Mr. Justice Story delivered the opinion of the court:

478; Critchlew v. Berry, 2 Cowp. 182; 2 Bing. | the sole authority for this purpose belongs to N. C. Rep. 439; 4 Mass. 258; 7 Pickering, the Congress of the United States. So far as 291; 16 Pickering, 533; Bush v. Reeves, 3 Johns. the acts of Congress have adopted the forms 439. of process, and modes of proceeding and pleadings in the State courts, or have authorized the courts thereof to adopt them, and they have been actually adopted, they are obligatory; but no farther. But no court of the United States is authorized to adopt by rule any provisions of State laws which are repugnant to or incompatible with the positive enactments of Congress upon the subject of the jurisdiction, or practice, or proceedings in such court. It is obvious that the latter clause of the statute of Mississippi already cited, which provides for the bringing of suits upon bills of exchange or promissory notes in the county where the drawers live, or, under certain cir cumstances, in the county where the first indorser lives, is utterly incompatible with and repugnant to the known organization and jurisdiction of the courts of the United States. Suits in these courts are, by the Judiciary Act of 1789 (ch. 20, sec. 11), to be brought in the district whereof the defendant (being a citizen of the United States) is an inhabitant, or in which he shall be found at the time of serving the writ; and the "suits are cognizable [*95 in no other places than those assigned for the regular holding of the terms of the courts. There is no pretense, therefore, to say that the Circuit Court could by any rule adopt the State law upon this subject.

This is a writ of error to the Circuit Court of the District of Mississippi. The original action is assumpsit upon a promissory note, signed by Hugh M. Keary and Patrick F. Keary, dated at Pinkneyville, in the State of Mississippi, on the 18th of February, 1838, whereby (as the declaration alleges) the makers promised, twelve months after date, to pay to Charles A. Lacoste, by the name and description of Briggs, Lacoste & Company, or order, four thousand eight hundred and sixty-three dollars and fifty-five cents, payable and negotiable at The Planters' Bank in Natchez, and which note was indorsed by Lacoste, by the name and description of Briggs, Lacoste & Company, to the plaintiffs, The Farmers' and Merchants' Bank of Memphis. The declaration avers that the plaintiffs are citizens of Tennessee, and that the defendants are citizens of Mississippi; the makers and the indorser being joined in the suit. This joinder was in pursuance of a statute of Mississippi, of the 13th of May, 1837 (Laws of Mississippi, edit. 1838, page 717), whereby it is enacted, "That in all actions founded upon bills of exchange and promissory notes, the plaintiffs shall be compelled to sue the drawers and indorsers, living and resident in this State, in a joint action; and such suit shall be commenced in the county where the drawer or drawers reside, if living in the State; and if the drawer or drawers be dead, or reside out of the State, the suit shall be brought in the county where the first indorser resides." It seems that this statute had been adopted by the district judge of the District of Mississippi, in the absence of the judge of this court, assigned to that circuit by a rule of court; and upon the footing of that rule the present suit was brought.

The makers of the note pleaded a plea to 94*] the jurisdiction of the court, averring that the cause of action accrued to the plaintiffs by virtue of the promissory note made payable to and indorsed by Lacoste to them; and that they, the makers, at the time of making the note and at the time of the commencement of the action, were citizens and residents of the State of Mississippi. To this plea there was a demurrer, which upon the hearing was overruled, and the makers assigned to plead over; which, having failed to do, and Lacoste, the other defendant, having failed to appear, judgment was finally rendered against all the defendants; and from that judgment the present writ of error has been brought to this court.

The first and main question presented to us for consideration is, whether the present action is sustainable in the Circuit Court jointly against the makers and the indorser, under the circumstances disclosed in the record. In our judgment it is not. The statute of Mississippi, proprio vigore, is of no force or effect in the courts of the United States, it not being competent for any State Legislature to regulate the forms of suits or modes of proceeding or pleadIngs in the courts of the United States; but

