[Benton v. Woolsey et al.]

submitted, that as the interest in the suit is entirely in the United States, the Court will consider the case as if brought in the name of the United States.

The rules of practice in the courts of chancery, in England, are the rules established for the government of suits in chancery in the courts of the United States. Where those rules are silent, the practice of the state courts is resorted to. In the courts of New York, it is the practice to file bills in the name of the attorney general, in cases in which the state of New York is interested. In one instance, in the circuit court of the southern district of New York, this practice was adopted. Cited, 33 Rule of the Practice of the Circuit. Courts in proceedings in Chancery. Newland's Practice, 55.

It is admitted that no officer of the United States can be sued as such; nor can he, without the authority of an act of congress, institute a suit. But this does not apply in admiralty cases, or in cases in equity; where the United States, being interested, the law officer of the United States often interposes.

In the case of Brown v. Strode, 5 Cranch, 303; 2 Cond. Rep. 265; it was held, that the courts of the United States have jurisdiction in a case, in which citizens of the United States are but nominal plaintiffs, for the use of an alien. On the authority of this case, and of the practice of the courts of the, state of New York, the jurisdiction of the Court is claimed. The district attorney is but a nominal party.

Mr. Beardsley, for the defendants, said no wish was entertained to prevent the Court taking jurisdiction of the case.

Mr. Chief Justice TANEY delivered the opinion of the Court. In this case, a bill of information and complaint was filed by the district attorney of the United States, in behalf of the United States, in the district court for the northern district of New York, against Melancthon C. Woolsey, the Bank of Utica and others, for the purpose of foreclosing a mortgage upon certain real property, executed by the said Woolsey to the United States, on the 20th of July, 1825, to secure the payment of twenty-nine thousand four hundred and fifty-nine dollars and twenty-nine cents, in one year from the date, with interest. The property mortgaged, was situated partly in the county of Jefferson, and partly in the county of St. Lawrence, in the state of New York; and the mortgage was recorded in the coun

[Benton v. Woolsey et al.]

ty of Jefferson, November 26th, 1830; and in the county of St. Lawrence, June 10th, 1831.

It appears, from the answer and evidence, that the Bank of Utica obtained a judgment in the supreme court of the state of New York, against the said Woolsey, on the 7th October, 1817, for sixteen thousand dollars; and the judgment was docketed November 24th, 1817. No further proceedings were had upon it until May term, 1828, when it was revived by scire facias, and the judgment on the scire facias docketed July 9th, 1828.

Process of fieri facias issued on this judgment, endorsed to levy six thousand six hundred and sixty-seven dollars and fifty cents; and the lands mortgaged to the United States, in Jefferson county, were sold by the sheriff, on the 24th of November, 1828; and (with the exception of a small parcel,) purchased by the bank. They were conveyed by the sheriff to the bank, May 3d, 1830. The lands in St. Lawrence county, mortgaged to the United States, were sold by the sheriff, January 30th, 1829; and conveyed by the sheriff to the bank, May 15th, 1830.

The judgment obtained by the bank, in 1817, after the expiration of ten years from the time it was docketed, ceased, by the laws of New York, to be a lien upon real estate, against bona fide purchasers, or subsequent incumbrances, by mortgage, judgment, or otherwise; and, consequently, after the 24th of November, 1827, it no longer bound the property of Woolsey.

The bank denies, in its answer, that it had notice of the mortgage in question, at the time it purchased and obtained the conveyances; and there is no evidence in the record to charge them with notice. It purchased and obtained the deeds, as above stated, before the mortgage was recorded. No money was paid by the bank, on the purchase, except for expenses of sale and costs. The property was bought to secure the debt due from Woolsey; and the bank claims, by reason of that debt, to be a bona fide purchaser, for a valuable consideration; and, having had no notice of the mortgage to the United States, it insists that it is entitled to hold the lands discharged 'of the mortgage.

