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this obligation," after the same becomes due. But, it was held, in broad and general terms, in the case of Osborn v. Hawley, 19 Ohio Rep., 130, that a warrant of attorney to confess judgment, attached to a note, and forming a part of the same instrument, is not negotiable, and when the note is transferred, becomes invalid and inoperative. It is true, the report of that case does not inform us whether the warrant of attorney in that case purported to authorize the confession of a judgment in favor of the payee of the note alone, or whether its terms extended, as in this case, to any holder of the note after due. But, however this may have been in that case, we suppose that, if this judgment rested upon the confession under the warrant of attorney alone, it would be very questionable whether the court of common pleas had any rightful jurisdiction of the defendants in the judgment.
But, did they not, after the entry of judgment against them, confer jurisdiction, by such an appearance and proceeding in the case, as constituted a waiver of exception to the jurisdiction? It seems to us that they did. They were not obliged to proceed by motion, but might have resorted to proceedings in error, in the first instance. But they chose to appear and move to vacate the judgment. This, they might properly do, either on the alleged ground of a want of jurisdiction, or alleged irregularity or error, outside of the question of jurisdiction. What was, in fact, the ground of the motion, we are not informed; for, by agreement of parties, no record of the motion was made. In this matter, we are left to conjecture. If the motion was grounded upon irregularity, or error in the judgment alone, aside from the question of jurisdiction, the motion itself would constitute such an appearance as would have the effect to waive the question of jurisdiction. If the motion was based on an alleged want of jurisdiction, it would be no such appearance or waiver; and if the motion had been erroneously determined against the defendants in the judgment, they might have taken their exceptions, and reversed the ruling of the court. But, instead of doing this, while they were in the proper court, at a proper time, and while the whole matter was under the control of that court, they voluntarily consented to the dismissal of the motion, and, by so doing, it seems to us, they voluntarily consented to let the judgment stand against them, and ought not now to be allowed to allege a want of jurisdiction in the court which rendered it. Judgment affirmed.
THE LUCY, Supreme Court of the United States, 1869 (8 Wall. 307).
Mr. Chief Justice Chase delivered the opinion of the court:
We think that the motion to dismiss, made in this case, must be allowed.
The decree of condemnation passed in the District Court on the 4th of August, 1862, and on the 15th an appeal was allowed to this
By the Act of Feb. 23, 1847, 9 Stat. at L., 131, the District Court for the Northern District of Florida was established, with the jurisdiction and powers of a District and Circuit Court of the United States; and appeals were allowed from its decrees in the same manner and under the same regulations, as appeals from the circuit
At this time the Act of 1803, 2 Stat. at L., 244, governed appeals from the District to the Circuit Courts, and from the Circuit Court to this court. No appeal in admiralty could be taken directly from the District Court to this court, except when, as in the case of the Southern District Court of Florida, the District Court exercised the jurisdiction of the Circuit Court as well as that of the District Court.
If this state of the law had undergone no change at the date of the decree of condemnation in this case, the allowance of an appeal to this court would have been quite regular.
But, on the 15th day of July, 1862, Congress passed an Act establishing a Circuit Court for a circuit which included the Southern District of Florida, and repealing the former Act, which conferred upon the District Court, Circuit Court jurisdiction. The effect of this Act was to vest in the Circuit Court for that circuit the whole appellate jurisdiction exercised by other Circuit Courts in respect to decrees in admiralty. It left the original jurisdiction in admiralty of the District Court, untouched.
It was in virtue of this original jurisdiction that the District Court had cognizance of the case of The Lucy. The appellate jurisdiction of the case was vested by the Act in the Circuit Court.
It follows that, when the decree was pronounced in August, no appeal could be taken to this court, but only to the Circuit Court, and that the allowance of an appeal to this court was a nullity.
This objection to the jurisdiction is decisive; but, if it were otherwise, the fact that no transcript of the record was filed at the
next term, would be fatal to the appeal. Castro v. U. S., 3 Wall., 47; Ins. Co. v. Mordecai, 21 How., 195.
No consent of counsel can give jurisdiction. Appellate jurisdiction depends on the Constitution and the Acts of Congress. When
these do not confer it, courts of the United States cannot exercise
We cannot take cognizance of a case not brought before us in conformity with the law.
The case at bar, therefore, must be dismissed.
DEWHURST V. COULTHARD, Supreme Court of the United States, 1799 (3 Dal. 409).
The following statement of a case was presented by E. Tilghman to the court, at the instance of the attorneys for both the parties, in the suit in the circuit court of the New York district, with a request, that it might be considered and decided.
"This was an action commenced by Isaac Coulthard, against John Dewhurst in the Supreme Court of the state of New York, and was removed by petition to the circuit court of the United States for the New York district, agreeably to the act of Congress in such case made and provided, by the defendant, he being a citizen of the state of Pennsylvania.
