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Hazlehurst v. The United States. 4 D.

The design and effect, however, of injunctions, must render a shorter notice, reasonable notice, in the case of an application to a court, than would be so construed, in most cases of an application to a single judge: and until a general rule shall be settled, the particular circumstances of each case must also be regarded.

Circumstanced as the present case is, the notice which has been given, is in the opinion of the court, sufficient, as it respects the parties against whom an injunction is prayed.

Counsel were then heard on the motion for an injunction.

THE COURT, after advisement, delivered their opinion, that as the State of New York was not a party to the suits at law, nor interested in the decision of those suits, the injunction must be refused.

It was then moved, that if the State of Connecticut should not appear on the first day of the next term, the complainants should be at liberty to proceed ex parte. (3 D. 335.) But as the subpœna had not been served sixty days before its return, this motion was waived, and an alias subpoena awarded.

1 P. 110; 5 P. 284; 12 P. 657; 5 H. 441; 17 H. 478; 6 Wal. 50.

HAZLEHURST et al. v. THE UNITED STATES.

4 D. 6.

IN error from the circuit court for the district of South Carolina. A rule had been obtained by Lee, the attorney-general, at the opening of the court, that the plaintiffs appear and prosecute their writ of error within the term, or suffer a non-pros.: but it was found, that errors had been assigned in the court below, and a joinder in error entered here. The rule was, therefore, changed to the following: "that unless the plaintiffs in error appear and argue the errors tomorrow, a non-pros. be entered." The plaintiffs not appearing, the writ of error was non-prossed, according to the rule.

Turner v. Bank of North America. 4 D.

TURNER, Administrator, v. ENRILLE.

4 D. 7.

In this case the court affirmed the decision in Bingham v. Cabot et al. (3 D. 382,) and reversed the judgment because the record did not show the alienage of the plaintiff below, nor the citizenship of the defendants.

4 D. 12; 2 H. 9; 16 H. 314; 19 H. 393.

TURNER, Administrator of STANLEY, Plaintiff in Error, V. THE PRESIDENT, DIRECTORS, AND COMPANY, OF THE BANK OF NORTH AMERICA, Defendants.

4 D. 8.

The 11th section of the Judiciary Act, (1 U. S. Stats. at Large, 78,) makes it necessary to state on the record the citizenship of the payee of a negotiable note sued on by an indorsee.

THIS WAS a writ of error to the circuit court for the district of North Carolina. The error assigned, and the state of the record, appear in the opinion of the court, delivered by

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⚫ ELLSWORTH, C. J. The action below was brought by [ 10 ] the president and directors of the Bank of North America, who are well described to be citizens of Pennsylvania, [ against Turner and others, who are well described to be citizens of North Carolina, upon a promissory note, made by the defendant, payable to Biddle & Co., and which, by assignment, became the property of the plaintiffs. Biddle & Co. are no otherwise described than as "using trade and merchandise in partnership together," at Philadelphia or North Carolina. And judgment was for the plaintiff.

The error assigned, the only one insisted on, is, that it does not appear from the record, that Biddle & Co., the promisees, or any of them, are citizens of a State other than that of North Carolina, or aliens.

A circuit court, though an inferior court, in the language of the constitution, is not so in the language of the common law; nor are

Turner v. Bank of North America. 4 D.

its proceedings subject to the scrutiny of those narrow rules which the caution or jealousy of the courts at Westminster long applied to courts of that denomination; but are entitled to as liberal intendments, or presumptions, in favor of their regularity, as those of any supreme court. A circuit court, however, is of limited jurisdiction; and has cognizance, not of cases generally, but only of a few specially circumstanced, amounting to a small proportion of the cases, which an unlimited jurisdiction would embrace. And the fair presumption is (not as with regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather) that a cause is without its jurisdiction till the contrary appears. This renders it necessary, inasmuch as the proceedings of no court can be deemed valid further than its jurisdiction appears, or can be presumed, to set forth upon the record of a circuit court, the facts or circumstances which give jurisdiction, either expressly, or in such manner as to render them certain by legal intendment. Among those circumstances it is necessary, where the defendant appears to be a citizen of one State, to show that the plaintiff is a citizen of some other State, or an alien; or if, as in the present case, the suit be upon a promissory note, by an assignee, to show that the original promisee is so; for, by a special provision of the statute, it is his description, as well as that of the assignee, which effectuates jurisdiction.

