[42] IN ERROR to the Circuit Court of the United | Minnesota and Illinois, on the other. This rul States for the District of Minnesota. Mr. Gordon E. Cole, for plaintiffs in error. error. Mr. Chief Justice Waite delivered the opinion of the court: It has been decided at this term in R. A. Co. v. Ide [ante, 63], that in a suit on a contract brought by a citizen of one State against a [43] citizen of the same State and a citizen of another State, there was no such separate controversy as would entitle the citizen of the other State to remove the cause, even though he answered separately from his codefendant setThis is a writ of error brought under section ting up a separate defense, and the statutes 5 of the Act of March 3, 1875, ch. 137, 18 Stat. regulating the practice, pleadings and forms at L., 470, for the review of an order of the and modes of proceeding in the State where the Circuit Court remanding a cause which had suit was brought, allowed judgments to be been removed from a state court. The suit given in actions ex contra tu for one or more was brought by Tvedt Brothers, citizens of plaintiffs and for one or more defendants. In Minnesota, against Carson, Pirie, Scott & Co., that case it was said: " A defendant has no right citizens of Illinois, and Owen J. Wood and to say that an action shall be several which a Theodore S. Stiles, citizens of Minnesota, to re- plaintiff elects to make joint. Smith v. Rines, cover damages for a malicious prosecution, it be- 2 Sumn., 358. A separate defense may defeat ing averred in the complaint that "the said de-a joint recovery, but it cannot deprive a plainfendants, confederating together, and with a ma- tiff of his right to prosecute his own suit to a licious and unlawful design and intent had and final determination in his own way. The cause entertained by them, and each of them, to in- of action is the subject-matter of the controjure, oppress, and harass these plaintiffs and versy, and that is for all the purposes of the to break them up in business, wrongfully, ma- suit, whatever the plaintiff declares it to be in liciously, unlawfully, and without any reason or his pleadings. Here it is certain joint conprovocation, or probable cause, caused a certain tracts entered into by all the defendants for action to be commenced against these plaintiffs. the transportation of property. On the one side in which said Carson, Pirie, Scott & Co. were of the controversy upon that cause of action is plaintiffs, for the pretended recovery of money, the plaintiffs, and on the other all the defend* * and then and there wrongfully, un- | ants. ' lawfully and maliciously, and with the aforesaid intent so had and entertained by each and all of said defendants, wickedly and maliciously conspired together, and without probable cause, caused to be issued * * * a writ of attachment upon the stock of goods, wares and merchandise of these plaintiffs; * * * that, | as joint, and the plaintiffs inight have sued each under said writ of attachment, and by direct instruction of the defendants, the sheriff of said county levied the same upon the stock of goods and closed up the store, and stopped and broke up the business of these plaintiffs." The defendants, Wood & Stiles, answered separately from their codefendants, denying all malice and conspiracy, and saying that they, as attorneys at law, and acting for and under the instructions of Carson, Pirie, Scott & Co., brought the action and sued out the attachment in good faith, and not otherwise. The other defendants also filed a separate answer, admitting that they caused the action to be brought and the attachment to be issued, and that the attachment had been vacated, though the action itself was still pending and undisposed of. Upon these pleadings Carson, Pirie, Scott & Co. filed a petition under the second clause of section 2 of the Act of 1875, for the removal of the cause to the Circuit Court of the United States, on the ground that as the action was in tort and therefore in its nature severable, there was in ita controversy which is wholly between citizens of different States, to wit: between the plaintiffs and Pirie, Scott & M'Leish, * * * and that said controversy can be fully determined as between them." After the case got into the Circuit Court on this petition, it was remanded because there was but one controversy in the suit, and that between the plaintiffs, citizens of Minnesota, on one side, and all the defendants, citizens of " We are unable to distinguish this case in The order remanding the case is affirmed. James H. McKenney, Clerk, Sup. Court, U. S. Mr. Justice Harlan, dissenting: Mr. Justice Woods and myself dissent from the opinion and judgment in this case. Al- [44] though the action is, in form, against all of the defendants jointly, it is practically, a separate one against each defendant; for it is conceded that, by the laws of Minnesota, it would not be wholly defeated if the plaintiffs failed to establish a cause of action against