Mossman v. Higginson
| Decision Date | 01 February 1800 |
| Citation | 4 Dall. 12,1 L.Ed. 720,4 U.S. 12 |
| Parties | Mossman, surviving Executor, Plaintiff in Error, v. Higginson, surviving Partner, Defendant in Error |
| Court | U.S. Supreme Court |
THIS was a writ of error, to remove the proceedings on a bill in equity, from the Circuit Court, for the district of Georgia, tested the 27th November 1798, returnable on the next. The case, on the bill and pleadings, was, briefly, this:—Alexander Willy, an inhabitant of Georgia, being indebted to Higginson and Greenwood, British merchants, gave them a bond and mortgage, payable the first of January 1773. In the year 1778, Willy was banished from the state of Georgia, and his estate confiscated by law. The mortgaged premises were seized and sold by the commissioners for forfeited estates, to certain purchasers, who afterwards sold the same to James Houston; and the property remained in his possession, or in the possession of his executors, until the 12th of September 1796, when it was levied upon, sold, and conveyed to William Mien, by the creditors of Houston; notice of the mortgage having been given to Mossman, the executor of Houston, to Mien, the agent for his creditors, and to the marshal, before the sale. In March 1797, Higginson, the surviving mortgagee, filed the present bill to foreclose the equity of redemption, stating himself to be a subject of Great Britain; but in no part of the proceedings, were the defendants, or any of them, stated to be citizens of the United States. The defendants pleaded the confiscation laws of Georgia in bar, and answered to the merits; but WASHINGTON, Justice, over-ruled the pleas, and decreed, that unless William Mien paid the principal and interest of the debt, before the 17th of February 1799, the equity of redemption should be foreclosed. The merits of the decree were not, however, discussed on the writ of error, but the following points occurred:
I. Dallas, for the plaintiff in error, moved to amend the writ, by inserting the return day of the present term in the blank. The writ is regularly tested, and by indorsements it appeared when it was filed below, and when it was filed here. The clerk of the Circuit Court had, also, indorsed, 'Returnable to February term 1799.' There is, therefore, sufficient matter to amend by; and the amendment is within the provision of the act of congress, 1 vol. 72. s. 32.
By the COURT. Let the amendment be made.
II. It was objected by Ingersoll and Dallas, for the plaintiff in error, that the jurisdiction of the court, did not appear upon the record, as there was no designation of the citizenship of the defendants. 3 Dall. Rep. 382. 369. 4 Dall. Rep. ant. 8. Turner v. Enrille.
It was answered by E. Tilghman and Reed (of South-Carolina) that as no process was prayed against Willy, he was not, in legal contemplation, a party to the suit; 1 P. Wm. 593. that the prayer of process against Mossman, who never held the land, was irregular, and to be regarded as mere surplusage; that there was no pretence to charge Houston; and that Mien, being expressly stated to be the purchaser of the land, the Court will take notice of the law of Georgia, by which no alien can hold real estate; and, by necessary implication, the purchaser must be a...
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