1*] *THE WIDOW AND HEIRS OF BENJA- | process on some one or more of its officers; and MIN POYDRAS DE LA LANDE, Pl'ffs in those above named in the rule were considered Er., by the court to be its appropriate representatives in a summons or citation to appear in this court. V. THE TREASURER OF THE STATE OF (See S. C. 17 How. 1-3.) 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 prose Writ of error, citation, how served-on officer, cuting the suit for the State, the citation must not on State. The Treasurer of Louisiana brought proceeding In State Court to collect a tax, and obtained judgment on writ of error by defendant, held that the citation was properly served on the Treasurer, and not on the Chief Executive Magistrate and Attorney-General. The Treasurer is the "adverse party" and not the State, and the party to the record, under the 10th rule of this court, and chapter 20 of the Judiciary Act of 1789. Argued Jan'y 19, 1855. Decided Jan'y 23, 1855. N ERROR to the Supreme Court of the The case is stated by the court. Mr. J. P. Benjamin for the plaintiff's in er- ror. ror. be served on him. In this case a notice or citation on the Chief Executive Officer or Attorney-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. And the Chief Executive Officer and Attorney-General do not represent him, and may or may not support his proceedings. This rule of practice has been uniformly folThere have been many lowed in this court. cases in which an officer of the State acting in behalf of the State has been one of the parties. And the 10th 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 practice is found- [*3 ed upon the language of the Act of 1789, ch. 20, which directs the "adverse party" to be cited, on a writ of error or 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 Mr. Chief Justice Taney delivered the opin- the plaintiff in the writ of error seeks to re ion 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 verse. The motion to dismiss this writ of error must therefore be overruled. Motion to dismiss overruled. JOHN G. SHIELDS ISAAC THOMAS, and Mary, his Wife; Nancy (See S. C. 17 How. 3-6.) Jurisdiction-sufficient if aggregate judgment is over $2,000, though to be apportioned among several. Where the representatives of a deceased intestate recover in the court below a judgment against the administrator for over $2,000, under the same title, and for a common and undivided interest, this court has jurisdiction, although the amount decreed to be distributed to each representative, is less than $2,000. Argued Jan'y 19, 1855. Decided Jan'y 23, 1855. error upon the ground that the State is the real APPEAL from the District Court of the 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 10th 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 is sued 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 United States for the Northern District of Iowa. The bill in this case was filed in the District Court of the United States for the Northern District of Iowa, exercising the powers of a circuit court, by the appellees, on a foreign decree, to recover certain sums of money al NOTE. Jurisdiction of U. S. Supreme Court dependent on amount; interest cannot be added to give jurisdiction; how value of thing demanded may be shown; what cases reviewable without regard to sum in controversy. See note to Gordon 7. Ogden, 7 L. ed. U. S. 592. leged to be due the various complainants. The decree of the court below having been in favor of the complainants, the defendant took an appeal to this court. A further statement appears in the opinion of the court, on motion to dismiss. Mr. R. H. Gillett for appellant. Mr. Platt Smith for appellees. Mr. Chief Justice Taney 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 4*] *Isaac 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. 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, upon 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. lectively, and not the particular sum to which each was entitled, when the amount due was distributed among them according to the [5 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. 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 et al. v. Alexander et al. 4 Pet. 143, was a suit for a seamen's wages. And although the crew are allowed by law (for the sake of convenience and to save cost) 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 on the recovery of others, but rests altogether upon its own evidence and merits. And he does not recover a portion of the common fund to be distributed among the claimants, but the amount due to himself on his own separate contract. case of Rich et al v. Lambert et al. 