Forgery. her American privileges. Philips v. Ledley, 1 Wash. C. C. R. 226. 11. Under the act for enrolling and licensing coasters, of February 8, 1793, ch. 153, no coaster can be sold in a foreign port, unless her license be previously surrendered; nor is her American character changed by such transfer. But if she be condemned for violation of that statute, and sold under order of court, she may become foreign property. United States v. The Hawke, Bee's Adın. Decis. 34. 12. Where the voyage is broken up, or ended here, payment of wages will be compelled; and masters of foreign vessels will be assisted in recovering deserters, and reducing to obedience perverse and rebellious mariners. Willendson v. The Forsoket, 1 Peters' Adm. Decis. 197. 13. Seamen may be moderately corrected by the captain. The district court will not interfere in the case of foreigners, where they are bound by articles to submit all disputes to a home tribunal. Aertsen v. The Aurora, Bee's Adm. Decis. 161. 14. Under the fifth section of the embargo act of 9th January, 1808, ch. 8, "foreign vessel" means a vessel navigating under the flag of a foreign power, and not a vessel owned in whole or part by foreigners domiciled in the United States. The Sally, 1 Gallis. C. C. R. 58. FORGERY. 1. Indictment in the circuit court of North Carolina for the forgery of, and an attempt to pass, &c., a certain paper writing in imitation of, and purporting to be, a bill or note issued by the president, directors and company of the bank of the United States, founded on the eighteenth section of the act of 1816, establishing the bank of the United States. The note was signed with the name of John Huske, who had not been at any time president of the bank of the United States, but who, at the time of the date of the counterfeit, was the president of the office of discount at Fayetteville; and was countersigned by the name of John W. Sandford, who at no time was cashier of the mother bank, but was at the said date cashier of the said office of discount and deposit. Held, that this was an offence within the provisions of the law. United States v. Turner, 7 Peters, 132. would not protect them against imposition. Ibid. 3. Indictment on the eighteenth section of the act of congress, passed on the 15th day of April, 1816, entitled "an act to incorporate the subscribers to the bank of the United States." The indictment charged the defendant with uttering and forging "a counterfeit bill in imitation of a bill issued by the president," &c., of the bank. The forged paper was in these words and figures: "Cashier of the bank of the United States, pay to C. W. Earnest, or order, five dollars. Office of discount and deposit in Pittsburgh, the 10th of Dec. 1829. A. Brackenridge, Pres., J. Correy, Cash." Endorsed "Pay the bearer, C. W. Earnest." Held, that a genuine instrument of which the forged and counterfeit instrument is an imitation, is not a bill issued by order of the president, &c., of the bank of the United States, according to the true intent and meaning of the eighteenth section of the act incorporating the bank. United States v. Brewster, 7 Peters, 164. 4. Counterfeiting an endorsement of a postnote of the bank of the United States, is not an offence under the eighteenth section of the act incorporating the bank. United States v. Stewart, 4 Wash. C. C. R. 226. 5. In a prosecution for forging the notes of the bank of the United States, it is not necessary to prove that it was committed with intent to defraud some corporation or person, and that the notes stated in the indictment, and given in evidence as forged, and those alleged to be forged, are the same. United States v. Reuben Moses, 4 Wash. C. C. R. 726. 6. Proof of passing or attempting to pass counterfeit money, by an agent employed by the defendant for that purpose, is the same as proving the acts to have been done by himself. The United States v. Morrow, 4 Wash. C. C. R. 733. 7. In a prosecution for passing counterfeit money, the jury should be satisfied that the resemblance of the forged to the genuine piece is such as might deceive a person using ordinary caution. Ibid. 8. Forgeries under the laws of the United States must be tried in the district where the crime is committed. United States v. Britton, 2 Mason's C. C. R. 464. 9. In an indictment for forgery, it is in general necessary to set forth the tenor of the instru ment, and it must be proved as it is set forth. Ibid. 10. In an indictment for forgery, if there is a variance of a letter in any word between the paper alleged to be forged and the indictment, the paper will be received in evidence, if the variance does not make another word, or one differing in sense and grammar. If it is doubtful, the meaning will be left to the jury. The United States v. Hinman, 1 Baldwin's C. C. R. 292. 2. The policy of the act extends to such a case. The object is to guard the public from false and counterfeit paper, purporting on its face to be issued by the bank. It could not be presumed that persons in general could be cognizant of the fact, who, at particular periods, were the president and cashier of the bank. They were officers liable to be removed at the pleasure of the directors; and the times of their appointment or removal, or even their names, could not ordinarily be within the knowledge of 11. An order on the cashier of the bank of the body of the citizens. The public mischief the United States, is evidence in support of an would be equally great whether the names were indictment for forging an order on the cashier those of the genuine officers, or of fictitious or of the corporation of the bank of the United unauthorized persons, and ordinary diligence | States. Ibid. Formedon. Forms of Practice and Proceedings in the Courts of the United States. 