Kirkman v. Hamilton. 6 P. The reversal of the judgment gives a new right or cause of action against the parties to the judgment, and creates a legal obligation on their part to restore what the other party has lost, by reason of the erroneous judgment; and as between the parties to the judgment, there is all the privity necessary to sustain and enforce such right; but as to strangers there is no such privity; and if no legal right existed when the money was paid, to recover it back, no such right could be created by notice of an intention so to do. Where money is wrongfully and illegally exacted, it is received without any legal right or authority to receive it; and the law, at the very time of payment, creates the obligation to refund it. A notice of intention to recover back the money, does not, even in such cases, create the right to recover it back; that results from the illegal exaction of it, and the notice may serve to rebut the inference that it was a voluntary payment, or made through mistake. The judgment must accordingly be reversed; and judgment entered for the defendant in the court below. THOMAS KIRKMAN, JR., Plaintiff, v. JOHN W. HAMILTON and others, Defendants. 6 P. 20. Under the laws of North Carolina, adopted by Tennessee, an action of debt by an indorsee, will lie on a promissory note, and such an action of debt was not barred by any statute of limitations of Tennessee. The payee of a note, at its date, was a citizen of the same State as the maker; subsequently, he became a citizen of another State, and then indorsed the note to a citizen of the latter State. Held, that the indorsee might sustain an action in the circuit court in his own name, the case not being within the exception in the 11th section of the Judiciary Act, (1 Stat. at Large, 78.) THE case is stated in the opinion of the court. Webster, for the plaintiff. No counsel, contrà. [ *22 ] * MARSHALL, C. J., delivered the opinion of the court. This case comes up from the court of the United States for the seventh circuit, and district of West Tennessee, on a certificate that the judges of that court were divided in opinion on the following questions. 1. Whether the plea of the statute of limitations is a bar to the recovery of the plaintiff, on the second count in the declaration? 2. Whether an action of debt can be supported on the cause of action set forth in said second count? 3. Whether Kirkman v. Hamilton. 6 P. the averment of the citizenship of Thomas Ramsey and Co., the payees of the note in the said second count, is sufficient to sustain the jurisdiction of this * court, under the provisions [ 23 ] of the 11th section of the Judiciary Act of 1789? The second count is a declaration in debt on a promissory note executed by the defendants, made payable to Thomas Ramsey and Co., then citizens of Tennessee, and indorsed by them, after becoming citizens of Alabama, to the plaintiff, a citizen of Alabama, who insti tuted the suit as assignee of the said note. The first question depends on an act of the State of North Carolina, passed in the year 1715, and was the law of Tennessee; the 8th section of which enacts "that all actions of trespass, detinue, actions sur trover and replevin for taking away of goods and chattels, all actions of account, and upon the case, all actions of debt for arrearages of rent, and all actions of assault, menace, battery, wounding and imprisonment, or any of them, which shall be sued or brought at any time after the ratification of this act, shall be brought within the time and limitation in this act expressed, and not after; that is to say, actions of account render, actions upon the case, actions of debt for arrearages of rent, actions of detinue, replevin, and trespass, quare clausum fregit, within three years next after the ratification of this act, or within three years next after the cause of such action or suit, and not after." This statute bars the particular actions it recites, and no others. It does not bar actions of debt generally, but those only which are brought for arrearages of rent. This is not brought for arrearages of rent, and is consequently not barred. The action of debt, unless it be brought for arrearages of rent, not being within this statute, the court perceives no other which bars it. If the 7th section of the 31st chapter of the act of 1715 was even to be considered as adopting the act of limitations of the 4th of James L, it would not affect this case, because the suit was brought within the time allowed by that act. The act of 1786, c. 4, was intended to make all bills, bonds, &c. negotiable, though under seal, and to enable the assignee to sue in his own name, and to bring an action on the case, notwithstanding the seal. The proviso of the 5th section, that "the act of limitations shall apply to all bonds, bills, and other securities hereafter executed, made transferable by this *act, after [ * 24 ] the assignment or indorsement thereof, in the same manner as it operates by law against promissory notes," cannot, we think, be fairly construed to extend the act of limitations in its operation on promissory notes. Kirkman v. Hamilton. 6 P. We are, therefore, of opinion, that the plea of the statute of limitations is not a bar to the recovery of the plaintiff, on the second count in his declaration. The second question propounded is, whether an action of debt can be supported on the cause of action set forth in the second count? The cause of action is a promissory note made by the defendants, and indorsed by the payees to the plaintiff. In 1762, the legislature of North Carolina passed an act, c. 9, "for the more easy recovery of money due upon promissory notes, and to render such notes negotiable." The second section declares, that all such notes, payable to order, "may be assignable over in like manner as inland bills of exchange are by custom of merchants in England," and that the person or persons "to whom such money is, or shall be payable, may maintain an action for the same, as they might upon such bill of exchange," and the person or persons, "to whom such note so payable to order is assigned or indorsed, may maintain an action against the person or persons," &c. "who signed or shall sign such notes, or any who shall have indorsed the same, as in cases of inland bills of exchange." The note claimed in the second count of the declaration is payable to order. In 1786, the legislature passed " an act to make the securities therein named negotiable," by which notes not expressed to be payable to order are placed on the same footing with those which are made so payable. The indorsee being thus entitled to sue in his own name, in like manner as on inland bills of exchange in England, the inquiry is, whether the indorsee of an inland bill of exchange may maintain an action of debt thereon in England. This question was fully considered by this court in the case of Raborg et al. v. Peyton, reported in 2 Wheat. 