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Appearance.

Such a joint judgment is erroneous, and will be reversed. Bartle v. Coleman, 6 Wheat. 475 5 Cond. Rep. 142.

18. Where there are several defendants entitled on appearance to remove a cause from a court into the circuit court of the United States, some of whom have appeared, and others of the defendants in the suit have not, the cause cannot be removed by those who have appeared. But this rule is only in cases where, from the subject-matter of the suit, the decree must be joint. Ward v. Arredondo, 1 Paine's C. C. R. 410.

bill. On the first day of the term a demurrer to
the complainants' bill was filed, which was
signed "Green C. Bronson, attorney-general of
New York." No other appearance was entered
on the part of the defendants. By the court-
The demurrer filed in the case by the attorney-state
general of New York, he being a practitioner in
this court, is considered as an appearance for the
state. If the attorney-general did not so mean
it, it is not a paper which can be considered as
in the cause, or be placed on the files of the
court. The demurrer being admitted as con-
taining an appearance by the state of New York,
it amounts to a compliance with the order of the
court. The State of New Jersey v. The People of
the State of New York, 6 Peters, 323.

12. It is unnecessary for an attorney or solicitor, who prosecutes a suit for the Bank of the United States, or other corporation, to produce a warrant of attorney under the corporate seal. Osborn v. Bank of the United States, 9 Wheat. 738; 5 Cond. Rep. 741.

13. A citizen of New Hampshire sued a corporation established by a statute in Connecticut, in the circuit court of New Hampshire; the corporation having entered a general appearance, it was held, that the objection to the service under the eleventh section of the judiciary act of 1789, ch. 20, was waived. Flanders v. Etna Ins. Co., 3 Mason, 158.

14. An attachment is the usual process to bring a party into court where he has not made a true return; and if he is present in court, no such process is necessary; but the court may pass an order directing him immediately to answer interrogatories. U. S. v. Green, 3 Mason,

482.

15. It is not a contempt of court to serve a person, while attending at the court as a party in a cause, or as a witness, with a summons. The privilege extends to exemption from arrest, and no further. Blight v. Fisher, 1 Peters' C. C. R. 41. 16. There is no act of congress which authorizes a circuit court to issue a compulsory process to the district court for the removal of a cause from that jurisdiction, before a final judgment. If a certiorari issue in such a case, the district court may and ought to refuse obedience to it; and after the cause is removed, either party may move for a procedendo to pursue the cause in the district court, as if the record had not been removed. But if, instead of taking advantage of this irregularity, the defendant enter his appearance in the circuit court, take defence, and plead to issue, it is too late, after verdict, to object to the irregularity. The cause will be considered as an original one in the circuit court, made so by consent of parties, even though no declaration, de novo, should be filed. Patterson v. The United States, 2 Wheat. 221; 4 Cond. Rep. 98.

17. If the defendant does not appear or give special bail, the appearance bail may defend the suit, and is liable to the same judgment as the defendant would have been liable to: but the defendant cannot appeal and consent to a reference, the report and judgment on which is to bind the appearance of bail, as well as himself; VOL. I.-15

19. Different defendants cannot remove the cause, or appear in the circuit court at different times, where their appearance is entered at different times in the state court. Ibid.

20. Where some of the defendants have removed the cause regularly into the circuit court, from the state court, others cannot enter an original appearance in the circuit court. lbid.

21. The circuit court can remand the cause, in case the defendants do not all eventually appear. Ibid.

22. A state court cannot order an appearance to be entered, nunc pro tunc, so as to entertain a motion for removal. Ibid.

23. Where the defendant's appearance has been entered in the state court two terms before he filed his petition to remove the cause from the state court, notwithstanding the state court allowed the petition to be filed, nunc pro tunc, the circuit court will not permit the cause to be docketed. Gibson v. Johnson, 1 Peters' C. C. R. 44.

24. A party cannot be arrested in Pennsylvania, on attachment from the circuit court of Rhode Island, for contempt in not appearing in that court, after a monition served on him in Pennsylvania to answer in a prize cause depending in the circuit court of Rhode Island. Ex parte Graham, 3 Wash. C. C. R. 456.

