874 DISTRIBUTION OF THE ASSETS, &c.-DISTRICT ATTORNEY, &c. Distribution of the Assets of an Intestate's Estate.-District Attorney of the United States. 23d, 1800, ch. 187, it is indispensable that some local station should have been assigned him. Ibid. 7. As between public ships, the rule for the distribution of prizes is settled by the seventh article of the sixth section in the act of April 23d, 1800, ch. 187, which provides that, in cases of joint capture, the capturing ships shall share "according to the number of men and guns on board each ship in sight." The Despatch, 2 Gallis. C. C. R. 1. 8. As to privateers, no statute regulations exists; and therefore their claims are settled by the general law of relative strength, which is to be measured by the number of men on board each ship. Ibid. 9. Prize money must be distributed according to some written agreement of the parties; otherwise it is distributable according to the fourth section of the prize act of June 26th, 1812, ch. 430. The Dash, 1 Mason's C. C. R. 4. 10. A parol agreement, as to the distribution of prize money, and a parol assignment of a share in prizes, is void. Ibid. 11. If the shipping articles omit to state the shares to which some of the officers and crew are entitled, they are still entitled to claim their shares under the prize act. Ibid. 12. Goods were taken from two British merchant ships captured by the private armed American brig Rambler, and carried by the Rambler into Canton, China, and there landed. The circuit court of Massachusetts, on an affidavit of the commander of the Rambler, stating the circumstances, ordered the goods to be condemned | and sold; the sale to be made according to the agreement of the captors, which would be sanctioned by the court; and that upon the receipt of an account of sales, it might be filed in court, and distribution would be decreed accordingly. The Arabella and Madeira, 2 Gallis. C. C. R. 373. DISTRIBUTION OF THE ASSETS OF AN INTESTATE'S ESTATE. 1. A tract of land in the state of Georgia was purchased by A. M'Learn, on which he established a rice plantation, put slaves upon it, paid part of the purchase money, gave a judgment for the balance, and died, leaving a son, James H. M'Learn, his devisee; who, to obtain possession of the estate, mortgaged the land and slaves for the balance of the judgment. A judgment, under the laws of Georgia, binds personal as well as real property. The son died, part of the debt being unsatisfied: leaving as his nearest of kin, aliens; and also more remote kindred, who were citizens of the United States. The real estate was sold to satisfy, and did satisfy the mortgage. The personal estate was sold by the executor. The aliens, who were nearest of kin, claimed the proceeds of the personal estate. The kindred of the deceased, who were more remote, but who were citizens of the United States, claimed that the personal estate should have been appropriated to pay the mortgage; and that not having been so appropriated, they were entitled to the money arising from its sale, to reimburse them for the value of the real estate taken by the mortgagor, the aliens nearest of kin not being entitled by the law of Georgia to take real estate by descent. The court held, that as both the real and personal estate had been charged with the mortgage debt, both funds must be applied, in proportion to their respective amounts, to its payment. Any debt, not covered by the mortgage, to be paid out of the personal estate. The nearest of kin to take the residue of the proceeds of the personal estate, and the remoter kin, citizens of the United States, to take the residue of the proceeds of the real estate, and the real estate unsold. M'Learn v. M'Lellan, 10 Peters, 625. 2. The principle of marshalling assets is this: A creditor having the choice of two funds, ought to exercise his right of election in such a manner as not to injure other creditors, who can resort to one only, of those funds; but if he, in the exercise of his legal rights, exhausts that to which alone other creditors can resort, equity will place them in his situation, so far as he has applied their funds to his claim. Alson v. Munford, 1 Brockenb. C. C. R. 266. 3. In the application of this principle simple contract creditors will be substituted for specialty creditors, but not for judgment creditors: that is, the simple contract creditors cannot charge the lands for so much of the personal funds as has been applied to the payment of debts due by judgments obtained against the ancestor. The reason is, that the writ of elegit, by virtue of which the land is charged by the judgment against the ancestor, does not issue singly against the land, but against all the chattels, (save oxen and beasts of the plough;) and if the chattels be sufficient, the land ought not to be extended. The judgment creditor, therefore, has not the election between two funds, (as the specialty creditor has;) and the principle on which assets are marshalled, does not apply to the case. Ibid. 4. Upon this principle of marshalling assets, where payments have been made by an executor, to the vendor of land purchased by the ancestor, and not conveyed to him, the lien of the vendor will be marshalled. Ibid. DISTRICT ATTORNEY OF THE UNITED STATES. 