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Bank.

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.

U.S. Bank

Bank.

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

VOL. IX.

115

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 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.

INDEX

TO

THE PRINCIPAL MATTERS

IN THIS VOLUME.

A.

ADMIRALTY.

1. 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 ihera
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 da.

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 srems, 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 he
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. Id.

376
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. Id.

377
10. Where the vessel and cargo have

been sold, the gross amount of the

sales, with interest, is allowed ; and clude contra formam statuti. The
an addition of 10 per cent. some Merino et al.

391. 401
times made, where the property 19. The District Court of the district
has been sold under disadvanta. where the seizure was made, and

geous circumstances. Id. 377 not where the offence was com-
11. Counsel fees may be allowed, either mitted, has jurisdiction of pro-

as damages or costs, both on the ceedings in rem, for an alleged
Instance and Prize side of the forfeiture. Id.

402
Court. Id.

379 19. If the seizure is made on the high
12. A libel of information does not re seas, or within the territory of a

quise all the technical precision of foreign power, thé jurisdiction is
an indictment at common law. If conferred on the Court of the
the allegations describe th offence, district where the property is car-
it is all that is necessary; and if ried and proceeded against. Id.
founded upon a statute, it is suffi-

402
cient if it pursues the words of the 20. A municipal seizure, within the
law. The Emily and the Caro territory of a foreign power, does
line,

331 not oust the jurisdiction of the
J. An information, under the Slave District Court into whose district

Trade Act of 1794, c. 187. [xi.] the property may be carried for
9. 1. which describes, in one count, adjudication. I.

402, 403
the two distinct acts of preparing 21. The prohibitions in the Slave
a vessel and of causing her to sail, Trade Acts of the 10th of May,
pursuing the words of the law, is 1800, c. 205. [li.] and of the
sufficient. ld.

387 20th of April,, 1818, extend as
14 Siating a charge in the alternative, well to the carrying of slaves on

is good, reach alternative copsti. freight as to cases where the per.
tules in offince for which the thing sons transported are the property
is forfeited. ld.

387 of citizens of the United States;
15. Viider the above act, it is not ne and to the carrying them from

cessary, in order to incur the for one port to another of the same
feiture, that the vessel should be foreign empire, as well as from
completely fitted and ready for one foreign country to another.
sea. As soon as the preparations Id.

403, 404
have proceeded so far as clearly 22. Under the 4th section of the act
to manifest the intention, the right of the 10th of May, 1800, c. 205.

of seizure attaches. ld. 388 [li.) the owner of the slaves trans-
16. The former decision of this Court, ported contrary to the provisions

in the case of the Emily and the of that act, cannot claim the same
Caroline, (7 Cranch, 496.)recon in a Court of the United State,
ciled with its determination in the although they may be held in ser-
present case. Id.

387 vitude according to the laws of
17. The technical niceties of the com his owo country. But if, at the

mon law are pot regarded in Ad time of the capture by a commis-
miralty proceedings. It is suffi sioned vessel, the offending ship
cient, if an information set forth was in possession of a non-com-
the offence so as clearly to bring missioned captor, who had made
it within the statute upon which a seizure for the same offence, the
the information is founded. It is owner of the slaves may claim;
pot necessary that it should con the section only applying to per-

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