As to setting aside the judgment, the rule is, that a party may justify under a judgment. 6 Peters, 8; 10 Peters, 449; 6 Cranch, 173; 4 Dall. 8; 4 Cranch, 328.

The fact of an attorney's having authority to appear is not traversable. The only remedy to the party aggrieved is an action against the attorney. 1 Tidd, 95; 3 Howard, 343.

Mr. Crittenden, for the appellees, said that the objection to the jurisdiction of the court, founded on the allegation that there was a sufficient remedy at law, could not be maintained. How has this court lost this branch of its equity jurisdiction? In Pennsylvania, they try equity cases in an action of ejectment; but this court has not considered this as a sufficient reason for waiving its equity jurisdiction. So, in Louisiana, law and equity are all mixed up together. Besides, here is an equitable lien on the property for the cash payment, which can only be enforced in equity.

As to citizenship. The proof is, that the parties lived in Louisiana for three years, and built a house upon the property. We found them there. They claim the option of being citizens. A citizen of the United States residing in any State is a citizen of that State. 6 Peters, 762.

is impeached, it is for the other party to do it,
and they must do it clearly. There must be
the plainest evidence. Crawford is the only
witness. We might object to the interroga-
But he
tories. They are all leading ones.
shows that he had authority. He was em-
ployed to defend the suit. What suit? Against
both defendants. He refers to letters. Why
did he not produce them? Is there any evi-
dence that John M. Perry had no authority to
employ counsel? There is not. Why did he
not swear so? He was as good a witness as
Crawford. In an affidavit, John M. Perry
swears that he is the agent and attorney of
Lilburn P. Perry. A bond is signed L. P. Perry,
"by his attorney, John M. Perry." Crawford's
evidence is therefore only negative.

[Mr. Jones then proceeded to reply to the other arguments of Mr. Crittenden upon the facts of the case.]

!

Mr. Justice McLean delivered the opinion of the court:

This is an appeal in chancery from the Circuit Court for the Eastern District of Louisi

ana.

On the 10th of April, 1838, the complainants below sold to one Samuel Anderson a plantation and negroes situated in the parish of Madison, Louisiana, for seventy-five thousand dollars. Thirty-five thousand dollars of this sum were paid in part by surrendering a note which Anderson held against Lilburn P. Perry, the complainant, and his father, John M. Perry, for thirteen thousand dollars; and by the as

As to the judgment of Mosely and Bouldin. Perry was represented in court by an unauthorized attorney, and therefore the judgment does not bind him. 9 Wheat. 829; 1 T. R. 62; 2 Desaus. 280; Calwells v. Sheilds, 2 Rob. (Va.) 305; 6 Johns. 296; Ibid. 317, 318; 2 Watts, 493; 3 Pa. Rep. 75; Judge Grier says this has been overruled; 3 Robinson, 94; Code of Prac-signment of a note on H. R. Austin, J. B. tice, art. 605.

Even if the judgment was valid, the sale | was not made according to law. If the property was immovable, then the requisite notice has not been given. Code of Practice, art. 670. Slaves are considered immovable. Civil Code, art. 461. Here everything was sold, land, slaves, and notes. Civil Code, art. 462, 2424, 3249.

All formalities must be complied with in a forced sale. 3 La. Rep. 421; 4 Ib. 150, 207: 11 Martin, 610, 675; 8 N. S. 246.

183*] * The thing sold was the entire debt of $40,000. But it did not all belong to the defendant, and was bought for $5,000 by the very man who owned the $40,000, and who must have known that one half belonged to Tiffin. The evidence shows that Anderson knew that the first note had been indorsed to Tiffin. [Mr. Crittenden here referred to and commented upon it.]

By the civil Code, art. 2622, Anderson must be a trustee for his vendor, who can reclaim the property by repaying what it cost. Story, Eq. secs. 789, 1211, 1212, where cases are cited; Grattan's Rep. 188; 2 Mylne & Craig, 361; 7 Dana, 46; Civil Code, art. 21, 1958-1960, 2619.

[Mr. Crittenden then commented upon the proceedings of the Parish Court.]

