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Piquignot v. The Pennsylvania Railroad Co. 16 H.

PIERRE CLAUDE PIQUIGNOT, Plaintiff in Error, v. THE PENNSYLVANIA RAILROAD COMPANY.

16 H. 104.

An averment that the plaintiff is an alien, and the defendants "The Pennsylvania Railroad Company," without saying whether a corporation or not, will not support the jurisdic

tion.

ERROR to the circuit court of the United States for the western district of Pennsylvania.

Kennedy and Alden, for the plaintiff in error.

Snowden, contrà.

[* 105 ] * GRIER, J., delivered the opinion of the court.

The caption of this suit, and the declaration, describe the plaintiff as a citizen of France, but contain no averment as to the citizenship of the defendant. Nor does it state whether "The Pennsylvania Railroad Company" is a corporation or a private association, or the name of an individual. The declaration avers that the defendants are transporters of emigrants for hire, and undertook to convey the plaintiff and his wife from Philadelphia to Pittsburg, but did it in such a negligent and careless manner, that his wife was frozen to death on her passage. The defendant pleaded in abatement, another action pending for the same cause of action between the same parties, in the district court of Alleghany county. To this plea the plaintiff demurred; and the court gave "judgment upon the demurrer in favor of the defendants." Whereupon the plaintiff brought this writ of error.

The question raised by the plea in abatement, in this case, is one of considerable importance, and on which there is some conflict of opinion and decision, but the judgment of the court below on the plea is not subject to our revision on a writ of error.

The twenty-second section of the judiciary act, which defines what decrees or judgments in civil actions may be made the subjects of appeals or writ of error, provides, "that there shall be no reversal on such writ of error, for error in ruling any plea in abatement other than a plea to the jurisdiction of the court."

The question of jurisdiction has not been made the subject of plea or exception, nor is it necessary, where it is patent on the face of the record. The judgment of the court, so far as the record is concerned, does not distinctly show whether the court quashed the writ on the plea in abatement, or dismissed the suit for want of jurisdiction, as it might well have done. In Pennsylvania, it is not usual to make a

Robertson v. Coulter. 16 H.

record of the judgment in legal form. The word "judgment" for the party in whose favor it is, being the usual minute made by the clerk, from which a formal record of judgment may be made, but seldom or ever is made. It stands as a symbol to represent what the judgment ought to be, and therefore can never be erroneous. But there is no necessity that the courts of the United States should fol low such careless precedents.

On a demurrer, the court will look to the first error in pleading, and if the declaration does not show that the court has jurisdiction of the parties, it may dismiss the cause on that ground. In this case the declaration states the plaintiff to be a citizen of France, but gives no character as to the citizenship of the defendant. The name

is most probably not intended to *designate an individual; [* 106] if not, the record does not state that it is a corporation incorporated by the laws of Pennsylvania, or having its place of business there, or that its corporators, managers, or directors are citizens of Pennsylvania, nor can the want of such averment be supplied by inference from the name. It is true, the act of congress' describes the jurisdiction of the court to be "where an alien is a party," without describing the character of the other party; and the pleader may have been led into the error by looking no further. But the constitution which is the superior law, defines the jurisdiction to be "between citizens of a state, and foreign states, citizens, or subjects;" and although it has been decided, (Mason v. The Blaireau, 2 Cranch, 264,) that the courts of the United States will entertain jurisdiction where all the parties are aliens, if none of them object to it, yet it does not appear in this case that the defendant is an alien.

It follows, therefore, that whatever construction be put on this record, the judgment of the court below must be affirmed.

19 H. 393.

WILLIAM ROBERTSON, Trustee of the Commercial Bank of Natchez, Plaintiff in Error, v. HENRY R. COULTER, and JAMES RICHARDS, Executors of JOSEPH COLLINS, deceased.

16 H. 106.

The question whether a person, appointed a trustee of a banking corporation, under the authority of a statute of a State, has power to sue on a note held by the bank, after he has collected enough to pay its debts, cannot be brought to this court under the 25th section of the judiciary act of 1789, (1 Stats. at Large, 85.)

11 Stats. at Large, 73.

Robertson v. Coulter. 16 H.

Lawrence, in support of the motion.

Porter and Wharton, contrà.

[ * 112 ]

TANEY, C. J., delivered the opinion of the court. This case is brought here by writ of error directed to the high court of errors and appeals of the State of Mississippi, under the 25th section of the act of 1789; upon the ground that a law of that State, under which this decision was made, impairs the obligation of contracts.

It is an action of assumpsit. The plaintiff declares on a promissory note made by Collins, in his lifetime, to the Commercial Bank of Natchez. The declaration avers that after the execution of the note, and before the commencement of this suit, a judgment of forfeiture was rendered against the bank on the 12th of December, 1845, according to a statute of the State, in such case made and provided; and that the plaintiff was appointed by the court trustee, and as such took possession of this note; and that by means thereof, and by force of the statute of the State, Collins became liable to pay him the money.