all of the defendants. They would be entitled to judgment against the defendant or defendants against whom a case was made. Had the suit been only against the defendants who are citizens of Illinois, as it might have been, the right of the latter to remove it into the Circuit Court of the United States would not be questioned. But it seems, by the present decision, that their right of removal has been defeated by the act of the plaintiffs in uniting with them as defendants, citizens of Minnesota, against whom, as is conceded, it was not necesary to introduce zen of New Jersey asks a removal of the suit 1. The value of foreign coins, as ascertained by the estimate of the director of the mint and proclaimed by the Secretary of the Treasury, is conclugive upon custom-house officers and importers. 2. Alleged errors in the estimate cannot be shown in judicial proceedings to affect the rights of the government or individuals. 3. As the duty of ascertaining and declaring the value of such coins is an executive function, which requires skill and the exercise of judgment and discretion, errors can only be corrected by an appeal to the department itself. 4. Sections 2838 and 3564 R. S., construed. The case of Cramer v. Arthur, bk. 26, 259, affirmed. IStates for the Southern District of New N ERROR to the Circuit Court of the United to the federal court, he is met with the suggestion that it is for the plaintiff, in his discretion, to sue him separately, or jointly with others. Upon his application to remove the cause, the state court may not institute a preliminary inquiry as to whether the plaintiff had, in fact, a cause of action against the defendant citizen of New York. It is not for that court, in advance, to determine the good faith of the plaintiff in making a citizen of New York a codefendant with the citizen of New Jersey. The removal statutes make no pro-ion of the court: vision for such an inquiry, and the state court, by the decision just rendered, must look alone to the cause of action as set out in the petition. or complaint. When, in the case supposed, the evidence is concluded, and it appears that there is, in fact, no cause of action against the de[45] fendant citizen of New York, it is too late for the removal to occur; for, it must be had, if at all, before the suit could be tried in the state court. It seems to us that where the plaintiff The plaintiffs' case was this: In the year 1879 in a suit against several defendants in tort, they imported from China several invoices of is not required to prove a joint cause of ac- merchandise, subject to an ad valorem duty, the tion against all of them, but may have judg-value of which was stated in the invoices in ment as to those against whom he makes a Mexican silver dollars, the currency of the case, there is, within the meaning of the Act of country whence the goods were exported. In Congress, a controversy in the suit, which is converting the value of the invoices, as exwholly between the plaintiff and each defend-pressed therein, from Mexican silver dollars inant, and finally determinable as between them without the presence of the other defendants as parties in the cause. The suit, therefore, belongs to the class which, under the Act of 1875, may be removed into the federal court. The decision in this case, it seems to us, restricts the right of removal, under the Act of 1875, by citizens of States other than that in which the suit if brought, within much narrower limits than those established by previous legislation; and this, notwithstanding it was intended by that Act to enlarge the right of removal, especially in respect of controversies between citizens of different States. True copy. Test: The history and facts of the case appear in the opinion of the court. Messrs. Mason W. Tyler, Henry E. Tremain and Wm. B. Coughtry, for plaintiffs in error. Mr. S. F. Phillips, Solicitor-Gen., for defendant in error. Mr. Justice Matthews delivered the opin This was an action brought by plaintiffs in error against the Collector of the Port of New [26] York, to recover an excess of duties, alleged to have been illegally exacted and paid under protest. A verdict was returned for the defendant under instructions to that effect by the court, and judgment rendered accordingly. To this ruling of the court exceptions were duly taken, and it is now assigned for error. to the value by which the actual ad valorem The plaintiff offered to prove that this valua- lar as compared with the silver dollar of the United States, whereas it ought by law to have been estimated and proclaimed by relation to the value of the gold dollar of the United States, and that this would have diminished the duti able value of the goods imported, by the difference between from 84 cents to 86 cents, EDWIN A. MERRITT, Collector of the PORT and 101 cents, as the value of the Mexican [25] JAMES E. S. HADDEN ET AL., Surviving Partners, Piffs. in Err., V. OF NEW YORK. (See S. C., Reporter's ed., 25-28.) Value