1. The district attorney is specially charged with the prosecution of all delinquents for crimes and offences; and these duties do not end with the judgment or order of the court. He is bound to provide the marshal with all necessary process to carry into execution the judgment of the court. This falls within the general superintending authority over the prosecution. Levy Court of Washington v. Ringgold, 5 Peters, 451. 2. Whether an action can, in any case, be brought for an individual in the name of the United States, by any attorney other than the District of Columbia. district attorney, he refusing to bring it? Query. the census directed to be taken by the constituUnited States v. Thomas Morris, 1 Paine's Rep. tion. Loughborough v. Blake, 5 Wheat. 317; 4 Cond. Rep. 660. 209. 3. If an attorney of the United States reside within one hundred miles of the place of caption of a deposition he must be notified. The Argo, 2 Gallis. C. C. R. 314. 4. The fees taxed for the district attorney are to be distributed where part of the services have been performed in the time of one district attorney, and part in the time of his predecessor, by an equitable adjustment. Ex parte Robbins, 2 Gallis. C. C. R. 320. DISTRICT OF COLUMBIA. 1. The act of congress of 27th February, 1801, concerning the District of Columbia, directs that writs of error shall be prosecuted in the same manner, under the same regulations, and the same proceedings shall be had thereon, as is or shall be provided in case of writs of error on judgments, or appeals upon orders or decrees, rendered in the circuit courts of the United States. United States v. Hooe et al., 1 Cranch, 318; 1 Cond. Rep. 332. 2. By the separation of the District of Columbia from the state of Maryland, the residents in that part of Maryland which became a part of the district ceased to be citizens of the state. Reilly, Appellant, v. Lamar et al., 2 Cranch, 344; 1 Cond. Rep. 419. 3. A citizen of the District of Columbia could not be discharged by the insolvent law of Maryland out of the district. Ibid. 4. A citizen of the District of Columbia cannot maintain an action in the circuit court of the United States out of the district, he not being a citizen of a state within the meaning of the provision in the law of the United States regulating the jurisdiction of the courts of the United States. Hepburn and Dundas v. Ellzey, 2 Cranch, 445; 1 Cond. Rep. 444. 5. A justice of the peace, in the District of Columbia, is an officer of the government of the United States, and is exempt from militia duty. Wise v. Withers, 3 Cranch, 331; 1 Cond. Rep. 552. 6. Under the sixth and eighth sections of the act of assembly of Virginia, of the 22d of December, 1794, properly pledged to the Mutual Assurance Society, &c., continues liable for assessments, on account of the losses insured against, in the hands of a bona fide purchaser, without notice. The Mutual Assurance Society v. Watts' Executors, 1 Wheat. 279; 3 Cond. Rep. 570. 7. A mere change of sovereignty produces no change in the state of rights existing in the soil; and the cession of the District of Columbia to the national government did not affect the lien created by the above act on real property situate in the town of Alexandria, though the personal character or liability of a member of the society could not be thereby forced on a purchaser of such property. Ibid. 8. Congress has no authority to impose a direct tax on the District of Columbia in proportion to | 9. Congress, when legislating for the District of Columbia, under the fifth section of the first article of the constitution, is still the legislature of the Union; and its acts are the laws of the United States. Cohens v. Virginia, 6 Wheat. 264 ; 5 Cond. Rep. 90. 10. An act of the legislature of Maryland, passed the 19th of December, 1791, entitled "An Act concerning the Territory of Columbia, and the City of Washington," which, by the 6th section provides for the holding of lands by "foreigners," is an enabling act, and applies to those only who could not take lands without the provisions of that law. It enables a "foreigner" to take in the same manner as if he were a citizen. Spratt v. Spratt, 1 Peters, 349. 11. A foreigner who becomes a citizen, is no longer a foreigner, within the view of the act. Thus, after purchase, lands vest in him as a citizen; not by virtue of the act of the legislature of Maryland, but because of his acquiring the rights of citizenship. Ibid. 12. Land in the county of Washington and District of Columbia, purchased by a foreigner before naturalization, was held by him under the law of Maryland, and might be transmitted to the relations of the purchasers, who were foreigners: and the capacity so to transmit those lands, is given, absolutely, by this act, and is not affected by his becoming a citizen; but passes to his heirs and relations precisely as if he had remained a foreigner. Ibid. 13. The supreme court of the United States has jurisdiction of appeals from the orphans' court, through the circuit court for the county of Washington, by virtue of the act of congress of February 13, 1801; and by the act of congress subsequently passed, the matter in dispute, exclusive of costs, must exceed the value of one thousand dollars, in order to entitle the party to an appeal. Nicholls et al. v. Hodges' Executors, 1 Peters, 565. 14. The statute of Elizabeth is in force in the District of Columbia. Cathcart et al. v. Robinson, 5 Peters, 264. 15. The levy court of Washington county are not entitled to one-half of all the fines, penalties, and forfeitures imposed by the circuit court in cases at common law, and under the acts of congress, as well as the acts of assembly of Maryland, adopted by congress as the law of the District of Columbia. Levy Court of Washington v. Ringgold, 5 Peters, 451. 