1799. terposition of this Court, to which her settlers, the defendants below, cannot originally resort? It is a fundamental principle of the law of nature and of nations, that every government is bound to preserve peace and order, to protect individuals, to indemnify those who trust to its faith, and to prevent a dismemberment of its territory. This political and moral obligation, enforced by a regard to her public improvements, and fiscal operations, creates an interest of the highest character in the government of New-York; and such as the Court will cherish with all its benevolence and authority. 21 Vin. Abr. 181. pl. 1. Ibid. 183. pl. 4, 5. 7. Ibid, pl. 8. 11. 3 Black. Com. 255, 6.

The COURT, after advisement, delivered their opinion, that as the State of New-York was not a party to the suits below, nor inter-、 ested in the decision of those suits, an injunction ought not to issue.

Injunction refused. (5)

The same Cause.

on

A she should appear on the first day of next term, or that the plaintiff be then at liberty to proceed ex parte. 3 Dal. 335. But Lewis observed, that the rule required that a subpoena issuing in a suit in equity, should be served sixty days before the return; which had not been done in the present case. The first motion was, thereupon, waived; and an alias subpoena awarded. 3 Dall.

320.

Hazlehurst et al. versus The United States.

N error from the Circuit Court for the district of South-Caro

IN error from had been obtained by Lee, the attorney-general, at the opening of the Court, that the plaintiffs appear and prosecute their writ of error within the term, or suffer a non-pros.: but it was found, that errors had been assigned in the Court below, and

(5) Hoffman. In every grant by New-York, there is a reservation of gold and silver mines, and of five acres per cent. for roads. The bill might, besides, be amended, by averring the state to be interested in a residuum of the land, if that would be sufficient to sustain the prayer for an injunction.

WASHINGTON, Justice. The amendment would not satisfy me; for, my opinion is founded upon the fact, that New-York is not interested in the suits below.

CHASE, Justice. It is a mere bill to settle boundaries; and we must take it as we find it; not as it might be made.

ELLSWORTH, Chief Justice. If there had been a quorum of judges, without my attendance, I should have declined sitting in this cause. As it is, I am glad that the opinion of my brethren, dispenses with the necessity of my taking a part in the decision.

a joinder

a joinder in error entered here. The rule was, therefore, changed 1799. to the following: "that unless the plaintiffs in error appear and argue the errors to-morrow, a non-pros. be entered." The plaintiffs not appearing, the writ of error was non-prossed, according to the rule.

Turner, Administrator, versus Enrille.

RROR from the Circuit Court of South-Carolina. The re

ERROR the of The

case:

cord, as abridged for the Judges, presented the following

"The Marquis de Caso Enrille instituted an action on the case against Thomas Turner, the administrator of Wright Stanley, in the Circuit Court of North-Carolina, of June term 1795. "A declaration in case was filed by the Marquis de Caso Enrille, of in the island of ' of June term 1796, in which it is set forth, that Wright Stanley (the intestate) and John Wright Stanley and James Greene were merchants and partners at Newbern in the said district?' that Wright Stanley survived the other partners; that on the 4th of June 1791, in the lifetime of all the partners, they were indebted unto the said Marquis in dollars; and in consideration thereof, assumed to pay, &c. The 2d count insimul computassent, when the said partners were found in arrear to the said Marquis in other dollars,' &c. The plaintiff concludes with the usual averments of non-payment, 'to the damage of the said Marquis dollars,' &c.

"On the 30th of November 1796, the defendant appeared, and pleaded, 1st. Non assumpsit intest. Replication and issue. 2d. The statute of limitations as to the intestate: Replication, an account current between merchant and factor. Rejoinder and issue. 3d. Setoff, that the plaintiff was indebted to the intestate, on the 1st of January 1792, in more than the damages by the plaintiff sustained, &c. to wit, in 4000 dollars, for money had and received by the plaintiff to the intestate's use, which sum is still due to the defendant, as administrator. Replication that plaintiff owed nothing, &c. Rejoinder and issue. 4th. The statute of limitations as to the administrator. Replication that the demand was made within three years, &c. Rejoinder and issue. 5th. Plene administravit. Replication assets. Rejoinder and issue.