of foreign coins-official estimate of ΤΟ dollar, varying, according to the dates of the several importations, with the commercial difference in value between gold and silver. The how evidence offered on this point was rejected, and the ruling of the court, in its instruction to the jury to return a verdict for the defendant, was | executive officers charged with the duty; and based on the proposition that, in assessing the their action cannot be otherwise questioned. duties collected on the value of the invoices, re- Such was the principle announced in the case duced from the Mexican silver dollars to the of Cramer v. Arthur,102 U. S., 612 [Bk. 26,L. money of account of the United States, the col- ed. 259]. It was there said, p. 616 [261]: "That lector and importer were concluded by the esti- valuation, so long as it remained unchanged, [27] mate of the director of the mint, proclaimed by was binding on the collector and on importers the Secretary of the Treasury, and then in force. -just as binding as if it had been in a permaIn opposition to that, it is contended that nent statute, like the statute of 1846, for exsuch estimate is not conclusive, in a case where ample. Parties cannot be permitted to go beit can be shown that it is based on the value of hind the proclamation, any more than they the foreign silver coin computed in terms of would have been permitted to go behind the the silver dollar, instead of the gold dollar, of statute, for the purpose of proving, by parol or the coinage of the United States, in violation, by financial quotations in gazettes, that its valit is argued, of the statutory rule prescribed for uations are inaccurate. The government gets making such estimate, which requires that the at the truth as near as it can, and proclaims it. value of the foreign coin, so estimated, shall be Importers and collectors must abide by the rule expressed in the money of account of the Unit- as proclaimed. It would be a constant source ed States, the standard unit of value of which of confusion and uncertainty if every importer is assumed to be the gold dollar and not the sil- could on every invoice, raise the question of ver dollar. the value of foreign moneys and coins. * * * Section 2838 R. S. requires all invoices of mer. P. 619 [262]: If existing regulations are found chandise, subject to a duty ad valorem, to be to be insufficient, if they lead to inaccurate remade out in the currency of the place or coun-sults, the only remedy is to apply to the Presitry from whence the importation shall be made, dent, through the Treasury Department, to and that they shall contain a true statement of change the regulations." the actual cost of such merchandise in such foreign currency or currencies, without any respect to the value of the coins of the United States, or of foreign coins, by law made current within the United States, in such foreign place or country. Section 3564 R. S. is as follows: "The value of foreign coin, as expressed in the money of account of the United States, shall be that of the pure metal of such coin of standard value; and the values of the standard coins in circulation of the various nations of the world shall be estimated annually by the director of the mint and be proclaimed on the first day of January by the Secretary of the Treasury.' There was no error in the ruling of the Cir- J. H. McKenney, Clerk, Sup. Court, U. 8. MARY E. RICHARDS ET AL. 3. Stewart v. Kahn, Bk. 20, 176, affirmed. [No. 2647.] the ERROR to the Supreme Court of the State The value of foreign coins, as ascertained by the estimate of the director of the mint and pro-ing the limitation of actions, applies to causes and 1. The Act of Congress of June 11, 1864, concernclaimed by the Secretary of the Treasury, is proceedings in the courts of the States as well as to conclusive upon custom-house officers and im- those in the courts of the United States. porters. No errors alleged to exist in the esti- ciled in New Orleans after the authority of the 2. Where the payees of certain notes were domimate, resulting from any cause, can be shown United States was re-established, the executrix of in a judicial proceeding to affect the rights of the succession of the maker being domiciled within the government or individuals. There is no the confederate lines, an action on said notes is within the Act. value, and can be none, in such coins, except as thus ascertained; and the duty of ascertaining and declaring their value, cast upon the Treasury Department, is the performance of an executive function requiring skill and the exercise of judgment and discretion, which precludes judicial inquiry into the correctness of [28] the decision. If any error, in adopting a wrong standard, rule or mode of computation, or in any other way, is alleged to have been committed, there is but one method of correction; that is, to appeal to the department itself. To permit judicial inquiry in any case is to open a matter for repeated decision, which the statute evidently intended should be annually settled by public authority; and there is not, as is as sumed in the argument of the plaintiff in error, any such positive and peremptory rule of valuation prescribed in the statute, as serves to limit the discretion of the Treasury Depart ment in making its published estimate, or would enable a court to correct an alleged mistake or miscalculation. The whole subject is confided by the law exclusively to the jurisdiction of the Statement by Mr. Justice Woods: lows: On March 30, 1860, Walter O. Winn, of ing war. See Hanger v. Abbott, 73 U. 8. bk. 28, 939, NOTE.