Mr. Jones, in reply and conclusion:

As to the judgment of Mosely and Bouldin. It is objected, that the defendant never was served with process; but that is cured by an appearance. Was there one? The record says yes. A sworn attorney appeared and answered for both defendants. If the correctness of this

Ragan, and Wylie Bohannon, of the State of *Mississippi, for eighteen thousand two [*184 hundred eighty-two dollars and sixty-five cents, payable to Samuel Anderson on the 1st of April, 1839.

or

A mortgage was executed on the plantation and slaves, to secure the payment of forty thousand dollars, the residue of the purchase money. At the same time, three notes bonds were executed to Lilburn P. Perry by Samuel Anderson, each for the sum of thirteen thousand three hundred and thirty-three dollars, payable on the first day of January, 1842, 1843, and 1844.

On the 11th of January, 1839, Mosely and Bouldin, citizens of Virginia, instituted a suit in the Circuit Court against L. P. Perry and John M. Perry, and obtained a judgment against them for seven thousand five hundred dollars. An execution was issued, in virtue of which, under the laws of Louisiana, the marshall levied upon the three notes above stated and the mortgage, which were sold by him, on a credit of twelve months, to Samuel Anderson, the mortgager, for five thousand dollars.

Some time after this purchase, Robert Anderson, the father of Samuel, and Nelson F. Shelton, his uncle, having procured a judgment against Samuel Anderson in the State court of Louisiana, sold the mortgaged property and slaves, and they became the purchasers thereof and have the possession of the plantation and slaves under the purchase, claiming that the mortgage by Anderson to Perry has been extinguished.

The decree of the Circuit Court was entered against Samuel Anderson, Robert Anderson,

unsustainable.

and Nelson F. Shelton et al., that within sixty | citizen of Louisiana, within the act of Congress, days they should pay to the complainants forty so as to give jurisdiction to the Circuit Court. thousand dollars, with interest from the first The defendants also demur to the plaintiff's day of January, 1842, and in default of such bill, on the ground that the complainants have payment that they should deliver to the com- plain and adequate relief at law. The demurrer plainants the possession of the plantation and is clearly slaves. From this decree Shelton only has ap- Fraud is alleged in the bill, and relief is prayed pealed. against a judgment and a judicial sale of the property in controversy. These and other matters stated in the bill show that if the complainants shall be entitled to relief, a court of equity only can give it.

The defendants pleaded that the Circuit Court had no jurisdiction of the case, as Mosely and Bouldin, Robert Anderson, and Shelton were citizens of Virginia, and the complainants were citizens of Missouri. Shelton being the only appellant, the objection of citizenship must be limited to him.

Under the act of Congress, jurisdiction may be exercised by the courts of the United States "between a citizen of the State where the suit is brought and a citizen of another State." "But no person shall be arrested in one district for trial in another, in any civil action." If Shelton be not a citizen of Louisiana, having raised the question of jurisdiction by a plea, this suit cannot be sustained against him.

In the declaration or bill an allegation of citizenship of the parties must be made, as it has been held that an averment of 185*] *residence is insufficient. But the proof of citizenship, when denied, may be satisfactory, although all the privileges and rights of a citizen may not be shown to have been claimed or exercised by the individual.

Shelton and wife, they having no children, became residents of Louisiana in the fall of 1840, more than two years before the commencement of this suit. Since their residence commenced, they have been absent from the State only once, a short time, on a visit to a watering place in Mississippi. They have resided the greater part of the time on the plantation in controversy, cultivating and improving it by the labor of the slaves. Within this time, a more comfortable and secure dwellinghouse has been constructed. In the winter of 1840 or 1841, Shelton observed to a witness, that he considered himself a resident of the State of Louisiana.

There is no proof that he has voted at any election in Louisiana, or served on a jury. At one time he refused to vote, but that was after this suit was commenced. Some of the witnesses say that he sometimes spoke of return ing to Virginia, whether on a visit or to reside there permanently does not appear.

Where an individual has resided in a State for a considerable time, being engaged in the prosecution of business, he may well be presumed to be a citizen of such a State, unless the contrary appear. And this presumption is strengthened where the individual lives on a plantation and cultivates it with a large force, as in the case of Shelton, claiming and improving the property as his own.

