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Debtor and Creditor. Decisions of a Court of Competent Jurisdiction. Decisions of State Courts. action to be instituted against one of the parties only. Rodgers v. Batchelor et al., 12 Peters, 217. 2. It is admitted that the title of an heir by descent in the real estate of his ancestor, and of a devisee of an estate unconditionally devised to him, is, upon the death of the party under whom he claims, immediately devolved upon him, and he acquires a vested estate. But this, though true in a general sense, still leaves his title encumbered with all the liens which have been created by the party in his lifetime, or by law at his decease. It is not an unqualified, though it may be a vested interest; and it confers no title, except to what remains after every such lien is discharged. Wilkinson v. Leland et al., 2 Peters, 658.

though not binding on strangers, puts an end to all further controversy concerning the points thus decided, between the parties to such suit. In this, there ought to be no difference between a verdict and judgment in a court of common law, and a decree of a court of chancery. Bank of the United States et al. v. Beverly et al, 17 Peters, 127.

3. By the laws of Rhode Island, as well as of all the New England states, the real estate of intestates stands chargeable with the payment of their debts upon a deficiency of assets. Ibid. 4. The action of debt is founded upon contract; the action of assumpsit upon the promise. Metcalf v. Robinson, 2 M'Lean's C. C. R. 368. 5. In the one case the declaration should aver the defendant agreed; in the other that he mised. Ibid.

DEBTOR AND CREDITOR.

DECISIONS OF STATE COURTS.

1. If the court of a state had jurisdiction of a matter, its decision would be conclusive; but the supreme court cannot yield assent to the proposition, that the jurisdiction of a state court cannot be questioned, where its proceedings were brought collaterally before the circuit court of the United States. Elliott et al. v. Piersol et al., 1 Peters, 340.

2. Where a court has jurisdiction, it has a right to decide any question which occurs in the cause; and, whether its decisions be correct or otherwise, its judgments, until reversed, are repro-garded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a remedy sought in opposition to them, even prior to a reversal. They constitute no justification, and all persons concerned in executing such judgments or sentences, are considered in law as trespassers. Ibid.

1. At common law a debtor, though insolvent, may prefer a creditor. He may assign all, or any part of his effects, in satisfaction of a bona fide debt, in exclusion of all other creditors. United States v. King, Wallace's C. C. R. 21.

2. But this right of preference is, in many cases, taken away by the bankrupt law, and other statutes. Ibid.

3. A bill was filed, claiming a specific performance of an alleged contract to convey a house and lot in Georgetown, for the benefit of the wife of the complainant, the complainant having expended a large sum of money in improving the property, in the expectation that it would be conveyed as required by the bill. The court not considering that sufficient evidence of an agreement to convey the property was given, ordered that the property should be sold, and out of the proceeds, that the advances made by the complainant should be repaid. The property sold for a sum far less than the amount expended. Held, that the balance unpaid after the sale, was not a debt due by the estate of the father of the wife, and could not be claimed of his representatives. King v. Thompson et al., 13 Peters, 128.

3. The jurisdiction of any court exercising authority over a subject, may be inquired into in every other court, when the proceedings of the former are relied on, and brought before the latter by a party claiming the benefit of such proceedings. Ibid.

4. It has been the uniform course of the supreme court, with respect to titles to real property, to apply the same rule that is applied by the state tribunals in like cases. Waring v. Jackson et al., 1 Peters, 571.

5. Where, by the established practice of courts in particular states, the courts in actions of ejectment look beyond the grant, and examine the progressive stages of the title, from its incipient state until its consummation, such a practice will form the law of cases decided under the same in those states; and the supreme court of the United States regard those rules of decision in cases brought up from such states, provided that in so doing, they do not suffer the provisions of any statute of the United States to be violated. Ross v. Barland et al., 1 Peters, 664.

6. Where the question upon the construction of the statute of a state relative to real property, has been settled by any judicial decision in the

DECISIONS OF A COURT OF COMPETENT state where the land lies, the supreme court,

JURISDICTION.