16. The supreme court of the United States has no jurisdiction of causes brought before it, upon a certificate of division of opinion of the judges of the circuit court for the District of Columbia. The appellate jurisdiction, in respect to that court, extends only to its final judgments and decrees. Ross v. Triplett, 3 Wheat. 600; 4 Cond. Rep. 351. 17. By the insolvent law of Maryland, of January 3, 1800, the chancellor of Maryland could not discharge one who was an inhabitant of the District of Columbia, after the separation District of Columbia. from Maryland, unless previous to that separa- | further than was provided by the repealing act. tion he had entitled himself to a discharge by | Ibid. performing all the requisites of the act. Reilly v. Lamar et al., 2 Cranch, 344; 1 Cond. Rep. 419. 18. No appeal or writ of error lies, in a criminal case, from the judgment of the circuit court of the District of Columbia, to the supreme court of the United States: the appellate jurisdiction given by the act of congress, is confined to civil cases. United States v. Moore, 3 Cranch, 159; 1 Cond. Rep. 480. 24. The circuit courts of the United States, sitting in the states of the Union, have no jurisdiction in a case in which a citizen of the District of Columbia is plaintiff. Westcott's Lessee v. Inhabitants, &c., Peters' C. C. R. 45. 25. The proceedings of the courts of the state of Maryland, and the laws of that state, prior to the passing of laws by congress, providing for the government of the District of Columbia, were in full force in that part of the district ceded by the state of Maryland, until congress had legislated for the government of the District of Columbia; and the decree of the court of chancery of Maryland, affecting property in the District of Columbia, in a cause entertained in that court, itself the government of the district. Van Ness v. The Bank of the United States, 13 Peters, 17. 19. There is, in the District of Columbia, no division of powers between the general and the state governments. Congress has the entire control over the district, for every purpose of government: and it is reasonable to suppose that, in organizing a judicial department in the dis-operated in the district until congress took upon trict, all the judicial power necessary for the purpose of government, would be vested in the courts of justice. Kendall, Postmaster-General, v. The United States, 12 Peters, 527. 20. The circuit court of the United States, for the District of Columbia, has a right to award a mandamus to the postmaster-general of the United States, requiring him to pass to the credit of certain contractors for conveying the mail of the United States, a sum found to be due to them by the solicitor of the treasury of the United States, the solicitor acting under the special provisions of an act of congress. Ibid. 21. There can be no doubt, that, in the state of Maryland, a writ of mandamus might be issued to an executive officer, commanding him to perform a ministerial act, required of him by the laws; and if it would lie in that state, there can be no good reason why it should not lie in the District of Columbia, in analogous cases. Ibid. 26. The state of Maryland, and the United States, both intended that the suits pending in the courts of Maryland should be proceeded in until the rights of the parties should be definitely decided; and that the judgments and decrees then made, should be as valid and conclusive as if the sovereignty had not been transferred. Ibid. 27. Congress, by the thirteenth section of the act of February 27, 1801, placed judgments and decrees thereafter to be obtained in the state courts of the state of which the District of Columbia had formed a part, on the same footing with judgments and decrees rendered before the cession. Ibid. 28. If a guardian appointed by the court of the state of Maryland, in a cause instituted after congress had legislated for the District of Columbia, had been ordered, by a decree of the court, to make a deed of lands within the district, and had died, or had refused to make the conveyance as ordered, the court of the District would, on application, have been bound to ap would not have been authorized to open again and re-examine the questions which had been decided in the Maryland court. Ibid. 29. The county of Alexandria, in the District of Columbia, cannot be regarded as standing in the same relation to the county of Washington that the states of the Union stand in relation to one another. The Bank of Alexandria v. Dyer, 14 Peters, 141. 