6 How. 7-11

Notes on U. S. Reports.

602

436, statutes of Minnesota concerning depositions must be followed in the Federal courts; Fowler v. Hecker, 4 Blatchf. 426, F. C. 5,001, a defendant made liable, by State statute, to examination as witness for plaintiff, may be punished for contempt in not obeying subpœna issued by Federal court; United States v. Dunham, 25 Fed. Cas. 939, where defendants were competent, under State law, to testify in their own behalf, their evidence admissible in Circuit Court; Nelson v. First Nat. Bank, 69 Fed. 801, 32 U. S. App. 554, in accordance with State statute a certificate of protest is competent evidence in a Federal court sitting in Minnesota.

Distinguished in Potter v. National Bank, 102 U. S. 165, 26 L. 112, holding the Federal statutes forbid the exclusion of a witness upon the ground that he is a party to, or interested in, the issue, except in a certain class of actions.

Appeal and error.- Continuance of a cause, or the refusal to continue rests in the sound discretion of the court in which the motion is made, and cannot be reviewed by writ of error, p. 6.

Cited and approved in Spencer v. Lapsley, 20 How. 267, 15 L. 904, applying this rule where the Circuit Court refused permission to amend pleadings by filing a formal plea in abatement; Texas & P. Ry. Co. v. Nelson, 50 Fed. 815, 2 U. S. App. 213, refusing continuance because of absence of material witnesses, without regard to practice of State courts; Richmond Ry. Co. v. Dick, 52 Fed. 380, 8 U. S. App. 99, holding refusal of motion for continuance by Circuit Court, not reviewable by Circuit Court of Appeals; Davis v. Patrick, 57 Fed. 913, 12 U. S. App. 629, to the same effect; Baker v. Texarkana Nat. Bank, 74 Fed. 601, 41 U. S. App. 185, refusal of application of intervenor, made after commencement of trial, for continuance in order to bring intervention to an issue, is not reviewable by appellate court.

Modified in Welch v. County Court, 29 W. Va. 68, 1 S. E. 340, whenever it appears that the discretion exercised was not a pure discretion, but a sound judicial discretion, which has been abused or is in violation of established rules, it is subject to review. See valuable note, 74 Am. Dec. 142.

Miscellaneous. Cited in Harris v. Wall, 7 How. 706, 12 L. 880,

arguendo.

6 How. 7-11, 12 L. 321, GWIN v. BARTON.

A marshal and his sureties must be sued as directed by act of Congress, p. 10.

Cited and approved in Feibelman v. Packard, 109 U. S. 424, 27 L. 985, 3 S. Ct. 290, holding action against a United States marshal for seizing a stock of goods, may be removed to the Federal courts; Merryfield v. Jones, 2 Curt. 307, F. C. 9,486, a court of equity cannot order the complainant and his sureties on an injunction bond, to

pay damages sustained by reason of injunction, defendant must resort to action on bond.

Marshal — Federal process law. In an action against a United States marshal upon his official bond, Federal courts cannot enforce the payment of a penalty imposed by the State law, p. 10.

Cited and principle applied in Huntington v. Attrill, 146 U. S. 673, 36 L. 1129, 13 S. Ct. 230, where the courts of one State declare a statute of another State penal, and, therefore, not enforceable, the Federal courts cannot interfere; Lowry v. Story, 31 Fed. 770, Federal courts cannot enforce penalties against Federal officers for neglect of duties imposed by State laws on county officers; Ferguson v. Ross, 38 Fed. 163, 3 L. R. A. 324, and n., an action to recover penalty imposed by State act for depositing prohibited materials in harbor, may not be removed to Federal courts.

Distinguished in Leak Glove Manufg. Co. v. Needles, 69 Fed. 70, 71, 32 U. S. App. 461, where certain statutes of Arkansas were adopted for Indian Territory, provisions relating to penalties are enforceable in Federal courts.

6 How. 11-14, 12 L. 323, UNITED STATES v. DANIEL.

Actions, survival of.— An action on the case will not lie against the executors of a deceased marshal, where the marshal had made false returns on certain executions and imperfect and insufficient entries on others, pp. 13, 14.

Cited and followed in Mitchell v. Hotchkiss, 48 Conn. 19, 40 Am. Rep. 149, holding action against officer of a corporation to recover penalty for failure to file annual certificate, does not survive; Stebbins v. Dean, 82 Mich. 387, 46 N. W. 778, right of action against widow who secured her husband's lands in fraud of the rights of his heirs, does not survive. Cited, arguendo, in Pegram v. Stortz, 31 W. Va. 236, 6 S. E. 494, holding a wife may maintain an action against person furnishing her husband liquor, for the damages sustained by her.