12. The scienter may be proved by the fact of similar forged orders found in the possession of the defendant, or of an accomplice, in passing them. Ibid. 13. If there is a concert between two or more to pass counterfeit notes, or any joint or concurrent action in passing them, the act of one is evidence against the other; and the possession of counterfeit notes by one, is the possession of the other. Ibid. 14. Passing a paper, is putting it off in payment or exchange. Uttering it, is a declaration that it is good, with an intention to pass, or an offer to pass it. The United States v. Mitchell, 1 Baldwin's C. C. R. 367. 15. The party accused of passing or uttering counterfeit paper, must be present when the act is done, privy to it, or aiding, consenting, or procuring it to be done. If done by consent, all are equally guilty. Ibid. 16. Passing a counterfeit note in the name of a fictitious person, an assumed name, or on a bank which never existed, is within the law. It is not necessary that the note, if genuine, would be valid, if on its face it purports to be good; the want of validity must appear on its face. Ibid. 17. The possession of other counterfeit paper by the defendant or a confederate, at the time of passing counterfeit notes, is evidence of the scienter. The United States v. Hinman, 1 Bald win's C. C. R. 294. 18. An order or check drawn by the president of a branch bank of the bank of the United States, on the cashier of the bank at Philadelphia, for the payment of money, is an order or check within the eighteenth section of the act chartering the bank. The United States v. Shellmire, 1 Baldwin's C. C. R. 371. 19. The bank is bound to pay such orders or checks; and the indictment may charge the passing such counterfeit order to be with the intent to defraud the bank, or the person to whom it is passed. Ibid. 20. The law presumes the intention of passing counterfeit paper to be to defraud any person who may suffer a loss by receiving it as genuine. Ibid. 374. 21. Intoxication is no defence, on a charge for passing counterfeit bank-notes, if the defendant was possessed of his reason, and was capable of knowing whether the note he passed was good or bad. Ibid. 3. A formedon, in the descender, is not within the proviso of the statute of possessions in Rhode Island. Ibid. FORMS OF PRACTICE AND PROCEED- 1. The practice under the laws of a state, furnishes a rule by which the circuit court of the United States, sitting in the state, is to be governed. Brown v. Van Braan, 3 Dall. 344; 1 Cond. Rep. 157. 2. The remedies in the courts of the United States are to be at common law or equity; not according to the practice of the state courts, but according to the principles of the common law and equity, as distinguished and defined in England. Robinson v. Campbell, 3 Wheat. 212; 4 Cond. Rep. 235. 3. The thirty-fourth section of the judiciary act of 1789, ch. 20, which declares that the laws of the several states, except where the constitu tion, treaties, or statutes of the United States shall otherwise declare, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply, furnishes a rule to guide the court in the formation of its judgment, not one for carrying the judgment into execution; and it has no application to the practice of the court, or to the conduct of its officer in the service of an execution. Wayman v. Southard, 10 Wheat. 1; 6 Cond. Rep. 1. 4. The act of 29th September, 1789, ch. 21, which enacts that until further provision shall be made, and except by this act, or by other statutes of the United States, it is otherwise provided, the forms of writs and executions, except their style and modes of process, in the circuit and district courts, in suits at common law, shall be the same in each state respectively, as are now used in the supreme courts of the same, so far as it respects the writ, is confined to its form, but does not prescribe any rule for the execution of it. Ibid. 5. The process act of 8th May, 1792, ch. 137, is the law which regulates the proceedings in the courts of the United States, and upon the executions which are issued by them. It clearly distinguishes between "the forms of writs, executions, and other process," and the "forms and proceedings in suits," and provides for both. It therefore prescribes the conduct of the officer in the execution of the process, that being a part of the "proceedings" in the suit ;" and it is required to conform to the law of the state as it existed in September, 1789. Ibid. 6. So far as the process act adopts the state laws, as regulating the modes of proceeding in suits at common law, the adoption is expressly confined to those in force in September, 1789. It does not recognise the authority of any laws of this description, which may have been passed after that time by the states. The system, as it then stood, is adopted, subject to such alterations FORMS OF PRACTICE, AND PROCEEDINGS, &c. and additions as the said courts respectively Ibid. 7. The provision is not a delegation to the courts of legislative authority, and is conformable to the