[Bank of the United States vs. Carneal.]

the residence of the party. Whether a mere direction to the county without farther specification, where the party does not reside in any town therein, would be sufficient in all cases and under all circumstances, we do not think it necessary to decide. That question may well be left until it is necessary in judgment. But where the description is general, if it is in fact sent to the proper post office, or if, after due inquiry it is the only description within the reach of the person sending the notice, we think it may be safely declared to be sufficiently certain, and that a different doctrine would materially clog the circulation of negotiable paper. We think the description in the present case was in every view sufficient. There was no mis-direction; for Carneal did live in Campbell county. His actual residence was well known to the postmaster at Cincinnati, and the description did not and could not mislead him. If the direction was observed, it would be sent to Covington, or would be delivered at Cincinnati. If not, it would be sent at farthest to Newport.

Then, was the notice in fact duly given, or duly sent through the proper post office? We are all of opinion that it was. The post office at Cincinnati was almost as near to the party's residence as that at Covington. The difference is too trifling to afford any just ground of preference; and Cincinnati was the place where he was most likely to receive the letter promptly, since it was the place of his business and of his habitual and almost daily resort. If it had never been transmitted from that office at all, we are not prepared to say, that under such circumstances, the notice left there was not of itself sufficient, since the party was known there and his description unequivocal. It does not appear in point of fact, that it ever left that place for any other post office. If it did not, the strong presumption is, that it was there delivered to the party. But if it was sent to Newport, how can the Court say that it was mis-sent? The party was in the habit of receiving letters there; it was the county seat; and the mail by that route was three times a week, and that by Covington only once a week. The probabilities, therefore, in favour of an early receipt of the let

[Bank of the United States vs. Carneal.]

ter from this circumstance might fairly balance any in the opposing scale, from the increase of distance and the intervention of the river Licking. And in fact the letter would at that time have reached Newport, two days earlier than it would have reached Covington. We think it would be inconvenient and dangerous to lay down any rule, that the person sending a notice, ought under such circumstances to direct the letter to the nearest post office. We think that the notice would have been good by either route; indeed good, if left at the post office at Cincinnati.

A suggestion has been made at the bar, that a letter to the indorser stating the demand and dishonour of the note, is not sufficient, unless the party sending it also informs the indorser that he is looked to for payment. But when such notice is sent by the holder, or by his order, it necessarily implies such a responsibility over. For what other purpose could it be sent? We know of no rule that requires any formal declaration to be made to this effect. It is sufficient, if it may be reasonably inferred from the nature of the notice.

For these reasons we are all of opinion that the judgment of the circuit court ought to be reversed; and the cause remanded, with directions to award a venire facias de novo.

VOL. II.-3 U

DAVID CANTER, APPELLANT vs. THE AMERICAN AND OCEAN INSURANCE COMPANY OF NEW YORK, APPELLEE.

A motion to dismiss a suit for want of jurisdiction, applies solely to cases where this Court has not jurisdiction of the cause; and not where the circuit court has exceeded its proper jurisdiction in the particular case.

THIS case was heard, and decided upon the preliminary question which it involved, in January term 1828. See 1 Peters, 511. On the hearing, the Supreme Court decided in favour of the claimant, and decreed restitution of the cotton, which was the subject of controversy. By the mandate, directed to the circuit court, it was ordered, "that such execution and proceedings be had as, according to right and justice, and according to the laws of the United States, ought to be had." The mandate being filed in the circuit court, it was ordered that the same be recorded, "that the case be put on the docket, and it be referred to the officer of this court to examine into the damages sustained by the claimant, David Canter, in consequence of the proceedings of the libellants; and report thereon at as early a day as possible to the court."