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upon the uniform principles adopted by it, would recognise that decision as a part of the local law. Gardner v. Collins, 2 Peters, 58.

7. The statute of limitations in Kentucky is substantially the same with the statute of 21 James II., ch. 16, with the exception that it substitutes the term of five years instead of six. The English decisions have therefore been re

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Decisions of State Courts.

sorted to in this case, in the construction of the statute of Kentucky, and are entitled to great consideration. They cannot be considered as conclusive upon the construction of a statute passed by a state upon a like subject, for this belongs to the local state tribunals, whose rules of interpretation must be presumed to be founded upon a more just and accurate view of their own jurisprudence. Bell v. Morrison, 1 Peters, 359. 8. If the doctrines of the Kentucky courts, in the construction of a statute of that state are irreconcilable with the English decisions upon a statute in similar terms, the supreme court, in conformity with its general practice, will follow the local law, and administer the same justice which the state court would administer between the same parties. Ibid. 360.

jurisdiction was acquired, not by the common 14. The judgment of a state court, where law, but by a statute of the state, which before the rendition of the judgment, had been virtually repealed by the adoption of a treaty, was held not voidable, but void. Denn, ex. dem. of Fisher, v. Harnden, Paine's C. C. R. 55.

created by congress, not for the purpose of ad15. The circuit courts of the United States are ministering the local law of a single state alone, but to administer the laws of all the states in the Union, in cases to which they respectively apply. The judicial power conferred on the general government by the constitution, extends to many cases arising under the laws of the different states; and the supreme court is called 9. The decisions of the courts of New York, constantly to take notice of and administer the upon, in the exercise of its appellate jurisdiction, on the construction of its own statute of frauds, jurisprudence of all the states. That jurispru and the extent of the rules deduced from it, dence is then in no just sense a foreign jurisprupresent to the supreme court a guide in its decidence to be proved in the courts of the United sions upon the construction of their statute. D'Wolf v. Rabaud et al., 1 Peters, 501.

10. This being a suit upon a local statute, giving a particular remedy in the nature of a foreign attachment against garnishees who possess goods, effects, or credits of the principal debtor, the decisions which have been made on the construction of that statute by the state court of Massachusetts, are entitled to great respect, and ought, in conformity to the uniform practice of the supreme court, to govern its decisions. Beach v. Viles, 2 Peters, 678.

11. The questions which grow out of the language of the act of the legislature of North Carolina, concerning the registration of deeds, passed in 1715, so far as they have been settled by judicial decisions of the state, cannot be disturbed by the supreme court. Whatever might have been their opinion in this case had it remained open for consideration, the peace of society, and the security of titles, require that the court should conform to the construction which has been made in the courts of the state, if it can discover what that construction is. Ross v. M'Lung, 6 Peters, 283.

12. The rule of law being once established by the highest tribunal of a state, courts which propose to administer the law as they find it, are ordinarily bound in limine to presume that, whether it appears from the reports or not, all the reasons which might have been urged pro or con upon the point under consideration, had been examined and disposed of judicially. Lessee of Livingston v. Moore, 7 Peters, 469.

13. There is no principle better established and more uniformly adhered to in the supreme court, than that the circuit courts, in deciding on titles to real property in the different states, are bound to decide precisely as the state courts ought to do. The rules of property and of evidence, whether derived from the laws or adjudications of the judicial tribunals of the state, furnish the guides and rules of decision in those of the Union, in all the cases to which they apply, where the constitution, treaties, or statutes of the United States do not otherwise provide. Hinde et ux. v. Vattier, 5 Peters, 398.