"On the 1st of June 1799, the issues were tried, a verdict was given on all the issues for the plaintiff, and the jury assessed damages at 3289,65 dollars. Judgment for damages, costs and charges.

"Writ of error. Errors assigned: 1st. That it does not appear on the pleadings, &c. that either plaintiff or defendant was an alien or that they were citizens of different states. 2d That there are blanks in the declaration for places, dates, and sums. 3d. The general errors. Plea, In nullo est erratum. Replication and issue.”

For

1799.

For the defendant in error, Dallas lamented the obvious irregularities on the face of the record, though the merits were incontestably established in his favour, by the verdict and judgment. He thought, however, that the Court would give every reasonable intendment to the allegations of the record, in support of the judgment and verdict; and, therefore, endeavoured to distinguish the present case from the case of Bingham v. Cabot et al. 3 Dall. Rep. 382. In Bingham v. Cabot et al. the defendant's place of residence was not even stated; here the defendants are stated to be merchants of Newbern, in the district of North-Carolina. There the plaintiffs were described generally of Massachusetts, &c.: here the plaintiff is described specially of an island; and the cause of action is found to arise on accounts between merchant and factor. It has not been judicially decided that the averment of alienage, or of citizenship of different states, as a foundation for the federal jurisdiction, must be positive; and it is sufficient, in reason, if circumstantial evidence of the fact can be collected from the record. As to the blanks in the declaration, in relation to the sums, Dallas requested an opportunity to consider how far the defect was cured by the verdict, or might be amended, if the Court was not decisively against him on the first point.

Ingersoll, for the plaintiff in error, observed, that the case was so very desperate, that it had been virtually abandoned by the opposite counsel. He should, therefore, decline troubling the Court.

By the COURT. The decision in the case of Bingham v. Cabot et al. must govern the present case. Let the judgment be reversed with costs.

Turner, Administrator of Stanley, Plaintiff in Error, versus the President, Directors, and Company, of the Bank of North-America, Defendants.

E

RROR from the Circuit Court of North-Carolina. This was an action upon a promissory note drawn, in Philadelphia, by Stanley, the intestate, in favour of Biddle & Co. and indorsed by Biddle & Co. to the bank of North-America. The declaration (which contained only a count upon the note itself) stated, that the president and directors of the bank were citizens of the state of Pennsylvania; and that Turner the administrator, and Stanley, the intestate, were citizens of the state of North-Carolina; but of Biddle & Co. the payees, and indorsers of the note, there was no other designation upon the record, than "that they used trade and merchandize in partnership together, at Philadel phia, or North-Carolina." The error assigned, and insisted upon, to wit, an insufficient description of Biddle & Co. was founded

on

on that part of the 11th section of the judicial act (1 vol. 55.) 1799. which declares, that no District or Circuit Court "shall have "cognizance of any suit to recover the contents of any promis "sory note, or other chose in action, in favour of an assignee, "unless a suit might have been prosecuted in such Court, to "recover the said contents, if no assignment had been made, "except in cases of foreign bills of exchange."