-Statute of Limitations-Suspension of dur [137] [138] wife, Mary E. Winn, his universal heir and legatee and executrix. As such she took possession of the estate. The nine notes payable to order of Rotchford, Brown & Co. were presented to Mrs. Winn, as executrix, for her acknowledgment thereof as a debt against the succession of Winn, and she indorsed on each of them such acknowledgment, with a promise to pay the same in due course of administration. These indorsements all bore date November 1, 1865. Mrs. Winn continued in the office of executrix until September 30, 1873, when, by the order of the District Court for the Parish of Rapides, she was "destituted"that is to say, removed-"from said executorship of the estate of Winn," and J. M. Wells, Jr., appointed dative testamentary executor of said succession. On July 5, 1880, Wells, as such executor, filed a provisional account of his administration in the District Court for the Parish of Rapides, which had probate jurisdiction. In his account he recognized the nine notes above mentioned payable to the order for Rotchford, Brown & Co., which, in January, 1886, had been transferred by the payees to the appellant, John S. Mayfield, as valid claims against the succession, and proposed to apply the assets in his hands to their payment. Mrs. Winn, under the name of Mary E. Richards, she having intermarried with A. Keene Richards, filed, with the authorization of her said husband, on January 11, 1881, her opposition to the allowance and payment of the notes, and stated her ground of opposition as follows: "The notes are prescribed and were prescribed at the date they were accepted by the executrix, the date of acceptance being written on the back of the notes long before they were accepted by the executrix, and accepted in error.' One John D. DuBose, a creditor of the succession, also opposed the recognition and payment of the notes, because "said nine notes were all prescribed long before they were pretended to be acknowledged by the executrix, Mrs. Mary E. Winn, and the acknowledgment was made by her in the City of New Orleans, Louisiana, in January or February, 1866, and not on the 1st day of November, 1865, as it purports." There was no charge, and no attempt to prove that the antedating of the acknowledgment of the executrix had been fraudulently procured; and, if the notes were not prescribed until long after January, 1866, as contended by Mayfield, there was no motive to antedate the acknowledgment, and nothing to be gained by so doing. The contention that these notes were prescribed was based on Article 3540 of the Civil Code of Louisiana, which declares that "notes payable to order or bearer *** are prescribed by five years' reckoning from the day when the engagements were payable." Mayfield contended that the notes had been admitted as valid debts against the succession of Winn by the executrix, on November 1, 1865, as appeared by her indorsement thereon, and, as such indorsement was made before the expira[139] tion of five years after the maturity of the notes, it was effectual to suspend prescription, and the notes were, therefore, not prescribed. Upon the opposition of Mrs. Winn and DuBose the question whether the nine notes were prescribed was tried by the judge of the District Court in which the opposition was filed. He admitted evidence to show, and upon it decided, that the acknowledgment of Mrs. Winn, as executrix, indorsed upon the notes, and purporting to be dated November 1, 1865, was not in fact made on that day, but some time between the first and tenth days of January, 1866. As this was more than five years after the maturity of the notes, it was not competent for the executrix to acknowledge them, and they were apparently barred by the prescription of five years provided by the law of the State. But the appellant, Mayfield, contended that the notes were saved from the prescription of five years, by (the Act of Congress of June 11, 1864, 13 Stat. at L., 123), entited "An Act in Relation to the Limitations of Actions in certain cases," which provided that "whenever during the existence of the present rebellion any action, civil or criminal, shall accrue against any person who, by reason of resistance to the execution of the laws of the United States or the interruption of the ordinary course of judical proceedings, cannot be served with process, **the time during