25. After due service of the subpœna, in a suit against a state, the state which is complainant has a right to proceed, ex parte, in a suit against a state; and if, after the service of an order of the court for the hearing of a cause, there shall not be an appearance, the court will proceed to a final hearing. The State of New Jersey v. The State of New York, 5 Peters, 284. 26. The practice of the supreme court has uniformly been, since the seat of government was removed to Washington, for the clerk of the court to enter, at the first term to which any writ of error or appeal is returnable, in cases in which the United States are parties, the appearance of the attorney-general of the United States. This practice has never been objected to. The practice would not be conclusive against the attorney-general, if he should, at the first term, withdraw his appearance, or move to strike it off. But if he lets it pass for one term, it is conclusive upon him as to an appearance. The decisions of the court have uniformly been, that an appearance cures any defects in the forms of process. Farrar & Brown v. The United States, 3 Peters, 459.

27. The subpœna issued on the filing of a bill, in which the state of New Jersey were com

W

Appraisement.-Application of Payments of Money.

plainants, and the state of New York were defendants, was served upon the governor and attorney-general of New York sixty days before the return day, the day of service and return inclusive. This being irregular, a second subpœna issued, which was served on the governor of New York only, the attorney-general being absent. There was no other appearance by the state of New York. By the court-This is not like the case of several defendants, where a service on one might be good, but not on another. Here the service, prescribed by the rule, is to be on the governor and on the attorney-general. A service on one is not sufficient to entitle the court to proceed. The State of New Jersey v. The State of New York, 3 Peters, 461.

28. Upon an application, by the counsel for the state of New Jersey, that a day might be assigned to argue the question of the jurisdiction of the supreme court, to proceed in the case of The State of New Jersey v. The State of New York, the court said they had no difficulty in assigning a day. It might be as well to give notice to the state of New York, as they might employ counsel in the interim. If, indeed, the argument should be merely ex parte, the court could not feel bound by its decision, if the state of New York desired to have the question again argued. Ibid. 464.

29. A notice was given, by the solicitors for the state of New Jersey, to the governor of New York, dated the 12th of January, 1830, stating that a bill had been filed on the equity side of the supreme court, by the state of New Jersey, against the people of the state of New York, and that on the 13th of February following, the court would be moved in the case for such order as the court might deem proper, &c. Afterwards, on the day appointed, no counsel having appeared for the state of New York, on the motion of the counsel for the state of New Jersey, for a subpoena to be served on the governor and attorney-general of the state of New York, the court said, as no counsel appears to argue the motion on the part of the state of New York, and the precedent for granting it has been established upon very grave and solemn argument, the court do not require an ex parte argument in favour of their authority to grant the subpoena; but will follow the precedent heretofore established. The state of New York will be at liberty to contest the proceedings at a future time, in the course of the cause, if they shall choose so to do. Ibid. 466.

31. The state of Massachusetts, after having appeared to process issued against her, at the suit of the state of Rhode Island, on a bill filed for the settlement of boundary, and after having filed an answer and plea to the bill, and having failed in a motion to dismiss the bill for want of jurisdiction; was, on motion of her counsel, allowed to withdraw her appearance. The Commonwealth of Massachusetts v. The State of Rhode Island, 12 Peters. 757. See JURISDICTION.

APPRAISEMENT.

1. An appraisement made by three sworn appraisers, under the order of the district judge, is not conclusive as to the value; but is better evidence of it than the opinion of a single wit ness examined viva voce in open court. The United States v. The Union et al., 4 Cranch, 216; 2 Cond. Rep. 91.

2. An extent, under the statute of Massachusetts of 1784, upon real estate, is not good, unless it appear, by the return, that all the appraisers were sworn, nor unless all the appraisers concur in the appraisement. But it is not necessary to the validity of the levy, as between the parties and their privies, that the levy should be recorded within the three months prescribed by the statute, nor that a certificate of the appraisement should be made and signed by the appraisers. It is sufficient that the officers' return contains all the facts, to make the levy valid. United States v. Slade, 2 Mason's C. C. R. 71.

