cation, overruling the demurrer, insisting that | a motion is made to dismiss it for want of the rejoinder was good, and that judgment jurisdiction in this court. should have been rendered for the defendants. The answer to this is, that the withdrawal of the demurrer, and going to issue upon the pleading, operated as a waiver of the judgment. If the defendants had intended to have a review of that judgment on a writ of error, they should have refused to amend the pleadings, and have permitted the judgment on the demurrer to stand. Another ground upon which the judgment must be reversed is, that a judgment for costs was rendered against the plaintiffs. The United States are not liable for costs. Some other points were made in the course of the trial, but it is unimportant to notice them. The judgment of the court below reversed, with a venire de novo. Order. 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 the same is hereby reversed; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo. JAMES PEPPER, Sarah H. Evans, George McCullough, and Louisa McCullough, Plaintiffs in Error, V. HUGH W. DUNLAP, Curator, etc., and his Wife. Decree remanding case to inferior court for further proceedings not final-no writ of error lies. Where a perpetual injunction was granted by a subordinate State court, and, upon appeal, the highest State court decided that the party in whose favor the injunction had been granted was entitled to relief, and therefore remanded the case to the same subordinate court from which it had come for further proceedings, this is not such a final decree as can be reviewed by this court. The writ of error must be dismissed, on motion. THIS case was brought by writ of error, It is unnecessary to state, at length, the pro ceedings in the State courts, because it is evident that the decree of the Supreme Court of the State was not a final one. And as the case must be dismissed on that ground, the other objections to the jurisdiction of this court which were taken in the argument need not be examined. It appears from the record, that the defendants in error obtained a decree in the District Court of Louisiana for the Ninth Judicial District, for a perpetual injunction, staying all further proceedings upon an order of seizure and sale of certain lands and other property mentioned in the proceedings, which before that time had been issued by the said District Court upon the petition of the present plaintiffs in error. From this decree an appeal was taken to the Supreme Court of the State; and at the hearing in that court it was decided that the present defendants in error, in whose favor the injunction had been granted, were entitled to relief for a large portion of their claim. The decree specifies sundry items which ought to be deducted from the claim of the plaintiffs in error, amounting to a very large sum; but states that the evidence before the court did not enable it to decide finally upon the rights of the parties, and especially upon the amount which the defendants in error were bound in equity to refund to the plaintiffs. And the court, therefore, decreed that the judgment of the District Court, granting a perpetual injunction, should be avoided and reversed; and remanded the case to the District Court for further proceedings in conformity to the opinion expressed in this decree. This is the decree brought here by writ of error. It is evidently not a final one, and the writ of error must, therefore, be dismissed. Order. This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Louisiana, holding sessions for the Western District of Louisiana, and was argued by counsel; on consideration whereof, and it appearing to the court here that the judgment of the said Supreme Court is not a final one, it is thereupon now here ordered and adjudged by this court, that this writ of error be, and the same is hereby dismissed for the want of jurisdiction. Tunder the 25th section of the Judiciary Act, MORGAN MCAFEE, Plaintiff in Error, [*58 from the Supreme Court of the State of Louisiana. 