Some doubts were at first entertained by the Court, whether this proceeding could be sustained in the form adopted by the district attorney. It is a bill of information and complaint, in the name of the district attorney, in behalf of the United States. But, upon carefully examining the bill, it appears to be, in substance, a proceed

[Benton v. Woolsey et al.]

ing by the United States; although, in form, it is in the name of the officer. And we find that this form of proceeding, in such cases, has been for a long time used, without objection, in the courts of the United States, held in the state of New York; and was doubtless borrowed from the form used in analogous cases, in the courts of the state, where the state itself was the plaintiff in the suit. No objection has been made to it either in the court below, or in this Court, on the part of the defendants; and we think the United States may be considered as the real party; although, in form, it is the information and complaint of the district attorney. But, although we have come to the conclusion that the proceeding is valid, and ought to be sustained by the Court, it is certainly desirable that the practice should be uniform in the courts of the United States; and that, in all suits where the United States are the real plaintiffs, the proceeding should be in their name, unless it is otherwise ordered by act of congress.

Considering the United States as the real party in the case, the question to be decided by this Court is, whether, under the act of the state of New York, concerning judgments and executions, passed April 2d, 1813, the Bank of Utica was a bona fide purchaser at the sheriff's sale herein before mentioned; the purchase being made not upon an advance of the purchase money, but to pay a precedent debt due to the bank by judgment.

This question has been fully argued and carefully considered by this Court. But no opinion can be pronounced on the point, because the judges are equally divided upon it. Upon this division, the judgment of the court below is necessarily affirmed.

This cause came on to be heard, on the transcript of the record from the district court of the United States, for the northern district of New York; and was argued by counsel. On consideration whereof, it is adjudged and ordered by this Court, that the judgment of the said district court in this cause be, and the same is hereby affirmed.

THE BANK OF THE UNITED STATES APPELLANTS V. JAMES DANIEL

ET AL. APPELLEES.

A bill of exchange was drawn at Lexington, Kentucky, on James Daniel, on the 12th of October, 1818, by Robert Griffing, payable at one hundred and twenty days after date, at the bank of deposit of New Orleans. The bill was accepted by the drawee, and was endorsed by H. D., I. C. and S. H. All the parties to the bill resided in Kentucky. The bill was discounted by the Branch Bank of the United States in Kentucky, and was transmitted to New Orleans for payment. It was there regularly protested for non-payment, and was returned to Kentucky for payment of principal and interest, from the 9th of February, 1819, the time it fell due, together with charges of protest, and ten per cent. damages on the principal. The maker and acceptor of the bill paid the bank, in July, 1819, three thousand three hundred and thirty dollars and sixty-seven cents, on account of the aggregate amount due, and supposed to be due, and gave a promissory note for eight thousand dollars, the balance, to William Armstrong, to which H. D., I. C. and S. H were parties, as co-drawers or endorsers. This note was discounted at the office of discount of the Bank of the United States at Lexington, Kentucky, upon the express agreement, that the proceeds should be applied to the payment of the balance due on the bill. Afterwards a payment of five hundred dollars was made on this note, and a note for seven thousand five hundred dollars given, which not being paid, and Griffing having died, suit was brought by the bank on the note, and a judgment obtained against all the other parties to it. In 1827, the defendants in the judgment at law, filed their bill in the circuit court of Kentucky, claiming, that by the law of Kentucky, the bank was not entitled to ten per cent. damages on the bill, as all the parties to it lived in Kentucky; ard that, therefore, the amount of the damages, one thousand dollars, had been included by mistake, in the note for eight thousand dollars; and as there was no legal liability for damages, the note, to the amount of the damages, was given without any consideration whatThe bill prayed for an injunction to stay proceedings on the judgment, to the amount of the damages, and the interest on the same. In 1827, that amount was one thousand five hundred and fifteen dollars. A decree of the circuit court of Kentucky, allowed the injunction at November term, 1836, and the amount of the damages and interest, from July, 1819, which the three thousand three hundred and thirty dollars sixty-seven cents included and was paid in that sum, was at the time of the decree of the circuit court, two thousand and forty dollars. The act of congress provides, that appeals shall be allowed to the Supreme Court, from the final decrees rendered in the circuit courts, in cases of equity jurisdiction, where the matter in dispute, exclusive of costs, shall exceed the sum or value of two thousand dollars. The expression, sum or value of the matter in dispute, has reference to the date of the decree below, alike in case of appeals in equity, and writs of error at law: they are each grounded on the original process of this Court, operating on the final decree or judgment; and are limited to the sum or value then in controversy, and of which the decree or judgment furnishes the better evidence, should it furnish any. The matter in dispute in the circuit court, was a claim to have deducted from the judgment at law, one thousand dollars, with interest thereon, after the rate of six per centum, from the 8th day of July, 1819, up to the date of the decree, in November 1836; being upwards of seventeen