22. The powers of the supreme court of the United States, and of the circuit courts of the United States, to issue writs of mandamus, granted by the fourteenth section of the judiciary act of 1789, is only for the purpose of bring-point another person to execute the deed; and ing the case to a final judgment or decree, so that it may be reviewed. The mandamus does not direct the inferior court how to proceed, but only that it must proceed, according to its own judgment, to a final determination; otherwise it cannot be reviewed in the appellate court. It is different in the circuit court of the District of Columbia, under the adoption of the laws of Maryland, which included the common law. Ibid. 30. The act of congress of June, 1822, author23. The power of the circuit court of the Dis-izes any person to whom administration has trict of Columbia, to exercise the jurisdiction to issue a writ of mandamus to a public officer, to do an act required of him by law, results from the third section of the act of congress of February 27, 1804; which declares that the court and judges thereof shall have all the powers by law vested in the circuit courts of the United States. The circuit courts referred to, were those established by the act of February 13, 1801. The repeal of that law, fifteen months afterwards, and after that law had gone into operation, under the act of February 27, 1801, could not, in any manner, affect that law, any been granted in the states of the United States, to prosecute claims by suits in the District of Columbia, in the same manner as if the same had been granted to such persons by the proper authority in the District of Columbia. The power is limited, by its terms, to the institution of suits; and does not authorize suits against an executor or administrator. The effect of this law was to make all debts due by persons in the District not local assets, for which the adminis trator was bound to account in the courts of the District; but general assets, which he had full authority to receive, and for which he was bound DISTRICT COURTS, &c.—DISTRICT JUDGE.-DIVIDED COURT. 577 District Courts of the United States.-District Judge.-Divided Court. to account in the courts of the state from DISTRICT COURTS OF THE UNITED STATES. 6. It appeared on a certificate from the circuit court of the United States of Pennsylvania, that the judges of the court were divided on a motion in arrest of judgment. Held, that judgment must be given on the verdict. United States v. Worrall, 2 Dall. 338. 7. Where a case is certified from a circuit court of the United States, the judges of the circuit court having differed in opinion upon questions of law which arose on the trial of the cause, the supreme court cannot be called upon to express an opinion on the whole facts of the case, instead of upon particular points of law, growing out of the same. Adams, Cunningham & Co. v. Jones, 12 Peters, 207. 8. The intention of congress in passing the act authorizing a division of opinion of the judges See DISTRICT COURTS OF THE UNITED STATES of the circuit court of the United States to be -Ante, page 490. DISTRICT JUDGE. The district judge cannot sit in the circuit court in a cause brought by writ of error from the district to the circuit court, and the cause cannot in such a case be brought from the circuit to the supreme court upon a certificate of a division of opinion of the judges. United States Lancaster, 5 Wheat. 434; 4 Cond. Rep. 720. DIVIDED COURT. 1. The law which empowers the supreme court to take cognizance of questions adjourned from a circuit court, gives jurisdiction over the single point on which the judges were divided; not over the whole cause. Wayman et al. v. Southard et al., 10 Wheat. 1; 6 Cond. Rep. 1. 2. Where the court is equally divided, the decree of the court below is of course affirmed, so far as the point of division goes. The Antetope, 10 Wheat. 66; 6 Cond. Rep. 30. 3. The supreme court has no jurisdiction in a case in which the judges of the circuit have divided in opinion upon a motion for a rule to show cause why the taxation of the costs of the marshal on an execution should not be reversed and corrected. Bank of the U. States v. Green and others, 6 Peters, 26. 4. Where the court is equally divided in opinion upon a writ of error, the judgment of the inferior court is affirmed. Etting v. The Bank of the U. States, 11 Wheat. 59; 6 Cond. Rep. 21,6. 5. Where a case is certified to the supreme court upon a division of opinion of the judges of the circuit court, and the points upon which they were so divided, are too imperfectly stated to enable the supreme court to pronounce any opinion upon them, it will neither award a venire facias de novo, nor certify any opinion to the court below, but will merely certify that they are too imperfectly stated. Perkins v. Hart's Ex'rs, &c., 11 Wheat. 237; 6 Cond. Rep. 287. VOL. I.- -49 certified to the supreme court, was, that a division of the judges of the circuit court, upon a single and material point, in the progress of the cause, should be certified to the supreme court for its opinion; and not the whole cause. When a certificate of division brings up the whole cause, it would be, if the court should decide it, in effect, the exercise of original, rather than appellate jurisdiction. White v. Turk et al., 12 Peters, 238. 9. This case came up to the supreme court, from the circuit court, upon a division of opinion between the judges of the court. It was decided by the supreme court, that the question certified would, alone, be considered; each party being left to bring up the whole case from the circuit court by a writ of error. Ogle v. Lee, 2 Cranch, 33. 10. The question certified from the circuit court of North Carolina was, "whether the act of assembly (of North Carolina), entitled an act concerning proving wills, and to prevent frauds in the management of intestates' estates, passed in 1715, recited in the plea of the defendants, was, under all the circumstances stated, and the various acts passed by the legislature of North Carolina, a bar to this action." The certificate stated that the ninth section of the act had been pleaded by the defendant in bar to the action. The certificate of the division was granted on the motion of the plaintiff, by his counsel; and, at his request, a statement of the facts, "made under the direction of the judges," was certified. The certificate, thus made out, set forth all the laws of North Carolina which operated on the question certified, and stated the questions which arose in the cause, on which the opinions of the judges were divided. The court decided in favour of the plaintiff. Ogden, Adm'r of Cornell, v. Blackledge, Ex'r of Sater, 2 Cranch, 272; i Cond. Rep. 411. 