But here the description given of the promisee only is, that “he used trade" at Philadelphia or North Carolina; which, taking either place for that where he used trade, contains no averment that he was a citizen of a State other than that of North Carolina, or an alien; nor any thing which, by legal intendment, can amount to such averment. We must, therefore, say that there is error.

It is exceedingly to be regretted, that exceptions which might be taken in abatement, and often cured in a moment, should be reserved to the last stage of a suit, to destroy its fruits.

Judgment reversed.

9 W. 537; 11 P. 80; 2 H. 9; 5 H. 278; 6 H. 31; 13 H. 183; 16 H. 314.

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MOSSMAN, surviving Executor, Plaintiff in Error, v. HIGGINSON, surviving Partner, Defendant in Error.

4 D. 12.

The parties to an equity suit must be so described on the record as to show that the court has jurisdiction. It is not enough that an alien is a party; the other party must be a citizen. A writ of error may be amended by filling the blank left for the return day, there being enough on the writ to amend by.

THIS was a writ of error to the circuit court for the district of Georgia, to remove the record of an equity suit. The return day of the writ being left blank, it was moved that leave be granted to fill the blank. The writ was regularly tested, and by indorsements it appeared when the writ was filed below and here, and the clerk of the circuit court had also indorsed, "returnable to the February term, 1799." The leave was granted.

The complainant below averred in the bill that he was a British subject, but it did not appear on any part of the proceedings that the respondents were citizens of the United States.

*BY THE COURT. The decisions on this subject govern [ 14 ] the present case; and the 11th section of the Judiciary Act' can, and must receive a construction consistent with the constitution. It says, it is true, in general terms, that the circuit court shall have cognizance of suits "where an alien is a party;" but as the legislative power of conferring jurisdiction on the federal courts, is, in this respect, confined to suits between citizens and foreigners, we must so expound the terms of the law, as to meet the case," where, indeed, an alien is one party," but a citizen is the other. Neither the constitution, nor the act of congress, regard, on this point, the subject of the suit, but the parties. A description of the parties is therefore indispensable to the exercise of jurisdiction. There is here no such description, and, of course, the writ of error must be quashed.

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Cooper v. Telfair. 4 D.

COOPER v. Telfair.

4 D. 14.

An act of the legislature of the State of Georgia, passed in 1782, banishing the plaintiff in error from that State, and confiscating his property, is not repugnant to the constitution of that State.

THIS was a writ of error to the circuit court of the United States for the district of Georgia. The plaintiff in error brought an action of debt on a bond dated in 1774, against the defendant, as obligor. The defendant pleaded that by an act of the legislature of the State of Georgia, passed on the 4th day of May, 1782, the plaintiff and other persons named in the act, were banished from the State, and their property, real and personal, including all debts due to each of them at the date thereof, was confiscated to the State, such persons being at the same time declared by the act guilty of high treason. That by virtue of this act, and another act passed on the 10th day of February, 1787, giving certain powers to the auditors of the State, this debt became vested in the State of Georgia, and no cause of action hath accrued to the plaintiff. To this plea the plaintiff replied, in substance, that he had never been tried, convicted, or attainted of treason, and that the acts relied on were repugnant to the constitution of Georgia, adopted on the 5th day of February, 1777, and so were void. To this replication there was a demurrer, which was joined, and the circuit court held the plea good. The cause was argued by E. Tilghman, for the plaintiff, and by Ingersoll and Dallas for the defendant.

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The judges (except the chief justice, who had decided the cause in the circuit court) delivered their opinions, seriatim, in substance as follows:

WASHINGTON, J. The constitution of Georgia does not expressly interdict the passing of an act of attainder and confiscation, by the authority of the legislature. Is such an act, then, so repugnant to any constitutional regulation, as to be excepted from the legislative jurisdiction, by a necessary implication? Where an offence is not committed within some county of the State, the constitution makes no provision for a trial, neither as to the place, nor as to the manner. Is such an offence (perhaps the most dangerous treason) to be considered as beyond the reach of the government, even to forfeit the property of the offender, within its territorial boundary? If the plain

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