52*] *Mr. Crittenden moved to dismiss the writ for want of jurisdiction in this court. Mr. Chief Justice Taney delivered the opinion of the court: This case is brought here by writ of error to the Supreme Court of the State of Louisiana; and NOTE. As to what is a "final decree" or judg ment of State, or other court, from which an appeal lies, see notes to 5 L. ed. U. S. 302; 4 L. ed. U. S. 97; 49 L. ed. 1001; 62 L.R.A. 515. V. THOMAS C. DOREMUS, James Suydam, Cornelius R. Suydam, and John Nixon. Evidence of protest, bills and notes in Louisiana, action against drawers and indorsers jointly-several pleas-nol. pros. as to draw. er-Mississippi law adopted by rule of Dis. trict Court. By the laws of Louisiana, a notary is required to record in a book kept for that purpose, all protests of bills made by him and the notices given to the drawers or indorsers, a certified copy of which record is made evidence. Under these statutes, a deposition of the notary, giving a copy of the original bill, stating a demand of payment; a subsequent protest and notice to the drawers and indorsers respectively, is good evidence. The original protest must be recorded in a book. Its absence at the trial is, therefore, sufficiently accounted for. Where a joint action against the drawers and indorser was commenced under the statute of Mississippi (which statute this court has heretofore, 16 Peters, 89, held to be repugnant to an act of Congress), the plaintiffs may discontinue the suit against the drawers and proceed against the indorser only. THIS HIS case was brought up by writ of error from the District Court of the United States for the Northern District of Mississippi. On the 8th of December, 1839, the following bill of exchange was drawn: $4,000. Locopolis, Miss., Dec. 8th, 1839. Ninety days after date of this my first of exchange (second of same tenor and date unpaid), pay to the order of Morgan & McAfee, four thousand dollars, value received, and charge the same to account of your obd't servants. Clymer, Polk & Co. Messrs. Keys & Roberts, New Orleans. The firm of Clymer, Polk & Co., consisted of Isaac Clymer, Benjamin C. Polk, William C. Ivins, and Hiram Clymer. McAfee indorsed it, and it came to the hands of the defendants in error, merchants and partners in New York, trading under the firm of Doremus, Suydams & Nixon. When the bill became due it was not paid, and was protested under the circumstances set forth in the first bill of exception. In May, 1842, Doremus, Suydams & Nixon brought a suit against the four makers and also against McAfee, the indorser. The action was a joint one, as required by a statute of Mississippi, passed on the 13th of May, 1837, which was as follows: "Section 1. Be it enacted by the Legislature of the State of Mississippi, that in all actions founded upon bills of exchange and promissory notes, the plaintiff 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. "Sec. 2. Be it further enacted, that in all cases where any drawer, acceptor, or indorser shall have died before the commencement of 54*] the suit, a separate action may be brought against the representatives of such drawers, indorsers, and acceptors. be reversed, annulled, or set aside for want of form. "Sec. 4. Be it further enacted, that new trials shall alone be granted to such defendants as the verdicts may have been wrongfully rendered against; and judgments shall be entered against all the other defendants in pursuance of the verdict. "Sec. 5. Be it further enacted, that the clerk shall issue duplicate writs to the several counties where the various defendants may reside, and shall indorse on all executions the names of the drawers and indorsers, particularly specifying the first, second, and third indorsers. "Sec. 6. Be it further enacted, that it shall be the duty of the sheriff, in all cases, to make the money on the executions out of the drawer or drawers, acceptor or acceptors; and in no case shall a levy be made on the property of any security or securities, indorser or indorsers, unless an affidavit from some credible person be made and filed among the papers in the case, setting forth that the principal or principals have no property in this State, out of which the plaintiff's money and costs can be made; and in such event the plaintiff may proceed with the executions against the defend. ants next liable, and so on until his executions be satisfied. "Sec. 7. Be it further enacted, that no sheriff, or other officer, shall take more than one forthcoming bond, in any case, for the same cause of action. "Sec. 8. Be it further enacted, that any plaintiff shall have the right to discontinue his suit against any one or more of the indorsers or securities, that he may sue in any joint action, before verdict, on payment of the costs that may have accrued by joining said defend. ant in such suit. "Sec. 9. Be it further enacted, that in all suits brought under the provisions of this act, the defendants shall not be allowed to sever in their pleas to the merits of the action, and no plea of abatement shall be allowed to be filed in any cause, unless affidavit be made of the truths of the facts pleaded in the plea of abatement. "Sec. 10. Be it further enacted, that if any plaintiff or plaintiffs shall cause to be levied an execution on