States, by the ordinary modes of proof by which ed; but it is to be judicially taken notice of in the laws of a foreign country are to be establish- · the same manner as the laws of the United States are taken notice of in those courts. Owings v. Hull, 9 Peters, 607.

adopts the decisions of the state courts, when
16. The supreme court of the United States
applicable to titles to lands; but when such titles
depend on compacts between the states of the
Union, the rule of decision is not to be collected
but is one of an international character. Marlatt
from the decisions of the courts of either state;
v. Silk, 11 Peters, 1.

nite mischief would ensue, should the federal
17. In construing the statutes of a state, infi-
courts observe a different rule from that which
has been long established in the state. M'Keen
179.
v. Delancy's Lessee, 5 Cranch, 22; 2 Cond. Rep.

state, and more especially in those respecting
18. In cases depending on the statute of a
titles to land, the federal courts adopt the con-
struction of the state, where that construction is
Wendal, 9 Cranch, 87; 3 Cond. Rep. 286.
settled and can be ascertained. Polk's Lessee v.

to make an order at one term as of another, is
19. The power of the inferior court of a state
of a character so peculiarly local, a proceeding
so necessarily dependent on the judgment of the
revising tribunal; that the judgment of the same
is considered authority, and the supreme court
is disposed to conform to it. The Bank of Hamil-
ton v. Dudley's Heirs, 2 Peters, 522.

a desire to conform its decisions to those of the
20. The supreme court uniformly acts under
state courts on their local laws. Mutual Assu-
Rep. 570.
rance Society v. Watts, 1 Wheat. 279; 3 Cond.

respect, decisions of state courts upon local laws,
21. The supreme court holds in the highest
forming rules of property. Shipp et al. v. Miller's
Heirs, 2 Wheat. 316; 4 Cond. Rep. 132.

that the title and disposition of real property is
22. It is an acknowledged principle of law,
exclusively subject to the laws of the country
where it is situated, which can alone prescribe

Decisions of State Courts.

the mode by which a title to it can pass from | law of the state of Virginia was elaborately arone person to another. No title, therefore, to gued and deliberately decided. That decision real estate will pass by law, unless the same is was, that the right to take out an elegit is not executed, proved and registered conformably to suspended by suing out a writ of fieri facias, and the law of the place where the property is situ- consequently, that the lien of the judgment conated. M-Cormick v. Sullivant, 10 Wheat. 192; tinues pending the proceedings on that writ. 6 Cond. Rep. 71. The supreme court, according to its uniform course, adopts the construction of the act, which is made by the highest court of the state. United States v. Morrison, 4 Peters, 127.

23. In construing local statutes respecting real property, the courts of the Union are governed by the decisions of the state tribunals. Thatcher et al. v. Powell, 6 Wheat. 119; 5 Cond. Rep. 28. 24. Under the thirty-fourth section of the judiciary act of 1789, the acts of limitations of the several states, where no special provision has been made by congress, form a rule of decision in the courts of the United States, and the same effect is given to them as is given in the state courts. M'Cluny v. Silliman, 3 Peters, 277.

25. The supreme court has uniformly professed its disposition, in cases depending on the laws of a particular state, to adopt the construction which has been given by the courts of the state to those laws. This course is founded upon the principle supposed to be universally recognised, that the judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government. Elmendorf v. Taylor et al., 10 Wheat. 152; 6 Cond. Rep. 47.

26. On this principle, the construction given by the supreme court of the United States to the constitution and laws of the United States, will be received by the states as their true construction. Ibid.

31. The supreme court of the state of Sonth Carolina having decided that the act of the legis lature of that state of 1744, relative to the commencement, within two years, of actions of ejectment after nonsuit, discontinuance, &c., is a part of the limitation act of 1812, and that a suit commenced within the time prescribed, arrests the limitation; and this, being the decision of the highest judicial tribunal on the construction of a state law relating to titles and real property, must be regarded by this court as the rule to bind its judgment, Henderson and Wife v. Griffin, 5 Peters, 151.