which such person shall so be beyond the reach of legal process shall not be deemed or taken as any part of the time limited by law for the commencement of such action." To bring the notes in controversy within the terms of this statute, Mayfield offered to the District Court evidence tending to show that Rotchford, Brown & Co., the payees, were domiciled in the City of New Orleans, and were doing business there when the city was taken by the Federal forces in 1862, and that Shepherd Brown, one of the members of the firm, was in the city in 1864, and that Mayfield, the appellant, was also a resident of New Orleans. He also introduced testimony tending to show that the United States had no jurisdiction over the Parish of Rapides during the war, except a military one, and that such military jurisdiction lasted for but a short time; that the Federal troops came to Alexandria, the county seat of Rapides Parish, about March 17, 1864, and remained in possession thereof until about May 15th, when they departed; that before leaving they burned the Town of Alexandria, including the court house, after which there was a state of disorganization; there was no court and there were no officers in the parish until after July 9, 1865; that Mrs. Winn, the executrix, had gone as a refugee to Texas, and no service could have been made on her from the time the court house was burned until she returned to Rapides Parish, in December, 1865. This testimony was uncontradicted. Upon this evidence the District Court decided that, conceding that the acknowledgment of Mrs. Winn as executrix was not indorsed on the nine notes until some day between the first and tenth of January, 1866, yet the prescription of the notes were suspended by the Act of Congress above recited for a period sufficient to save them from the bar of Article 3540 of the Code of Louisiana, and thereupon rendered judgment that the claim of Mayfield was a valid [140] [141] and legal debt due from the succession of Winn, have been a resident in NewOrleans. It appears, therefore, that the executrix of the succession of Winn was within the Confederate lines, and Mrs. Winn and DuBose carried this judg- the payees and the endorsee of the notes within [142] ment to the Supreme Court of Louisiana for the Federal lines. Under these circumstances review. That court, assuming that the facts they could not lawfully institute proceedings which the evidence introduced in the District against the succession of Winn, in the parish Court tended to prove were established, re- of Rapides, to enforce the payment of the notes, versed the judgment of the district court for intercourse across the military lines was on the ground that the Act of Congress on forbidden by law. Moreover, while the prewhich Mayfield relied to suspend prescrip- scription of five years was running, the courts tion applied only to causes and proceedings in of the parish, which alone had jurisdiction of the courts of the United States, and not to the succession of Winn, were closed for more causes and proceedings in the courts of the than a year, a period well described by Lord States, and that the claim of Mayfield was there- Coke: "So, when by invasion, insurrection, refore prescribed when Mrs. Winn, the executrix, bellion, or such like, the peaceable course of undertook to acknowledge it in January, 1866. justice is disturbed and stopped, so as the courts The present writ of error, sued out by May-of justice be, as it were, shut up et silent leges field brings the judgment of the Supreme Court of Louisiana under review. Messrs. E. T. Merrick and R. M. Hunter, for plaintiff in error. Mr. Gus A. Breaux, for defendants in error. Mr. Justice Woods delivered the opinion of the court: inter arma, then it is said to be time of war." The case, therefore, falls within the letter of ana was erroneous. unwilling to question or re-examine it. The The question thus raised was expressly de- These cases are conclusive of the present controversy, and, adhering to the ruling made in them, we are of opinion that the notes held by Mayfield were not prescribed, and that the judgment of the Supreme Court of Louisiana should, therefore, be reversed, and the cause remanded to that court, with directions to enter judgment that the claim of Mayfield, based on the nine notes of Walter O. Winn, is a legal and valid debt due from his succession, and that it was properly placed in the provisional account of the dative testamentary executor as an ordinary claim; and it is so ordered. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. JAMES S. PHILIPPI, Appt., V. ANTONIO PHILIPPE ET AL. (See S. C., Reporter's ed., 151-160.) trusts-law of Alabama. equivocal words and acts of the trustee, who claims The facts of the case, as shown by the record, Statute of Limitations-application of, to NOTE.-Limitation of actions in equity; applica- see Pratt v. Carroll, 12 U. S. (8 Cranch), 471, bk. 3, 627, As a general rule,the Statute of Limitations does not [151] |