any security, or their indorsers or their property, when the principal has sufficient property in this State to satisfy such execution, the party so offending shall be deemed a trespasser, and shall be liable [*55 to an action from the party aggrieved, and exemplary damages shall, in all such cases, be awarded by the jury trying the same. Approved, May 13, 1837." This statute was, in part, adopted by a rule of court in 1839, as follows: "Sec. 3. Be it further enacted, that the court shall receive the plea of non assumpsit "Rule XXX. The practice and proceedings and no other, as a defense to the merits, in all in action at law, by the laws of this State, and suits brought in pursuance of this act; and all the rules of practice for the government of the matters of defense may be given in evidence courts of law, made by the late Supreme Court, under the said plea. And it shall be lawful where not incompatible with the laws of the for the jury to render a verdict against part of United States, the rules which may be prethe defendants, and in favor of the others, if scribed by the Supreme Court of the United the evidence before them require such a ver- States for the government of this court, or with dict, and the court shall enter up the proper the existing rules of this court, shall be consid judgment in such verdicts against the defendered the rules and practice of this court; proants; which judgments and verdicts shall not vided, however, and it is hereby expressly un At June Term, 1842, McAfee pleaded the general issue. In June, 1843, three of the four drawers of the bill having been served with process and the remaining one not, the suit was discontinued as to the drawers, and continued against McAfee alone. gan McAfee (indorser) are defendants; and the Locopolis, Miss., December 8th, 1839. In December, 1843, the cause came on for Ninety days after date of this my first of extrial, when a verdict was found for the plain-change (second of same tenor and date unpaid), tiffs. During the trial, however, the two fol- pay to the order of Morgan McAfee four thou lowing bills of exception were taken: sand dollars, value received, and charge the same to account of your obedient servants. First Exception. Be it remembered, that, on the trial of this cause, on this 8th day of June, 1844, the plaintiffs in this case offered in evidence a bill of exchange in these words: $4,000. Locopolis, Miss., Dec. 8th, 1839. Ninety days after date of this my first of exchange (second of same tenor and date unpaid), pay to the order of Morgan McAfee four thousand dollars, value received, and charge the same to account of your ob't servants. Clymer, Polk & Co. Messrs. Keys & Roberts, New Orleans. Having indorsed thereon the following names, three of which were erased: "Pay to Doremus, Suydams & Nixon, or order. Morgan McAfce, Charleston P. O., Miss." "A. H. Davidson, Charleston P. O., Miss.; G. Davidson, Charleston P. O., Miss.; M. L. Cooper & Co." The plaintiff then proved that the names of A. H. Davidson and G. Davidson had been erased before the maturity of the bill. The plaintiff then offered in evidence the copy of 56*] the original protest, *accompanied by the deposition of the notary public, in these words: United States of America, Eastern District of Louisiana, city of New Orleans, ss: Clymer, Polk & Co. Messrs. Keys & Roberts, New Orleans. Morgan McAfee, Charleston P. O. (Indorsed): Messrs. M. D. Cooper & Co. He, the said notary, presented said draft to a clerk of the drawees at their counting-room (said drawees not being in), and demanded payment thereof, and was answered that the same could not be paid; whereupon he, the said notary, did publicly and solemnly protest said draft for nonpayment, and of protest did give notice to Clymer, Polk & Co., drawers, and to Morgan McAfee, indorser, and M. D. Cooper & Co., indorsers, by letters to the *drawer and first indorser severally writ. [*57 ten and addressed, informing them of said protest, and that the holders looked to them for payment; which letters he, the said notary, did direct to the said drawers and said first indorsers, respectively, as follows: The one for Clymer, Polk & Co., drawers, to them at Locopolis, Mississippi, and that for the said Morgan McAfee, the first indorser, to him at Charleston P. O., Mississippi, and by delivering that for the last indorsers to themselves. Which letters he, the said notary, did put into the postoffice at New Orleans aforesaid, on the day and date of said protest. All of which was done under the hand of said notary, and recorded in presence of competent witnesses and in due form of law. The notary's fees for said protest and