As little real ground is there for maintaining that the court had authority to adopt the other part of the State statute, requiring that the drawers and indorsers of bills of exchange and promissory notes should be compellable to be joined by the plaintiff in a joint action. The Judiciary Act of 1789 (ch. 20), in the eleventh section, gives jurisdiction to the Circuit Court of suits between a citizen of the State where the suit is brought, and a citizen of another State; and, among other exceptions, not applicable to the present suit, it excepts "any suit to recover the contents of any promissory note or other chose in action in favor of an assignee unless the suit might have been prosecuted in such court to recover the contents, if no assignment had been made; except in cases of foreign bills of exchange." It is plain upon the language of this clause, that as the makers and the payee of the promissory note in this case were all citizens of Mississippi, no suit could have been maintained between them (the original parties) in the Circuit Court. But the same objection does not apply to a suit on the same note by the plaintiffs as indo sers against their immediate indorser, Lacoste; for there is an immediate privity of contract between them, and they are citizens of different States. This was long since settled by the decision of this court in Young v. Bryan, 6 Wheat. 146. So that it is manifest, that as between the makers and the plaintiffs the present suit is not maintainable; and as between the indorser and the plaintiffs as indorsees, it is maintainable by the laws of the United States. The result, therefore, of giving effect to the statute of Mississippi, and the rule of the court adopting the same, would be, either that the Circuit Court, in contravention of the express terms of the Judiciary Act of 1789 (ch. 20),

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and One great object in the establishment of the the same is hereby reversed and annulled; and courts of the United States, and regulating their that this cause be, and the same is hereby re-jurisdiction, was to have a tribunal in each [*98 manded to the said Circuit Court, with directions to enter judgment for the defendants, in conformity to the opinion of this court.

*7*] *JOHN GORDON, Plaintiff in Error, IN error to the Court of Appeals of the State

plaintiff for six hundred and fifty dollars, on which judgment was entered for the plaintiff. On the trial, the defendant asked the court to instruct the jury

1. That so much of the act entitled "An Act to amend an act to prevent masters of vessels and others from employing and removing persons of color from this State," approved February 12th, 1828, as is in the following words, to wit: "Be it further enacted that the liabilities under the said act shall accrue whenever the person of color shall be taken on board any steam vessel, from the shore of the Ohio River opposite the State, to the same extent as if they were taken on board from the shores or rivers within the State," is not within the con99*] stitutional power of the Legislature *of the State of Kentucky, under the Constitution

of the United States."

2. That under the Constitution and laws of the United States, a steamboat captain navigating the Ohio River is not guilty of a breach of duty by taking persons of color from the Indiana shore, and transporting them in their steamhoats; provided such captain shall, in good faith, believe such persons of color are free; and that the act of the Kentucky Legislature, if to the contrary, is unconstitutional and void. 3. If the jury believe from the evidence that the negro was taken from the Indiana shore by the plaintiff in good faith, believing him to be free, and that he was taken by the plaintiff as a passenger in the navigation of his boat, that in such case the jury ought to find for the defendant the issue in the case.

On the motion of the counsel for the plaintiff, the court instructed the jury, that if they find from the evidence that the defendant was captain of the steamboat Guyandotte, put out his yawl when opposite to Jeffersonville, in the State of Indiana, took the plaintiff's negro on board, and carried him to Cincinnati, in the State of Ohio, and that he was lost to the plaintiff, the defendant is liable in this action; and they ought to find for the plaintiff all the damages he has sustained.

To which opinions of the court, in refusing to give the instructions asked, and in giving the instructions for the plaintiff, the defendant excepted; and he prayed an appeal to the Court of Appeals of the State of Kentucky. Before the Court of Appeals, the appellant assigned for error, among others, the following: 1. The court erred in refusing to remove this cause to the federal court, upon the petition of the appellant, filed on his first entering his appearance to the suit. The appellant claims that he had a right to a trial in the United States Court, and that the whole proceedings in this cause, subsequent to the application to remove, are against law.

2. The Circuit Court erred in each and every instruction given on the trial, at the instance of the plaintiff.

3. The court erred in refusing to give each and every instruction asked by the appellant, Gordon, on the last trial.

4. The Circuit Court has, in violation of the Constitution of the United States, and of an act of Congress, clung to a jurisdiction that did 4. That although persons of color in Ken-not rightfully belong to a State court, and on tucky are in law presumed to be slaves, they are in Indiana presumed, prima facie, to be free; and if the plaintiff took the slave from the Indiana shore in good faith, and under the belief that he was free, and that he was taken by the defendant as a passenger, in the navigation of the said boat, that in such case the jury ought to find for the defendant.

