author: Mr. Justice Thompson

text:
    Benjamin Long, Plaintiff in error, v. Palmer, Smith, and Company, Defendants in error.
    Action for escape against the sheriff of Madison county, he having reoeived into his custody as aprisoner,' the defendant in an action in the Circuit Court of Mississippi, taken under execution, and having suffered and permitted him to escape.
    The declaration set out the judgment obtained by the plaintiffs against Scott, the defendant in the Circuit Court, the execution, the arrest of Scott, and his delivery to Long as the sheriff; who received him into his custody under the execution, and detained him until, without leave or license of the plaintiffs in the execution, and against their .will, he suffered and permitted him to escape and go at large, &c., &c. To this declaration the defendant pleaded, that he does not owe the sum 6f money demanded in the' declaration, “in manner and form as complained 'against Mm ;” and the jury found that the defendant Long “doth owe the debt in the declaration mentioned, in manner and form as therein alleged,” and assess damages for the detention thereof, at one thousand and sixteen dollars and ninety-six cents: upon which the Court gave judgment for sií thpusirjd three hundred and fifty-six dollars, and one thousand dnd sixteen dollars and hhmty-ax cents damages, and costs.
    The judgment of the Cijeuit Cdurt is correct, under the provision of the statute of Mississippi of 7th June, 1822. The jury, were not required in'the action to find specially that the prisoner escaped with the consent, and through, the negligence of the sheriff. The plea alleged that the defendant did not owe the sum of money demanded, “ in manner and form as the plaintiff complained against him.” This plea put in issue every material avérmént in the declaration. On this issue, on the most strict and rigid construction, the jury have expressly found all that is required to be found by the requirements of the act.
    If the sheriff suffers or permits a prisoner to escape, this, both in common parlance, and legal intendment, is an escape with the consent of the sheriff.
    The object of the act is, to make the Sheriff responsible for a voluntary or negligent escape, and that this shall be found by the jury. And if this appears from the record by express finding, or by the necessary conclusion of the law, it is sufficient.
    If any particular practice Ji prevailed in the State Courts, as to the manner of entering upon the record the nnding of the jury, it is a mere matter of practice as to the form of taking and entering the verdict of the juryj and cannot be binding upon the Courts of the United States.
    IN error to the Circuit Court of the-United States for the southern district of Mississippi.
    An action of debt was instituted by the defendants in error against Benjamin Long, then' sheriff in Madison county, in the state of Mississippi, for the recpvery' of six thousand two hundred and seventy-seven dollars and costs, the same being the amount of a judgment obtained by Palmer, Smith, and Company against Thomas S. Scott, at the January term, 1833, of the District Court of the United States, for the district of Mississippi, with interest, &c.
    The plaintiffs in the District Court averred in the declaration that they had sued out a capias ad respondendum on the judgment against Thomas S. Scott, who was arrested by the deputy marshal.; and who, having him in custody under the execution, committed him to the custody of Benjamin Long, the sheriff, &c. That the said Benjamin Long received Scott into his custody, and afterwards, “ without the leave or license and against the will of the plaintiffs, suffered and permitted the said Scott to escape and go at large wheresoever he would, out of his custody.” ■
    The defendant in the Circuit Court, the case having been transferred to that Court, pleaded “nil debet;” and the jury found a verdict for the plaintiff, in the manner and form as alleged by them;” whereupon judgment was entered for' the plaintiffs, according to the verdict.
    The defendant sued- out this writ of error to January term, 1839.
    The case was argued by Mr. Coxe, for the plaintiff in error; and by Mr. Henderson for the defendant.
    Mr. Coxe, for the plaintiff in error,
    contended that thé judgment against Benjamin Long, in the Circuit Court, was erroneous, upon the principles of the common law j. and particularly by the laws of Mississippi.'
    He said that there were no averments in the. declaration of matters which, by the law of Mississippi relating to actions for an escape, wére, by the express provisions of the statute, required to be found by the jury. The liability of a sheriff for an escape, was where the plaintiff had not consented to the escape of the prisoner, and the negligence of the officer to make imhiediate pursuit. The only averment in the declaration in- this case is, that the sheriff permitted Scott, against the will of the plaintiff, without leave or license, to escape, and suffered' him to go at large wheresoever he would, out of his custody. The finding of the jury, should have been upon the necessary hnd required averments; and the verdict should, in compliance with the statute, have found the facts required by the statute to create the liability of the sheriff. The jury found a general verdict.
    No implication will be allowed. The statute expressly declares that the jury shall find the facts..
    The action for an escape is the pursuit of a rigid remedy; and the statute of Mississippi* looking to the hardship of the imposition of liability on the sheriff, has declared that all the facts necessary to create it shall be expressly found.
    Mr. Henderson, for the defendants, in error,
    contended that the entry of the judgment on the verdict of the jury, did authorize the assertion that the jury had found all the facts required by the statute. It was for the defendant below to have brought by plea before the jury, any of the requisitions of the act of assembly which .shduld be proved, to make him liable. If an issue had been tendered on such a plea, these facts would have been .brought into controversy. The entry of a general judgment on a special verdict is often made, and is lawful, and proper.
    This is an action of debt, and the provisions of the statute ot Mississippi do not apply to such actions. If the action had been on the case for the escape under mesne process, it might have been necessary to have proved all the requirements of the statute under proper averments, in the declaration. The language of the act of Mississippi may authorize this position.
    The plaintiffs in this case allege a debt to be due to them for an escape. The defendants plead nil debel, that he does not owe the money, and the jury find that he did owe the same in manner and form, &c. This is sufficient. Cited, 4 Call, 370; 1 How. 64; 3 How. 419; 2 Gallis. 231; 3 Wash. Rep. 17, 558; Peters’ C. C. R. 74; Tidd’s Forms, 334; 1 Archbold’s Practice, 205; 1 Mumford, 501; 5 Peters, 190; 1 Mass. 153; Paine’s C. C. R. 159; 2 Peters, 16.
   Mr. Justice Thompson