The great question in the case arises out of the judicial sale *of the mortgage debt [*186 to Anderson, the mortgagor, under a judgment obtained by Mosely and Bouldin against L. P. Perry and John M. Perry. If by this sale the mortgage debt has been extinguished, no relief can be given to the complainants. judgment jurisdiction of the case? The plaintiffs were citizens of Virginia, John M. Perry was a citizen of Louisiana, and L. P. Perry of Missouri. No process was served upon L. P. Perry, nor does it appear that he had notice of the suit until long after the proceedings were had. But there was an appearance by counsel for the defendants, and defense was made to the action. This being done by a regularly practicing attorney, it affords prima facie evidence, at least, of an appearance in the suit by both the defendants. Any individual may waive process, and appear voluntarily.

Had the Circuit Court which rendered that

John M. Perry acted in some matters as the agent of L. P. Perry; but it does not appear that he had authority to waive process and defend the suit. And Crawford, the attorney, testified, that "he had no recollection of having received any authority directly or indirectly from L. P. Perry, or from anyone in his behalf, to defend the suit. He received a letter from John M. Perry, informing him that he would see upon the records of the court of the United States a suit commenced against him and others by Mosely and Bouldin, and he wished to employ him to defend it." And he says, that "he regards his appearance on behalf of any other person than John M. Perry in said suit as an inadvertence on his part."

This evidence does not contradict the record, but explains it. The appearance was the act of the counsel, and not the act of the court. Had the entry been, that L. P. Perry came personally into court and waived process, it could not have been controverted. But the appearance by counsel who had no authority to waive process, or to defend the suit for L. P. Perry, may be explained. An appearance by counsel under such circumstances, to the prejudice of a party, subjects the counsel to damages; but this would not sufficiently protect the rights of the defendant. He is not bound by the proceedings, and there is no other principle which can afford him adequate protection. The judgment, therefore, against L. P. Perry must be considered a nullity, and consequently did not authorize the seizure and sale of his property.

On a change of domicil from one State to another, citizenship may depend upon the intention of the individual. ~ But this intention may be shown more satisfactorily by acts than declarations. An exercise of the right of suffrage is conclusive on the subject; but acquiring a An execution sale under a fraudulent judgright of suffrage, accompanied by acts which ment is valid, if the purchaser had no knowlshow a permanent location, unexplained, may edge of the fraud. But in this case L. P. Perry be sufficient. The facts proved in this case was not amenable to the jurisdiction of the authorize the conclusion, that Shelton was a court, and did no act to authorize the judg

ment.

He cannot, therefore, be affected by it, or by any proceedings under it. 187*] *In this view, it is unnecessary to consider the objections to the procedure under the execution. The debt of forty thousand dollars was sold as the property of L. P. Perry, when one of the notes had been assigned to Tiffin, and an equal interest in the other two belonged to him. Of this Anderson, the purchaser, had notice. It would be difficult to sustain this sale on legal principles. Anderson, it is insisted, at the marshal's sale, purchased a "litigious right," and by article 2622 of the Civil Code, "he against whom a litigious right has been transferred may be released by paying the transferee the real price of the transfer, together with interest from its date.”"

this petition had been discontinued for more than a year, when Anderson filed his answer, setting up his purchase of the notes under a judicial sale, and that the mortgage debt was extinguished. And on this case, made in the answer in no way responsive to the petition, which had long before been abandoned, the parish judge, on motion, founded his decree that the mortgage debt was extinguished, and directed the notes to be delivered up.

It is difficult to characterize in proper terms this proceeding of the State court. The petition having been abandoned, there was no pretense of jurisdiction for the subsequent steps taken at the instance of Anderson. There was nothing in the petition, had it not been abandoned, which would have authorized such a The judgment being void for want of juris- procedure. The circumstances under which diction in the court, no right passed to Samuel this judicial action was had show a fraudulent Anderson under the marshal's sale; consequent-contrivance, on the part of Anderson, to defeat ly the mortgage remains a subsisting lien. Nor his adversaries by the interposition of the is this lien affected by the mortgage subse- State court. The whole case was pending in quently executed by Samuel to his father, the Circuit Court of the United States, and Robert Anderson, and his uncle, Shelton. After this interference of the State court was wholly the mortgage to the complainants was sup- unauthorized and void. posed to be extinguished by the judicial sale, Robert Anderson and Shelton procured in a State court a foreclosure of their mortgage which had been previously given on the plantation and slaves, and they became the purchasers at the sale for thirty-six thousand dollars. If this procedure were bona fide, the purchase was made subject to the prior mortgage.