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 The cases of Stratton v. Jarvis & 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; [*6 but the goods of each owner 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. But the court think the matter in controversy in the Kentucky court was the sum duc The cases relied on are therefore distinguishto the representatives of the deceased col-able from the one before us; and the motion to dismiss for want of jurisdiction must be overruled. Motion to dismiss overruled. the inquiry, whether or not a Court of Admiralty has jurisdiction to decree the sale of a ship for an unpaid mortgage, or can, on that account, declare a ship to be the property of the mortgagees, and direct the possession of her to be given to them. The questions of SEBRA M. BOGART, William J. Wilcox, and pleading made in the case, and the other Leonard F. Fitch, Libelants, V. THE STEAMBOAT JOHN JAY, Her Tackle, etc., George Logan, Claimant. (See S. C. 17 How. 399-403.) points argued, we shall not notice. The conclusion at which we have arrived makes that unnecessary. The libelants were the owners of the steamer John Jay. They sold her to Joseph McMurray for the sum of $6,000; $1,000 in cash, and the residue of $5,000 upon a credit, for which promissory notes were given, payable to their Court of admiralty-jurisdiction-mortgage of order, in three, six, nine, twelve, fifteen, eigh ship. A court of admiralty has no jurisdiction to deree the sale of a ship for an unpaid mortgage; and cannot, on that account, declare a ship to be the property of the mortgagees and direct the possession of her to be given to them. A teen, twenty-one, and twenty-four months. On the day of sale, McMurray, the purchaser, executed in a single deed, containing the whole contract between himself and the libelants, a transfer of the boat to the latter as a security for the payment of his notes, with the proviso "that this instrument is intended to operate PPEAL from the Circuit Court of the only as a mortgage to secure the full and just United States for the Southern District of New York. On December 13, 1850, appellants filed their tibel in rem in the District Court of the United States for the Southern District of New York, against the Steamboat "John Jay" to enforce payment of a certain note secured by mortgage on the said boat. The claimant duly appeared and filed his claim and answer, setting forth his ownership and denying the jurisdiction of the court, because no maritime contract or cause of action was shown in the libel. The Circuit Court having affirmed the decree of the District Court, dismissing the libel, the case is now here on appeal. Messrs. F. B. Cutting, Logan, and Frances Byrne, for the appellee: First. The District Court in Admiralty had 40 jurisdiction of the cause of action set forth in the libel, it not being a maritime contract, or a maritime cause of action, or dependent on maritime risk. Hurry v. The Ship John & Alice, 1 Wash. 293; The Steamboat Orleans v. Phoebus, 11 Pet. 175; The Atlas, 2 Hagg. Adm. 48, 73; Abb. on Sh. old paging, 153, new, 205. Second. A Court of Admiralty has no power to enforce payment of a mortgage. The Dowthorpe, 2 W. Rob. 83; The Highlander, 2 W. Rob. 109; Leland v. The Medora. 2 Woodb. & M. 87, 92, 118. Neither has it jurisdiction to decree possession, as between mortgagee and mortgagor. The Fruit Preserver, 2 Hagg. 181; The Neptune, 3 Hagg. 132. An inquiry as to the mortgagee's right of possession necessarily involves an accounting under the mortgage, and a Court of Admiralty does not hold cognizance of action for an account. The remedy appertains to a court of equity exclusively. The New Orelans v. Phœbus, 11 Pet. 175. payment of the eight promissory notes given vessel or steamboat." McMurray failed to pay in consideration of the purchase money of said the second note. Upon such failure the libel was filed. The libelants set up the contract; allege that it was to operate as a mort- [*401 gage to secure the payment of McMurray's notes; state his failure to pay the second note; claim, in the 5th article of their libel, that McMurray's failure to pay had revested them with the title to the boat, and that McMurray's had become forfeited, from his non-com After pliance with the condition contained in the contract of sale. Their prayer is, that they may have a decree for the amount of the unpaid purchase money, with interest and costs, and that The John Jay and her equipments may be condemned to pay the same. wards, upon their appeal in the Circuit Court, they