[Brashear v. West and others.]

allegation of the bill is that the attaching creditors "permitted the whole fund to remain subject to the management of Latimer, even assenting and encouraging its export." Latimer says, "there was not any collusion, agreement or consent between the executors of Mr Nixon, or the assignees of Mr West and myself, that the property or money attached should remain in my hands, should be shipped abroad or should be used or disposed of in any way, other than the consent of the assignees of Mr West that the ginseng might be sold; which consent was after their attachment and before that by Mr Nix

on's executors.

At a time then when the ginseng was placed in the custody of the law, and withheld from the control of Brashear by the attachment of West's assignees, they consented to its being taken out of the custody of the law and sold. The loss of the article, so far as we can judge, is the consequence of this consent. That they did not mention its exportation, in, terms, is we think unimportant. The place of sale was not prescribed. The foreign was the ultimate and the best market for the article. An unlimited power to sell, given to a person in the habit of exporting it to China, without mentioning the place. of sale, included, and must have been understood to include a power to dispose of it in the usual manner.

The assignees also insist that the accounts furnish cause for believing that the witness is mistaken, in supposing that part of the ginseng was shipped after their attachment was levied.

If any obscurity exists in the testimony, the diiculty may be removed by leaving the fact to be investigated in the circuit court.

The assignees also insist on the fact that Latimer was the agent of Brashear for the purpose of selling his ginseng; and must still be considered as his agent in the sale itself. He must therefore be understood as selling with the consent of Brashear, as well as with that of the assignees.

But the attachment suspended all power of selling under the authority given by Brashear. To implicate him in this transaction, some actual interference on his part must be shown. None is even alleged. It is not to be presumed; for Latimer could not have paid the proceeds of the ginseng to Brashear while the attachment remained.

The counsel have insisted that the attaching creditors could

[Brashear v. West and others.]

not have taken the property out of the hands of the garnishec. Admitting them to state the law of Pennsylvania correctly, and we cannot doubt it, still the property was in the custody of the law, and would have remained safely in its custody, so far as we are informed by the testimony, had not the assignees consented to the removal of that protection.

We are of opinion that the plaintiff ought to have been allowed a credit for the amount of the ginseng sold by the garnishee with the consent of the assignees of West, and shipped by Latimer, for himself and Redwood. But that he ought not to have been allowed a credit for the money paid by him as special bail for George Anderson. The decree is to be reversed and the cause remanded to the circuit court with directions to reform the said decree according to this opinion. The parties to bear their own costs in this court.

On consideration of this cause, this court is of opinion that there is error in the decree of the said circuit court, in allowing to the said Walter Brashear, credit for the money paid by him as special bail for Francis West, at the suit of George Anderson; and also in refusing to allow the said Walter Brashear credit for the value of the ginseng, shipped and sold by the said James Latimer, with the assent of the assignees of Francis West, after the same had been attached in his hands, by the said assignees. It is therefore decreed, and ordered, that the decree pronounced in this cause by the court of the United States, for the seventh circuit, in the district of Kentucky, be reversed and annulled, and that the cause be remanded to that court, with instructions to perpetuate the injunction as to the sum which shall be equal to the amount of the ginseng shipped and sold by the said James Latimer, after the attachment sued out by Francis West for the use of Samuel Mifflin, James Lapseley, and Henry Nixon, assignees for the benefit of his creditors, was levied; and to dismiss the bill as to the residue.

And it is further ordered, that the parties pay their own costs in this court.

The same decree was entered in the case of West and others v. Brashear.

THE HEIRS OF P. F. DUBOUKG DE ST COLOMBE, APPELLANTS V. THE UNITED STATES.

A complex and intricate account is an unfit subject for examination in a court, and ought always to be referred to a commissioner, to be examined by him and reported, in order to a final decree. To such report the parties may take any exceptions, and thus bring any question they may think proper before the court.

APPEAL from the district court of the United States for the eastern district of Louisiana.

The case was argued by Mr Livingston, in a printed argument, for the appellants; and by Mr Taney, attorney-general, for the United States.

Mr Chief Justice MARSHALL delivered the opinion of the Court.

The United States had obtained judgment against P. F. Dubourg de St Colombe, in his lifetime, for a large sum of money. This judginent was revived after his death; or in the law language of Louisiana, declared executory; and the property of which he died possessed, ordered to be seized and sold to satisfy the demand of the United States.

The heirs of P. F. Dubourg de St Colombe filed their bill, praying an injunction to stay proceedings at law on this judg

ment.

The bill alleges that the estate of their parents was held in common at the death of their mother, and that the moiety belonging to their mother descended at her death on them, and was not liable for debts, afterwards contracted by their father. It also alleges that they were infants, and that their father took possession of their estate, which he had wasted to an amount exceeding his effects in their hands. The law of Louisiana, they say, gave them a lien at the death of their mother on all the estate of their father, to the extent of this waste, exempt from the claim of any subsequent creditor.

VOL. VII.-4 D

[Dubourg de St Colombe's Heirs v. The United States.] Several witnesses were examined, and several documents filed to prove the amount of the estate, at the death of their mother. The accounts are complex and intricate. The judge examined them, and being of opinion that the estate was insolvent at the death of the mother, dissolved the injunction and decreed costs. This has been understood to be a final decree, and to be equivalent to dismissing the bill. The plaintiffs appealed to this court.

We are of opinion that a complex and intricate account is an unfit subject for examination in court, and ought always to be referred to a commissioner to be examined by him and reported, in order to a final decree. To such report the parties may take any exceptions; and thus bring any question they may think proper before the court. The decree therefore is reversed, and the cause remanded to the court of the United States for the eastern district of Louisiana, with directions to refer the account to a commissioner, with instructions to settle and report the amount of the estate at the death of the wife, in order to a final decree; and to state such matters specially as he may think necessary, or as either party may require.

EX PARTE JUAN MADRAZZO.

Juan Madrazzo, a subject of the king of Spain, filed a libel praying admiralty process against the state of Georgia, alleging that the state was in possession of a certain sum of money, the proceeds of the sale of certain slaves which had been seized as illegally brought into the state of Georgia; and which seizure had been subsequently, under admiralty proceedings, adjudged to have been illegal, and the right of Madrazzo to the slaves, and the money arising from the sale thereof, established by the decision of the circuit court of the United States for the district of Georgia. The counsel for the petitioner claimed that the supreme court had jurisdiction of the case, alleging that the eleventh amendment of the constitution of the United States, which declares that the judicial power of the United States shall not extend to any suits in law or equity, did not take away the jurisdiction of the courts of the United States, in suits in the admiralty against a state. Held, that this is not a case where property is in custody of a court of admiralty; or brought within its jurisdiction, and in the possession of any private person. It is a mere personal suit against a state to recover proceeds in its possession, and such a suit cannot be commenced in this court against a state.

MR WHITE presented a libel, in the admiralty, against the state of Georgia, claiming relief by the aid of this court, in favour of the libellant, a subject of his catholic majesty the king of Spain, domiciled in the city of Havanna.

The right of the libellant to maintain this proceeding against the state of Georgia, Mr White stated, depended on the construction the court would give to the eleventh amendment of the constitution of the United States, which declares that "the judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States by citizens of another state; or by citizens or subjects of any foreign state."

If the court should be of opinion, that, notwithstanding this amendment, jurisdiction could be entertained in a suit in the admiralty against a state, he asked that a citation in the nature of admiralty process, or such other proceedings in the case, as the court should deem proper, should be awarded against the state of Georgia, returnable to the next term of this court.

The libel stated that the libellant, Juan Madrazzo, was a