1. To cause the said defendant Patterson forthwith to surrender all the property so claimed and held by him as aforesaid into the *hands of such curator, commissioner, [*605 or trustee as the said court may appoint for the purpose; whose duty it shall be, under the directions of the court, to manage the said property to the best advantage, till the whole matter and apportionment of the said two portions (being the said four fifths and one fifth) of the said property shall have been completed and finally liquidated, as a part of the succession of the said Daniel Clark, and in the mean time to collect and receive all the rents, issues, and profits of the same, and to account and bring the same into court, to be there apportioned and paid over, or in part retained for further directions. And this court doth further adjudge, order | carry into effect the following directions; that and decree, that all the property described and is to say— claimed by the defendant Patterson in his answer and supplemental answer, and in the exhibits thereto annexed, is part and parcel of the property composing the succession of said Daniel Clark; that the defendants Richard Relf and Beverly Chew, at the time and times when, under the pretended authority of the testament- | ary executors of the said Daniel Clark, and the attorneys in fact of the said Mary Clark in the will and proceedings mentioned, they caused the property so described and claimed by the defendant Patterson to be set up and sold at public auction, in December, 1820, and when they executed their act of sale, dated on the 18th February, 1821, to Gabriel Correjollas for 604*] *the two lots therein described (which two lots constitute the same property described and claimed by the defendant Patterson as aforesaid), had no legal right or authority whatever so to sell and dispose of the same, or in any manner to alienate the same; that the said sale at auction and the said act of sale to Correjollas in confirmation of the previous sale at auction, were wholly unauthorized and illegal, and are utterly null and void; and that the defendant Patterson, at the time and times when he purchased the property so described and claimed by him as aforesaid (part from the said Correjollas, the vendee of the defendants Relf and Chew, and the residue from Etiennements and as near as may be in the manner Meunier, the vendee of said Correjollas, himself the vendee of the same defendants), was bound to take notice of the circumstances which rendered the actings and doings of the said defendants in the premises illegal, null, and void; and that he ought to be deemed and held, and hereby is deemed and held, to have purchased the property in question with full notice that the said sale at auction under the pretended authority of the said defendants and their said act of sale to Correjollas were illegal, null, and void, and in fraud of the rights of the person or persons entitled to the succession of the said Daniel Clark. And the said court doth further adjudge, order and decree, that all the property claimed and held by the defendant Patterson as aforesaid now remains, unaliened and undisposed of, as part and parcel of the succession of the said Daniel Clark, notwithstanding such sales at auction and act of sale in the pretended right or under the pretended authority of the defendants Relf and Chew. And the court doth further adjudge, order and decree, that the complainant, Myra Clark Gaines, is justly and lawfully entitled, as the only forced heir of said Daniel Clark, to her legitimate portion of four fifths of the succession, and have four fifths of the property so claimed and held by the defendant Patterson, as aforesaid, duly partitioned, apportioned, and delivered or paid over to her, together with four fifths of the yearly rents and profits accruing from the same, since the same came into the said defendant's possession; and for which the said defendant is hereby adjudged, ordered and decreed, to account to the said complain ant. And the court doth now here remand this cause to the said Circuit Court for such further proceeding as may be proper and necessary to 2. To cause four fifths of the property so claimed and held by the defendant Patterson as aforesaid to be duly partitioned, appropriated, and delivered or paid over to the said complainant; and to retain the residue subject to further directions for the appropriation of the same; which either party shall be at liberty to move for; and if the same be proved and found indivisible by its nature, or cannot be conveniently divided, to cause it to be sold by public auction, after the time of notice and advertise prescribed by law in the judicial sale of the property of successions; and, in case of such sale by auction, to apportion and pay over four fifths of the net proceeds of such sale to the said complainant, and to retain the residue subject to further directions, as aforesaid. 