-
tecting the Bank in the exercise of its franchises, which are threat-
ened to be invaded, under the unconstitutional laws of a State; and,
as the State itself cannot, according to the 11th amendment of the
Constitution, be made a party defendant to the suit, it may be
maintained against the officers and agents of the State, who are
intrusted with the execution of such laws.

A State cannot tax the Bank of the United States; and any attempt,
on the part of its agents and officers, to enforce the collection of
such tax against the property of the Bank, may be restrained by
injunction from the Circuit Court.

APPEAL from the Circuit Court of Ohio.

The bill filed in this cause, was exhibited in the Court below, at September term, 1819, in the name of the respondents, and signed by solicitors of the Court, praying an injunction to restrain Ralph Osborn, Auditor of the State of Ohia,

1824.

Osborn

V.

U.S. Bank.

1824.

Osborn

V.

V. S. Bank.

from proceeding against the complainants, under an act of the Legislature of that State, passed February the 8th, 1819, entitled, "An act to levy and collect a tax from all banks, and individuals, and companies, and associations of individuals, that may transact banking business in this State, without being allowed to do so by the laws thereof." This act. after reciting that the Bank of the United States pursued its operations contrary to a law of the State, enacted, that if, after the 1st day of the following September, the said Bank, or any other, should continue to transact business in the State, it should be liable to, an annual tax of 50,000 dollars on each office of discount and deposit. And that on the 15th day of September, the Auditor should charge such tax to the Bank, and should make out his warrant, under his seal of office, directed to any person, commanding him to collect the said tax, who should enter the banking house, and demand the same, and if payment should not be made, should levy the amount on the money or other goods of the Bank, the money to be retained, and the goods to be sold, as if taken on a fi. fa. If no effects should be found in the banking room, the person having the warrant was authorized to go into every room, vault, &c. and to open every chest, &c. in search of what might satisfy his warrant.

The bill, after reciting this act, stated, that Ralph Osborn is the Auditor, and gives out, &c. that he will execute the said act. It was exhibited in open Court, on the 14th of September, and, notice of the application having been given to the defen