3. An appraisement regularly made under the act of 18th April, 1818, ch. 74, for the purpose of ascertaining the value of goods subject to an ad valorem duty, is conclusive as to the value on which the duty is to be estimated, and no evidence will be admitted to prove that the actual cost or value was different. Tappan v. The United States, 2 Mason's C. C. R. 393.

4. The act of 18th April, 1818, Statutes of the United States at Large, vol. 3, 433, for the purpose of ascertaining the value of goods subject to an ad valorem duty, is strictly constitutional. But it has not changed the basis on which the value of goods is ordinarily to be estimated. The actual cost is still the true basis; and an appraisement under the 11th section is never to be ordered by the collector, unless he personally suspects that the invoice is undervalued, for that section applies only to fraudulent invoices. Ibid.

5. On an information for forfeiture of goods, subject to an ad valorem duty, the appraisement of the public appraisers is a necessary and preparatory proceeding, and is prima facie evidence. United States v. Fourteen Packages, 1 Gilpin's D, C. R. 240.

30. In the case of The State of Rhode Island v. The Commonwealth of Massachusetts, the court said: "It has been contended that this court cannot proceed in this cause without some process and rule of decision prescribed, appropriate to the case; but no question on process can arise on these pleadings: none is now necessary, as the defendant has appeared and plead, which plea in itself makes the first point in the case, without any additional proceeding; that is, whe ther the plea shall be allowed, if sufficient in APPLICATION OF PAYMENTS OF MONEY. law, to bar the complaint, or be overruled, as not being a bar in law, though true in fact." The State of Rhode Island v. The Commonwealth of Massachusetts, 12 Peters, 656.

1. If the debtor, at the time of payment, does not direct to which account the payment shall be applied, the creditor may, at any time, apply it to which he pleases. The Mayor and Common

Application of Payments of Money.

alty of Alexandria v. Patton et al., 4 Cranch, 317; | payments according to its own notions of justice. 2 Cond. Rep. 122. It is, however, too late for either party to claim a right to make an appropriation after the controversy has arisen, and, à fortiori, at the time of the trial. United States v. Kirkpatrick et al., 9 Wheat. 720; 5 Cond. Rep. 733.

2. Circumstances may occur, which would be equivalent to an election by a creditor as to the application of a payment; and it is error in the court to direct a jury, that if the application has not been made at the time of payment, the jury may make the application when the cause is tried. Ibid.

10. In cases of long and running accounts, where balances are adjusted, merely for the pur pose of making rests, the law will apply payments to extinguish the debts, according to the Ibid.

3. Where there are items of debt and credit in a running account between the postmaster-priority of time. general and the deputy postmasters, in the absence of any specific appropriation by either party, the credits are to be applied to the discharge of the debits antecedently due, in the order of the account. Postmaster-General v. Furber, &c., 4 Mason's C. C. R. 333.

4. A debtor may control, at will, the application of his payments; on his omitting to make the application, it devolves on his creditor. If this power be exercised by neither, the law makes the application, and it becomes the duty of the chancellor, in its performance, to exercise a sound discretion; and it is equitable to apply them, first, to extinguish those debts of which the security is most precarious. United States v. January et al., 7 Cranch, 572; 2 Cond. Rep. 611. 5. When a collector of revenue has given two bonds for his official conduct, at different periods, and with different sureties, a promise by the supervisor to apply his payments exclusively to the discharge of the first bond, although some of the payments were for money collected and paid after the second bond was given, does not bind the United States, and does not amount to an application of the payments to the first bond. Ibid.

6. Where a debtor, owing several debts, makes a payment to a creditor, the debtor has a right to apply it to what debt he pleases; if he make no specific designation, the creditor may apply it as he pleases: and where neither party appropriates it, the law will apply it according to its own notion of the intrinsic justice and equity of the case. Cremer v. Higginson et al., 1 Mason's

11. If a debtor deposits money for his creditor with a third person, and the creditor assents thereto, or gives the depositary a new credit, upon the footing of such deposit, the original debtor is discharged. Swift v. Hathaway et al., 1 Gallis. C. C. R. 417.