5. That if the defendant was a citizen of the State of Ohio, residing there, and the steamboat Guyandotte, of which he was commander, did belong to the port of Cincinnati in said State; and the negro Jim did come on board said boat at the Indiana shore of the Ohio River, and the said Gordon acted in good faith, and did not know that the said negro Jim was a slave, that then he is not liable to pay damages to the plaintiff for having permitted the said slave to come on board the boat, and having taken him on board said boat to Cincinnati, in the State of Ohio.

the trial of the cause, given instructions in violation of the Constitution of the United States, and the appellant relies upon each and every article of the Constitution of the United States for a reversal.

The Court of Appeals affirmed the judgment of the Circuit Court, and the plaintiff in that court prosecuted this writ of error. *The case was argued by Mr. Crit- [*101 tenden for the plaintiff in error. Mr. Benton appeared for the defendant.

The opinion of the court was given on the first exception to the decision of the Court of Appeals of the State of Kentucky, and on no other question in this case. The argument of the counsel for the plaintiff in error, on the other exceptions is, therefore, omitted.

Mr. Crittenden contended that, by the 11th and 12th sections of the Judiciary Act of 1789, the plaintiff in error had a right to a trial before a court of the United States. The statute 6. That if the jury believe from the evidence gives the right to remove a cause from a State that the slave Jim was taken on board the Guy-court to a federal court, if the defendant is a andotte from the State of Indiana, the plaintiff cannot recover in this action.

7. If the jury believe from the evidence that the defendant in the navigation of his boat took the slave in the declaration mentioned from the Indiana shore, believing him to be free, and that slave was at the time a runaway slave of the plaintiff, in that case they find for defendant.

citizen of another State from that in which the suit may be brought, when the value in controversy exceeds five hundred dollars.

The plaintiff's declaration claims damages to the amount of one thousand dollars, and the verdict was for six hundred and fifty dollars.

The act of Congress says, that when it shall appear to the satisfaction of the court that the sum or value in controversy exceeds five hun100*] *8. That to enable the plaintiff to re-dred dollars the cause may be removed to the cover in this action, the jury must believe that the defendant took plaintiff's slave from Louisville, or from the Kentucky shore.

The court refused to give those instructions.

Circuit Court; if the question of the amount in controversy is left to the decision of the court exclusively, there is an end of the case for the plaintiff in error. But if it was to be settled on

evidence satisfactory to the judicial eye, here | fendant guilty, and assessed the plaintiff's damwas that evidence, ample and sufficient to satis- ages at six hundred and fifty dollars. Judg. fy the judge. ment was entered upon this verdict, and the cause was again removed to the Court of Ap peals by a writ of error, on certain exceptions taken at the trial.

*It being admitted on the record that [*104 During the trial several exceptions were tak- the defendant was a citizen of Pennsylvania, en to the rulings of the court, which it is not and the plaintiff a citizen of Kentucky, the necessary now particularly to notice. On these only question before the court was the amount exceptions, a writ of error was taken to the in dispute. The damages claimed in the writ Court of Appeals. Several errors were assigned and declaration were, unquestionably, the sum in that court on which a reversal of the judg-in controversy. This is not an open question. ment of the Circuit Court was prayed. Among It has been often decided that if the plaintiff others, was one that the court erred in over- shall recover less than five hundred dollars it ruling the application to remove the cause to the Circuit Court of the United States.

The damages claimed by the plaintiff in his writ gives jurisdiction to the court, whether it be an original suit in the Circuit Court of the The cause was remanded to the court below United States, or brought here by petition from for further proceedings. A jury being again a State court. From the decision of the State 103*] called to try the cause, found the de-judge, he seemed to consider the application

for the removal of the cause as a matter to be decided by his discretion. But he must exereise a legal discretion. The defendant was entitled to a right under the law of the United States; and, on the facts of the case, the judge had no discretion to withhold that right. No objection can be made to the form of the application, nor to the facts on which it was founded. This being clear, in the language of the above act, it was the duty of the State court "to proceed no further in the cause." And every step subsequently taken, in the exercise of a jurisdiction in the case, whether in the same court or in the Court of Appeals, was coram non judice.

This is the first instance known to us in which a State court has refused to a party a right to remove his cause to the Circuit Court of the United States. And it is impossible to conceive of a case in which the right of removal could be more unquestionable than in this

case.

