Mitchell v. Harmony.

2. Interest, from the 1st April, 1850, the first day of the term at which the judgment was rendered, to this date.

3. Interest, at the rate of 7 per cent., from 9th November, 1850, to 26th February, 1851, (the date of the writ of error,) and then at 6 per cent. on the aggregate, to this date.

4. Interest, at the rate of 7 per cent., from 1st April, 1850, to 26th February, 1851, and then at 6 per cent. on the aggregate, to this date.

The clerk feels bound to confine his calculations to the 18th rule of the court, irrespective of the act of Congress of 23d August, 1842. WM. THOMAS CARROLL, C. S. C. U. S. 14th May, 1852.

Calculation No. 1.

$95,855.38 Judgment of Circuit Court, U. S., for New York, signed 9th November, 1850.

8,706.85 Interest, at 6 per cent. per annum, from 9th November, 1850, to 14th May, 1852,-one year, $104,562.23 six months, and five days.

Calculation No. 2.

$95,855.38 Judgment of Circuit Court, U. S., for New York, rendered 1st April, 1850.

12,204.57 Interest, at 6 per cent. per annum, from 1st April, 1850, to 14th May, 1852, -two years, one month, and fourteen days.

$108,059.95

Calculation No. 3.

$95,855.38 Judgment of Circuit Court, U. S., for. New York, signed 9th November, 1850.

1,994.35 Interest, at 7 per cent. per annum, from 9th November, 1850, to 26th February, 1851,- three months and seventeen days.

97,849.73

7,139.51 Interest on this amount at 6 per cent. per annum, from 26th February, 1851, to 14th May, 1852, -one year, two months, and eighteen days.

$104,989.24

Calculation No. 4.

$95,855.38 Judgment of Circuit Court, U. S., for New York, rendered 1st April, 1850.

6,076.15 Interest, at 7 per cent. per annum, from 1st April, 1850, to 26th February, 1851,- ten months

$101,931.53

and twenty-six days.

7,440.99 Interest on this amount, at 6 per cent. per annum, from 26th February, 1851, to 14th May, 1852, — one year, two months, and eighteen days.

$109,372.52

Mitchell v. Harmony.

And Mr. Vinton having filed the following exceptions, namely:

The defendant in error, M. X. Harmony, excepts to the report of the clerk, touching the computation of interest on the above-named judgment of the Circuit Court, U. S., for the Southern District of New York, in this, namely:

1st. That, by the act of Congress of the 23d of August, 1842, the said defendant in error is entitled to the same rate of interest on said judgment (being 7 per cent.) as he would be entitled to if said judgment had been rendered in a State court of the State of New York; whereas, the said computation allows 6 per cent. only on said judgment. See 5 Statutes at Large, 518.

2d. That the said interest ought to be computed, on said judgment, from the 1st Monday in April, 1850, instead of from the 9th of November of that year. See printed record, pages S. F. VINTON, For Defendant in Error.

19 and 20.

May 14, 1852.

And the said defendant in error, also, at the same time, moves the court to open up the judgment of affirmance (rendered in this court at its present term) of said judgment of said Circuit Court, touching the damages allowed in said judgment of affirmance; and in lieu of 6 per cent. per annum, therein given on said judgment below, to allow 7 per cent. per annum therein, to be computed from the day of 1850, in conformity to said act of Congress, of the 23d of August, 1842. S. F. VINTON, For Defendant in Error.

It is thereupon now here ordered by the court, that the said report and exceptions be set down for argument next Monday, the 17th instant.

The court declined to hear any argument on the motion of Mr. Vinton, and the exceptions filed by him to the clerk's report, and took the same under advisement.

On consideration of the motion made by Mr. Attorney-General Crittenden, on the 13th instant; of the report by the clerk, filed the 14th instant; of the exceptions to said report, by Mr. Vinton, filed the same instant; and of the motion filed by Mr. Vinton, the 15th instant, it is the opinion of the court, that the first calculation by the clerk in his report is the proper mode of calculating the damages given under the rule of court. Wherefore, it is now here ordered by the court, that the judgment entered in this case, on the 12th instant, do stand as the judgment of this court.

Buckingham et al. v. McLean.

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 New York, 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, affirmed, with costs and damages, at the rate of six per centum per annum.

JOHN S. BUCKINGHAM AND MARK BUCKINGHAM, APPELLANTS, v. NATHANIEL C. MCLEAN, ASSIGNEE IN BANKRUPTCY OF JOHN MAHARD, JR.

Where a defendant in error or an appellee wishes to have a case dismissed because no citation has been served upon him, his counsel should give notice of the motion when his appearance is entered, or at the same term; and also that his appearance is entered for that purpose. A general appearance is a waiver of the want of notice. An appeal in equity brings up all the matters which were decided in the circuit eourt to the prejudice of the appellant; including a prior decree of that court from which an appeal was then taken, but which appeal was dismissed under the rules of this

court.

BEFORE this case was reached upon the docket, a motion was made to dismiss it upon the ground that the appellee had not been served with a citation, and also upon another ground, which is stated in the following opinion of the court as pronounced by Mr. Justice McLean.

Mr. Justice McLEAN.

This is an appeal from the Circuit Court of the Ohio District, and a motion is made to dismiss it on two grounds.