32. The course of prudence and duty in judicial proceedings in the United States courts, when cases of difficult distribution as to power and right present themselves, is to yield rather than encroach. The duty is reciprocal, and will no doubt be met in the spirit of moderation and comity. In the conflicts of power and opinion, inseparable from our very peculiar relations, cases may occur in which the maintenance of principles and the administration of justice, according to its innate and inseparable attributes, 27. The statute laws of the states must fur- may require a different course; and when such nish the rule of decision to the federal courts, as cases do occur, our courts must do their duty; far as they comport with the constitution of the but until then, it is administering justice in the United States, in all cases arising within the re-spirit of the constitution, to conform as nearly as spective states; and a fixed and received construction of their respective statute laws, in their own courts, makes a part of such statute law. Shelby et al. v. Guy, 11 Wheat. 361; 6 Cond. Rep.

345.

28. The supreme court adopts the local law of real property as ascertained by the decisions of the state courts; whether these decisions are grounded on the construction of the statutes of the state, or form a part of the unwritten law of the state, which has become a fixed rule of property. Jackson v. Chew, 12 Wheat. 153; 6 Cond. Rep. 489.

29. The true exposition of the thirty-fourth section of the judiciary act of 1789, ch. 20, which provides that "the laws of the several states, except where the constitution, treaties, or laws of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, where they apply," is, that the rights of persons and rules of property, as settled in the states, shall be guides to the courts of the United States, in controversies depending before such courts. United States v. Wonson, 1 Gallis. C. C. R. 5.

30. Soon after the decision of a case in the circuit court for the district of East Virginia, a case was decided in the court of appeals of the state, in which the question on the execution

possible to the administration of justice in the courts of the several states. Fullerton et al. v. The Bank of the United States, 1 Peters, 614.

33. The supreme court have uniformly adopted the decisions of the state tribunals respectively in the construction of their statutes. This has been done as a matter of principle, in all cases where the decision of a state court has become a rule of property. Green v. Neal, 6 Peters, 291.

34. In a great majority of the causes brought before the federal tribunals, they are called on to enforce the laws of the states. The rights of parties are determined under these laws; and it would be a strange perversion of principle if the judicial exposition of these laws by the state tribunals should be disregarded. These exposi tions constitute the law, and fix the rules of property. Rights are acquired under this rule; and it regulates all the transactions which come within its scope. Ibid.

35. On all questions arising under the constitution and laws of the Union, the supreme court may exercise a revising power; and its decisions are final and obligatory on all other judicial tribunals, state as well as federal. A state tribunal has a right to examine any such questions, and to determine thereon; but its decisions must conform to that of the supreme court, or the corrective power may be exercised. But the case is very different when the question arises

Decisions of State Courts.

under a local law. The decision of this question | otherwise, are to be rules of decision in the by the highest tribunal of a state should be con- courts of the United States, where they apply. sidered as final by the supreme court; not be- The supreme court does not perceive any sufficause the state tribunal in such a case has any cient reason for construing the act of congress, power to bind the supreme court, but because, so as to exclude from its provisions those stain the language of the court, in the case of tutes of the several states which prescribe rules Shelby et al. v. Guy, 11 Wheat. 361, "a fixed of evidence in civil cases in trials at common and received construction by a state in its own law. M'Neil v. Holbrook, 12 Peters, 84. courts makes a part of the statute law." Ibid. 42. The object of the law of congress was to 36. If the construction of the highest judicial make the rules of decision in the courts of the tribunal of a state forms a part of the statute United States the same with that of the states; law, as much as an enactment by the legisla- taking care to preserve the rights of the United ture, how can the supreme court make a distinc-States, by the exceptions contained in the judition between them? There could be no hesita-ciary act. Justice to the citizens of the United tion in so modifying the decisions as to conform States required this to be done; and the natural to any legislative alteration in a statute; and import of the words used in the act of congress why should not the same rule apply where the includes the laws in relation to evidence, as judicial branch of the state government, in the well as to property. Ibid. exercise of its acknowledged functions, should, 43. The thirty-fourth section of the judiciary. by construction, give a different effect to a sta- act of 1789, which declares, "That the laws of tute from what had at first been given to it? the several states, except where the constitution, The charge of inconsistency might be made treaties, or statutes of the United States shall with more force and propriety against the fede- otherwise recognise or provide, shall be regarded ral tribunals for a disregard of this rule than by as rules of decision in trials at common law in conforming to it. They profess to be bound by the courts of the United States, in cases where the local law, and yet they reject the exposition they apply," has uniformly been supposed by of that law which forms a part of it. It is no the supreme court to be limited in its applicaanswer to this objection, that a different exposition to state laws strictly local; that is to say, tion was formerly given to an act which was to the positive statutes of the state, and the conadopted by the federal court. The inquiry is, what is the settled law of the state at the time the decision is made. This constitutes the rule of property within the state, by which the rights of litigant parties must be determined. Ibid.

