[Breedlove and Robeson v. Nicolet and Sigg.]

4. If originally aliens, they did not cease to be so, or lose their right to sue in the federal court, by a residence in Louisiana. Neither the constitution nor acts of congress *require that aliens should reside abroad to entitle them to sue in the courts of the United States.

[*432

5. The suit not having been brought against Bedford, it was not necessary to aver or prove that he was subject to the jurisdiction of the courts of the United States.

6. The sixth objection is, that the plea to the jurisdiction was lawfully filed, and ought not to have been taken from the files of the

court.

This plea was, that the firm of Theodore Nicolet and Co. con sisted of other persons in addition to those named in the writ and petition, and that those other persons were citizens of Louisiana.

It is admitted that a constitutional or legal disability in the court to exercise jurisdiction over the parties, may be taken advantage of by plea in abatement, but they must be parties. If they are not, the objection is of a different character. In the case at bar those persons who, if named as plaintiffs, might have ousted the jurisdiction of the court, were not plaintiffs. To make them so, was preliminary to any objection to them. The plea, therefore, was to be considered as objecting to the writ and petition, because all the members of the firm of Theodore Nicolet and Co. are not named. The incapacity of those members to sue, was to be considered after they became plaintiffs. If persons who ought to join in a suit do not join in it, the objection is not to the jurisdiction of the court on account of their invalidity to sue, but because the proper plaintiffs have not all united in the suit. The plea is to be considered as if the averment that Germain Musson and others were citizens of Louisiana, had not been contained in it.

This plea was offered after issue was joined on a plea in bar, and the argument of the cause had commenced. The court might admit it, and the court might also reject it. It was in the discretion of the court to allow or refuse this additional plea. As it did not go to the merits of the case, the court would undoubtedly have acted rightly in rejecting it. But it was received, and the question is, whether, after its reception, all power over it was terminated.

All the proceedings are supposed to be within the control of the court while they are in paper, and before a jury is sworn or a [*433 judgment given. If so, the orders made may be revised, and such as in the judgment of the court may have been irregularly or improperly made, may be set aside. If such be the discretion of the court, this is not a case in which a supervising tribunal will control that discretion. The court very properly thought, that after issue was joined and the argument commenced, an additional plea not going to the merits, but which might defeat the action, ought not to have been received. We are not prepared to say, they exceeded their power in correcting this order and setting it aside. If they did

[Breedlove and Robeson v. Nicolet and Sigg.]

not exceed their power, they have committed no error in this exer cise of it.

7. The seventh and last error assigned is, that the plaintiffs, being parties to the insolvent proceedings, were stopped from questioning the sufficiency of the discharge.

The act of Louisiana, passed on the 20th of February, 1817, section 8, relative to the voluntary surrender of property, and to the mode of proceeding, &c. directs when the judge shall be satisfied that the debtor is entitled to the benefit of the act, "he shall order that the creditors of said debtor be called in the manner and within the time prescribed for respites by the civil code, art. 4, title 16, book 3; and he shall appoint a counsellor to represent the creditors absent or residing out of the state, if there be any mentioned in the schedule."

The provision referred to, is in title 18, articles 3052, 3053, 3054, in the volume in possession of the court.

The language of the code is, "the respite is either voluntary or forced. It is voluntary when all the creditors consent, &c."

"It is forced when a part of the creditors refuse to accept the debtor's proposal, and when the latter is obliged to compel them, by judicial authority, to consent to what the others have determined in the cases directed by law."

The forced respite takes place when the creditors do not all agree, for then the opinion of the three fourths, in number and in amount, prevails over that of the creditors forming the other fourth, and the judge shall approve such opinion, and it shall be binding on the other creditors who did not agree to it.

But in order that a respite may produce that effect, it is necessary, 1. That the debtor should deposit, &c.

*2. That a meeting of the creditors of such debtor, domi434] ciliated in the state, shall be called on a certain day at the office of a notary public by order of the judge, at which meeting the creditors shall be summoned to attend, by process issued from the court, if the creditors live within the parish where the meeting shall take place, or by letters addressed to them by the notary, if they are not residing in the parish.

It is further directed that the meeting, as well as its object, be advertised in English and in French.

It was admitted that this advertisement was made; but it is not admitted nor proved that the petitioners were summoned to attend by process from the court, or by letters addressed to them by the notary. Nor did they appear voluntarily.

Is the judgment binding on them?

It is unquestionable that summary proceedings of this description must be regular, and that their regularity must be shown by the party who relies on them. Notice to the creditors is material, and the law prescribes that notice and defines it. Advertisement in the papers is not sufficient. Personal notice must be given to a resident within

[Breedlove and Robeson v. Nicolet and Sigg.]

the parish, by process; to a non-resident, by a letter from the notary. The law deems this notice indispensable, and the court cannot dispense with it. For want of it the judgment of discharge was no bar to this action.

There are other irregularities in the proceedings, but want of notice is fatal and it is unnecessary to notice them.

Judgment affirmed, with costs and damages, at the rate of six per cent. per annum.

321

41

ABNER 1. DUNCAN'S HEIRS AND REPRESENTATIVES, PLAIN-
TIFFS IN ERROR, V. THE UNITED STATES.

