Poydras de la Lande v. The Treasurer of Louisiana. 17 H.

Dunbar, for the motion.

Janin, contrà.

*TANEY, C. J., delivered the opinion of the court.

This case is brought here by writ of error directed to the supreme court of the State of Louisiana, under the 25th section of the act of 1789.

*2] *It appears that a proceeding was instituted in the state court by the treasurer of the State to recover certain taxes, alleged to be due from the plaintiffs in error, under a law of Louisiana, which imposes a tax of ten per cent. upon the amount of property inherited by aliens in that State.

The payment of the tax was resisted by the plaintiffs in error; but the case was finally decided against them in the supreme court of Louisiana; and they thereupon brought this writ of error, upon the ground that the authority exercised under the state law was contrary to the constitution and treaties of the United States.

The citation required by the act of 1789, was served on the treasurer, by whom and in whose name, as treasurer, the proceedings had been instituted and conducted, and in whose favor the judgment was entered.

A motion is now made to dismiss this writ of error, upon the ground that the State is the real party to the suit, in the name of the treasurer; and that the citation ought, therefore, to have been served on the chief executive magistrate and attorney-general of the State, according to the provisions of the tenth rule of this court.

But that rule applies to those cases only in which the State is a party on the record. It is intended to point out the officers who shall be held to represent the State when process is issued against it, so far as the service of the process is concerned. The only mode in which a State can be cited to appear, is by serving the process on some one or more of its officers; and those above named in the rule were considered by the court to be its appropriate representatives, in a summons or citation to appear in this court.

But the citation must be directed to the party on the record, and served on him. And when an officer of the State is the party prosecuting the suit for the State, the citation must be served on him. In this case, a notice or citation on the chief executive officer or attor ney general would not be sufficient; for the treasurer is the person who has obtained the judgment, and has the right to receive the money. He is the actor- the plaintiff in the suit. the plaintiff in the suit. And the chief executive officer and attorney-general do not represent him, and may or may not support his proceedings.

Shields v. Thomas. 17 H.

This rule of practice has been uniformly followed in this court. There have been many cases in which an officer of the State, acting in behalf of the State, has been one of the parties. And the tenth rule has never been applied to a case of that kind; and the citation has always been served on the officer, whether conducting the proceedings in his own name, or that of his office. The [3] practice is founded upon the language of the act of 1789, c. 20, which directs the "adverse party" to be cited, on a writ of error of appeal. The "adverse party" is the one which appeared in the suit, and who prosecuted or defended it, and in whose favor the judgment was rendered, which the plaintiff, in the writ of error, seeks to re


The motion to dismiss this writ of error must, therefore, be overruled.

JOHN G. SHIELDS, Appellant, v. ISAAC THOMAS and others.

17 H. 3.

A decree that the respondent, as administrator, is accountable to the representatives of the deceased for upwards of $2,000, may be appealed from by him, though the same decree apportions the amount among the complainants, and the distributive share of each is less than $2,000.

THE case is stated in the opinion of the court

Platt Smith, for the motion.

Gillett, contrà.

TANEY, C. J., delivered the opinion of the court.

This is an appeal from the decree of the district court of the United States, exercising the powers of a circuit court for the district


of Iowa. A motion has been made on behalf of Isaac [4] Thomas, one of the appellees, to dismiss it, upon the ground that the sum in controversy with him is less than $2,000. The facts in the case may be stated in a few words, so far as they are material to the decision of the motion.

John Goldsberry, of Kentucky, died intestate, leaving a large personal estate, to which the present appellees, together with other persons named in the proceedings, were entitled as his legal representatives, in the proportions set out in the proceedings. The widow of Goldsberry obtained letters of administration on his estate, and afterwards intermarried with Shields, the appellant, who thereby obtained possession of the property of the deceased.

Shields v. Thomas. 17 H.

The representatives of John Goldsberry, of whom Isaac Thomas, in right of his wife, is one, filed a bill in the chancery court of Kentucky, against Shields, charging that he had converted to his own use a large amount of the property, to which these representatives were entitled. And in that proceeding they obtained a decree against him for a large sum of money, the shares of the respective complainants being apportioned to them in the decree; and the appellant was directed to pay to each the specific sum to which he was entitled, as his proportion of the property misappropriated by Shields.

The appellant (Shields) lived in Iowa when this decree was made; and the present appellees, who are a portion of the representatives of John Goldsberry, united in the bill in equity now before us, to enforce the decree of the Kentucky court, and praying that Shields might be compelled to pay to them respectively the several sums decreed in their favor in the proceedings in Kentucky; and they obtained the decree in question, according to the prayer of their bill.

The whole amount recovered against Shields, in the proceeding in Iowa, exceeds $2,000. But the sum allotted to each representative who joined in the bill, was less. And the motion is made to dismiss, pon the ground that the sum due to each complainant is severally and specifically decreed to him; and that the amount thus decreed, is the sum in controversy between each representative and the appellant, and not the whole amount for which he has been held liable. And if this view of the matter in controversy be correct, the sum is undoubtedly below the jurisdiction of the court, and the appeal must be dismissed.