notices amounted to $3.50. The document A, M. M. Cohen, United States commissioner, is sworn to by me. H. B. Cenas, Notary Public. United States of America, North Circuit and Eastern District of Louisiana, city of New Orleans, ss: Be it remembered, that on this thirteenth day of May, in the year of our Lord one thousand eight hundred and forty-four, before me, M. M. Cohen, a commissioner duly appointed on the 19th of April, 1842, by the Circuit Court of the United States in and for the Eastern District of Louisiana, under and by virtue of the acts of Congress, entitled, "An Act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States," passed Feb. 20, 1842, and the Act of Congress, entitled "An Act in ad- I, M. M. Cohen, a commissioner duly apdition to an act entitled 'An Act for the more pointed on the 19th of April, 1842, by the Circonvenient taking of affidavits and bail in civil cuit Court of the United States for the ninth causes depending in the courts of the United circuit and Eastern District of Louisiana, States,' passed March 1, 1817, and the Act under and by virtue of the acts of Congress, entitled "An Act to establish the judicial entitled "An Act for the more convenient takcourts of the United States," passed Sept. 24, ing of affidavits and bail in civil causes de1789, personally appeared H. B. Cenas, a per- pending in the courts of the United States," son of sound mind and lawful age, a witness passed February 20th, 1812, and the Act of for the plaintiff in civil suit now depending in Congress, entitled "An Act in addition to an the District Court of the United States, in and act entitled 'An Act for the more convenient for the Northern District of Mississippi, wherein taking of affidavits and bail in civil causes de Doremus, Suydams, and Nixon are plaintiffs, pending in the courts of the United States,'" and Clymer, Polk & Co. (drawers), and Mor-passed March 1st, 1817, and the Act entitled or to be suffered, for want of payment of the said draft. Thus done and protested in the presence of Law. Dornan and Ernest Granet, witnesses. [L. In testimony whereof, I grant these presents under my signature, and the impress of S.] my seal of office, at the city of New Orleans, on the day and year first above written. H. B. Cenas, Notary Public. (Original signed) Law. Dornan, $4,000. E. Granet. "An Act to establish the judicial courts of the United States," passed September 24th, 1789, do hereby certify, that the reason for taking the foregoing deposition is, and the fact is, that the witness lives in New Orleans, State of Louisiana, more than one hundred miles from Pontotoc, State of Mississippi, the place of trial of the cause for and in which said deposition is taken and is necessary. I further certify that no notification was made out and served on the defendants, or adverse parties, their agent or attorney, to be present at the taking of the dep osition, and to put interrogatories if he or Locopolis, Miss., Dec. 8th, 1839. they may think fit, and that no notification of Ninety days after date, of this my first of exthe time and place of taking the said deposi- change (second of same tenor and date unpaid), tion was made out and served on said defend-pay to the order of Morgan McAfee four ants or adverse parties, because neither the said adverse parties, nor any attorney or agent of said adverse parties was, at the time of taking said deposition, within (100) one hundred miles of the said city of New Orleans, the place of taking the said deposition. I further certify that, on this thirteenth day of May, A. D. 1844, I was by the witness, who is of sound mind and lawful age, and the witness was by me 58*] *carefully examined and cautioned, and sworn to testify the whole truth, and the deposition was by me reduced to writing in the presence of the witness; and after carefully reading the same to the witness, he subscribed the same in my presence. I have retained the said deposition in my possession for the purpose of sealing up, directing, and forwarding the same with my own hands to the court for which the same was taken. I further certify that I am not of counsel or attorney to either of the parties in said deposition and caption named, or in any way interested in the event of the said civil cause named in the caption. In testimony whereof, I have hereunto set my hand and seal, the words "are plaintiffs" being first interlined on page 1, ante. M. M. Cohen, [L. S.] United States of America, State of Louisiana: By this public instrument of protest be it known that, on this tenth day of March, in the year one thousand eight hundred and forty, rt the request of the Commercial Bank of New