37. As the federal tribunals profess to be governed by this rule, they cannot act inconsistently by enforcing it. If they change their decision, it is because the rule on which the decision was founded has been changed. Ibid.

38. The exposition of the acts of the several legislatures is the appropriate duty of the state courts, and the federal courts will always feel great reluctance in breaking the way in explanation of such statutes; and will not do so, unless really necessary for the decisions of cases before them. Coates, Executrix, v. Muse's Adm'r, 1 Brockenb. C. C. R. 539.

39. The courts of the United States are not concluded in a matter of general equity jurisdiction, by a decision of the state court. Flagg v. Mann, 2 Sumner's C. C. R. 487.

40. The supreme court, in accordance to a steady course of decision for many years, feels it an incumbent duty carefully to examine and scertain if there be a settled construction by the state courts, of the statutes of the respective states, where they are exclusively in force; and to abide by and follow such construction, when found to be settled. Bank of the United States v. Daniels, 12 Peters, 32.

41. By the act of the legislature of Georgia, of the 12th December, 1810, the assignment or endorsement of a promissory note is made sufficient evidence thereof, without the necessity of proving the handwriting of the assignor. The judiciary act of 1789 declares that the laws of The several states, except when the constitution, caties and laws of the United States require

struction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estates, and other matters immovable and intraterritorial in their nature and character. The section does not extend to contracts or other instruments of a commercial nature; the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Swift v. Tyson, 16 Peters, 1.

44. As far as the decisions of the state courts of Mississippi settle rules of property, they will be properly respected by the supreme court. But when the effect of a state decision is only to regulate the practice of courts, and to determine what shall be a judgment, the supreme court cannot consider themselves bound by such decision, upon the ground that the laws upon which they are made are local in their character. Amis v. Smith, 16 Peters, 303.

45. The decision of the state court upon the letters patent by which the province was originally granted by the king of Great Britain, under which the proprietors of New Jersey held the province, is unquestionably entitled to great weight. If the words of the letters patent had been more doubtful, Query, if the decision of a state court on their construction, made with great deliberation and research, ought to be regarded as conclusive? Martin et al. v. Waddell, 16 Peters, 368.

46. Query, Whether, on a question which depends not upon the meaning of instruments formed by the people of a state or by their authority, but by the letters patent granted by the British crown, under which certain rights are claimed by the state, on one hand, and by

Declaration.

private individuals, on the other, if the supreme court of the state of New Jersey had been of opinion that upon the face of the charter the question was clearly in favour of the state, and that the proprietors holding under the letters patent had been deprived of their just rights by the erroneous judgment of the state court, it could be maintained that the decision of the court of the state on the construction of the letters patent bound the supreme court of the United States? Ibid.

DECLARATION.

1. In a declaration upon an agreement, by way of lease, by which the lessor stipulated to let a farm, from the first of January, 1820, to remove the former tenant; and that the lessor should have the tenancy and occupation of the farm from that day, free from all hindrance; the assignment of breaches was, that, although specially requested on the said first of January, the defendant refused, and neglected to turn out the former tenant, who then was, or had been, in the possession and occupancy of the land, and to deliver possession thereof to the plaintiff; this assignment is sufficient. Carroll v. Peake, 1 Peters, 23.