385, which was an action of debt brought by the indorsee of a bill of exchange against the acceptor. The cases were reviewed in the opinion then given, and the court decided clearly, that, both on principle and authority, the action was maintainable. [ *25 ] * We therefore think that an action of debt can be supported on the cause of action set forth in the second count. The third question asks, “whether the averment of the citizenship of Thomas Ramsey and Co., the payees of the notes in the said second count, is sufficient to sustain the jurisdiction of this court under the provisions of the 11th section of the Judiciary Act of 1789? That section gives jurisdiction to the circuit courts of the United States, where "the suit is between a citizen of the State where the suit is brought, and a citizen of another State." This suit is brought Bank of the United States v. Green. 6 P. in the circuit court for the State of Tennessee, by a citizen of Alabama, against a citizen of Tennessee. It comes, therefore, within the very words of the section, and is within the jurisdiction of the court, unless taken out of it by the exception. The words of the exception, so far as they apply to the case, are, "nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory notes or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such suit to recover the said contents, if no assignment had been made." When this note was assigned, the payees, as is averred in the second count, had become citizens of Alabama, and might, consequently, have prosecuted a suit to recover the contents of the said note in the circuit court of the United States for Tennessee, if no assignment had been made. The averment of the citizenship of Thomas Ramsey and Co. in the said second count, is therefore sufficient to sustain the jurisdiction of that court, under the provisions of the 11th section of the Judiciary Act of 1789. All which was ordered to be certified to the circuit court of the United States for the seventh circuit, and district of West Tennessee. THE BANK OF THE UNITED STATES, Plaintiff, v. WILLIAM GREEN and others, Defendants. 6 P. 26. This court has not jurisdiction under the act of April 29, 1802, § 6, (2 Stats. at Large 159,) upon a certificate of division respecting the marshal's poundage on an execution. CERTIFICATE of division of opinion between the judges of the circuit court of the United States for the district of Ohio, concerning the right of the marshal to tax certain poundage on an execution. Doddridge, for the marshal of the district of Ohio. MARSHALL, C. J., delivered the opinion of the court: [28] that the case was not within the jurisdiction of this court. The division of opinion was not upon any matter arising at the trial of the cause, but was upon a mere matter arising upon the service of the execution by the marshal; and was a mere question for the circuit court upon a collateral contest between the marshal and the bank, as to his right to fees. It was not, therefore, a case within the purview of the Judicial Act of 1802. 7 H. 185. United States v. The State Bank of North Carolina. 6 P. THE UNITED STATES V. THE STATE BANK OF NORTH CAROLINA. 6 P. 29. Under the act of March 3, 1797, (1 Stats. at Large, 512,) which is not controlled by the act of March 2, 1799, § 65, (1 Stats. at Large, 676,) the priority of the United States in case of a general assignment by their debtor, comprehends a bond for duties executed before the assignment, but payable afterwards. THE case is stated in the opinion of the court. Taney, (attorney-general,) for the United States. [ 34 ] STORY, J., delivered the opinion of the court. This case comes before the court upon a certificate of division of opinion of the judges of the circuit court for the district of North Carolina. The suit is an information by the United States in the nature of a bill in equity, seeking to recover against the defendant, and Talcott Burr, as the assignee of William H. Lippett, the amount of customhouse bonds owing by Lippett to the United States; Lippett having become insolvent, and having made a voluntary assignment of all his property to Burr, for the benefit of his creditors, by which he has given a preference of payment to certain creditors, who [ *35 ] are made defendants; *and, among others, to the State Bank of North Carolina, before payment to the United States. The bank of North Carolina appeared and plead a demurrer to the information; and, upon the argument of that demurrer, it occurred as a question, whether the priority to which the United States are entitled, in case of a general assignment made by the debtor of his estate for the payment of debts, comprehends a bond for the payment of duties executed anterior to the date of the assignment, but payable afterwards. Upon this question the judges were divided in opinion;, and it now stands for the decision of this court. The right of priority of payment of debts due to the government, is a prerogative of the crown well known to the common law. It is founded not so much upon any personal advantage to the sovereign, as upon motives of public policy, in order to secure an adequate revenue to sustain the public burdens and discharge the public debts. The claim of the United States, however, does not stand upon any sovereign prerogative, but is exclusively founded upon the actual provisions of their own statutes. The same policy, which governed |