Orleans, holder of the original draft, whereof a true copy is on the reverse hereof written, I, Hilary Breton Cenas, a notary public in and for the city and parish of New Orleans, State of Louisiana aforesaid, duly commissioned and sworn, presented said draft to a clerk of the drawees at their counting room (said drawees not being in), and demanded payment thereof, and was answered that the same could not be paid. Whereupon 1, the said notary, at the request aforesaid, did protest, and by these presents do publicly and solemnly protest, as well against the drawer or maker of the said draft, as against all others whom it doth or may concern, for all exchange, re-exchange, damages, costs, charges, and interest, suffered thousand dollars, value received, and [*59 charge the same to account [of] your obedient servants. Clymer, Polk & Co. Messrs. Keys & Roberts, New Orleans. (Indorsed) Morgan McAfee, Charleston P. O., Miss., M. D. Cooper & Co. I, the undersigned notary, do hereby certify that the parties to the draft, whereof a true copy is embodied in the accompanying act of protest, have been duly notified of the protest thercof by letters to them by me written and addressed, dated on the day of said protest, and served on them respectively this day, in the manner following, viz., by depositing those for the drawers and first indorsers in the postoffice in this city on the same day as this protest, directed to them respectively as follows: That for the drawers, to them at Locopolis, Miss., and that for the first indorser, to him at Charleston P. O., Miss., and by delivering that for the last indorsers to themselves. In faith whereof, I hereunto sign my name, together with Law. Dornan and Ernest Granet, witnesses. at New Orleans, this 11th day of March, 1840. (Original signed), Law. Dornan, E. Granet. H. B. Cenas, Not. Pub. I certify the foregoing to be a true copy of the original protest. draft, and memorandum of the manner in which the notices were served on file and of record in my office. In faith whercof, I grant these presents, under ny signature, and the impress of my seal of office, at New Orleans, on [L. S.] this ninth day of November, in the year of our Lord one thousand eight hundred and forty-three. HI. B. Cenas, Not. Pub. Sworn to before me, M. M. Cohen, U. S. C. To the introduction of which copy the defendant by counsel objected, but such objec tion was overruled by the court, and said copy allowed to be read; to which opinion of the court the defendant excepted, and this his bill of exceptions, before the jury retired from the box, was signed and sealed by the court, and ordered to be made a part of the record. S. J. Gholson. [Seal.] Second Exception. The second bill of exceptions referred to the statute and rule above mentioned, and to the discontinuance of the suit against the drawers of the bill, after three of them had been served with process. A motion was made in arrest of judgment, which was overruled by the court, to which overruling the second exception was and resident within the State in a joint action." taken. 60*] *The cause was argued by Messrs. Chalmers and Coxe for the plaintiff in error, and by Messrs. Stanton and Z. Collins Lee for the defendants in error. Messrs. Chalmers and Coxe contended that the paper admitted in evidence by the court below, purporting to be a copy of the protest of the bill of exchange sued upon, was not duly proved to have been a copy of the protest of the bill of exchange, but a copy of an entry in the notary's book, and that it was not duly proved, even as a copy of the entry in the book. Second. If proved as a copy, it was not admissible as evidence, without laying ground for it by showing the loss of the original, which was not done. Act of May 13, 1837, Laws of Mississippi, 717; and by a rule of the District Court of the United States for the State of Mississippi, this act was adopted (see Rule XXX.), and, so far as it is not inconsistent with the laws of Congress and the rules of practice prescribed by the Supreme Court of the United States, became by that rule the law of the court. This being the case unless the act of the Legislature of Mississippi, in its application to this case, was incompatible with the laws of Congress, or the rules prescribed by the Supreme Court of the United States, or the existing rules of the District Court for Mississippi, and dismissal entered as to defendants below, Isaac Clymer, William C. Ivins, and Benjamin C. Polk, the makers, and taking judgment against McAfee, the plaintiff in error and indorser of the bill sued upon, was manifest error, for which the judgment should have been arrested. See Wilkinson & Turney