moved to amend their libel by inserting the words, "or that the steamboat John Jay may be decreed to be their property, and the Possession be directed to be delivered to them." To this libel George Logan, by way of answer, put in a claim of ownership of The John and he further denies the jurisdiction of the Jay, by a bona fide purchase from McMurray; court, upon ground that the contract between the libelants and McMurray was not maritime, or a case of admiralty and maritime jurisdiction. It appears that McMurray had received the possession of the boat; that she had been enrolled at the custom house in his name; that he first sold one fourth of her to Logan, and afterwards, on the 2d December, executed a bill of sale for the whole of her to Logan, which was recorded in the custom-house; and that thereupon. The John Jay was enrolled and licensed in the name of Logan. Upon the hearing of the cause in the district court, the libel was dismissed. It was carried by appeal to the circuit court, and the judgment of the district court having been affirmed, it is now here upon appeal from the circuit court. We think that the affirmance of the judgment of the district court was right, and will here briefly give our reasons for that opinion. gage and of any other mortgaged chattel. But, from the organization of the former and its modes of proceeding, they cannot secure to the parties to such a mortgage the remedies and protection which they have in a court of chancery. They have, therefore, never taken jurisdiction of such a contract to enforce its payment, or by a possessory action to try the title, or a right to the possession of the ship. It is true that the policy of commerce and its exiCourts *a more ample jurisdiction in [*403 respect to mortgages of ships, than they had under its former rule, as that has been given in this opinion. But this enlarged cognizance of mortgages of ships has been given there by Statute 3 and 4 Vic. ch. 65. Until that shall be done in the United States, by Congress, the rule in this particular must continue in the Admiralty Courts of the United States, as it has been. We affirm the decree of the court below. It has been repeatedly decided in the admiralty and common law courts in England, that the former have no jurisdiction in questions of property between a mortgagee and the owner. No such jurisdiction has ever been exercised in the United States. No case can be found in either country where it has been done. In the case of The Neptune, 3 Hagg. Adm. Rep. 132, Sir John Nicholl, in giving his judgment, observes: "Now, upon questions of mortgage, the Court of Admiralty has no jurisdiction, whether agencies in England have given to its Admiralty mortgage is foreclosed, whether a mortgagee has a right to take possession of a chattel personal, whether he is the legal or only the equitable owner, and whether a right of redemption means that a mortgagee is restrained from selling in repayment of his debt till after the time specified for the redemption is passed, the decision of these questions belongs to other courts; they are not within the jurisdiction or 402*] *province of the courts of admiralty, which never decide on questions of property between the mortgagee and owner." Decree of the Circuit Court affirmed, with costs. PETER J. BURCHELL, Appellant, V. STEWART C. MARSH, Alexander Frear, and (See S. C. 17 How. 344-352.) ruption, or gross mistake. Arbitration, as a mode of settling disputes, should receive every encouragement from courts of equity. To induce the court to interfere, there must be more than error of judgment, such as corruption, or gross mistake, apparent on the face of the award, or by the evidence. This is not so, because such a jurisdiction had been denied by the jealously of the courts of the common law. Its foundation is, that the mere mortgage of a ship, other than that of an hypothecated bottomry, is a contract without any of the characteristics or attendants of a maritime loan, and is entered into by the parties to it, without reference to navigation or perils of the sea. It is a security to make the performance of the mortgagor's undertaking more certain; and whilst he contin- Arbitration-award, when set aside-fraud, corues in possession of the ship, disconnecting the mortgagee from all agency and interest in the employment and navigation of her, and from all responsibility for contracts made on her account. Such a mortgage has nothing in it analogous to those contracts which are the subjects of admiralty jurisdiction. In such a case, the ship is the object for the accomplishment of the contract, without