1. Because no citation has been issued.

2. "Because the appeal is from the decree of 1848 and interlocutory decrees, whereas all the matters contested by the appellants were finally adjudicated and decreed at the November term, 1846, from which decree an appeal was taken which was dismissed by this court, and no appeal has been since taken."

At November term, 1846, a decree was entered against the appellants. In January term, 1847, an appeal was prayed by them from that decree, which was granted, and bond was given. But the appellants failing to file the record and docket the cause in this court, as required by the rules, it was, on motion of the appellee's counsel docketed and dismissed at December term, 1847. At the same term a motion was made to reinstate the cause upon the docket, which motion was overruled.

Buckingham et al. v. McLean.

Afterward, at October term, 1849, the appellants prayed an appeal from the final decree made at the November term, 1848, which was granted, and that is the appeal which is now pending.

It seems that no notice of this appeal has been served on the appellee, and on that ground the motion to dismiss is made. A general appearance was entered by the counsel for the appellee at December term, 1850, but the motion to dismiss was not filed until February, 1852. In the case of McDonough v. Millaudon, 3 How. 707, a motion was made to dismiss the cause on the ground that the clerk of the Supreme Court of Louisiana issued the writ of error, and signed the citation; and' the court said, "this case has been here for two terms; a writ of certiorari has been sent down, at the instance of the defendant in error, in whose behalf the motion is made, to complete the record; he now moves to dismiss for the first time, and we think he comes too late."

The object of a citation on a writ of error or an appeal is to give notice of the removal of the cause, and such notice may be waived by entering a general appearance by counsel. Where an appearance is entered, the objection that notice has not been given is a mere technicality, and the party availing himself of it, should, at the first term he appears, give notice of the motion to dismiss, and that his appearance is entered for that purpose. A delay to give this notice may throw the other party off his guard, until the limitation of the writ of error or the appeal may have expired. In this case we think the motion is made too late.

The record appeal was regularly taken and perfected. By this appeal all the questions are brought before us, which were decided to the prejudice of the appellants. From the nature of the controversy until the final decree was entered, as between all the parties, the case could not, properly, be brought before this court. The motion to dismiss is overruled.

When the case was called in its regular order, it was argued, and the following is a report of it.

JOHN S. BUCKINGHAM AND MARK BUCKINGHAM, APPELLANTS, v. NATHANIEL C. MCLEAN, ASSIGNEE IN BANKRUPTCY OF JOHN MAHARd, Jr.

Where a bill in chancery was filed by the assignee of a bankrupt, claiming certain shares of bank stock, the same being also claimed by the bank and by other persons who were all made defendants, and the answer of the bank set forth apparently valid titles to the stock, which were not impeached by the complainant in the subsequent proceedings in the cause, nor impeached by the other defendants, the circuit court decreed correctly in confirming the title of the bank.

Buckingham et al. v. McLean.

A power of attorney to confess a judgment is a security within the second section of the Bankrupt Act, 5 Stat. at Large, 442.

And this security is void if given by the debtor in contemplation of bankruptcy. But by these terms is meant an act of bankruptcy on an application by himself to be decreed a bankrupt, and not a mere state of insolvency.

In this case there is evidence enough to show that the debtor contemplated a legal bankruptcy when the power of attorney was given,

It is not usury in a bank which has power by its charter to deal in exchange, to charge the market rates of exchange upon time bills.

THIS was an appeal from the Circuit Court of the United States for the District of Ohio, sitting as a court of equity.

On the 27th of May, 1842, John Mahard, Jr., filed his petition in bankruptcy, and on the 20th of July, 1842, was declared a bankrupt.

Nathaniel C. McLean was appointed his assignee in bankruptcy.

John Mahard had been transacting business at Cincinnati with his brother, William Mahard, under the firm of J. & W. Mahard, and at New Orleans, under the firm of Mahard & Brother.

On the 12th of August, 1842, William Mahard filed his petition in bankruptcy.

On the 5th of January, 1843, McLean filed his bill in the Circuit Court against a great number of persons, who had outstanding liens on the property of John Mahard, Jr., at the time of his filing his petition in bankruptcy. They were,

The President, Directors, and Company of the Lafayette Bank of Cincinnati; the President, Directors, and Company of the Northern Bank of Kentucky; Andrew Johnson; John S. Buckingham; Mark Buckingham; the Ohio Life Insurance and Trust Company; the President, Directors, and Company of the Bank of the United States, incorporated by the State of Pennsylvania; the President, Directors, and Company of the Commercial Bank of Cincinnati; the President, Directors, and Company of the Franklin Bank of Cincinnati; James Dundas, Mordecai D. Lewis, Samuel W. Jones, Robert L. Pitfield, and Robert Howell, assignees, &c.; John Mahard, Sen., John McLaughlin, George Milne, and James Keith, partners, doing business in the firm name of Geo. Milne & Co., Charles B. Dyer, Frederick Trow, John C. Avery, late sheriff, and John H. Gerard, present sheriff of Hamilton county.

The assignee, McLean, enjoined proceedings in the State courts where the parties were prosecuting their several liens, and brought all matters connected with the bankrupts into the Circuit Court of the United States.

In the progress of the cause, a number of collateral matters were brought into the case; but the facts upon which the questions arose before this court are stated in the opinion, to which the reader is referred.