delivered the opinion of the Court.

This case comes up on- a writ of error from the Circuit Court of the United States, for the southern district of Mississippi.

It, is an action of debt brought against the defendant fof the escape of Thomas S. Scott, who had been duly committed to his custody by the marshal of Mississippi. The declaration sets out the judgment. obtained by Palmer, Smith, and Co., against Scott; the issuing the execution thereupon ;■ the arrest of. Scott, and his delivery to the. defendant, as sheriff, who received him into, his custody, by virtue of the .said execution, and detained him until afterwards, to wit, on the 10th day of October, 1833, when without leave or license, and against the will of the said Palmer, Smith, and Co., he suffered and' permitted the said Scott to escape and go at large, wheresoever he would, out of the custody of him the said Benjamin Long, so being sheriff, as aforesaid.

To this declaration, the defendant pleaded that he does not owe the sum of money demanded by the plaintiffs in the declaration, or any part thereof, in manner and form as the said plaintiffs have complained against him. And the issue thereupon joined came on to be tried by a jury; who upon their oaths say, that the defendant doth owe the debt in the declaration mentioned, in manner and form, as- therein alleged, and*assess the damages for the detention thereof, at one thousand and sixteen dollars and ninety-six cents.

The question presented upon this writ of error, arises under a law of the state of Mississippi, concerning escapes, passed the 7th of June, 1822, (Revised Code, 318;) the third section of which declares, that no judgment shall be entered -against any sheriff or bther officer, in any suit brought upon the escape of any debtor in his or their custody, unless the jury who shall try the issue, shall expressly find that such debtor of prisoner did escape with the consent or through the negligence of such sheriff or other officer; or that-such.prisoner might have been retaken, and that the sheriff or other officer neglected to make immediate pursuit. This latter branch,of the act is not involved in the .present question. The declaration contains no averment of neglect ‘to make immediate pursuit to retake-the prisoner.