Distinguished in Jones v. Vanzandt, 4 McLean, 600, F. C. 7,503, holding, under Ohio law, adopted by Congress, trespass on the case will survive against an administrator, for wrongful acts whereby plaintiff lost services of slaves; Aldrich v. Howard, 8 R. I. 129, 86 Am. Dec. 618, under statute, an action for unlawfully erecting a stable, thereby creating a nuisance, may be prosecuted against an executor.

Actions, survival of. If the person charged has received no benefit to himself at the expense of the sufferer, the cause of action does not survive, but where property is acquired which benefits the testator, an action for its value survives against the executor, p. 13.

6 How. 14-22

Notes on U. S. Reports.

604

Cited and rule applied in Smith v. Baker, 22 Fed. Cas. 450, holding a person's equitable liability as an infringer not determined by his death; Tufts v. Matthews, 10 Fed. 611, an action for deceit does not survive, and is, therefore, not assignable; United States v. De Goer, 38 Fed. 82, penalty for fraudulent undervaluation of imported goods cannot be enforced against an administrator; Head v. Porter, 70 Fed. 502, a bill for infringement of a patent, praying for an injunction and an account of profits, survives; Griswold v. Hilton, 87 Fed. 257, to the same effect; Vittum v. Gilman, 48 N. H. 416, a cause of action against a physician, arising from want of care or skill, does not survive; Yearteau v. Bacon, 65 Vt. 527, 27 Atl. 201, the right of action to recover money paid for intoxicating liquor unlawfully sold, survives. See note, 1 Am. Dec. 562.

Miscellaneous.- Cited in Rogers v. Bonnett, 2 Okl. 559, 37 Pac. 1080, but not in point.

6 How. 14-22, 12 L. 324, COLLIER v. STANBROUGH.

Federal process. Whether or not a foreign creditor can issue an execution obtained in a Federal court against the executor or administrator of an insolvent estate, to the exclusion of other creditors, quære, p. 21.

Cited, arguendo, in Erwin v. Lowry, 7 How. 181, 12 L. 659, approving Dupuy v. Bemiss, 2 La. Ann. 509, as accurately setting forth the relative powers and duties of State and Federal judiciaries in Louisiana; German Sav. & Loan Soc. v. Cannon, 65 Fed. 544, follows Erwin v. Lowry, supra, holding a lien upon specific property entitling lienholder to a special remedy, may be applied in proceedings against executor or administrator.

Appeal and error.- If the judgment of a State court was proper for reasons there given, or upon other grounds manifestly appearing from the record, equally calling into exercise the jurisdiction of the Supreme Court, it will be affirmed, p. 21.

Approved in Erwin v. Lowry, 7 How. 180, 12 L. 658, holding marshal's sale not void upon grounds decided below, or upon any legal ground.

Marshals Judicial sale.- A sale in Louisiana, by a marshal, made without an appraisement of the property, as required by the State law and rule of the Circuit Court, is void, p. 22.

Cited and followed in Sprott v. Reid, 3 G. Greene, 497, 56 Am. Dec. 556, holding where execution issued under valuation law, a sale at a nominal price, without regard to valuation, is void; Maple v. Nelson, 31 Iowa, 325, sale of real estate under execution, for less than two-thirds of appraisement value, is invalid; Capital Bank v. Huntoon, 35 Kan. 592, 11 Pac. 377, to the same effect; Stockton v. Stanbrough, 3 La. Ann. 390, a sale under execution of promissory notes, made without appraisement, is void.

Modified in Erwin v. Lowry, 7 How. 182, 12 L. 659, a sale cannot be impeached because formal steps were not strictly complied with, where the debtor by his acts and presence sanctioned it.

Miscellaneous. Cited in Stanbrough v. M'Call, 4 La. Ann. 323, reviewing the various controversies between the parties to the litigation.

6 How. 23-31, 12 L. 328, BAILEY v. DOZIER.

Bills and notes.— Where a bill has been duly presented and dishonored, and a minute, made at the time of the steps taken, the protest may be drawn up afterwards, p. 29.

Cited and followed in Billingsley v. State Bank, 3 Ind. 378, holding, where protest was written and signed on day that payment was refused, and sealed several months afterwards, but before trial, the protest was completed in time; Estep v. Cecil & Co., 6 Ohio St. 537, a certificate of protest may be corrected; Union Nat. Bank v. Williams Milling Co., 76 N. W. 2 (Mich.), certificate of protest made six months after actual protest, presumptive evidence of facts stated.