One great object in the establishment of the courts of the United States and regulating their jurisdiction was to have a tribunal in each State, presumed to be free from local influence, and to which all who were non-residents or aliens might resort for legal redress. But this object would be defeated if a State judge, in the exercise of his discretion, may deny to the party entitled to it a removal of his cause.

the payment of his debts to certain enumerated
creditors, to the exclusion of the complainant, also
a creditor of the assignor, and of others.
A debtor may lawfully apply his property to the
payment of the debts of such creditors as he may
it is to be done, so as to make it effectual; and such
choose to prefer; and he may elect the time when
preference must necessarily operate to the prej
udice of creditors not provided for, and cannot
furnish any evidence of fraudulent intention.
and 11 Wheat. 78, cited.
The case of Marbury v. Brooks, 7 Wheat. 556,

When a deed of assignment is absolute upon its face, without any condition whatever attached to it, and is for the benefit of the grantees, the presumption of law is that the grantees accepted the deed.

The delivery of a deed of assignment for the benefit of creditors to the clerk, to be recorded, may be considered as a delivery to a stranger for the use of the creditors, there being no condition annexed to the assignment, making it an escrow. benefit the same was made, neglected to appoint After the assignment, the creditors for whose an agent or trustee to execute it, and the property assigned remained in the hands of the assignor. action, which the assignor went on to collect, and The property consisted principally of choses in divided the proceeds among the creditors, under the assignment. No one of the creditors was distaken the property out of the hands of the assignsatisfied, and at any time the creditors could have or. Held, that leaving the property in the hands of the assignor under these circumstances did not not preferred by it to set it aside. affect the assignment or give a right to a creditor

A United States for the District of Kentucky.

PPEAL from the Circuit Court of the

creditor.

A more summary remedy might have been In the Circuit Court of Kentucky a bill was pursued by the defendant than the one which filed, on the equity side of the court, for the 105*] this court can now give to him. But purpose of setting aside a deed of assignment the cause being brought before us through the or mortgage made by Leonard Wheeler, for the Supreme Court of the State, we reverse the purpose of securing certain of his creditors, in judgment of affirmance by that court, and preference to the complainant, who was also direct the cause to be remanded, with instructions that it shall be transmitted to the Circuit Court of the State, which shall be directed to enter an allowance of the petition of the defendant for the removal of the cause to the Circuit Court of the United States for the District of Kentucky, nunc pro tunc.

106*] *JOHN TOMPKINS, surviving partner of John Tompkins and Adam Murray, trading under the firm of Tompkins & Murray, Complainants and Appellants,

V.

LEONARD WHEELER et al., Defendants.

Assignment for benefit of creditors-preference -acceptance of deed presumed-continued possession of property by assignor-evidence.

A bill to set aside a deed of assignment, made by an insolvent debtor, for the purpose of securing

NOTE.-AS to assignments with preferences, when valid and when not, see note to Marbury v. Brooks, 7 Wheat. 556.

As to when assignments are void for want of change of possession, see note to Brooks v. Marbury, 11 Wheat. 78.

What is sufficient delivery of a deed to pass the title.

The grantor of a deed signed it, sealed it, and declared, in the presence of the attesting witness, that he delivered it as his act and deed, but kept it in his own possession. Held, that the deed was ef

The

At the November Term, 1837, of the Circuit Court, the complainants had obtained certain judgments against the defendant Wheeler; and on the application of the defendant, it was agreed that no executions should be issued upon those judgments until February, 1838. debt on which the judgments had been obtained *amounted to twelve thousand [*107 dollars, which had been purchased by the plaintiffs for one thousand dollars, the defendant having failed in 1814, and this being one of the debts due by him at the time of his failure. He afterwards entered into business in Ken. tucky, contracted a large amount of debts, and obtained some property.

Five days before the time when the complainant had a right to issue execution on the judgments, Leonard Wheeler executed general assignment or mortgage of all his property. The assignment provided for the payment, in the first place, of all his debts contracted since his failure, in 1814, giving to them a priority or preference, "as all his means and effects had been accumulated by the credit given to him in Kentucky; the same being fectual from the moment of its execution, though there was no delivery of it to the grantee, or to any person for his use. The grantor afterwards delivered the deed to a third person for the use of the grantee, intending to renounce all control over it. Such third person was not the agent of the grantee, nor did the grantee ever receive or know of the existence of the deed till after the death of the grantor. Held, that the deed was effectual from the moment of such delivery. Garnous v. Knight, 8 Dowl. & R. 348; 5 B. & C. 471; Barlow v. Heneage, Prec. Ch. 211; Clavering ▼. Clavering, Prec.