To this section of the- act, which is general, and extends to all actions for escapes, whether the prisoner is in custody of the sheriff on mesne process or on an execution, there is-a proviso which declares, that when the sheriff or other officer shall have taken the body of any debtor- in execution, and shall • wilfully and negligently suffer such debtor to escape, the party suing out such execution may have and maintain an action of debt against the sheriff for the recovery of all such sums of money as are mentioned in the execution, and damages for detaining the same; any law, custom, or usage to the contrary notwithstanding. So that when the action is for the escape of a prisoner in execution, the measure of recovery is' fixed, and not left open to any mitigating circumstances^ This proviso takes the case of an escape, where the prisoner is in custody on an execution, out of the provisions in the enacting clause. The action in this case is debt, and comes within the proviso. But the grounds on which the sheriff is made liable for the encapé are substantially the same. In the enacting clause he is made liable if the escape is with his consent, or through his negligence. And inthe’proviso' he is made, liable if he wilfully and negligently suffer the escaoe. The word “or” must obviously be here substh tüted for'“and.” Shall wilfully or negligently suffer the escape. To consent to an escape, is certainly wilfully to suffer it. And the question which arises upon this record is, whether the case- is brought within the provisions of this- act. The action is debt against the sheriff, and the' averment inthe declaration, on which his liability for the escape rests, is, that he, withoút leave or license and against the will of the said Palmer, Smith, and Company,' (the plaintiffs in the execution,) suffered and permitted the said Scott, (the prisoner,) to escape and go at large, out of the custody of him, the.said Benjamin Long, so then being sheriff of the county of Madison, and the said sum of six thousand three hundred and fifty-six dollars and eighty-three cents, due for said damages and costs, being then and still wholly unpaid and unsatisfied. The error complained of in this record is, that the jury have not expressly found, that the prisoner escaped with the consent or through the negligence of the sheriff. The plea to this declaration, which contains the averment abové-mentioned is, that the defendant dqes not owe the sum of money demanded in the declaration, in manner and form as the plaintiff' has complained against him. This plea puts in issue every material averment in the declaration; and the plaintiff was called upon to prove such averments. It put in issue therefore the inquiry whether the sheriff suffered and permitted the escape. If he suffered and -permitted the escape, this, both in common parlance and in legal intendment, was an escape with the consent of the sheriff. And the verdict of the jury is that the defendant doth owe the debt in the declaration mentioned, in manner and form as therein alleged. The manner and form, alleged in the declaration is, that he owed it by reason of his. having permitted the prisoner to escape. So that, upon the most strict and rigid construction of the act, the jury have expressly found that the escapé was with the permission of the sheriff; which is equivalent to finding that it was with, his consent according to the requirement of the act. This act. does not point out any particular form in which the finding of the jury is to be entered upon the records of the Court. The object of the act is to make the sheriff responsible for á voluntary or negligent escape ?■ and that this shall be. found by the jury. And if this appears from the record by express finding,, or by the necessary conclusion of law, it is sufficient. So that, if .the verdict of the jury in this case should be considered no more than the common form upon the plea of nil debet, all the averments in the .declaration are, in judgment of law, presumed to have been proved. And'if any particular practice under this statute has prevailed in the State Courts, as to the manner of entering, upon the récord the finding of the jury, it is a mere matter of practice as to the form of taking and entering the verdict' of the jury; and cannot be binding upon the Courts of the United States.' The judgment of the Court below is accordingly affirmed.

This view of the pase renders it unnecessary to consider, the motion to dismiss the writ of error. Judgment affirmed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the southern district of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by.this Court, that the judgment of the said Circuit Court, in this cause be, and the same is hereby, affirmed, with costs and damages at the rate of six per centum per annum.