12. A debtor of the United States, who puts evidence of debts due to himself into the hands of a public officer of the United States to collect, and apply the money, when received, to the credit of such debtor, in account with the United States, is not entitled to such credit, until the money gets into the hands of a public officer of the United States entitled to receive it. Its being in the hands of an agent of a person who, at the time when the claims were put into his hands for collection, was a public officer of the United States, entitled to receive debts due to the United States, but whose office became extinct before the money was received by his agent, is not sufficient to entitle such debtor to a credit in account with the United States therefor. United States v. Patterson, 7 Cranch, 576; 2 Cond. Rep. 617.

13. In Virginia, the moneys arising from the sale of personal property are called legal assets, in the hands of an executor or administrator; and those which arise from the sale of real property are denominated equitable assets. By the law, the executor or administrator is required, out of the legal assets, to pay the creditors of the estate, according to the dignity of their de mands; but the equitable assets are applied equally to all the creditors, in proportion to their claims. Legal and equitable assets were in the 7. The comptroller of the treasury has a right hands of an administrator, he being also a comto direct the marshal to whom he shall pay missioner to sell the real estate of a deceased money received upon an execution; and a pay-person; and by a decree of the court of chanment, according to such directions, is good; and it seems he may avail himself of it upon the trial, without having submitted it as a claim to the accounting officers of the treasury. United States v. Giles et al., 9 Cranch, 212; 3 Cond. Rep.

C. C. R. 323.

377.

8. A person owing money under distinct contracts has, undoubtedly, a right to apply his payments to whichever debt he may choose. This direction may be evidenced by circumstances as well as by words; and a positive refusal to pay one debt, and an acknowledgment of another, with the delivery of the sum due upon it, would be such a circumstance. Tayloe v. Sandiford, 7 Wheat. 13; 5 Cond. Rep. 210.

9. The general doctrine is, that the debtor has a right, if he pleases, to make the appropriation of payments; if he omits it, the creditor may make it; if both omit it, the law will apply the

cery, he was directed to make payment of debts due by the intestate, out of the funds in his hands, without directing in what manner the two funds should be applied. Payments were made under this decree, by the administrator and the commissioner, to the creditors, without stating, or in any way making known, whether the same were made from the equitable or legal assets. A balance remaining in his hands, unpaid to those entitled to the same, the sureties of his administrator claimed to have the whole payments under the decree credited to the legal assets, in order to obtain a discharge from their liability for the due administration of the legal assets. Held, that their principal having omitted to designate the fund out of which the payments were to be made, they could not do it. Backhouse et al. v. Patton et al., 5 Peters, 160.

14. Where debts of different dignities are due

Application of Payments of Money.

to a creditor of an estate of an intestate, and no specific application of the payment made by an administrator is directed by him, if the creditor applies the payment to either of his debts by some unequivocal act, his right to do so cannot be questioned. Quere, whether the application must be made by the creditor at the time, or within a reasonable time? There may be cases where no indication having been given as to the application of the payment by the debtor or creditor, the law will make it. But it cannot be admitted, that in such cases the payment will be uniformly applied to the extinguishment of a debt of the highest dignity. That there have been authorities which favour such an application is true, but they have been controverted by other adjudications. Where an administrator has had a reasonable time to make his election as to the appropriation of payments made by him, it is too late to do so after a controversy has arisen. And it is not competent for the sureties of the administrator to exonerate themselves from responsibility, by attempting to give a construction to his acts which seems not to have been given by himself. Ibid.

solvent, the debt due to the United States shall first be satisfied; and that this priority shall extend to cases where a debtor, not having sufficient property to pay all his debts, shall make a voluntary assignment thereof. Held, that although this act gives to a debt due to the United States a priority over debts due to individuals, it does not give to one part of a debt due to the United States a priority over any other part of it; nor does it vest the property absolutely in the United States, though it gives them a right to pursue it for the purpose of appropriating it in payment; nor does it affect the right of the debtor to apply a payment of money in his hands either to a bond debt or a debt due by open account by him to the United States. The United States v. Cochran et al., 2 Brockenb. C. C. R. 274.

