United States v. Yates. 6 H.

erty 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.

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 advertisements, and as near as may be in the manner 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 accounted 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.

11 H. 414; 12 H. 472; 24 H. 553; 6 Wal. 642.

THE UNITED STATES, Appellants, v. HENRY YATES and ARCHIBALD MCINTYRE.

6 H. 605.

An appearance of counsel only cures the want of a citation, and does not waive any other cause of dismissal; but under peculiar circumstances, leave may be given to withdraw as appearance.

APPEAL from the district court of the United States for [* 606 ] Louisiana, under the act of congress passed on June 17, 1844, 5 Stats. at Large, 830, providing for the adjustment of land claims within the States of Louisiana, Arkansas, &c.

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 an affidavit and letter, showing that he had been obliged to direct his appearance to be entered while absent from the country, and without opportunity to examine the proceedings.

TANEY, C. J., delivered the opinion of the court.

[* 608]

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.

But the appearance does not preclude the party from moving to dismiss for the want of jurisdiction, or any other sufficient ground, except for the one above mentioned. And a motion of that kind is, in the practice of this court, usually and most properly made by the attorney, after his appearance is entered on the docket. And if such a motion is intended to be made in this case, the withdrawal of the appearance 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 original 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.

Order. 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

United States v. Yates. 6 H.

motion, it is now here ordered by the court that the leave prayed for be and the same is hereby granted.

Justice Daniel and Justice Woodbury dissented from the opinion

of the court.

20 H. 204, 208.

INDEX.

ACCOUNT.

1. Where several parties were jointly interested in the profit and loss of a series of
voyages of a vessel, of which one of them was master and supercargo, it was held,
that though a stranger could not be introduced as a partner during the pendency of
these voyages, yet, after the last voyage had been terminated, the interest of one
party might be assigned, and the assignee could maintain a bill for an account
against the master and supercargo, joining the other proper parties. Mathewson v
Clarke, 6 H. 122....625.

2. Sundry questions of fact considered and decided. Ib.

APPEAL, 2-4; EXECUTORS, &c. 2; PARTNERSHIP; SURETY, 3.

ACTION.

1. A surety of a surety, who pays the debt, may maintain an action for money paid
against the principal. Hall v. Smith, 5 H. 96....323.

2. The cause of an action on the case against a marshal for false and insufficient re-
turns of one of his deputies, does not survive, and consequently such action will not
lie against the executor of the marshal, under the laws of North Carolina. United
States v. Daniel, 6 H. 11....583.

ARBITRATION, 2. 3; BILLS OF EXCHANGE, &c. 11; BOND, 1-3;

COMMON CARRIER ;

EXECUTORS, &c. 3; PATENT, 9; SLAVES, 2-5; SURETY, 5.

ACTION ON THE CASE.

ACTION, 2; PLEADING, 3

ADMIRALTY.

1. A case of collision on the River Mississippi, within the ebb and flow of the tide, is
within the admiralty and maritime jurisdiction of the courts of the United States,
though also infra corpus comitatus. Waring v. Clarke, 5 H. 441....456.

2 The courts of the United States have admiralty jurisdiction as well in personam as
in rem, over libels founded on contracts of affreightment to be executed on the sea
between the cities of New York and Providence. New Jersey Steam Navigation Co.
v. Merchants' Bank of Boston, 6 H. 344....722.

ADVERSE POSSESSION.

LIMITATIONS OF SUITS.

AGENT.

BILLS OF EXCHANGE, &c. 4; MARSHAL, 1; PAYMENT.

ALABAMA.

BILLS OF EXCHANGE, &c. 12; EXECUTORS, &c. 1; WRIT OF Error, 8.

ALIEN.

Land devised to an alien does not escheat until office found. Taylor v. Benham, 5 H
933....377.

AMENDMENT.
PRACTICE, 1; Record.

ANSWER.

EQUITY, 2; EVIDENCE, 8; JURISDICTION; MultifariousneSS.

APPEAL.

1. Where a decree decides the right to property, and directs it to be delivered up or
sold, or a sum of money to be paid, and the complainant is entitled to have such de-
cree carried into immediate execution, this is a final decree, from which an appeal
lies. Forgay v. Conrad, 6 H. 201....653.

2. This does not extend to mere transfers of the possession, for the purpose of securing
property in litigation, such as payments into court, appointments of receivers, and
the like. Ib.

8. A decree setting aside a deed, and ordering the property to be delivered to a com
missioner of the court, who was to take an account and report all matters necessary
for a final decree, is not final, and an appeal does not lie. Pulliam v. Christian, 6 H.
209....659.

4. A decree, that a community of acquests and gains existed between husband and
wife, and ordering an account to be taken, is not final, and an appeal does not lie.
Perkins v. Fourniquet, 6 H. 206....657.

5. A judgment that a demurrer to a petition for the confirmation of a Spanish title in
Louisiana, under the act of May 26, 1824, (4 Stats. at Large, 52,) be sustained, but
taking no further order concerning the petition, is not final, and an appeal to this
court does not lie. De Armas's Heirs v. United States, 6 H. 103....615.

6. Under the act of May 26, 1824, § 9, (4 Stats. at Large, 55,) it is sufficient, if the
district attorney claims an appeal, and it is sanctioned in this court by the attorney-
general. United States v. Curry, 6 H. 106....617.

1. A citation issued in August, 1847, could not bring up an appeal claimed in Novem-
ber, 1846. Ib.

8. Under the act of May 23, 1828, (4 Stats. at Large, 284,) concerning the confirma
tion of private land claims in, Florida, an appeal, not taken in open court, but claimed
in the clerk's office, is a nullity, without a citation returnable at the then next term
of this court. Villabolos v. United States, 6 H. 81. ...607.

9. A defendant in equity, whose interest is separate from that of the other defendants,
may appeal without the others. Forgay v. Conrad, 6 H. 201....653.

10. An appellant cannot object that another respondent, who has not appealed, was
not liable to be sued in the courts of the United States by the complainant. Shel-
ton v. Tiffin, 6 H. 163....643.

ATTORNEY, &c.; CITATION; COURTS OF THE UNITED STATES, 3. 12. 15; Judg.

MENT, &c. 7.