source: Caselaw Access Project

author: Mr. Justice. Daniel

license: Public Domain

text:
    Stephen Cocke, for the use of the Commercial Bank of Columbus, Mississippi, Plaintiff in error, v. Joseph A. Halsey and others, Defendants in error.
    The constitution of Mississippi declares that clerks of the Circuit Court, Probate, and other inferior Courts, shall be elect by the electors of tbe county for two years. The legislature of Mississippi, by statute, declared that when, from sick ness, or other unavoidable causes, the clerk of the Probate Court shall be unable to attend the Court, the judge of Probate may appoint a person to act as clerk pro tempore, who shall take an oath faithfully to execute the duties of the office, &c. Deeds of trust and mortgages are declared to be void against creditors and purchasers, unless they shall be acknowledged or proved, and delivered to the clerk of the proper Court to be recorded ; and they shall be valid only from the time they are so delivered to the clerk. Robert D. Haden was elected clerk of the Court of Probate, for the county of Lowndes, and during the two years for which he was so elected, hr went to the state of Tennessee on business; and being absent when the Court of Probate sat, William P. Puller was, by the judge of the Court of Probate, appointed tbe clerk pro tempore; and having taken the bath of office, he executed the-duties of clerk during the session of the Court, and afterwards, until the return of the regularly elected clerk. After the adjournment of the Court, a deed of trust, duly executed, by which certain personal properly was’conveyed for the benefit of creditors, was delivered to William P. Puller, and was by him entered for record. An execution was levied on the property thus conveyed by a creditor of tbe party who had executed the deed : the regularity of the recording of the deed was denied, on the ground that the clerk of the Probate Court pro tempore, had no authority to receive the deed of trust for record after the adjournment of the Court of Probate. Held, that the clerk pro tempore was authorized to record the deed of trust, under the constitution and law of Mississippi;
    In' every instance in'which a tribunal has decided upon a matter within its regular jurisdiction, its decision must be presumed proper, and is binding until reversed by a-superior tribunal; and cannot be affected, nor the rights of persons dependent upon it be impaired, by any collateral proceeding. Cases cited, Thompson v. Tolmie, 2 Peters, 157; The United States v. Arredondo, 6 Peters, 720; Voorhees v. The Bank of the United States, Ibid. 473; The Philadelphia and Trenton Rail Road Company a. Stimpson, 14 Peters, 458.
    IN error to the Circuit Court of the United States for the southern district of Mississippi.
    On the 24th March, 1838, James Carter and Company executed a deed of trust to William L. Moore, for the purpose of securing the payment of certain sums of money to the Commercial Bank of Columbus; by which they conveyed, among other thihgs, certain slaves, men in Lowndes county, Mississippi, in trust to séll the said property .for the benefit of the Bank of Columbus. This deed was presented for record to the office of the clerk of the Court pf Probate for Lowndés county, on the 24th day of March, 1838, the'day on which it was'executed; and was endorsed, “ Received in my office for record on the 24th day of March. 1838, William P. Puller, clerk pro tem.”'. And it was afterwards certified to have been, recorded on the same day, under his hand and seal, by William Pc Puller, clerk pro tem.
    At the time this record and certincate were made by William P. Puller, as clerk pro tempore, one Robert D. Haden was the elerk of .probate for the county of Lowndes, duly elected, qualified, .and sworn. Haden was duly elected in November, 1837, for two' years, and entered upon the discharge of his duties some time in the month of February, 1839. Haden visited the state of Tennessee on business, and did not return in time to perform the duties of clerk at the March ferm, 1839. In consequence of his absence, Thomas Sampson, Esquire, judge of probates, upon the opening of the Court of Probate, at March term, 1839, appointed Vfilliam P. Puller to act as clerk pro tempore during the absence of Haden. This deed was recorded by Puller, during the absence of Haden, but after the March term of the Court of Probate, not while the said Court was in session. ' Haden afterwards returned and resumed'the duties of his office. The above described property was, by the .trustee, left in the possession of James Carter - and Company.
    At the May term, 1838, of this Court, judgment in the abóye entitled case was obtained against the said James Carter and' Company. Execution was issued upon this judgment, and was levied on the assigned negroes,, in the possession of James Carter and Company. Upon the levy being made, the trustee came forward and claimed this property, and gave the necessary bond; and this issue is now before the Court to try the right .to the - said slaves.
    If the deed óf trust was properly and legally recorded, then it-is admitted that, the judgment in the above case is no lien upon said slaves, and that the trustee will be entitled to the same; otherwise, if the deed was not duly and legally recorded, the slaves are subject to the satisfaction of the said judgment.