Upon this order of court being made, Mr Canter filed a statement of his claim, and the case went before the register. The counsel for the defendants filed with the register the following protest :

And now, on this sixteenth day of July, one thousand eight hundred and twenty-eight, the said libellants, by Petegru and Cruger, their proctors, object to the order of reference made by the honourable the circuit court of the United States, for the sixth circuit, to ascertain the damages alleged to have been sustained by the respondent in this case, and they article and protest against all acts and proceedings under the same for these reasons, to wit: 1st, That the mandate of the Supreme Court of the United States, gives no authority or instructions to the circuit court, to inquire into damages. 2d, That the decrees of the district,

[Canter vs. The American and Ocean Insurance Company of New York.] circuit and Supreme courts do not award damages to the respondent. 3d, That the libellants are not in any manner liable for damages. 4th, That at all events the inquiry as to damages, cannot extend beyond the amount of libellants' stipulations, by which alone they are before the Court. PETEGRU & CRUGER, Proctors for Libellant.

These objections were disallowed, and the register proceeded to take evidence subject to the protest, and to examine into the claim of damages; and afterwards made a report upon the claim to the circuit court.

The circuit court having by their decree disallowed the claims of the appellant to damages, with the exception of a small amount, an appeal was entered to this Court.

Mr Cruger, for the appellees, moved to dismiss the appeal, on the ground that the mandate of this Court did not authorise any proceedings in the circuit court for the assessment of damages.

The motion was supported by Mr Cruger for the appellees, and opposed by Mr Coxe and Mr Webster for the appellant.

Mr Chief Justice MARSHALL delivered the opinion of the Court.

The motion made is, to dismiss this case for want of jurisdiction. But a motion to dismiss a suit, for want of jurisdiction, applies solely to cases where this Court has not jurisdiction of the cause, and not to cases where the circuit court has exceeded its proper powers in the particular case. In the present case, this Court has, certainly, jurisdiction to revise the decree complained of in the circuit court. Whether that decree was proper or not, after the mandate of this Court, is matter for discussion upon an argument upon the merits of that decree; but not on a motion like the present. The motion is, therefore, overruled.

JAMES CONOLLY AND OTHERS, APPELLANTS vs. RICHARD TAYLOR AND OTHERS, APPELLEES.

When there is no change of the parties to a suit, during its progress, a jurisdiction depending on the condition of the parties, is governed by that condition as it was at the commencement of the suit. [565]

If an alien should sue a citizen, and should omit to state the character of the parties in the bill, though the Court could not exercise jurisdiction while the defect in the bill remained, yet it might, as is every day's practice, be corrected at any time before the hearing, and the Court would not hesitate to decree in the cause. [565]

The suit was originally instituted by aliens and a citizen of the United States as complainants, against the defendants, citizens of the United States. In the progress of the cause, and before the final hearing, the name of the citizen of the United States who was one of the plaintiffs, was struck out and he was made a defendant by the Court. It was held: The substantial parties, plaintiffs, those for whose benefit the decree is sought, are aliens, and the Court has original jurisdiction between them and all the defendants. But they prevented the exercise of this jurisdiction by uniting with themselves a person between whom and one of the defendants the Court could not take jurisdiction: strike out his name as a complainant, and the impediment is removed to the exercise of that original jurisdiction which the Court possessed between the alien parties, and all the citizen defendants. There is no objection, founded on convenience or law, to this course. [565]

THIS was an appeal from the circuit court of the United States for the district of Kentucky, in which court the appellants were complainants, and the appellees were defend

ants.

In the circuit court of Kentucky, on the 20th of February 1818, Thomas Conolly, James Conolly, Margaret Conolly, David David, and Francis Badley, aliens and subjects of the king of the united kingdoms of Great Britain and Ireland, and Samuel Mifflin, a citizen of the state of Pennsylvania, filed their bill against certain defendants, claiming to have an equitable title to a large tract of lands in right of colonel John Conolly deceased, situated at the falls of Ohio, in the state of Kentucky. The defendants in the bill were Richard Taylor, Fortunatus Cosby and Henry Clay, citizens of Kentucky, and William Lytle, described in the subpœna as a