The Mississippi note for eighteen thousand two hundred and sixty five dollars, which was assigned to complainants in part payment of the purchase money, was worthless. The parties to it were insolvent when it was assigned to the complainants, which fact was known to the assignor, Samuel Anderson. He acted fraudulently in representing the note to be good, when he knew it was valueless. By his own confession, after the assignment, the fraud is established.

It is insisted, that, this note having been imposed upon the complainants as a good note, by the fraudulent representation of Anderson, they as vendors have an equitable lien on the plantation and slaves for the amount of it. If the receipt of a note of a third person in payment of the purchase money be a waiver of an equitable lien on the real estate conveyed, yet it would seem, where a fraud had been practised in the assignment of the note, there would be no waiver. But however this may be, it is not strongly urged, as it is believed that the mortgage debt, with the interest, will be nearly equal to the value of the plantation.

On the 23d of November, 1839, a bill was filed in the District Court for the parish of Madison, by L. P. Perry, against Samuel Anderson, representing the debt due, secured by mortgage, and that he was in possession of the plantation and slaves; and, fearing that he might remove the slaves or other property, an attachment was prayed. No service was made of this writ, and the suit was discontinued, the 28th of November, 1839. A judgment seems to have been irregularly entered by default, the 17th of November, 1840, and on the next day an answer was filed by Anderson, setting up the sale and extinguishment of the mortgage debt, and praying that the notes and mortgage might be decreed as extinguished, and be delivered up. Afterwards, on the 20th of May, 1841, this suit was dismissed by the order of The history of this case shows a successful the court. And on the 19th of May, 1842, course of fraudulent combination, rarely exmotion having been previously made and ar-hibited in a court of justice. Samuel Anderson gued in the District Court, on proof that purchased the plantation and slaves of the "the defendant, Samuel Anderson, since the complainant, *for seventy-five thou- [*18 9 institution of this suit has become the true and sand dollars. He gave up a note on L. P. legal owner of the three notes sued on, and the Perry for thirteen thousand dollars, which was indebtedness set forth in plaintiff's petition in fact the only payment of any value. The having been extinguished by confusion, the court decreed that they should be delivered up." Mississippi note was worthless, and the mortAnd this decree is relied on as a bar to the gage debt he purchased, on a credit of twelve months, for five thousand dollars. He must. present suit. have received more than that sum as the product of the plantation. So that in fact he acquired the plantation and negroes for thirteen thousand dollars, which which he purchased at seventy-five thousand dollars. By this operation he saved of the purchase money sixty-two thousand dollars. Such a result must strike everyone as having been procured through fraud.

At the time the above decree was made, this 188*] suit was pending *in the Circuit Court, to enforce the payment of the notes directed to be given up by the District Court. The object of the petition before that court was not the recovery of the money, for the notes were not due when it was filed, but to prevent Samuel Anderson from moving the negroes, wasting the crops, etc., on the plantation. But

It is unnecessary to consider the means | WILLIAM T. PEASE (impleaded with John through which Robert Anderson, the father of Chester and Tarleton Jones), Plaintiff in Samuel, and his uncle Shelton, acquired title Error. to the above property. The lien of the complainant's mortgage is paramount to any title or lien which they assert.

No deduction will be made from the mortgage for the five thousand dollars which Samuel Anderson may have paid to Mosely and Bouldin, under whose judgment he purchased the mortgage debt. He has received from the products of the plantation, while in possession of it, more than that sum. But if this were not the case, his fraudulent act in the transfer of the Mississippi note is a sufficient ground for the refusal of the credit.