Bills and notes.-In Mississippi, a protest is not essential to enable the indorsee of an inland bill to recover the amount of it, upon giving the customary proof of default and notice, p. 29.

Confirmed and applied, in Wanzer v. Tupper, 8 How. 235, 12 L. 1061, in action by holder of bill of exchange against indorsers; Brown v. Wilson, 45 S. C. 532, 55 Am. St. Rep. 784, 23 S. E. 634, where the maker and payee of a promissory note reside in the same State, protest is unnecessary, in order to charge indorsers. See note, 43 Am. Dec. 219, 223, 96 Am. Dec. 607.

Plea of non-assumpsit in bar of an action, operates as a waiver of pleas to the jurisdiction, p. 30.

Cited and rule applied in Dred Scott v. Sandford, 19 How. 519, 15 L. 748, per Catron, J., holding plea in abatement waived by pleas to the merits; Spencer v. Lapsley, 20 How. 267, 15 L. 904, refusal of court below to allow plea in abatement to be filed in connection with pleas in bar, not subject to review; De Sobry v. Nicholson, 3 Wall. 423, 18 L. 264, a motion to dismiss for want of proper citizenship, cannot be made after pleading general issue and special defenses. Cited in note on jurisdictional question, 1 McCrary, 86.

6 How. 31-40, 12 L. 331, BANK OF THE UNITED STATES v. MOSS.

Federal courts.- Special counts on promissory notes are not sufficient to give jurisdiction to a United States court, without an allegation that the promisees resided in a different State from the promisors, p. 36.

6 How. 31-40

Notes on U. S. Reports.

606

Cited and applied in Bradley v. Rhines, 8 Wall. 396, 19 L. 469, holding assignee of chose in action must show affirmatively that action could have been sustained if brought by original obligee; Corbin v. County of Black Hawk, 105 U. S. 667, 26 L. 1139, where bill contained no averment that suit could have been maintained by assignors of contracts, the Circuit Court had no jurisdiction. Approved, arguendo, in Parkhurst v. Kinsman, 3 Wood. & M. 174, F. C. 10,761, in considering application for reduction of bail, the court will not decide question of jurisdiction.

Federal courts. Where special counts on notes are not sufficient, yet if the money counts aver enough to give jurisdiction, if the record is silent and no objection to the jurisdiction was made during the trial, the court will presume that the money counts were sustained by evidence, p. 37.

Cited and principle applied in Coffee v. Planters' Bank, 13 How. 189, 14 L. 107, holding in actiōn on checks, the striking out of counts tracing title through indorsements, leaving only money counts, freed judgment from all objection; Dowell v. Applegate, 152 U. S. 339, 38 L. 468, 14 S. Ct. 616, where a final decree of a Federal court is unmodified or unreversed, the jurisdiction of the court cannot be collaterally attacked by a party to suit in which it was rendered; Hopkins v. Kent, 17 Md. 120, upon proof of making and indorsement of note, indorsee can recover against maker on money counts.

Circuit Court may not strike out, at the next term, a judgment which it has rendered, even on the ground of supposed want of jurisdiction, p. 37.

The citing cases have widely indorsed and relied upon this holding. In the Federal courts are the following: Schell v. Dodge, 107 U. S. 630, 27 L. 601, 2 S. Ct. 832, holding, where case has been disposed of by dismissal of writ of error, the Supreme Court has no power at a subsequent term to alter its judgment; Phillips v. Negley, 117 U. S. 674, 29 L. 1015, 6 S. Ct. 905, final judgments at law cannot be reversed or annulled for error of fact or law, by court rendering them, after close of term; In re Washington & G. R. R. Co., 140 U. S. 97, 35 L. 342, 11 S. Ct. 674, where judgment for damages and costs was affirmed, judgment on mandate should not have allowed interest; Gaines v. Rugg, 148 U. S. 242, 37 L. 437, 13 S. Ct. 616, where the Supreme Court reversed decree of Circuit Court only in the matter of accounting, that court could not disturb its own findings and decree in regard to title and possession; Bank v. Labitut, 1 Woods, 13, F. C. 842, a final judgment cannot be reviewed at a subsequent term on motion; The Lizzie Weston, Blatchf. Pr. 265, F. C. 8,425, a District Court, as a Prize Court, cannot open a decree after expiration of term or session in which it was rendered; The Mayor Barbour, Blatchf. Pr. 315, F. C. 8,984, to the same effect; Crabtree v. Neff, 1 Bond, 555, F. C. 3,315, refusing to retax costs erroneously allowed