*

The defendants pleaded that the plaintiff, as trustee, had [113] collected and received of the debts, effects, and property of the bank, an amount of money sufficient to pay the debts of the bank, and all costs, charges, and expenses incident to the performance of the trust. To this plea the plaintiff demurred.

The court of appeals overruled the demurrer, and gave judgment for the defendant, upon the ground that the plea was a full and complete bar to the enforcement of the right set out in the declaration. And this judgment is now brought here for revision by writ of error.

A motion has been made to dismiss the writ for want of jurisdiction. And in the argument of this motion, a question has been raised whether, by the common law, the debts due to a bank at the time of the forfeiture of its charter, would not be extinguished upon the dissolution of the corporation, and the creditors without remedy. And cases have been referred to in the Mississippi Reports, in which it has been decided that, by the common law, previous to any state legislation on the subject, upon the dissolution of a banking corporation, its real estate reverted to the grantor, and its personal property belonged to the State; that the debts due to it were extinguished, and the creditors without remedy against the assets or any of them which belonged to the bank at the time of the forfeiture.

But this question is not before us upon this writ of error, and we express no opinion upon it. The suit is not brought by a creditor of

Robertson v. Coulter. 16 H.

the bank, seeking to recover a debt due to him by the corporation at the time of its dissolution. But it is brought by a trustee appointed by a court of the State, under the authority of a statute of the State; and the question before the state court, which the pleadings presented, was whether the trustee was authorized, by the law under which he was appointed, to collect more money from the debtors of the corporation than was necessary to pay its debts, and the expenses of the trust.

Now, in authorizing the appointment of a trustee, where a banking corporation was dissolved, the State had undoubtedly a right to restrict his power within such limits as it thought proper. And the trustee could exercise no power over the assets or credits of the bank beyond that which the law authorized. The court of appeals, it appears, decided that the statute did not authorize him to collect more than was sufficient to pay the debts of the corporation and the costs and charges of the trust. And, as the demurrer to the plea admitted that he had collected enough for that purpose, the court held that he could not maintain a suit against the defendants to

recover more.

The question, therefore, presented to the state court was merely as to the powers of a trustee, appointed by virtue of a statute of Mississippi. His powers depended upon the construction of

*the statute. And we have no right to inquire whether the [ * 114 ] state court expounded it correctly or not. We are bound to receive their construction as the true one. And this statute, as expounded by the court, does not affect the rights of the creditors of the bank or the stockholders. The plaintiff does not claim a right to the money under a contract made by him, but under the powers and rights vested in him by the statute. And if the statute clothes him with the power to collect the debts and deal with the assets of the bank to a certain amount only, and for certain purposes, we do not see how such a limitation of his authority interferes in any degree with the obligation of contracts.

The writ of error to this court must consequently be dismissed for want of jurisdiction.

Chapman v. Smith. 16 H.

REUBEN CHAPMAN, Governor, &c., for the Use of JOHN B. Leavitt, and RUFUS LEAVITT, Plaintiff in Error, v. ALEXANDER SMITH, BOLLING HALL, MALCOLM SMITH, and JOHN G. GRAHAM.

16 H. 114.

Where the facts put in issue, by an assignment of a breach of a sheriff's bond, have been once tried on an issue made up according to a law of the State, they cannot be again drawn in question; and as it is a question of law, on comparison of the records, whether they were in issue, a replication which attempts to put this question to the jury, is bad. In a proceeding against a sheriff for not making the money out of goods returned as seized, he may show, in defence, that the goods did not belong to the debtor, but to a third person.

THE case is stated in the opinion of the court.

Prior, for the plaintiffs.

Badger, contrà.

[ * 130 ]

NELSON, J., delivered the opinion of the court.

This is a writ of error to the district court of the United States for the middle district of Alabama.

The suit was brought upon an official bond given by Alexander Smith, as sheriff of Coosa county, and his sureties, conditioned that he would well and truly perform all and singular the duties of his office, as required by the laws of the State.

The declaration sets out a judgment recovered by J. W. and B. Leavitt at the fall term of 1839, in the circuit court of the second circuit of the State of Alabama, against Jeremiah M. Frion, for the sum of $3,472; also an execution upon the same issued to the said Smith, as sheriff.

Fourteen breaches of the condition of the bond are assigned, for the purpose of charging the defendant and his sureties with the payment of the judgment.

In order to understand the purport and legal effect of these breaches, and the pleadings which follow them, it is proper to refer to two provisions in the statutes of Alabama that have a material bearing on the subject. One is, that when the sheriff shall levy an execution on property claimed by a person not a party to the execution, such person may make oath that he is the owner; and thereupon it shall be the duty of the sheriff to postpone the sale until the next term of the court; and such court shall require the parties concerned to make up an issue, under such rules as it may adopt, so as to try the right of property before a jury at the same term; and the sheriff shall make a return on the execution accordingly, provided the person claiming such property, or his attorney, shall give a bond to the sheriff, with

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