ever.

[Bank of the United States v. Daniel et al.]

years: and the circuit court decreed the reformation to be made of the judgment at law, by expunging therefrom, and as of its date, the one thousand dollars, with the interest. The effect was to cut off the interest that had accrued on the one thousand dollars, from the date of the judgment in 1827, to that of the decree, in 1836; interest on the principal sum recovered, being an incident of the contract by the laws of Kentucky, as well after judgment as before. The practical consequence of the decree will immediately be manifest when the bill is dismissed by the order of this Court; the appellants will then issue their execution at law, and enforce the one thousand dollars, with the accruing interest, from the 8th of July, 1819, until payment is made. It follows, that upon the most favourable basis of calculation, and disregarding the statute of Kentucky of 1789, giving ten per cent. damages in addition to legal interest on the sum enjoined, the amount to which the decree below relieved the appellees, and deprived the bank of the right of recovery, was two thousand and forty dollars; that is, one thousand dollars principal, with seventeen years and four months of interest: this being the aggregate amount in dispute, and enjoined by the decree, of course, the Supreme Court has jurisdiction of the writ of error.

This Court, in accordance to a steady course of decision for many years, feels it to be an incumbent duty, carefully to examine and ascertain if there be a settled construction by the state courts of the statutes of the respective states, where they are exclusively in force; and to abide by, and follow such construction when found to be settled.

A bill of exchange drawn, accepted, and endorsed by citizens of Kentucky, and there negotiated, payable at New Orleans; was not, by force of the statute of Kentucky of 1798, subject to the payment of ten per cent. damages.

Whether a bill of exchange, drawn in one state of this Union, payable in another, is a foreign bill, involves political considerations of some delicacy, although of no intrinsic difficulty, at this day. The respective states are sovereign within their own limits, and foreign to each other, regarding them as local governments; and consequently foreign to each other, in regard to the regulation of contracts: it follows, a bill drawn in one, payable in the other, is a foreign bill. The place of payment of the bill, on which the suit was brought in the circuit court, being within a jurisdiction foreign to Kentucky, subjected the acceptor to the performance of the contract, according to the laws of Louisiana, where it was payable, to every extent he would have been, had he become a party to the bill at New Orleans; and the effect of the contract, on all the parties to it, does not vary from the one sued on in Buckner v. Finley and Van Lear, 2 Peters, 586. Being a foreign bill, and not having been affected by the statute of Kentucky,of course, the holders, by commercial usage, were entitled to re-exchange when the protest for non-payment was made.

Courts of chancery will not relieve for mere mistakes of law. This rule is well established, and the Court will only repeat what was said in the case of Hunt v. Rousmanier, 1 Peters, 15, "that whatever exceptions there may be to the rule, they will be found few in number, and to have something peculiar in their charac ter, and to involve other elements of decision."

Courts of equity are no more exempt from obedience to statutes of limitations, than courts of common law.

It is generally true, that the giving a note for a pre-existing debt, does not discharge the original cause of action; unless it is agreed that the note shall be taken in payment.

The statute of limitations is a bar in a case where, at the time of the return of a bill

VOL. XII.-E