18. Where a collector of the revenue at a port, had given bond with sureties in the penalty of ten thousand dollars for the faithful discharge of his official duties, and being largely indebted to the United States, had made a deed of his property for their benefit, but previously thereto had transferred ten thousand dollars to his sureties, and directed them to apply that money to their exoneration; and the sureties accordingly did so apply it, by paying it into the treasury, and receiving from the treasury their obligation, without any knowledge at the treasury, that the money so paid had been transferred by the collector himself to his sureties: it was adjudged, that by applying that payment to the extinguishment of the bond, the sureties were discharged. Ibid., 2 Brockenb. R. 533.

19. Where money belonging to A. and C., arising out of a joint transaction between him and C., has, with the knowledge of B. of the in

agent of A. and C. to the credit of B. & C., who are partners, and C. is indebted to his partner B.; B. cannot apply the money of A. to the credit of C. in satisfaction of his claim upon him. Vanderwick v. Summerl, 2 Wash. C. C. R. 41.

15. Page was indebted, at the time of his decease, to Patton, three thousand pounds and upwards, which was covered by a deed of trust on Mansfield, one of Page's estates. The executors of Page refusing to act, Patton, in 1803, took out administration with the will annexed, and gave securities for the performance of his duties. Patton made sales of the personal estate for cash, and on a credit of twelve months, and received various sums of money from the same; he made disbursements in payment of debts and expenses for the support and education of the children of Page, and in advance to the le-terest of A. in the same, been placed by the gatees. He kept his administration accounts in a book provided for the purpose, entering his receipts and disbursements for the estate, but not bringing his own debt and interest into the account. In 1810 he put the items of his account into the hands of counsel, and requested him to introduce the deed of trust "as he might think proper ;" and an account as administrator was made out, in which the principal and interest of Patton's debt was entered as the first item. Afterwards, in the same year, by order of court, the real estate was sold, and Patton received the proceeds of the same. Held, that the sum due under the deed of trust to Patton should be charged on the funds arising from the sale of the real estate: and that having omitted to retain from the proceeds of the personal estate the sum due to him by Page, Patton could not afterwards charge the same against the legal assets, being the fund produced by the personal estate. Page v. Patton et al., 5 Peters, 304.

16. The court of chancery has established it as a rule, that where the charge is general the purchaser is not bound to see to the application of the purchase-money. Garnett v. Macon et al., 2 Brockenb. C. C. R. 185.

20. M. and R. had become, by separate engagements, liable to make up any deficiency of the proceeds of property assigned to the plaintiffs, to pay the debts of another, for equal portions of which they were also liable as endorsers. After the deficiency was ascertained, an account was rendered, in which the proceeds of the sale were credited to both M. and R.; R. having become insolvent, the court refused to permit the plaintiffs to apply the proceeds of the property to discharge the whole of R.'s engagement, and to claim the whole deficiency from M., the plaintiffs having applied the proceeds in the first instance to the discharge of both debts. Bank of North America v. Meredith, 2 Wash. C. C. R. 47.

21. The general doctrine as to the application of payments is, that if the debtor fail to apply them, the government may do so. If both fail, the law will make the application as the prin ciple of justice shall require. United States v. Linn, 2 M'Lean, C. C. R. 501.

17. An act of congress (act of March 3, 1797, sec. 5) declares that where a revenue officer, 22. Where different sets of sureties are conindebted to the United States, shall become in-cerned, this rule does not govern. Ibid.

Appointments to Office.-Appropriation of Payments by the Debtor or Creditor.-Appurtenances.

23. Sureties are only bound, on the bond of a receiver of public money, that he shall pay over all moneys on hand at the date of the bond, and which he shall subsequently receive. Ibid.

APPOINTMENTS TO OFFICE.