"The plaintiff's action is prosecution against the above defendant, as the indorser of a foreign bill of exchange drawn by G. B. Ewart of the city and state of New York, on Thomas Barnes of Baldork near London, dated the tenth day of January one thousand seven hundred and ninety-two.
"On the part of the defendant, it is admitted that at the time of the making and indorsing said bill, the said John Dewhurst was a citizen of, and resident in, the city and state of New York and that he duly received notice of the protest of the said bill, for nonacceptance and non-payment.
"That on or about the twenty-fifth day of May, one thousand seven hundred and ninety-two, the defendant removed to the city of Philadelphia, in the state of Pennsylvania, where he has resided since that period. That shortly after his removal to Philadelphia, viz., on or about the seventh day of June, one thousand seven hundred and ninety-two, a commission of bankruptcy was awarded and issued forth against him, in pursuance of two certain acts or statutes of the said state of Pennsylvania, the one entitled, 'An act for the regulation of bankruptcy;' the other entitled, 'An Act to amend
an act entitled, an act for the regulation of bankruptcy.' And in pursuance of which said statutes the defendant did actually deliver, assign and transfer, to the commissioners appointed under the said commission, the whole of his effects, as well in the state of Pennsylvania as elsewhere, which consisted principally of credits due to the said defendant, in the state of New York. It is further admitted, that the said John Dewhurst in all things complied with the said statutes of bankruptcy before referred to, and that on the eleventh of August, one thousand seven hundred and ninety-two, he obtained a certificate of bankruptcy duly executed.
"Upon the above state of the case, it is submitted to the Supreme Court of the United States, to determine, whether the certificate issued under the laws of Pennsylvania, operates as a discharge of the said debt, notwithstanding its being contracted in another state, where there was no bankrupt law, and while the defendant was resident in the said state of New York. If the court should be of opinion that it does, it is agreed that judgment be entered for the defendant; otherwise for the plaintiff, for eleven hundred and twenty dollars damages, and six cents costs."
The court, on the ensuing morning, returned the statement of the case, declaring, that they could not take cognizance of any suit or controversy, which was not brought before them, by the regular process of the law. Motion refused.
BLAIR V. STATE BANK OF ILLINOIS, Supreme Court of Missouri, 1843 (8 Mo. 313).
Scott, J.: H. Raisin & Co. made an assignment of their effects, for the benefit of their creditors, to the appellant, Blair. The effects assigned were insufficient to pay all his debts. The appellee, the State Bank of Illinois, was the holder of two bills of exchange on Raisin & Co., the indorsers of which were preferred creditors under the assignment. Blair, the assignee, declared a dividend of the assets amongst the preferred creditors of twenty-five per cent. upon their respective claims. The State Bank of Illinois having failed, its notes in circulation were forty-four per cent. below par. An action of assumpsit was instituted by the Bank against Blair. The declaration contained the common counts, and the parties having agreed upon the foregoing statement of facts, they made the right of the plaintiff to recover dependent on the solution of the question, whether Blair, the assignee, could buy the notes of the State Bank of Illinois, and with them pay the dividend due the Bank, carrying
the profits arising from the transaction into the general fund, for distribution among the creditors at large. The court below rendered judgment for the bank, from which Blair has appealed to this Court.
If Blair wished to know whether the notes of the Bank could have been used as a set-off to the action against him, we know of no other mode by which it could be ascertained, than by pleading them by way of set-off. But we cannot see the object in raising this question. Raisin & Co.'s effects were insufficient to pay all their debts. The agreed case admits, that the indorsers of the bills of exchange were preferred creditors under the assignment; that is, we suppose, were to have the debts for which they were liable paid before the other creditors. Now, if Blair should have purchased the paper of the Bank, and with it have paid her dividend under the assignment, and carried the profits into the trust fund, would not these profits have rightly belonged to the Bank, standing in the place of the preferred creditors? Twenty-five per cent. of the amount of the bills of exchange, converted into bank-paper at fortyfour per cent. discount, would not have paid the bills, and until the Bank had been paid, at least in her own paper, she being a preferred creditor, a question as to the legality of the conversion of the funds into bank-paper could not well arise between her and the other creditors that is, should not all the money accruing under the assignment, be first applied to the satisfaction of the preferred creditors.
But be these matters as they may, we do not feel ourselves at liberty to entertain questions presented in the manner in which this is done. The parties to a suit at law or equity may agree on the facts of a case, and suffer the court to declare the law arising on those facts, but to agree on facts not in the cause, and under the pretense of a suit at law, to obtain the opinion of this court on matters wholly disconnected with the suit, cannot be tolerated. Here we are called upon, in an action of assumpsit, to declare the law governing the conduct of a trustee in the management of the trust-fund, a duty peculiarly the province of a court of equity, which, with unrestrained freedom, takes a whole transaction into consideration, from the beginning to the end, giving attention to every circumstance which can in any wise affect its opinion. The straight-laced proccedings of a court of law wholly disqualify it for such a task, and neither the consent nor the release of errors, nor any other act