any reference to the use of her for such a purpose. There cannot be, then, anything maritime in it. A failure to perform such a contract cannot make it maritime. A debt secured by the mortgage of a ship does not give the ownership of it to the mortgagee. He may use the legal title to make the ship available for its payment. A legal title passes conditionally to the mortgagee. Where there has been a failure to pay, he cannot take the ship manu forti, but he must resort either to a court of equity or to statutory remedies for the same purpose when they exist, to bar the mortgagor's right of redemption by a foreclosure, which is to operate at such time afterward, when there shall be a foreclosure without a sale, as the circumstances of the case may make it equitable to allow. Indeed, after a final order of foreclosure has been signed and enrolled, and the time fixed by it for the payment of the money has passed, the decree may be opened to give further time, if there are circumstances to make it equitable to do so, with an ability in the mortgagor to make prompt payment. Thornhill v. Manning, 7 Eng. Rep. 79, 99, 100. Courts of Admiralty have always taken the same view of a mortgage of a ship, and of the remedies for the enforcement of them, that courts of chancery have done of such a mort Every presumption is in favor of the award. It cannot be inferred that the arbitrators went beyond the submission, merely because they may have admitted illegal evidence about the subject matter of it. Although this court would not have assessed so large damages, or so divided them, yet the estimate of the arbitrators is not so outrageous as to be conclusive evidence of fraud or corruption. The admission of witnesses to prove their estimate of damages, even if objected to, and an error cause for setting aside the of judgment, is no award. Nor is the admission of illegal evidence, or taking the opinion of third persons, misbehavior in the arbitrators to affect their award. If they have given their honest, incorrupt judg ment, on the subject matter submitted to them. after a full and fair hearing of the parties, they are bound by it; and a Court of Chancery has no right to annul their award because it thinks it could have made a better. Mr. Chief Justice TANEY and Mr. Justice WAYNE did not sit in this cause. Decided Jan. 23, 1855. HIS was a bill filed in the Circuit Court of T NOTE. Arbitrament and award. See note to When an award is put in suit at law, no extrinsic circumstance, nor any matter of fact, dehors, can be given in evidence to impeach it; if it be open, therefore, to any objection of this kind, the defend for an injunction to prevent the appellant from | Burchell, there was due from said firm to said suing upon, or taking advantage of, a certain Burchell the sum of $100; which sum should be award purporting to be made by arbitrators in paid, etc. pursuance of a certain submission between the parties; and to have the said award vacated and annulled. The submission and award are admitted in the pleadings. By the submission it is recited that the appellees being two mercantile firms, had sued the appellant to recover certain debts alleged to be owing by him to the said firms respectively, and that appellant claimed "to have sustained damages by reason of having been sued by said firms as aforesaid ;" and "to put an end to all further controversies," etc. The parties thereby submitted "all demands, suits, claims, causes of action, controversies, and disputes between them," etc.; and agreed that the arbitrators should "hear all matters of claim of either party, upon or against the other, founded in law or equity:" and that the arbitrators shall "hear the proofs of the parties appertain ing to matters submitted," etc.; and that said award should "direct and determine what, if anything, is due or owing from said Burchell to the firm of Marsh & Frear," and also "what, if anything, is due from said Burchell to the firm of Frear & Co.," or "what, if anything, should be due from either, or both of said firms to the said Burchell," and should "award the manner and time of payment of any such indebtedness." The answer admits Burchell's indebtedness to Marsh & Frear, to the amount of $3,822 and interest, and to Frear. & Co., $1,014.80, being less than the amounts claimed in the bill. There is no pretense in the record of any debt by the appellees, or either of them, to Burchell; nor of any demand against them, or either of them, except such as may have accrued by reason of an alleged anticipation of the maturity of his debts to them respectively, and the alleged premature institution of suits against him thereon. The award (as alleged and admitted) was as follows: "1. That all claims, demands, controversies and disputes between the respective parties, or between the said Burchell and the firm of Marsh & Frear, and also between the firm of Frear & Co., and the said Burchell shall cease and be determined by the said award. 