constitution. Ibid. 8. The thirty-fourth section of the judiciary act of 1789, which provides that the laws of the several states shall be regarded as rules of decision, in trials at common law, in the courts of the United States, "in cases where they apply," does not apply to the process and practice of the courts; it is a mere recognition of the principles of universal law, that in every forum a contract is governed by the law in reference to which it is made. Ibid. 777 it is in the federal courts, a law arising under 16. A law which discharges a contract, is no 9. The statutes of Kentucky, which require the plaintiff to endorse on the execution, that bank-notes of certain specified banks will be received in payment, and, on this being refused, authorizes the defendant to give a replevin bond 17. State laws passed after 1789, regulating for the debt payable in two years, do not apply to executions issuing on judgments rendered in the practice and proceedings in their courts, are the courts of the United States. United States not obligatory in the courts of the United States; Bank v. Halstead, 10 Wheat. 51; 6 Cond. Rep. 221. and, therefore, the act of the legislature of Penn10. The courts of the United States are au-sylvania, of 3d January, 1815, as to copies certithorized to vary the forms of process adopted for fied by a notary public, is not to be adopted in Brown, the state courts in 1789, so as to extend to real the circuit courts of the United States. Bell v. or personal property; where, by the laws of such Davidson, 3 Wash. C. C. R. 328; Craig v.. state, lands are made liable to process from the 3 Wash. C. C. R. 503. Ibid. state courts. 11. The act of the legislature of Kentucky which prohibits the sale of land, where taken in execution, for less than three-fourths of its appraised value, does not apply to an execution on a judgment obtained in the circuit court of the United States. Ibid. 12. Whenever, by the state law in force in 1789, a capias might issue from a state court, the acts of 1789 and 1792, extending in terms to this species of writ, must be understood to have adopted its use permanently in the courts of the United States. The Bank of the United States v. January, 10 Wheat. 69; 6 Cond. Rep. 30. 13. At an early period after the organization of the federal courts, the rules of practice in the state courts, which were similar to the practice in England, were adopted in the circuit court of Pennsylvania. A subsequent change in the practice of the state courts will not authorize a change of the practice in the circuit court. Peters' C. C. R. 1. 14. Whenever, by the laws of the United States, a person is to be arrested, the process of arrest to be employed is to be the same as that in the state courts. On an indictment for a misdemeanor, in the circuit court of Virginia, a capias is the first process, that being the mode of proceeding in such cases in Virginia. But if the accused be already in custody on another ground, the order of the court is sufficient without a capias. 2 Burr's Trial, 481. 15. The rules of practice for transacting the business of the court, is the law of the court; as 18. The state of Ohio, not having been admitted into the Union until 1802, the act of congress passed 8th May, 1792, which is expressly confined in its operation to the day of its passage, in adopting the practice of the state courts into the courts of the United States, could have no operation in that state; but the district court of the United States, in that state, in 1803, was vested with all the power of the district court of Kentucky, which exercised full circuit court jurisdiction, with power to create a practice for its own government. The district court of Ohio did not create a system for itself, but, finding one established in the state, in the true spirit of the policy pursued in the courts of the United States, proceeded to administer justice according to the practice of the state courts; and, by a single rule, adopted the state forms of practice. When, in 1807, the circuit court was established, the judge assigned to that circuit found the state practice adopted, in fact, into the circuit court of the United States; and the same has since, so far as it was found practicable and convenient, by a uniform understanding, without any positive rule, been pursued. Fullerton v. The Bank of the United States, 1 Peters, 604. 19. The act of the legislature of Ohio, of 18th February, 1829, regulating proceedings on promissory notes, was passed after the making of the note on which the action was brought in this case; yet the circuit court for the district of Ohio, having incorporated the action under that statute, with all its incidents, into its course of practice, and having full power, by law, to adopt 4x Forms of Practice and Proceedings in the Courts of the United States. it, there does not appear any legal objection to | states in which there are not courts of equity its so doing, in the prosecution of the system under which it has always acted. Ibid. 20. It will not be contended, that the practice of a court can only be sustained by written rules, nor that a party pursuing a form or mode of proceeding, sanctioned by the most solemn acts of the court through a course of years, is to be sur prised and turned out of court upon a ground which has no bearing upon the merits. Written rules are unquestionably to be preferred, because of their