v. Tiffany, Duvall & Co., 5 Howard's Mississippi Reports, 411. Was the Act of Mississippi, adopted by the District Court in its application to this case, a violation of the Judiciary Act of 1789, ch. 20? The eleventh section of that act gives jurisdiction to the circuit courts of suits between a citizen of the State where the suit is brought and a citizen of another State, and excepts "any suit to recover the con tents of any promissory note, or other chose in 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." The foundation of this action was a foreign bill of exchange, and although the drawers and indorser all resided in the State of Mississippi, it came within the exception of the act of Congress, and the District Court neither enlarged nor diminished the jurisdiction of the court by adopting the rule, nor is the rule in its application to this case incompatible with the laws of Congress, the rules of practice prescribed by the Supreme Court of the United States, or the existing rules of the District Court. The case of Keary et al. v. The Farmers' and Merchants' Bank of Memphis, 16 Peters, 89, was founded upon a promissory note, the makers and indorser all living in Mississippi, and the attempt, under this rule, to join them in the same action was pronounced by this court a violation of the Judiciary Act, in giving a jurisdiction to the District Court which that act had not conferred, and that, therefore, in that case the rule was void. Not so, however, in this case--the foundation of this suit being a foreign bill of exchange, the application *of the rule violates no law of [*62 Congress, nor is it incompatible with any rule prescribed by this court. A protest is, properly speaking, a solemn declaration on behalf of the holder against any loss to be sustained by non-acceptance or nonpayment (Story on Bills, sec. 276, p. 301), must be in writing, signed, and sealed by the notary (Chitty on Bills, 490, 642), and annexed to the bill itself, if it can be obtained, or otherwise a copy (Chitty on Bills, 362), with all the indorsements transcribed verbatim, with the reasons given by the party why he does not honor the bill; and this is so indispensably necessary, by the custom of merchants, that it cannot be supplied by witnesses or oath of the party, or in any other way, and, as is said, is part of the constitution of a foreign bill of ex-action in favor of an assignee, unless the suit change, because it is the solemn declaration of a notary, who is a public officer, recognized in all parts of Europe, that a due presentment and dishonor has taken place, and all countries give credit to his certificate of the facts. Chitty on Bills, 490. It must be made according to the laws of the place where the payment ought to have been made. Story on Bills, p. 105, sec. 278; Chitty on Bills, 490. By the laws of Louisiana, where this bill was payable, it is enacted (page 41, Ballard and Curry's Digest Laws of Louisiana,) that "The notaries shall keep a separate book in which they shall transcribe and record, by order of date, all the protests by them made, minutes of notices, etc., etc., made by them, which declaration, duly recorded under signature of such notary and two witnesses," etc. This book, from which the copy admitted was obtained, is a new transcription of the original protest-a copy, wholly inadmissible itself, without accounting for the nonproduction of the original, and yet the court admitted a copy of this copy, without showing the loss, destruction, or that the original was not within the control of the party offering the copy. See Sebree v. Dorr, 9 Wheaton, 558; Brooks v. Marbury, 11 Wheaton, 78. Second. The court below erred in overruling plaintiff in error's motion to arrest the judg ment. This suit in the court below was com61*] menced *jointly against the drawers and indorsers of the bill of exchange sued upon under and by virtue of the provisions of an act of the Legislature of the State of Mississippi, and a long count of the declaration is framed upon that act, which provides that "in all actions founded upon bills of exchange and promissory notes the plaintiff shall be compelled to sue the drawers and indorsers living The rule established by the District Court, adopting the statute of Mississippi, is of great value to the citizens of that State; and, so far as it can be made applicable to the just jurisdiction of the District Court of the United States in that State, sound public policy, respect for her public functionaries, and the rights and interests of the parties litigant in the federal tribunals of the State, appeal strongly to this court to have the act fairly and fully executed. |