3. To cause an account to be taken by the proper officer of the court, and under the authority and direction of the court, of the yearly rents and profits accrued and accruing from the said property since it came into the possession of the defendant Patterson; and four fifths of the same to be arounted and paid to the said complainant, and the residue to be retained subject to such further directions as aforesaid. 4. To give such directions and make such orders from time to time, as may be proper and necessary for carrying into effect the foregoing directions, and for enforcing the due observance of the same by the parties and the officers of the court. THE UNITED STATES, Appellants, V. HENRY YATES and Archibald McIntyre. Appearance by counsel only cures want of cita tion-leave to withdraw. Under the peculiar circumstances of this case, the counsel for the appellees was permitted to strike out his appearance, but such withdrawal must not authorize a motion to dismiss for want of a citation. The appearance of counsel does not preclude a motion to dismiss for the want of jurisdiction, or any other sufficient ground, except the want of a 606*1 citation. It is the practice of the court to receive such notices after an appearance has been entered. Under the rules of this court, it is, in general, of no importance to the appellant, whether an appearance for the appellee is or is not entered on the record. If the appeal has been regularly prosecuted, he is as much entitled to judgment in the one case as in the other. "Sworn to in open court, 15th February, 1848. "William Thoma's Carroll, "Clerk of Supreme Court U. S." "Frankfort on the Maine, "My dear Sir,-I wrote you a hasty note this morning, via Liverpool, requesting your kind attention to a suit I have in the United States court-Yates & McIntyre v. The United States, appeal from District Court of Louisiana by United States, under the Act, of Congress of Tof via HIS was an appeal from the District Court of the United States for Louisiana, under the Act of Congress passed on the 17th of June, 1844, providing for the adjustment of land claims within the States of Louisiana, Arkan sas, etc. A motion was made by Mr. Baldwin, whose name appeared as counsel for the appellees, to strike out his appearance, and in support of the motion he filed the following affidavit and letter. "Harvey Baldwin, of the city of Syracuse, in the State of New York, being duly sworn, saith: That he is the attorney and counsel of the above named appellees, and as such brought and assisted in the trial of the above entitled suit in the District Court of Louisiana. “That this deponent set out from his residence aforesaid for Europe, on the 10th day of July last, and returned therefrom on the 28th or 29th of December last. "That while in Europe, this deponent, by a letter from his clerk, was informed, that, owing to some irregularities touching the appeal, said cause was at an end and would not be further prosecuted, or language to that effect. But this deponent was subsequently informed, by a letter from his wife, that the appeal taken therein was not abandoned, and that the return thereto would soon be filed, or words to that effect. Whereupon this deponent wrote to Major Hobbie, Deputy Postmaster-General of this city, and requested him to call on Mr. Carroll, the clerk of this court, and take such measures in the name of this deponent as might be necessary to save default, and protect the rights of this deponent's clients therein; which letter this deponent has since his arrival in this city obtained from said Hobbie, and, together with the envelope thereof, is hereunto annexed. "And this deponent further saith, that, since his arrival in this city, he has been informed by the clerk of this court that said Hobbie called on him on or about the 29th day of December last, with the letter from this deponent, and ordered the appearance of this deponent entered for the appellees in said suit, and that said appearance was thereupon entered, pursuant to such direction and request. "And this deponent further saith, that, having been apprised that there were some irreg607*] ularities in regard to said appeal, *he did not intend to have his appearance entered in said cause if by so doing it would prevent said appellees from taking advantage of such irregularity. "And this deponent further saith, that having since his arrival in this city seen the return to said appeal, he is satisfied that irregularities touching the appeal in said cause do exist, and as the counsel for said appellees deems it his duty, as at present advised, to present them to the consideration of this honorable court. And further saith not. "Harvey Baldwin. 