certainty; but there can be no want of certainty, where long acquiescence has established it to be the law of the court, that the state practice shall be their practice, as far as they have the means of carrying it into effect, or until deviated from by positive rules of their own making. Ibid. 613. with the ordinary equity jurisdiction, the power of prescribing the mode of executing their de crees in equity: Provided, however, that it shall be in the power of the courts, if they see fit in their discretion, by rules of court, so far to alter final process in said courts, as to conform the same to any change which may be adopted by the legislature of the respective states, for the state courts." Ibid. 23. In respect to suits at common law, the laws of the United States have adopted the forms of writs and executions, and other process, and the modes of proceeding authorized and used under the state laws, subject, however, to such alterations and additions as may from time to time be made by the courts of the United States. But writs of execution issuing from the courts of the United States, in virtue of those provisions, are not controlled, or controllable, in their operation or effect, by any collateral regulations and restrictions which the state laws have imposed upon the state courts to govern them in the actual use, suspension, or superseding of them. Such regulations and restrictions are exclusively addressed to the state tribunals, and have no efficacy in the courts of the United States, unless adopted by them. Boyle v. Zacha 21. Although the act of the legislature of Ohio, regulating the mode of proceeding in actions on promissory notes, was passed after the making of the note upon which this action was brought, yet the circuit court of the United States, for the district of Ohio, having incorporated the action under that statute, with all its incidents, into its course of practice, and having full power, by law, to adopt it, there does not appear any legal objection to its doing so, in the prosecution of the system under which it has always acted.rie and Turner, 6 Peters, 648. lbid. 615. 24. The act for regulating processes in the 22. On the 19th May, 1828, another act was courts of the United States, provides that the passed by congress, "further to regulate pro- forms and modes of proceeding in courts of cesses in the courts of the United States." The equity, and in those of admiralty and maritime first section provides, "that in all those states jurisdiction, shall be according to the principles, admitted into the Union, since 29th September, rules and usages which belong to courts of 1789, the forms of mesne process, (except the equity and to courts of admiralty, respectively, style,) and the forms and modes of proceeding as contradistinguished from courts of common in suits in the courts of the United States, in law, subject, however, to alterations by the those states, shall be the same in each of those courts, &c. This act has been generally understates respectively, as are now used in the high-stood to adopt the principles, rules and usages est court of original general jurisdiction of the of the court of chancery of England. Vattier v. same, in proceedings in equity, according to the Hinde, 7 Peters, 252. principles, rules and usages, which belong to the courts of equity; and in those which belong to courts of admiralty, as contradistinguished from courts of common law; except so far as they may have been otherwise provided for by acts of congress; subject, however, to such alterations and additions as the courts of the United States respectively shall, in their discretion, deein expedient; or to such regulations as the supreme court of the United States shall think proper, from time to time, by rules, to prescribe to any circuit or district court concerning the same." The second section provides, "that where judgments are a lien on the property of the defendants, and where, by the laws of the state, defendants in the courts of the state are entitled to an imparlance of one term, or more, the defendants in the courts of the United States, shall be entitled to the same." The third section provides, "that writs of execution, or other final process issued on judgments or decrees rendered in the courts of the United States, and the proceedings thereupon, shall be the same, except their style, in each state, respectively, as are now used in the courts of such state; saving to the courts of the United States in those 25. It is the settled practice in the courts of the United States, if the case can be decided on its merits, between those who are regularly before them, although other persons, not within their jurisdiction, may be collaterally or incidentally concerned, who must have been made parties if they had been made amenable to its process, that these circumstances shall not expel other suitors who have a constitutional and legal right to submit their case to a court of the United States, provided the decree may be made without affecting their interests. This rule has also been adopted by the court of chancery in England. Ibid. 26. It is not essential that any court, in establishing or changing its practice, should do so by the adoption of written rules. Its practice may be established by a uniform mode of proceeding for a series of years, and this forms the law of the court. In this case it appears that the Louisiana law, which regulated the practice of the district court of Louisiana, has not only been repealed, but the record shows that in the year 1820, when the decision was given in this case, there was no such practice of the court, as was adopted by the act of congress of 26th May, FOREIGN BILLS OF EXCHANGE. Foreign Bills of Exchange. 