In their decree, the Circuit Court directed the interest from the first day of January, 1842. sum of forty thousand dollars to be paid, with

In this the court erred. The three notes were

each for thirteen thousand three hundred and
thirty-three dollars; the first being payable the
first of January, 1842, the second, the first of
January, 1843, and the third, the first of Janu-
ary, 1844.
The interest should have been
calculated on the notes from the time they re-
spectively became due. With this modification
of the decree of the Circuit Court, a decree will
be here entered, to be transmitted to the
Circuit Court, and if the money shall not be
paid within ninety days from the filing of this
decree in the Circuit Court, the mortgage shall
be foreclosed, and the complainants put in pos-
session of the property.

Order.

V.

WILLIAM DWIGHT.

To support title to, indorsee of promissory note may show that one appearing as payee never had any interest therein.

der of several persons, the name of one of whom
Where a promissory note was payable to the or-
was inserted by mistake, or inadvertently left on
when the note was indorsed and delivered by the
real payees, one of whom was also the maker of
the note, the indorsee had a right to recover upon
the note, although the names of all the payees
were not upon the indorsement, and had a right,
also, to prove the facts by evidence.

THIS Case Wise uit Court of the United States
was brought up by writ of error
from the Circuit
for the District of Michigan.

On the 1st of January, 1837, the following promissory note was executed:

Detroit, January 1, 1837. Two years from date I promise to pay to the order of Walter Chester and Pease, Chester & Co. one thousand five hundred dollars, for value received, at the Farmers' and Mechanics' Bank of Michigan, with interest. (Signed)

John Chester.

Indorsed by Pease, Chester & Co. but not by Walter Chester.

posed of William T. Pease (the plaintiff in

The firm of Pease, Chester & Co. was com

error), John Chester, and Tarleton Jones.

*The note having passed into the [*191 hands of William Dwight, a citizen of Massachusetts (the defendant in error) and not being paid at maturity, Dwight brought suit in the Circuit Court against Pease, Chester, and Jones. The course which Pease took will be stated presently. Chester pleaded bankruptcy, which was demurred to, but the demurrer overruled, and the plea sustained. Jones was a citizen of Illinois, and could not be found.

There were several counts in the declaration, but the only one upon which judgment was rendered, and which it is material now to state, was the following:

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel; on consideration whereof, it is the opinion of this court, that the said Circuit Court erred in directing the interest to be computed on the ($40,000) forty thousand dollars from the first day of January, 1842, instead of computing the interest on 190*] each of the three several notes for "For that whereas one John Chester hereto($13,333.331) thirteen thousand three hundred fore, to wit, on the first day of January, in the and thirty-three dollars and thirty-three and a year of our Lord one thousand eight hundred third cents from the times the said notes re-and thirty-seven, at Detroit, in said district, spectively became due; and that if the money made his certain promissory note in writing, shall not be paid within ninety days from the bearing date the same day and year aforesaid, filing of the inandate of this court in the said and thereby then and there promised, two Circuit Court, that then the said mortgage years from the date thereof, to pay to the shall be foreclosed, and the complainants put order of Walter Chester and the said defendin the possession of the property, and that in ants, until the copartnership name and style of that case the equity of redemption therein be these said defendants, Pease, Chester & Co., one forever barred and precluded; and that if the thousand five hundred dollars, for value resaid money, with interest as aforesaid, be duly ceived, at the Farmers' and Mechanics' Bank of paid as aforesaid, that then the said mortgage Michigan, with interest; and then and should be held discharged, and Nelson F. Shel- there delivered the said promissory note ton put in possession of the said property, to the defendants; who then and there, Whereupon it is now here ordered, adjudged using their copartnership name and style and decreed by this court, that the decree of of Pease, Chester & Co., indorsed said the said Circuit Court in this cause be, and note, and delivered the same to the plaintiff; the same is hereby reversed; that each party pay his own costs in this court, and that this cause be, and the same is hereby remanded to the said Circuit Court, to be proceeded with in conformity to the opinion of this court, and as to law and justice shall appertain.

NOTE. Transfer of bills and notes by delivery or assignment-obligation of assignor or transferrer.

The assignor of the legal title, although not a party to the bill or note payable to bearer, or indorsed in blank, where the assignment is by delivery and the paper is transferable by delivery, is