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are well described to be citizens of Pennsylvania, against Turner 1799. and others, who are well described to be citizens of North-Carolina, upon a promissory note, made by the defendant, payable to Biddle & Co., and which, by assignment, became the property of the plaintiffs. Biddle & Co. are no otherwise described, than as using trade and merchandize in partnership together," at Philadelphia or North-Carolina. And judgment was for the plaintiff.

The error assigned, the only one insisted on, is, that it does not appear from the record, that Biddle & Co. the promisees, or any of them, are citizens of a state other than that of NorthCarolina, or aliens.

A Circuit Court, though an inferior Court, in the language of the constitution, is not so in the language of the common law; nor are its proceedings subject to the scrutiny of those narrow rules, which the caution, or jealousy, of the Courts at Westminster, long applied to Courts of that denomination; but are entitled to as liberal intendments, or presumptions, in favour of their regularity, as those of any Supreme Court. A Circuit Court, however, is of limited jurisdiction; and has cognizance, not of cases generally, but only of a few specially circumstanced, amounting to a small proportion of the cases, which an unlimited jurisdiction would embrace. And the fair presumption is (not as with regard to a Court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather) that a cause is without its jurisdiction till the contrary appears. This renders it necessary, in as much as the proceedings of no Court can be deemed valid further than its jurisdiction appears, or can be presumed, to set forth upon the record of a Circuit Court, the facts or circumstances, which give jurisdiction, either expressly, or in such manner as to render them certain by legal intendment. Among those circumstances, it is necessary, where the defendant appears to be a citizen of one state, to show that the plaintiff is à citizen of some other state, or an alien; or if (as in the present case) the suit be upon a promissory note, by an assignee, to show, that the original promissee is so: for, by a special provision of the statute, it is his description, as well as that of the assignee, which effectuates jurisdiction.

But here the description given of the promissee only is, that "he used trade" at Philadelphia or North-Carolina; which, taking either place for that where he used trade, contains no averment that he was a citizen of a state, other than that of North-Carolina, or an alien; nor any thing which, by legal intendment, can amount to such averment. We must, therefore, say that there is error.

It is exceedingly to be regretted, that exceptions which might be taken in abatement and often cured in a moment, should be reserved to the last stage of a suit, to destroy its fruits.

Judgment reversed;

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Mossman, surviving Executor, Plaintiff in Error, versus Higginson, surviving Partner, Defendant in Error.

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HIS was a writ of error, to remove the proceedings on a bill in equity, from the Circuit Court, for the district of Georgia, tested the 27th November 1798, returnable on the next. The case, on the biil and pleadings, was, briefly, this:Alexander Willy, an inhabitant of Georgia, being indebted to Higginson and Greenwood, British merchants, gave them a bond and mortgage, payable the first of January 1773. In the year 1778, Willy was banished from the state of Georgia, and his estate confiscated by law. The mortgaged premises were seized and sold by the commissioners for forfeited estates, to certain purchasers, who afterwards sold the same to James Houston; and the property remained in his possession, or in the possession of his executors, until the 12th of September 1796, when it was levied upon, sold, and conveyed to William Mien, by the creditors of Houston; notice of the mortgage having been given to Mossman, the executor of Houston, to Mien, the agent for his creditors, and to the marshal, before the sale. In March 1797, Higginson, the surviving mortgagee, filed the present bill to foreclose the equity of redemption, stating himself to be a subject of Great Britain; but in no part of the proceedings, were the defendants, or any of them, stated to be citizens of the United States. The defendants pleaded the confiscation laws of Ceorgia in bar, and answered

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CASES RULED AND ADJUDGED IN THE SUPREME COURT, &c.

to the merits; but WASHINGTON, Justice, over-ruled the pleas, 1800. and decreed, that unless William Mien paid the principal and interest of the debt, before the 17th of February 1799, the equity of redemption should be foreclosed. The mers of the decree were not, however, discussed on the writ of error, but the following points occurred:

I. Dallas, for the plaintiff in error, moved to amend the writ, by inserting the return day of the present term in the blank. The writ is regularly tested, and by indorsements it appeared when it was filed below, and when it was filed here. The clerk of the Circuit Court had, also, indorsed, "Returnable to February term 1799." There is, therefore, sufficient matter to amend by; and the amendment is within the provision of the act of congress,

1 vol. 72. s. 32.

By the COURT. Let the amendment be made.

II. It was objected by Ingersoll and Dallas, for the plaintiff in error, that the jurisdiction of the court, did not appear upon the record, as there was no designation of the citizenship of the defendants. 3 Dall. Rep. 382. 369. 4 Dall. Rep. ant. 8. Turner v. Enrille.

It was answered by E. Tilghman and Reed (of South-Carolina) that as no process was prayed against Willy, he was not, in legal contemplation, a party to the suit; 1 P. Wm. 593. that the prayer of process against Mossman, who never held the land, was ir regular, and to be regarded as mere surplusage; that there was no pretence to charge Houston; and that Mien, being expressly stated to be the purchaser of the land, the Court will take notice of the law of Georgia, by which no alien can hold real estate; and, by necessary implication, the purchaser must be a citizen. Besides, it is enough under the constitution, the treaty of 1783, and the 11th section of the judiciary act, that an alien is a party to the suit, whose real object is the thing mortgaged, a proceed. ing in rem, and not a personal recovery. At all events, the Court will permit the defect to be amended.