Ingersoll, for the plaintiff in error, argued, that unless it was averred upon the record, that the original parties to the note, as well as the parties to the suit, were of different states, or one a citizen, and the other an alien, it could not judicially appear, that the Circuit Court had jurisdiction of the cause. Though the federal Courts are not to be regarded as inferior Courts, they are Courts of a limited jurisdiction. The jurisdiction of the state Courts is general; but the jurisdiction of the federal Courts is special, and in the nature of an exception from the general jurisdiction of the state Courts. That the parties are citizens of different states, is one ground for the exception; and so far as respects the immediate parties to the suit, the ground for the exception sufficiently appears upon the record. But if an action is brought by the indorsce of a promissory note, he cannot have the benefit of the exception, unless he shows that his indorser, as well as himself, was entitled to resort to a federal tribunal. Congress knew, that the English Courts had amplified their jurisdictio, through the medium of legal fictions; and it was readily foreseen, that by the means of a colourable assignment to an alien, or to the citizen of another state, every controversy arising upon negotiable paper, might be drawn into the federal Courts. Hence, the original character of the debt is declared to be the exclusive test of jurisdiction, in an action to recover it. Unless the original character of the note furnished a subject of federal jurisdiction, it is emphatically declared, that "no District or Circuit Court shall have cognizance of the suit;" and a court of special jurisdiction cannot take cognizance of the suit, unless the case judicially appears by the record to be within its jurisdiction. 9 Mod. 95. Lord Coningsby's case. So, wherever a party takes advantage of a clause in a statute, to hich a proviso is attached, he must not only bring his case within the general clause, but show that it is not affected by the proviso. 5 Bac. Abr. 666. Plowd. 410. Raym. Nor is the present, too late a period, to take advantage of the defect. Silence, inadvertence, or consent, cannot give jurisdiction, where the law denies it. In Bingham v. Cabot. 3 Dall. 382. the ground of jurisdiction was more strongly laid; and yet a similar defect was successfully assigned for error.

Rawle, for the defendant in error. It is not intended to controvert the general proposition, that where a suit is brought before an inferior Court, the circumstances that gave it jurisdiction, VOL. IV.

C

must

1799. must be set forth on the record; and, if they are omitted, it may be taken advantage of upon a writ of error. But the Circuit Court is not, in technical language or intendment, an inferior Court; and this consideration alone destroys the application of most of the English authorities. It is, then, to be remarked that the judicial power, is the grant of the constitution; and congress can no more limit, than enlarge, the constitutional grant. In the 2d section of the 3d article, the constitution contemplates the parties to the controversy, as alone raising the question of jurisdiction; and if the existing controversy is "between citizens of different states," the judicial power of the United States expressly extends to it. (1) By the opposite construction, however, congress has imposed a limitation upon the judicial power, not warranted by the constitution, when, without regard to the immediate parties to the controversy, the law excepts from the cognizance of the federal Courts, suits upon promissory notes, which by assignment, have placed the immediate parties, in the relation of citizens of different states. If the Circuit Court is not an inferior, neither is it, in the sense asserted, a limite l jurisdiction, but it is a Court of general jurisdiction, having some cases expressly excepted from its cognizance. It may be compared to the King's Bench in England, from whose general jurisdiction is excepted the cognizance of cases, belonging to the counties palatine. Carth. 11, 12. 354. 1 Saund. 73. 2 Mod. 71, 2, 3. As to such Courts, it is sufficient if it appears to the appellate authority, that from the subject matter, the Court below might have jurisdiction; and, at all events, it would be too late, in a writ of error, to take the exception-an objection not suggested in Bingham v. Cabot. Then, here the parties are stated to be citizens of different states; the place was not exempt from federal jurisdiction; and the nature of the controversy did not, of itself, deprive the Circuit Court of its general cognizance of suits, between citizens of different states.

The Chief Justice delivered the opinion of the COURT, in the following terms:

ELLSWORTH, Chief Justice. The action below was brought by the president and directors of the bank of North-America, who

(1) ELLSWORTH, Chief Justice. How far is it meant to carry this argument? Will it be affirmed, that in every case, to which the judicial power of the United States extends, the federal Courts may exercise a jurisdiction, without the intervention of the legislature, to distribute, and regulate, the power?

CHASE, Justice. The notion has frequently been entertained, that the federal Courts derive their judicial power immediately from the constitution; but the political truth is, that the disposal of the judicial power, (except in a few specified instances) belongs to congress. If congress has given the power to this Court, we poscss it, not otherwise: and if congress has not given the pover to us, or to any other Court, it still remains at the legislative disposal. Besides, congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal Courts, to every subject, in every form, which the constitution might warrant.

are