      The Court adjudged that the trust-deed was not- duly aird legally recordedand that the said acts and proceedings of .the said William P. Puller, as clerk pro tempore, in the recording of the said trust-deed, was without authority-of law, arid is altogether void; and so instructed the jury,
    To this opinion the plaintiff excepted, and the jury having found a verdict according to the opinion of the Court; the plaintiff prosecuted this writ of error to the judgment of the Circuit Gourt on the verdict.
    The case was submitted to the Court, on'a printed argument, by Mr. Cocke, for theplaintiff; and was argued at the bar by Mr. Key, for the defendant.
    In his argument, Mr. Cocke said,
    The question involved in this case is, whether the deed of trust mentioned in the record, was properly recorded-. This is -to be determined, majnly, by the local laws of Mississippi. There are, nevertheless, some elementary principles involved.
    The statute and constitutional'law of Mississippi, Which is supposed to bear upon this' subject most directly, may be. found as-hereafter pointed out. - By the act of 13th June, 1822, deeds of conveyance were required tó be recordedby the clerk of the County Court of the proper, county. Alden’s Revision of the Laws of Mississippi, 297, sec. 1. This, by the same section,is declared to be in the county in which the land is situated;
    By sec. 4, p. 298, deeds in relation to personal property shall be recorded in that county in which such personal property shall .remain. Same page, sec. 5, provides that deeds of trust and mortgages shall take effect from the time 'they are delivered to the clerk to be recorded, and then only; but other deeds shall take effect from the time they were sealed and delivered, if recorded within three months. Sections.-6, 7, 8, 9, 10, prescribe more in detail the duties of the clerk. By the act of - the 28th June, 1822, Alden’s Revision, p. 183, sec. 7, this language is used: "During the vacar cy in the office of clerk of a County Court, and during the unavoidable absence of the principal clerk and his deputies, if any he have, the Court in term time, or the. presiding justice thereof in vacation, may appoint a clerk pro tempore, who, after taking the necessary oath of office, shall be authorized to perform the duties of a clerk, and during Ms continuance in office shall be entitled to all the fees thereof.”
    By the act of the 16th of February, .1828, Alden’s Revision, p. 194, the judge of Probate of the county and the justices of the County Court then in commission, constitute the Court denominated the County and Probate Court; and the latter part of the same section provides that the clerk of the County Court then in office should be clerk of said Court.
    Thus the law on this subject stood, until the year 1833, when the revised constitution of Mississippi was adopted. At p. 39, Alden’s Revision, will be found the revised constitution. Sec. 4, title “ Schedule,” provides that “ all laws then in force in this state, not repugnant to this constitution, shall continue to operate until they shall expire by their own limitation, or be altered or repealed by the legislature.” *
    By article 4 of the constitution, (Judicial Department,) sec. 19, Alden’s Révision,.p. 34, “the clerk of the High Court of Errors and Appeals shall be appointed by said Court for the term of four years; and clerks of the Circuit, Probate, and other inferior Courts, shall be elected by the qualified electors of the respective counties, and- shall hold their offices for the term of two years.”
    By article 5 of the revised constitution, (Executive Department,) sec. 13, Alderi’s Revision, p. 34, “ all. vacancies not provided for in this constitution, shall be filled in such manner as the legislature may prescribe.”
    By the act of the 2d of March, 1833, Alden’s Revision, p. 1981, sec. 70, “all vacancies, either in the office of judge or clerk of the said Court, shall be filléd by election at the several precincts of the county, to be held at such time as the board of county police-may prescribe,, and on such public notice as may be providéd for by law.”
    By the same act of the second of March, 1833, Allen’s Revision, p. 199, sec. 73, it is provided, “that, in case the clerk shall be at any time unable, from sickness or unavoidable causes, to attend said Court, it shall be lawful for the judge of probates to appoint a clerk, to act as clerk pro tempore, who shall take an oath faithfully to discharge all the duties of his office, and for services-■rendered by the said clerk he shall be entitled to the fees allowed by law to the,.clerk of said Court.”

      For the purpose of reversing the opinion of the Circuit Court, Mr. Cocke, for the plaintiff in error, contended,
    1. That the deed of trust was properly recorded.
    2. That the appointment of William P. Puller “clerk pro tempore,” was in conformity-with the laws of Mississippi, and' valid.
    3. That the regularity of his appointment cornu not be collaterally inquired into.
    4. That it was competent for the Probate Court to make the appointment.
    5. That as Puller was clerk de facto, by appointment, acting under colour of office, his acts were valid as respects the rights of third persons and the community; whether he was clerk de jure or not.
    6; ■ That it is not competent for the federal tribunals to declare a state law, regulating her local and municipal police, void or otherwise unconstitutional; unless in conformity with the decisions of state tribunals, -when the. Constitution of the United States is in no manner contravened.
    7. That Puller’s right to discharge the duties of clerk, continued dtíring the absence of Haden, and until Haden- took the office, and resumed the duties of it.
    To ascertain the intention of the legislature, laws on analogous subjects- may be safely referred to. If this is allowable, we will find a- similar provision in reference -to the clerks of the Circuit Courts. Thus, (Alden’s Revision, page 118, sec. 13,) that “during the vacancy of the office of clerk in any Circuit Court of Law, and during the unavoidable absence of the principal clerk and his deputies, if ány he have, the judge thereof, either in term-time, or in vacation, may appoint a clerk pro tempore, who, after taking the necessary oath of office, shall be authorized to perform the duties of a clerk, and, during his continuance in office, shall be entitled to all the fees thereof.” So if, from any cause, there be a just exception to the sheriff, the coroner may act; or, if the cause extends to the coroner, then a justice of the peace may perform the duty. Alden’s Revision, p. 334, sec. 15.
    In the case, before us, the agreement shows that Haden, the clerk elected, was absent in- the state of Tennessee. It was true there was ho vacancy. Haden was the incumbent elect, and consequently there could be no election under the law. His absence was, however, about to create a kind of interregnum in the discharge of the duties of clerk. To prevent this, the statute above cited appropriately interposed itself, and provided a clerk pro tempore. The power of the judge of probate to do this is the question. It is contended—
    1. That the appointment of William P. Puller, clerk pro tem. of the Probate Court of the county of Lowndes, was in conformity with the law of Mississippi, and, in the absence of Haden, the clerk elect, was directly required by the statute to be done. See Alden’s Revision, page 183, sec. 7, and page 199, sec. 73, above cited;