2. It is sufficient that the averment should state the plaintiff's readiness and offer, and his request, on the first day of January, generally, and not at the last convenient hour of that day; and if an averment of a personal demand is made, it need not have been on the land. Ibid. 24.

3. Declarations containing general averments, or readiness and request, have been held sufficient, especially after verdict; unless in very peculiar cases. Ibid.

4. Where it was omitted to allege in the declaration on a promissory note, a demand of payment on the person of the maker, but it averred a demand at the bank, "where the note was negotiable," such averment in the declaration could not be true, unless there was an agreement between the parties, that the demand should be made there; and the averment must have been proved at the trial, or the plaintiff could not have obtained a verdict and judg. ment; and, after a verdict, the judgment will be sustained. Brent's Ex'rs v. The Bank of the Metropolis, 1 Peters, 93.

Wright et al. v. The Lessee of Hollingsworth, 1
Peters, 169.

6. The declaration in an action against one partner only, never gives notice of the claim being on a partnership transaction. The proceeding is always as if the party sued was the sole contracting party; and if the declaration were to show a partnership contract, the judg ment against the single partner could not be sustained. Barry v. Foyles, 1 Peters, 317.

7. It has become a settled practice in declaring in an action upon a judgment, not, as formerly, to set out in the declaration the whole of the proceedings in the original suit; but only to allege generally that the plaintiff, by the consideration and judgment of that court, recovered the sum mentioned therein, the original cause of action having passed in rem judicatam. Biddle v. Wilkins, 1 Peters, 692.

8. The declaration purported to count upon sixty-eight bills of the Bank of the Commonwealth of Kentucky; and it appeared that one of the bills had been omitted to be described, so that the declaration made out a less sum than the writ claimed, or the judgment gave. The defendants in error, plaintiffs below, moved for leave to cure the defect by entering a remittitur of the amount of the bill so omitted, and damages pro tanto. This court thinks itself authorized to make a precedent in furtherance of justice, whereby a more convenient practice may be introduced, and to allow the party to enter his remittitur; but on payment of the costs of the writ, if error is prosecuted no further after such amendments made. Bank of the Commonwealth of Kentucky v. Wister et al., 2 Peters, 318.

9. The declaration contained two counts. The first, setting out the cause of action, stated, "for that whereas the said defendants and copartners, trading under the firm of Josiah Turner & Company, in the lifetime of said William, on the 1st day of March, 1821, were indebted to the plaintiffs, and being so indebted," &c. The second count was upon an insimul computassent, and began, "and also whereas the said defendant afterwards, to wit, on the day and year aforesaid, accounted with the said plaintiffs of and concerning divers other sums of money due and owing from the said defendants," &c. The defendants, to maintain the issue on their parts, gave in evidence to the jury, that William Turner, the person mentioned in the declaration, died on the 5. After the filing of a new count to a decla- 6th of January, 1819; that he was formerly a ration, the defendant, who to the former counts partner with Josiah and Philip Turner, the dehas pleaded the general issue, or any particular fendants, under the firm of Josiah Turner & plea, may withdraw the same, and plead anew, Company; but that the partnership was diseither the general issue, or any further or other solved in October, 1817, and that the defendants pleas, which his case may require; but he may, formed a copartnership in 1820. The defendif he pleases, abide by his plea already pleaded, ants prayed the court to instruct the jury that and waive his right of pleading de novo. The there is a variance between the contract declared failure to plead, and going to trial without objec- on, and the contract given in evidence; William tion, are held to be a waiver of his right to Turner being dead. By the court:-The only plead, and an election to abide by his plea; and allegation in the second count in the declaration, if it in terms purports to go to the whole action, it from which it is argued that the contract deis deemed sufficient to cover the whole declara-clared upon was one including William Turner, tion, and puts the plaintiff to the proof of his with Joseph and Philip, is, "that the said de case on the new, as well as on the old counts. fendants accounted with the plaintiffs." Bu!

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