ERROR from the circuit court for the district of Massachusetts. This cause and several others were stricken from the docket, the record not showing that the parties were citizens of different States. See Bingham v. Cabot, 3 D. 382.

•HAMILTON v. MOORE.

[ *371 ]

3 D. 371.

A writ of error must be returned and entered at the return term. If a term intervene, the objection is fatal, and the error is not capable of being removed by any amendment.

ERROR from the circuit court for the district of Georgia. Judgment had been rendered in the court below, for the defendant in error, on the 15th of November, 1796. On the 2d of January, 1797, the writ of error was sued out, and lodged in [*372] the office of the clerk of the circuit court; and it was served, with the proper notices, on the defendant in error, upon [*373] the 14th of January, 1797; but the affidavit of service was

not made until the May following; nor was the writ even transmitted, or returned, until the present term.

THE COURT observed, that there was no error in point of [*377 ] fact; nor any clerical error to amend. The writ bears the date when it was actually sued out and lodged in the office; there is, therefore, nothing on the record by which it can be amended; and the objection is fatal.

The writ of error was, therefore, non-pros'd.

The eleventh amendment of the constitution deprived this court of jurisdiction over suits against a State by citizens of another State; and suits pending at the time of its adoption can be no further prosecuted.

THE decision of the court, in the case of Chisholm, Executor, v. Georgia, (2 D. 419,) produced a proposition in congress, for amending the constitution of the United States, according to the following

terms:

"The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign State."

The proposition being now adopted by the constitutional number of States, Lee, attorney-general, submitted this question to the court: Whether the amendment did, or did not, supersede all suits depending, as well as prevent the institution of new suits against any one of the United States by citizens of another State?

W. Tilghman and Rawle argued in the negative, contending that the jurisdiction of the court was unimpaired, in relation to all suits instituted previously to the adoption of the amendment.

[ *382 ]

*THE COURT, on the day succeeding the argument, delivered an unanimous opinion, that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a State was sued by the citizens of another State, or by citizens or subjects of any foreign State.

1 P. 110.

Jones v. Le Tombe. 3 D.

*BINGHAM, Plaintiff in Error, v. CABOT et al.

3 D. 382.

[*382]

When the jurisdiction of the court below depends on the citizenship of the parties, if the record does not show the necessary citizenship, the cause will be struck from the docket.1

THIS action came again before the court on a writ of error; and an objection was taken to the record, that it was not stated, and did not appear in any part of the process and pleadings, that the plaintiffs below and the defendant were citizens of different States, so as to give jurisdiction to the federal court.

THE COURT were clearly of opinion, that it was necessary to set forth the citizenship, (or alienage, where a foreigner was concerned,) of the respective parties, in order to bring the case [384] within the jurisdiction of the circuit court; and that the record, in the present case, was in that respect defective.

This cause and many others in the same predicament, were accordingly struck off the docket.

4 D. 7, 12, 22; 1 C. 343; 2 C. 9; 8 P. 112; 11 P. 351; 12 P. 657; 2 H. 9; 6 H. 31; 16 H. 314; 19 H. 393; 21 H. 202.

JONES, Indorsee, v. LE TOMBE.

3 D. 384.

[ *384 ]

A bill of exchange drawn by the consul-general of France on the public treasury of his country, shows on its face that the contract was on account of the government, that the engagement was official and not personal, and that it is not a cause of action against the drawer.

CAPIAS in case. This was an action brought originally, in the supreme court, by John Coffin Jones, a citizen of Massachusetts, as indorsee of James Swan, against the defendant, the consul-general

1 In this case, the judgment below was against the plaintiff in error, and striking the cause from the docket was equivalent to a refusal to reverse the judgment of the court below.

Jones v. Le Tombe. 3 D.

of the French republic, as drawer of a number of protested bills of exchange. The bills were signed "Le Tombe, Le Consul-General," and directed" Au Citoyen Payeur Général des depenses du Departement de A la Trésorerie Nationale à Paris," and they purported to be for "valeur reçue de dit, conformément au compte rendu au Ministre," &c., &c. They bore a certificate showing that they had been registered at the consulate of France for the port of Philadelphia, and a declaration by Adet, the Minister Plenipotentiary of the French Republic, that the faith of the French nation was pledged for their payment, and requesting the proper officer of the treasury to pay them.

[* 385 ]

* At the opening of the term, Dallas and Du Ponceau had obtained a rule, that the plaintiff show his cause of action, and why the defendant should not be discharged on filing a common appearance; and now Ingersoll and E. Tilghman showed cause, produced the bills of exchange, and the plaintiff's positive affidavit of a subsisting debt, including a declaration, "that he was induced, principally, to purchase the bills, in consideration of the character and private fortune of the defendant, and that without the fullest confidence in the personal credit and responsibility of the defendant, he verily believed he would not have purchased them." They then contended, that the positive affidavit was sufficient, in this court, for holding the defendant to bail; that it was not incumbent on them to show to whose use the money was applied, since it was paid to the defendant; that when a consul acts as a merchant, and draws bills for cash advanced, he is not entitled to any privilege; that the defendant must prove that he had a right to draw the bills as consul; that even if he had the right to draw, he might pledge his private credit, in aid of his official function; and that the critical situation of the French republic raises a presumption, that the reliance was placed on the private credit of the defendant.

The counsel for the defendant were stopped when they rose to reply; and the court were unanimously and clearly of opinion, that the contract was made on account of the government; that the credit was given to it as an official engagement; and that, therefore, there was no cause of action against the present defendant.

The rule was, accordingly, made absolute; and the plaintiff soon afterwards discontinued the action.

▲ resolution, or law of the State of Connecticut, setting aside a decree of a court of probate, and granting a new hearing before the same court, with liberty of appeal, is not an ex post facto law, within the meaning of the 10th section of the 1st article of the Constitution of the United States.

That article has reference only to crimes.

In error from the State of Connecticut. The cause was argued at the last term, (in the absence of the chief justice,) and now the court delivered their opinions seriatim.

CHASE, J. The decision of one question determines, in my opinion, the present dispute. I shall, therefore, state from the record no more of the case than I think necessary for the consideration of that question only.

The legislature of Connecticut, on the second Thursday of May, 1795, passed a resolution or law, which, for the reasons assigned, set aside a decree of the court of probate for Hartford, on the 21st of March, 1793, which decree disapproved of the will of Normand Morrison, the grandson, made the 21st of August, 1779, and refused to record the said will; and granted a new hearing by the said court of probate, with liberty of appeal therefrom, in six months. A new hearing was had, in virtue of this resolution, or law, before the said court of probate, who, on the 27th of July, 1795, approved the said will, and ordered it to be recorded. At August, 1795, appeal was then had to the superior court at Hartford, who, at February term, 1796, affirmed the decree of the court of probate. Appeal was had to the supreme court of errors of Connecticut, who, in June, 1796, adjudged that there were no errors. More than eighteen months elapsed from the decree of the court of probate, on the 1st of March, 1793, and thereby Caleb Bull and wife were barred of all right * of appeal, by a statute of Connecticut. There was [387] no law of that State whereby a new hearing, or trial, before the said court of probate might be obtained. Calder and wife claim the premises in question, in right of his wife, as heiress of N. Morrison, physician; Bull and wife claim under the will of N. Morrison, the grandson.

The counsel for the plaintiffs in error, contend that the said resolu