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1824. of a debt, could not be maintained. Yet, if an U.S. Bank original suit against a corporation, be an original
suit against each corporator, I see not wherein the Planters'
case differs from that of a direct suit against the State. Suppose the case of a joint bond, given by a State and individuals, to an individual contractor, citizen of another State, what would except a suit on such a bond from the operation of the 11th amendment of the constitution ? If it be said that the amendment alluded to has regard only to suits instituted against States in their sovereigo capacity, I would ask, in what other capacity càn a State appear, or even exist? In every possible form and shape, it is a sovereign State, or it is nothing. And this very stock, held in this Bank, is the property of the people of Georgia, held by them in the name and capacity of the State of Georgia. If any dispute were to arise on the title to the stock, in what capacity could they sue or be sued for the interest held by them in the stock, unless in their sovereign capacity ? It is not because it imparts its own immunities to the other stockholders, that this action capaot be maintained, but because that the judicial power must reach each and every defendant, in order to bring a case within the prescribed limits of the constitution. Each defendant occupies his own 'peculiar rank, claims his own peculiar immunities ; but they are not suable in the Courts of the United States, as long as any one of them is exempted from suit in those Courts.
I am here expressing a technical opinion, founded on the authority of the case of I'he Bank o.
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,
Planters' it is not within its purview. Although not responsiwle for that decision, I ackouwledge its obligation, until overruled.
The last question which the pleadings in this cause present, arises out of the nature of :he contract, the form of the declaration, and that provision of the Judiciary Act, which precludes suits by an assignee of choses in action, when the suit could not be brought in the Courts of the United States, as between the original parties.
The plaintiff counts upon a number of promissory notes, payable to A:B. or bearer, commonly called bank notes, delivered to A. B., and by him “transferred, assigned, and set over" to the plaintiffs in this action. The plea states, that, as between the original promisor and promisee, suit could not have been brought in the Circuit Courts of the United States ; and, therefore, it cannot, as between the present parties, the promisor and assignee. As all the facts are admitted by the demurrer, it is difficult to see on what ground this case is to be excepted from the operation of the provisions of the Judiciary Act on this subject. Whatever difficulties may be suggested, on the technical meaning of the term assignment, it is very clear that he who acquires a chose in action, by mere delivery, has been recognised in the laws of the United States as an assignee. If any considerations could be introduced into the case, besides what the pleadings bring out, there might be
1824. much reason to doubt, whether the case of Bank
bills, properly so called, and particularly so declared on, came within the general law applicable to pronissory 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 Julges 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 suid cause, are sufficient in luw 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.
THE PRINCIPAL MATTERS
IN THIS VOLUME.
1. A decree of acquittal, on a pro-
ceeding in rem, without a certifi.
the 15th of May, 1820, c. 125.
Act of 1799, c. 128. does not ex-
such territory. Id. 369
tion do not extend, in their opera.
tion, beyond its own territory, ex-
nicipal laws of one nation, cannot
and search for enforcing the reve-
upon the high seas, and
tificd or excused, upon the ground
either upon the cargo or freight, do
ter a detention, demurrage is al-
been sold, the gross amount of the
sales, with interest, is allowed ; and clude contra formam statuti. The
geous circumstances. Id. 377 not where the offence was com-
as damages or costs, both on the ceedings in rem, for an alleged
379 19. If the seizure is made on the high
quise all the technical precision of foreign power, thé jurisdiction is
331 not oust the jurisdiction of the
Trade Act of 1794, c. 187. [xi.] the property may be carried for
387 20th of April,, 1818, extend as
is good, reach alternative copsti. freight as to cases where the per.
387 of citizens of the United States;
cessary, in order to incur the for one port to another of the same
of seizure attaches. ld. 388 [li.) the owner of the slaves trans-
in the case of the Emily and the of that act, cannot claim the same
387 vitude according to the laws of
mon law are pot regarded in Ad time of the capture by a commis-