1. Some point of time must be taken, when the power of the executive over an officer not removable at his will must cease. That point of time must be when the constitutional power of appointment has been exercised. The power has been exercised, when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. Marbury v. Madison, 1 Cranch, 137; 1 Cond. Rep. 268.

2. If the act of delivery be necessary to give validity to the commission to an officer, it has been delivered when executed and given to the secretary of state, for the purpose of being sealed, recorded, and delivered to the party. Ibid.

3. In the case of commissions to public officers, the law orders the secretary of state to record them. When, therefore, they are signed and sealed, the order to record them is given; and whether inserted in the book or not, they are recorded. Ibid.

ditor, in the case of The United States v. January
and Patterson, 7 Cranch, 572, is the true one. In
that case the court say: "The debtor has the
option, if he think fit to exercise it, and may
direct the application of any particular payment,
at the time of making it. If he neglect to make
the application, the creditor may make it; if he
also neglect to apply the payment, the law will
make the application." The United States v.
Eckford's Executors, 17 Peters, 251.
See COLLECTOR OF THE REVENUE; SURETY.

APPROPRIATION OF WATER.

1. Priority of occupancy of the flowing of water of a river, creates no right, unless the appropriation be for a period which the law deems a presumption of right. Tyler v. Wilkinson, 4 Mason's C. C. R. 397.

2. A mill-owner as such, has no right to the water of a river beyond what has been legally appropriated to his mill by title, or long uses. Ibid.

3. The riparian proprietors have a title to all the waters not so appropriated. Ibid.

4. The exclusive use of flowing water for twenty years, is a conclusive presumption of a right. Ibid.

5. Prima facie, every proprietor upon each bank of a river, is entitled to the land covered with water in part of his bank to the middle thread of the river. Ibid.

4. To enable the supreme court to issue a mandamus to compel the delivery of the commission to a public officer by the secretary of state, it must be shown that it is an exercise of 6. In virtue of this ownership, he has a right appellate jurisdiction, or that it is necessary to to the use of the water flowing over it in its enable the court to exercise appellate jurisdic-natural current, without diminution or obstruction. Ibid. tion. But he has no property in the water itself. Ibid.

7. Every proprietor may use the water as it flows, according to his pleasure, if the use be not to the prejudice of any other proprietor. Ibid.

5. Where a commission to a public officer has been made out, signed, and sealed, and is withheld from the person entitled to it, an action of detinue for the commission against the secretary of state, who refuses to deliver it, is not the 8. There is no difference whether a proprietor proper remedy, as the judgment in detinue is be above or below another in the river, for no for the thing itself, or for the value of it. The right is acquired or lost by any such circumvalue of a public office not to be sold, is incapa-stance. No proprietor has a right to throw back ble of being ascertained. It is a plain case for a water on a proprietor above, or divert it from a mandamus to deliver the commission, or a copy proprietor below, to his injury. Ibid. of it, from the record. Ibid.

6. The appointment of a paymaster is complete, when made by the president, and confirmed by the senate. The giving a bond for the faithful performance of his duties, is a mere ministerial act, for the security of the government; and not a condition precedent to his authority to act as a paymaster. U. S. v. Bradley, 10 Peters, 343.

APPORTIONMENT.
See INSURANCE.

APPURTENANCES.

1. Where a house or store is conveyed by the owner thereof, every thing passes which belongs to it, and is in use for the house or store, as an incident or appurtenance. U. S. v. Appleton, 1 Sumner's C. C. R. 492.

2. Certain streets were laid out by the town of Charlestown, Massachusetts, and the proceedings relative to the same were afterwards confirmed by an act of the legislature. The streets passed over the land of John Harris, and he afterwards received a compensation from the town, for taking the land occupied by the streets. of an act of the legislature of Massachusetts, In 1800, the United States, under the authority purchased of Mr. Harris several parcels of land 1. The rule established by this court, as to now occupied as a navy yard; and in 1801, by an the appropriation of payments by debtor or cre-arrangement between the town of Charlestown

APPROPRIATION OF PAYMENTS BY THE

DEBTOR OR CREDITOR.

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