11. Action in the circuit court of Massachusetts, for the penalty of two thousand dollars, imposed by the act of congress prohibiting the slave-trade. The defendant pleaded the provi sions of the thirty-second section of the crimes act of 1790, as a limitation of the time in which the action should be brought. "Upon the defence under this plea, the judges of the circuit court were divided in opinion; and the same 3x Divided Court, Held, that | 2 Cond. Rep. 1. S. P. The United States v. Potta was certified to the supreme court." 13. This case was certified from the circuit 16. In this case, the division of opinion of the judges of the circuit court of Pennsylvania, was on questions arising on a case stated; and the questions, with the case as stated, were sent up to the supreme court. It was directed to be certified to the circuit court of Pennsylvania, that in the case stated for the opinion of this court, the plaintiff is entitled to recover for a total loss." Rhinelander v. The Insurance Company of Pennsylvania, 4 Cranch, 29; 2 Cond. Rep. 13. 17. This case was certified to the supreme court, from the circuit court of the United States for the district of Georgia; the opinion of the judges of that court being opposed, on a motion in arrest of judgment, upon a verdict of guilty. The record contained the indictment, and the reasons filed in arrest of judgment. The supreme court directed it to be certified to the circuit court, "that the judgment ought to be arrested, for the reasons assigned in the record." United States v. Zabulon Cantril, 4 Cranch, 167; 2 Cond. Rep. 69. 18. This case was certified from the circuit court of Pennsylvania, the judges being divided in opinion upon the question, "whether, in the state of the pleadings, the judgment ought to be rendered for the plaintiffs." The supreme court said :-Judgment, therefore, on the pleadings, must be rendered for the plaintiffs. Mr. Chief Justice MARSHALL, who delivered the opinion of the court, said:"By the twenty-sixth section of the judiciary act, it is directed that in cases of this description, the court shall render judgment for so much as is due according to equity. And when the sum for which judgment is to be rendered is uncertain, the same shall, if either of the parties request it, be assessed by a jury. In this case, it is the opinion of a majority of the court, that the judgment ought to be rendered for so much as remains due of the sum of one hundred and seventy thousand guilders, calcu lating interest thereon from the 1st of March, 1803; and, if either of the parties request it, that a jury be empannelled to ascertain the value of this sum in the money of the United States." United States v. Gurney and others, 4 Cranch, 333; 2 Cond. Rep. 132. 14. This case was certified from the circuit court of Virginia, sitting in chancery, in which the opinions of the judges of the court were opposed on the question, "whether the act of assembly of Virginia, for the limitation of actions, pleaded by the defendant, was, under all the circumstances stated, a bar to the plaintiff's demand, founded on a promissory note given on the 21st day of August, 1773." The certificate contained a statement of the facts agreed to by the parties. The supreme court ordered it to be certified to the circuit court, "upon the question in this case referred to this court from the circuit court, that the treaty of peace with Great Britain prevented the bar of the statute:" and the 19. This case was certified on division of opisupreme court is also of opinion, that "the agent nion of the judges of the circuit court, on a momerely for collecting debts mentioned and de- tion in arrest of judgment; the question being, scribed in the said statement of facts, is not to whether the assignee of part of a patent right be considered as a factor, within the said act of cannot maintain an action on the case, for a vioassembly, so as to bring the case within the pro-lation of the patent right. 6 Cranch, 324. viso of the statute." By this, the court is not to be understood as giving an opinion on the construction of the note, as to the time of payment. Hopkirk v. Bell, 3 Cranch, 454; 1 Cond. Rep. 595. 15. In this case, the question certified was, whether copper bars, &c., were not subject to certain duties, under certain acts of congress, referred to in the certificate of division. It was certified they were exempt from the duties. The United States v. Kid and Watson, 4 Cranch, 1; 20. This case was certified from the circuit court for the District of Columbia; in which case, upon the argument of a general demurrer to an indictment for a libel on the President and Congress of the United States, contained in the Connecticut Courant, of the 7th of May, 1806, charging them with having, in secret, voted two millions of dollars as a present to Bonaparte, for leave to make a treaty with Spain; the judges of that court were divided in opinion, whether the circuit court of the United States had a |