But the court think the matter in controversy in the Kentucky court, was the sum due to the representatives of the deceased collectively;

and not the particular sum to which each was entitled, when [*5] the amount due was distributed among them, * according to

the laws of the State. They all claimed under one and the same title. They had a common and undivided interest in the claim, and it was perfectly immaterial to the appellant how it was to be shared among them. He had no controversy with either of them on that point; and if there was any difficulty as to the proportions in which they were to share, the dispute was among themselves, and not with him.

It is like a contract with several to pay a sum of money. It may be that the money, when recovered, is to be divided between them in equal or unequal proportions. Yet, if a controversy arises on the contract, and the sum in dispute upon it exceeds $2,000, an appeal would clearly lie to this court, although the interest of each individual was less than that sum.

Shields v. Thomas. 17 H.

This being the controversy in Kentucky, the decree of that court, apportioning the sum recovered among the several representatives, does not alter its character when renewed in Iowa. So far as the appellant is concerned, the entire sum found due by the Kentucky court is in dispute. He disputes the validity of that decree, and denies his obligation to pay any part of the money. And if the appellees maintain their bill, he will be made liable to pay the whole amount decreed to them. This is the controversy on his part; and the amount exceeds $2,000. We think the court, therefore, has jurisdiction on the appeal.

The cases referred to stand on different principles. The case of Oliver and others v. Alexander and others, 6 Pet. 143, was a suit for seamen's wages. And although the crew are allowed by law, for the sake of convenience, and to save costs, to join in a suit for wages, yet the right of each seaman is separate and distinct from his associates. His contract is separate; and his recovery does not depend upon the recovery of others, but rests altogether on its own evidence and merits. And he does not recover a portion of a common fund to be distributed among the claimants, but the amount due to himself on his own separate contract.

The case of Rich and others v. Lambert and others, 12 How. 352, was decided on the same ground. The several shippers who owned the goods which had been damaged, had no common interest in the goods. The interest of each was separate; and his contract of affreightment separate. And the libel of each was upon his own contract with the ship-owner, and for his own individual and separate property.

The cases of Stratton v. Jarvis and Brown, 8 Pet. 8, and of Spear v. Place, 11 How. 525, were both salvage cases, where the property of each owner is chargeable with its own amount of salvage. *The salvage service is entire; but the goods of each owner | *6 ] are liable only for the salvage with which they are charged, and have no common liability for the amounts due from the ship or other portions of the cargo. It is a separate and distinct controversy between himself and the salvors, and not a common and undivided one, for which the property is jointly liable.

The cases relied on are, therefore, distinguishable from the one before us; and the motion to dismiss for want of jurisdiction must be overruled.

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Arthurs v. Hart. 17 H.

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JOHN ARTHURS, JOHN NICHOLSON, JONAS R. MCCLINTOCK, and WILLIAM STEWART, carrying on Business under the Firm and Name OF ARTHURS, NICHOLSON, AND Co., Plaintiffs in Error, v. JESSE HART.

17 H. 6.

Under the practice in Louisiana, it is not proper to spread upon the record any other evidence than what relates to the points of law raised at the trial, and intended to be reviewed on error; and this court will intend that the record contains all the evidence which bore on those points.

Though it has been held, (9 Pet. 182,) that the admission of evidence, where the judge tries both law and fact, is not a subject of a bill of exceptions, this is not true of the rejection of evidence.

In such a mode of trial, the counsel should present the legal propositions on which he relies, and the court should place on the record its rulings thereon.

It is not a defence to an action on a bill of exchange by an indorsee for value, against the acceptor, that the bill was drawn for work and labor done, and the acceptance made on the faith of the drawer's promise to make good certain defects in the work, which he had failed to do; though the indorsee had notice of these facts before he took the bill

THE case is stated in the opinion of the court.

Wylie, for the plaintiffs.

Lawrence, contrà.


[ *11 ] NELSON, J., delivered the opinion of the court.

This is a writ of error to the circuit court of the United States for the eastern district of Louisiana. The plaintiffs seek to recover the amount of a bill of exchange, drawn by the firm of Nicholson and Armstrong, upon the defendant, for $2,540.65, and accepted by him, in favor of James Arthurs and Brothers, dated March 1, 1848, and payable twelve months from date, and indorsed by the payees to the plaintiffs. The bill of exchange is set forth in the petition, according to the practice in the State of Louisiana, with a prayer that the defendant be condemned to pay the amount due. The defendant, in his answer, denies the allegations in the petition; and also sets up, that the bill was accepted for the balance of the price of a sugar-mill constructed by the drawers, for his plantation in West Baton Rouge; that the mill was badly constructed, and defective both in the workmanship and materials, and had failed in its operation to do the work intended; that on making known the defects to the drawers, they promised to send competent workmen, before the next ensuing season for grinding sugar, to make the necessary repairs, and put the mill in complete working order, at their own expense; that, confiding in this promise, the defendant accepted, unconditionally, the bill in question. The answer also sets forth, that

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