Action on a bond executed by William Carson, as paymaster, and signed by A. L.
Duncan and John Carson as his sureties, conditioned that William Carson, pay-
master for the United States, should perform the duties of that office within the
district of Orleans. The breach alleged was that W. C. had received large
sums of money in his official capacity, in his lifetime, which he had refused to
pay into the treasury of the United States.

The bond was drawn in the names of Abner L. Duncan, John Carson, and Thomas
Duncan as sureties for William Carson, but was not executed by Thomas Dun-
can. There were no witnesses to the bond, but it was acknowledged by all the
parties to it before a notary public. The defendants, the heirs and representa-
tives of A. L. Duncan, in answer to a petition to compel the payment of the
hond, say that it was stipulated and understood, when the bond was executed,
hat one Thomas Duncan should sign it, which was never done, and the bond
was never completed; and therefore A. L. Duncan was never bound by it: they
also say, that, as the representatives of A. L. Duncan, they are not liable for the
alleged defalcation of William Carson, because he acted as paymaster out of the
limits of the district of Louisiana; and the deficiencies, if any, occurred without
the limits of the said district.

Before the jury were sworn the defendants offered a statement to the court for the
purpose of obtaining a special verdict on the facts, according to the provisions
of the act of the legislature of Louisiana, of 1818. The court would not suffer
the same to be given to the jury for a special finding, because it "was contrary
to the practice of the court to compel a jury to find a special verdict."
The judge charged the jury that the bond sued upon was not to be governed by the
laws of Louisiana in force when the bond was signed at New Orleans, but that
this and all similar bonds must be considered as having been executed at the
seat of the government of the United States, and to be governed by the principles
of the common law; that although the copy of the bond sued on, which was
certified from the treasury department, exhibited a scrawl instead of a seal, yet
they had a right to presume that the original bond had been executed according
to law; and that in the absence of all proof as to the limits of the district of
New Orleans, the jury was bound to presume that the defalcation occurred
within the district; and if the paymaster acted beyond the limits of the district,
it was incumbent on the defendants to prove the fact: held, that there was no
error in these decisions of the district court of Louisiana.
This is an official bond, and was given in pursuance of a law of the United States.
*436]
By this law, the conditions of the bond were fixed; and also the *manner
in which its obligations should be enforced. It was delivered to the
treasury department at Washington; and to the treasury, did the paymaster and
his sureties become bound to pay any moneys in his hands. These powers exer-
cised by the federal government cannot be questioned.
It has the power of
prescribing under its own laws, what kind of security shall be given by its
agents for a faithful discharge of their public duties. And in such cases the
local law cannot affect the contract, as it is made with the government, and
in contemplation of law, at the place where its principal powers are exercised.
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 prac-
tice of the district court of Louisiana, has not only been repealed, but the record
shows that in the year 1830, 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, 1824. The court refused the statement of facts to go to the jury for a
special finding, because they say "such was contrary to the practice of the
court."

By the court. On a question of practice, it would seem that the decision of the
district court as to what the practice is, should be conclusive. The practice of

[Duncan v. The United States.]

the court cannot be better known and established than by its own solemn adjudications on the subject.

IN error from the district court of the United States for the eastern district of Louisiana.

On the 22d November, 1829, the district attorney of the United States filed, on behalf of the United States, a petition stating that on the 4th of March, 1807, William Carson, Abner L. Duncan, and John Carson made and executed their bond to the United States in the sum of ten thousand dollars, by which they bound themselves and each of them, and either of their heirs, executors, and administrators, that William Carson, paymaster of the United States, should well and truly perform and discharge, according to law, the duties of the office of paymaster of the United States, within the district of New Orleans.

The petition alleged a breach of this bond by William Carson, paymaster, in having received in his lifetime large sums of money in that capacity, which he refused to pay into the treasury of the United States. And also that Abner L. Duncan has deceased, leaving property, and that, by reason of the facts above stated, his heirs, to wit, John N. Duncan, Frances Duncan, wife of Frederic

Conrad, Hannah Duncan, Eliza Duncan, and Abner Dun- [*437

can, all children of the said Abner L. Duncan, these three last named being minors, and also Frances S. Duncan, wife of the said Abner L. Duncan, who has accepted the community of her deceased husband, have become liable to pay, and are indebted to the United States, jointly and severally, in the sum of ten thousand dollars. The petition proceeds to pray that John N. Duncan, and Frances S. Duncan, and the aforesaid minors Hannah, Eliza and Abner Duncan, their tutors and curators, be cited to answer the petition, and that, after due proceedings had, they may have judgment against them, jointly and severally, for the sum of ten thousand dollars, with interest and costs.

To this petition was annexed a copy of the bond, as follows:

"Know all men by these presents, that we, William Carson, paymaster for the United States of America, within the district of New Orleans, Abner L. Duncan, John Carson, and Thomas Duncan, Esquires, are held and firmly bound unto the said United States, in the penal sum of ten thousand dollars, money of the United States, to be paid to the said United States of America, for which payment well and truly to be made we bind ourselves, and each of us, by himself, our and either of our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated this fourth day of March, one thousand eight hundred and seven.

"The condition of this obligation is such, that if the above bounden William Carson, paymaster for the United States of America, do and shall well and truly, according to law, perform and discharge the duties of said office of paymaster for the United States of America