1844. "Since I arrived in this country, I have been informed that the appeal was abandoned, or, owing to some irregularity in appellants' proceedings, the appeal was at an end. If return has "This may or may not be so. been made, my appearance for appellees ought, I suppose, to be entered; but I do not wish, by entering an appearance, to waive any irregularity or advantage which the appellees may have, without their consent. Will you do me the favor to call on Mr. Carroll, the clerk, and take such measures, in my name, as may be necessary to save default and protect the rights of my clients. "I ought in justice to myself and them to say, that, under ordinary circumstances, they would not regard mere technicalities; but the lands in question have cost them more than they can ever hope to realize with the titles confirmed. For twenty years they have been struggling to get the government to do that which, by the terms of the Treaty of 1803, it solemnly promised to do, and the doing of which formed, stricti juris, a condition precedent to the perfection of its own title. Until this is or shall be done, our property remains unavailable. If, therefore, the government has by laches lost the right to prosecute the appeal, I see no reason, under the circumstances, why we should restore it to them. "When you look into the matter, do what ever may be necessary to protect our interest, and hold me accountable at our first meeting, which I now hope will be sometime in the month of December next. "H. Baldwin." *Mr. Chief Justice Taney delivered [*608 the opinion of the court: Upon the affidavits filed, the court will permit the attorney who has appeared for the appellees to withdraw his appearance. But this leave will not authorize a motion to dismiss for want of a citation, nor for mere irregularity in its service, provided the appeal is in other respects regularly brought up and authorized by law. The citation is merely notice to the party, and his appearance in person or by attorney is an admission of notice on the record, and he cannot afterwards withdraw it. Order. pearance is not necessary to give the appellee a right to make it. The serious objections which often exist to permitting an attorney to strike out his appearance for a defendant in a court exercising orig ́inal`jurisdiction, do not apply in an appellate court. And under the rules of this court, it is, in general, of no importance to the appellant, whether an appearance for the appellee is or is not entered on the record. For if he is entitled to his appeal, and has prosecuted it to this court according to law, the refusal or omission of the appellee to appear will not delay the trial, and a judgment against him will be as conclusive as if an appearance for him had been entered on the docket, and the case argued by his counsel. 12 L. ed. On consideration of the motion by Mr. Baldwin, for leave to strike out his appearance, which had been improvidently entered (by an agent. of his) for the appellees in this cause, and of the arguments of counsel thereupon had, as well against as in support of the motion, it is now here ordered by the court, that the leave prayed for be, and the same is hereby granted. Note by the Reporter. The case was afterwards dismissed, upon the same grounds as in the preceding case of The United States v. Curry and Garland. 37 577 VI HOWARD. 6 How. 1-6. 12 L. 319, SIMS v. HUNDLEY. Promissory notes given in payment for slaves brought into the State of Mississippi and sold as merchandise in 1835, were valid, and not prohibited by the State Constitution in the absence of legislation giving it effect, pp. 5, 6. Cited and principle applied in State v. Buckley, 54 Ala. 616, holding no impeachment proceedings could be instituted until there was legislative action prescribing the regulations. Trial. Under a plea of non-assumpsit, testimony cannot be received relating to the residence of a party and bearing upon the jurisdiction of the court, p. 5. Cited and approved in Smith v. Kernochen, 7 How. 216, 12 L. 674, holding objection to jurisdiction on ground of citizenship could not be taken after the general issue; Sheppard v. Graves, 14 How. 511, 14 L. 520, to the same effect; Davies v. Lathrop, 21 Blatchf. 165, 13 Fed. 566, objection to jurisdiction on ground of citizenship could not be made after trial and verdict. Cited, arguendo, in Tyler v. Murray, 57 Md. 438, holding where defendant pleaded to the jurisdiction, plaintiff could not offer proof of grievances and have assessment of damages therefor, until determination of jurisdiction. Modified in Farmington v. Pillsbury, 114 U. S. 143, 29 L. 116, 5 S. Ct. 809, under the act of March, 1875, if at any time it appears that the parties “had been improperly or collusively made or joined it is the duty of the court to dismiss the suit. Cited in note giving authorities on jurisdictional question, 1 McCrary, 86. Evidence. The rules of evidence prescribed by the statutes of a State are always followed by the courts of the United States, when sitting in the State, p. 6. Cited and followed in Vance v. Campbell, 1 Black, 431, 17 L. 172, holding testimony competent under rules of evidence in Ohio courts, was properly admitted; Wright v. Bales, 2 Black, 538, 17 L. 265, where testimony of witness, incompetent under State law, was rejected; Connecticut Life Ins. Co. v. Union Trust Co., 112 U. S. 255, 28 L. 710, 5 S. Ct. 122, provision in New York code prohibiting a physician from disclosing information acquired in a professional capacity, is obligatory upon Federal courts sitting in that State; Gravelle v. Minneapolis & St. L. Ry. Co., 3 McCrary, 386, 16 Fed. 601 U. S. Notes & Howard, 12 I.. ed. 578-82 p. |