Ingersoll, in reply. The judiciary act was only intended to carry the constitution into effect, and cannot amplify, or alter, its provisions. The constitution no where gives jurisdiction (nor has any Judge ever countenanced the idea) in suits between alien and alien. It is not an exception to the rule, that the bill in equity, is in the nature of a proceeding in rem: for, there cannot be a foreclosure of the equity of redemption, without a personal suit. It is not like the case of a monition to condemn a prize ship, which is notice to all the world, and no party respondent is requisite; and the supposed inference of citizenship from purchasing land fails, when it is recollected, that the purchase does not fix the use. The jurisdiction of the federal Courts (Const. art. 3.

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1800. s. 2.) is not where a question arises, that may be affected by a treaty, but where a case arises under a treaty; and if a question on the validity of a treaty, arises in a state Court, there is a special provision for transfering it to the Supreme Court; 1 vol. 61. s. 22. But, in the present instance, it does not appear that any question can arise under the treaty; for, it is not referred to, directly, nor indirectly, in any part of the record. As to an amendment, there is nothing to amend by. The citizenship of the defendants could only be judicially known, by the admission of the parties, or by evidence of the fact. It is not expressly, or impliedly admitted; and this Court cannot try an issue to ascertain it.

By the COURT: The decisions, on this subject, govern the present case; and the 11th section of the judiciary act can, and must, receive a construction, consistent with the constitution. It says, it is true, in general terms, that the Circuit Court shall have cognizance of suits "where an alien is a party;" but as the legis lative power of conferring jurisdiction on the federal Courts, is, in this respect, confined to suits between citizens and foreigners, we must so expound the terms of the law, as to meet the case, "where, indeed, an alien is one party," but a citizen is the other. Neither the constitution, nor the act of congress, regard, on this point, the subject of the suit, but the parties. A description of the parties is, therefore, indispensable to the exercise of jurisdiction. There is here no such description; and, of course, The writ of error must be quashed.

E

Cooper versus Telfair.

RROR from the Circuit Court for the district of Georgia.
The record exhibited the following case:

Basil Cooper, at present of the island of Jamaica, in the dominions of his Britannic majesty, formerly an inhabitant of the state of Georgia, brought an action in the Circuit Court of Georgia to November term 1797, against Edward Telfair, of the district of Georgia, upon a bond for 1000l. sterling, equal to 4285-70 dollars, dated the 14th of May 1774.

After byer of the bond and condition, the defendant pleaded in bar, 1st. Payment. 2d. "That, on the 4th day of May 1782, an act "was passed by the legislature of the state of Georgia entitled 'An "act for inflicting penalties on and confiscating the estate of such "persons as are therein declared guilty of treason, and for other pur66 poses therein mentioned,' by which it is, among other things en"acted and declared, 'that all and every the persons, named and in"cluded in the said act, are banished from the said state; and that "all and singular the estate real and personal of each and every of "the aforesaid persons, which they held, possessed, or were en

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"titled to in law, or equity, on the 19th day of April 1775, and 1800. "which they have held since, or do hold, in possession, or others "holding in trust for them, or to which they are, or may be, "entitled in law, or equity, or which they may have, hold, or be possessed of in right of others, together with all debts, dues " and demands of whatsoever nature, that are or may be owing to "the aforesaid persons, or either of them, be confiscated to and for "the use and benefit of this state.' That the said Basil Cooper is "expressly named and included in the above in part recited acts; "and that he was on the said 4th day of May 1782, and for a "long time before a citizen of the state of Georgia, and of the "United States of America. That the said Basil Cooper, being a "citizen, &c. owing allegiance, &c. on the 4th of May 1782, and for (6 a long time before, adhered to the troops of his Britannic ma"jesty, then at open war with the said state of Georgia and United "States of America, and did take up arms with the said troops, &c. "That the said Basil Cooper hath never since returned within the "limits and jurisdiction of the said United States, or either of "them. That by virtue of the above recited act, and, also, of an "act entitled 'An act to continue an act to authorise the auditor "to liquidate the demands of such persons as have claims against "the confiscated estates, and for other purposes therein mention"ed,' passed the 13th February 1786; and of another act entitled "An act to compel the settlement of the public accounts, for "inflicting penalties on the officers of this state, who may neglect "their duty, and for vesting the auditors with certain powers for "the more speedy settlement of the accounts of this state, with "the United States,' passed the 10th of February 1787; the sum "of money mentioned in the condition of the bond, and all interest "thereon, have become forfeited and confiscated to the state of "Georgia; and the right of action attached thereto; and no cause “of action hath accrued to the said Basil Cooper to demand and "have of the said Edward Telfair, the said sum of money &c."

To this plea, the plaintiff replied, "that he was never tried, "convicted, or attainted, of the crime of treason alleged against "him; and that by the constitution of the state (in force at the "time of passing the acts in the said plea set forth, to wit, on "the 4th day of May 1782), unanimously agreed to in a con❝vention of the people of this state, on the 5th of February "1777, it is ordained, that

"Article 1. The legislative, executive, and judiciary, depart66 ments shall be separate and distinct, so that neither exercise "the powers properly belonging to the other.

"Article 7. The house of assembly shall have power to make "such laws and regulations, as may be conducive to the good "order and well-being of the state, provided such laws and re"gulations be not repugnant to the true intent and meaning of "any rule, or regulation, contained in this constitution.

“Article 39.

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