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Lucas v. Morris.

implication; and by analogy to like powers exercised by the Chancellor of England, under the bankrupt system of that country.

Without entering into an examination of the origin and progress of the powers exercised by the Chancellor in England in these matters, the analogy between the powers granted to the Chancellors in England under their system, and those conferred upon the District Judges under our act, fails in an essential particular; and that too, in a part claimed by the former as the principal ground upon which the jurisdiction has been assumed, viz. : The authority as to the appointment and removal of the assignees. The right of compelling the assignees to account was considered as a necessary incident to the power of removal. But no such authority is vested in the District Judge under our act. The assignees are to be appointed by the creditors of the bankrupt, and by them alone are they remova le. Where then rests the authority of the District judge to make them account? It is not expressly given by the act. Nor is there any power over them given, to which this can be considered as incident. Where then does the authority rest to call the assignees to account? To say they are irresponsible, is a proposition not to be endured. And this must follow, unless the Courts of Justice in the ordinary exercise of their authority have jurisdiction in the case. Can there be a doubt but that the Court of Chancery of this state would entertain a suit against the assignees, should a bill be filed in that Court, in a matter properly cognizable in a Court of Equity ? And if a State Court has jurisdiction, it would seem to follow as a necessary consequence, that the Courts of the United States must also have jurisdiction, whenever the case is brought within the constitution and laws of the United States. And the only inquiry would therefore seem to be, whether this is such a case. By the constitution of the United States, (ar. 3, sec. 2,) the judicial power,

Lucas v. Morris.

among other things, extends to all cases in law and equity, arising under the constitution and laws of the United States, when the controversy is between a citizen of the United States and a foreign citizen or subject. And by the 11th section of the judiciary act of 1789, it is enacted, that the Circuit Courts shall have original cognizance, concurrent with the Courts of the several states, of all suits of a civil nature at common law or in equity, when the matter in dispute exceeds the sum or value of 500 dollars, and an alien is a party.

The bill of complaint filed in this case describes the complainants as British subjects, and of course aliens, and possessing the character which entitles them to come into this Court. The subject matter of the suit is properly cognizable in a Court of Equity. The general scope and object of the hill is to call upon the defendants as trustees to account, and to compel them to carry into execution the trust, which they have assumed as assignees of Comfort Sands, a bankrupt. The bill does not call upon this Court to take cognizance of and exercise any of the powers expressly delegated to the District Judge. It is, in substance only, the common and ordinary case of the exercise of the authority of a Court of Chancery to enforce the execution of a trust, by compelling the defendants to account for the monies, property, and effects belonging to the bankrupt's estate, which have come to their hands, and to proceed to make a dividend, and distribution thereof among the creditors of the bankrupt; as by law they are required to do. If this does not fall within the ordinary powers of the Court of Equity, where is relief to be had ?

From the opinion of the District Judge, upon the petition of Comfort Sands, the bankrupt, and upon which the proceedings referred to in the plea took place, I understand the District Judge to disclaim having authority to compel the assignees to make a dividend of the bankrupt's estate. The bill in this case charges the assignees with having in their hands

Lucas v. Morris.

a large sum of money to which the creditors of the bankrupt are entitled, and prays that they may be compelled to make a dividend thereof. This, then, is thus far the precise case of which the District Judge disclaims having jurisdiction. There are many parts of the bankrupt law, the execution of which the powers of the District Judge are inadequate to enforce, and which would remain a dead letter without the aid of other tribunals. Thus by the 8th section the creditors may remove the assignees and appoint others in their place. And the assignees so removed are required to hand over to the new assignees all the estate and effects of the bankrupt in their possession; and on refusal they forfeit a sum not exceeding five thousand dollars for the use of the creditors, and are also liable for the property detained. In what Court is a suit for the property to be sustained ? It will not, I presume, be contended, that the District Judge can give relief in this case. But recourse must be had to other tribunals.

The doctrine attempted to be established by the defendants' counsel, that the entire execution of the bankrupt law is committed to the District Judge, is manifestly untenable.