1824. The court refused the statement of facts | the ordinary modes of proceeding on the chan- 27. The process act of 1798 expressly adopts the mesne process, and modes of proceeding in suits at common law, then existing in the highest state court, under the state laws; which of course included all the regulations of the state laws as to bail, and exemptions of the party from arrest and imprisonment. In regard also to writs of execution and other final process, and the proceedings thereupon," it adopts an equally comprehensive language, and declares they shall be the same as were then used in the courts of the state. Beers v. Haughton, 9 Peters, 329. 32. The result of the opinion of the supreme court, in the case of Wayman v. Southard, 10 Wheat. 1, delivered by Mr. Chief Justice Marshall, was, that the execution laws of Kentucky, having passed subsequent to the process acts, did not apply to executions issued by the circuit courts of the United States; and that under the judiciary and process acts, the courts had power to regulate proceedings on executions. The power of the court to adopt such rules, was not embraced in the point certified for the decision of the court, and not expressly adjudged; but it is the clear result of the argument of the court. Ross et al. v. Duval et al., 13 Peters, 45. 33. The act of the legislature of Virginia, in 1792, to regulate proceedings on judgments, is substantially and technically a limitation on judgments, and is not therefore an act to regulate process. It is a limitation law, and is a rule of property; and under the thirty-fourth section of the judiciary act, is a rule of decision for the courts of the United States. Ibid. 34. The process act of congress, of 1828, was passed shortly after the decision of the supreme court of the United States, in the case of Wayman v. Southard, and the United States Bank v. Halstead; and was intended as a legislative sanction of the opinions of the court in those 28. It was argued that the thirty-fourth section of the act of 1789, authorized the circuit court of Massachusetts to retry a cause, which had been tried by a jury, according to the laws of Massachusetts. Mr. Justice Story said :-The true exposition of the act is, that the rights of persons and 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. Wansen, 1 Gallis. C. C. R. 18. 29. Laws which relate to practice, process, modes of proceeding, before or after judgment, are exceptions to the thirty-fourth section of the act of congress of 1789, as congress have legis-cases. lated on the subject. The supreme court of the United States have established the distinction to be this; state laws, which furnish the court a rule for forming a judgment, are binding on the federal courts, not laws for carrying that judgment into execution; that is governed by the acts of congress, and the rules and practice adopted in pursuance thereof. Thompson v. Phillips, Baldwin's C. C. R. 275. The power given to the courts of the United States by this act, to make rules as a regulation of proceedings on final process, so as to conform the same to those of state laws on the same subject, extends to future legislation; and as well to the modes of proceeding on executions, as on the forms of writs. lbid. FOREIGN BILLS OF EXCHANGE. 30. A reference to the act of congress, for the regulation of process in the courts of the United States, will show that the rules of the civil law have been carefully excluded. By the process 1. A bill of exchange drawn in one state of act of 1789, the forms and modes of proceeding in causes of equity, and of admiralty and mari- the United States, on a person in another state, time jurisdiction, shall be according to the course and payable there, is a foreign bill. Bank of the Daniel, 12 Peters, 32. of the civil law; 1 Story's L. U. S., 67, but by | United States v. 2. Where a bill was drawn in Kentucky, on a the act of 1792, the form and modes of proceeding in such cases, were directed to be "accord-person in Kentucky, and accepted, payable in ing to the principles, rules and usages which New Orleans, the acceptor is liable to the conbelong to courts of equity, and to courts of ad- tract to the same extent as he would have been, miralty, respectively, as contradistinguished from if he had accepted the bill in Louisiana. As a courts of common law." 1 Story's L. U. S., 258. foreign bill, the holders were entitled to re-exIbid. Bains v. The Schooner James and Catharine, Bald- change, by commercial usage, when the protest for non-payment was made. win's C. C. R. 563. 31. The state legislatures have, certainly, no authority to prescribe the forms or modes of proceeding in the courts of the United States; but having created a right, and at the same time prescribed the remedy to enforce it, if the remedy prescribed is substantially consistent with 3. As to bills of exchange drawn in the United States, payable in Europe, the custom of merchants in this country, does not ordinarily require, to recover on a protest for non-payment, that a protest for non-acceptance shall be produced, though the bills were not accepted. Brown' |