2. That as between Marsh & Frear and said ant must apply for relief either to a court of equity by bill, or, if the submission has been made a rule of any court of law, to the summary and equitable jurisdiction of that court. Wills v. Maccormick, 2 Wils. 148; Newland v. Douglas, 2 Johns. 62; Barlow v. Todd, 3 Johns. 367; Todd v. Barlow. 2 Johns. Ch. 551; Head v. Muir, 3 Rand. 122. On a bill in equity, to set aside an award, if it appear that the arbitrators went upon a plain mistake either as to the law or the fact, the same is an error appearing on the face of the award, and is sufficient to set it aside; aliter upon a doubtful point of law, though the court, on deliberation, should be of a different opinion. 2 Vern. 705; Lyle v. Clason, 1 Caines, 341; Smith_v. Richardson, 3 Caines, 219; Emery v. Wase, 5 Ves. 846; Shermer v. Beale, 1 Wash. 14; 3 Atk. 495; Young v. Walter, 9 Ves. 364. When there is a mistake in fact apparent on the face of the award, or clearly appearing by affidavits, and admitted by the arbitrator, the courts of equity will relieve." or courts of common law. wherein the reference is a rule of court, set aside the award. Ives v. Metcalf, 1 Atk, 62; Anon. 3 3. That as between Frear & Co. and said Burchell, there was due from said firm to said Burchell $25, to be paid, etc. 4. That the appellees should pay the costs. The court below having decreed in favor of the complainants, that the said award should be set aside, the defendant brought the case here on appeal. A further statement of the case appears in the opinion of the court. Messrs. R. H. Gillet and J. F. Farnsworth, for the appellant: 1. The arbitrators had full power to act upon all "demands, suits, claims, causes of action, controversies, and disputes between the parties." 2. Under this submission, the arbitrators were constituted by the parties, sole judges of the facts, and the law and equity arising from them. "An arbitrator is a judge of all matters of law and fact included in the case submitted to him, and being a judge chosen by the parties themselves, his decision generally is absolutely final." 1 Burrill's Law Dic. 86; Billings on Awards, 55-65; Russell, Arbitrator, 112; Morgan v. Mather, 2 Ves. Jr. 15. Award upon a general reference cannot be impeached for erroneous judgment upon facts. Knox v. Symmonds, 1 Ves. Jr. 369. Where a cause is submitted to arbitration without a rule of court, this court will not interfere to set aside the award; nor if made a rule of court will the award be set aside unless for corruption or misconduct. Cranston v. Kenny, 9 Johns. 212; see, also, Mitchell v. Bush, 7 Cow. 185; Jackson v. Ambler, 14 Johns. 96; Campbell v. Weltern, 3 Paige, 124, 138; Underhill v. Van Cortlandt, 2 Johns. Ch. 339; S. C. 17 Johns. 405; Todd v. Barlow, 2 Johns. Ch. 551; Vaughan v. Graham, 11 Mo. 575; Smith v. Cutter, 10 Wend. 589; Chase v. Westmore, 13 East, 357; Merritt v. Merritt, 11 Ill. 565. 3. That an award is made in ignorance of the rights of the parties and of the duties and powers of the arbitrators, is not ground for setting it aside. 4. A court of equity will only interfere to set aside an award on a voluntary submission, Atk. 644; Knox v. Simonds, 1 Ves. Jr. 369; Morgan v. Mather, 2 Ves. Jr. 18; Anderson v. Darcey, 18 Ves. 449; Perkins v. Wing, 10 Johns. 143. Equity will not interfere to set aside an award upon the ground that the arbitrators have evinced an erroneous judgment as to questions either of law or fact, if they acted honestly and fairly in the matter. Campbell v. Western, 3 Paige, 124; Morris v. Ross, 2 Hen. & M. 408; Bell v. Price, 21 N. J. Law, 32; Herrick v. Blair, 1 Johns. Ch. 101; Neal v. Shields, 2 Pen. & W. 300; Curley v. Dean, 4 Conn. 259; Cromwell v. Owings, 6 Harr. & J. 10; Locke v. Filley, 14 Hun, 139; Riddle's Est. 19 Penn St. 431; Merritt v. Merritt, 11 Ill. 565; Moore v. Barnett, 17 Ind. 349; Fudicker v. Guard, Mut. L. Ins. Co. 62 N. Y. 392; Burroughs v. David, 7 Iowa, 154. The award must show willfulness, fraud, or corruption--not erroneous judgment merely. Cases last cited, and Todd v. Barlow, 2 Johns. Ch. 551; S. C. 3 Johns. 367. A bill in equity for relief from a judgment entered on an award of referees will not be sustained where the grounds assigned are such as the party |