Upon the argument of the present question, no objection can be taken to the form or to the equity of the bill. If any such objections exist, they must come up in another shape. The only inquiry now is, whether this Court has jurisdiction of any matter arising under the bankrupt law when the subject matter is proper for a Court of Equity, and the parties such as the constitution and laws of the United States require. Because the plea claims exclusive jurisdiction in the District Judge. And believing as I do that this doctrine cannot be sustained, the plea in abatement must be overruled.

S. Jones and D. B. OGDEN for the complainant.
P. C. Van Wyck and C. G. HAINES for the defendant.

United States v. One Case of Hair Pencils.

THE UNITED STATES v. ONE CASE OF HAIR PENCILS.

Objections to the competency of the witness should be made at the time of taking

a deposition under the 30th section of the judiciary act, if the party attend, and the objections are known to him, in order that they may be removed.

Otherwise, he will be presumed to have intended to waive them. But the objection may be made at the time of reading the deposition, if the facts

constituting the objection were not known to the party when it was takep. Where goods are seized as forfeited, under the act of the 20th of April, 1818,

for being entered at the custom house differently from the invoice, the inquiry cannot be made at the trial, whether such difference proceeded from accident or mistake, the question being referred exclusively to the Secretary of

the Treasury. Nor has the Collector a right to make such inquiry on the seizure of goods un

der this act. The provision in the act of the 2d of March, 1799, allowing such inquiry to be

made by the Court or Collector, is impliedly repealed by the act of 1818, Rules of construction as to the repeal of statutes by implication.

THOMPSON, J. The libel filed in this case in the Court below, alleges a forfeiture of the merchandise therein set forth, by reason of a false entry of the goods at the custom-house. It is founded upon the 22d section of the act of the 20th April, 1818. Upon the trial a bill of exceptions was taken, and the case comes before this Court upon a writ of error. And the questions presented by the bill of exceptions are,

1. Whether the deposition of John S. Cornell, whose name appeared on the bond as one of the sureties for the appraised value of the goods in question, was admissible in evidence. And,

2. Whether the Judge erred in submitting to the jury to determine, whether the false entry was by mistake and accident, and not with an intention to defraud the revenue.

1. It has not been denied, but that Cornell was interested, and that his testimony ought to have been excluded, if the

a 6 Vol. Laws U. S. 306.

United States r. One Case of Hair Pencils.

objection had been made in due time. But it is said, that the objection is waived by the plaintiff's counsel appearing and cross-examining the witness when his deposition was taken. This deposition was taken de bene esse, under the provisions of the 30th section of the judiciary act. And the absence of the witness out of the district, and at a greater distance than one hundred miles from the place of trial, was duly proved. So that the sole question is, whether the cross-examination of the witness precluded the party from making the objection at that time?

The rule by which Courts of Justice have been governed, as to the time when the objection is required to be made to an interested witness, has undergone a considerable change. It was at one period considered, that the objection came too late, after the witness had been sworn in chief, and examined and cross-examined. And this strictness seemed to meet the approbation of Lord Mansfield, in the case of Abrahams v. Bunn, although he did not so expressly rule. But this rule has been relaxed, and it is now well settled in trials at law, that a witness who, in any stage of his examination, discovers himself interested, is to be rejected, and his evidence entirely set aside. And the same rule prevails as to the depositions of witnesses in chancery proceedings, and to which the present case is more analogous. The examination of witnesses there, is always de bene esse, and with a saving of all just exceptions; and whether so expressed in the rule or order for examination, or not, it is always so understood.

It is not pretended, that the District Attorney had any personal knowledge or actual notice that Cornell was security in the bond, or that any objection would be made to his testi

b 2 Vol. Laws U. S. 68.

C 4 Bur. 2252. d Phil. Ev. 96.; 1 Term Rep. 719.; 6 John. 538.

e 1 Har. Ch. Prac. 589. ; Phil. Ev. 97. n.; 3 Joha. Rep. 593. 607. ; 6 John. Rep.538.; 2 Vernon, 463.

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