      2. The appointment of the Court is itself conclusive evidence tha't the absence of Haden was an unavoidable absence, and cannot ’now anywhere be questioned. The Court which made the pro tem. appointment was alone competent to decide the question; and, having made the appointment, its determination is conclusive, either that Haden was sick, or absent from unavoidable causes; and the propriety of that decision cannot now anywhere be impeached, or collaterally inquired into. Stimpson v. The Trenton Railroad. Company, 14 Peters, 458.
    If it be true that there can be no clerk pro tem. of the Probate Court, so there could be no clerk pro tem. of the Circuit Court; nor could a coroner be allow ed in any contingency to discharge the duties of sheriff, nor a justice of the peace to discharge the duties of coroner. The federal judiciary would thus undertake to determine that the whole system of the Mississippi legislation, ill seeking to prevent an interregnum in the offices, and a failure of justice to her citizens in "her municipal police, would be invalid.
    It cannot be a sound construction of the constitution of Mississippi to suppose that, if a clerk should, at any time, be unable, from sickness or other unavoidable causes, to attend to the duties of his office, the framers of the constitution intended that the interest and business of the country should be suspended. If the constitution is to be construed as denying legislative action as to matters of this kind, not provided for in the constitution, then it must be considered that the. convention intended that if the clerk elect should be unable, from sickness .or unavoidable causes, to attend to the-duties of his office, the citizen, for the time should be without any power to perfect his legal rights, by having his deeds recorded; in other words, that as a trust-deed, under the laws of Mississippi, can have no validity until it be delivered to the clerk to be recorded, the convention must have intended that if the clerk should he unable, from sickness or other unavoidable causes, to attend to the duties, that, during that- time, no right could be created by way of trust-deed ; and if the sickness, or other unavoidable causes, should continue longer than three months, titles by deed-should be ineffectual altogether. It is no answer to say the clerk might have a deputy. In the case of the, clerk, there \yas no deputy; nor does the constitution provide any more for a deputy clerk than it does for a clerk pro .tempore.
    3. But if it be contended that there is no such officer as clerk pro tern, known to the constitution of Mississippi, (as such was the opinion of the Court below,) then it would follow that, as the legitimate business of a, constitution is to regulate the general organic law, the duties of regulating in detail the Various tribunals, and jurisdictions created by it, have been wisely left to legislative discretion and action. The legislature having provided for the very state of things here in controversy, the counsel has not,been enabled to discover any thing in the constitution of Mississippi interdicting the authority of the legislature on the subject.
    4. The-constitution nowhere requires deeds to he recorded at all, nor did (as it is believed) the common law. The legislature might dispense with the recording of deeds altogether; or they might have em recorded -by a notary public, city magistrate, or by any private citizen by name, and there would certainly be nothing unconstitutional in it. ' But the legislature have thought proper to give the recording of deeds to the clerks of probates, and, in certain contingencies, to the clerks pro tem. of that Court, to be appointed by the judges of probates. There cannot, it seems, he ■ airy thing wrong in this; and it is certainly the manner in which the discretion of the legislature has -been exercised ; and nothing is known which would justify the Court below, or this Court, in saying they have been-wrong.
    5. The recording of deeds is not an incident of any Court, or its jurisdiction. If even it were not competent for the legislature to provide for a clerk pro tem, of the Probate Court, to be appointed as to the matters peculiar to the jurisdiction of that tribu nal, yet there is nothing in the recording of deeds which can, by any possibility, enter into such considerations.
    6. The terms, during the unavoidable absence of the princi pal clerk, as mentioned' in sec. 7, page 183, and that in case the clerk shall be at any time unable, from sickness or unavoidable causes, to attend said Court, it shall be lawful for the judge of probate to appoint a person to act as clerk pro tempore, who shall take an oath faithfully to discharge all the duties of his office; and for services rendered by said clerk,.he shall be entitled to the fees allowed by law to the clerk of said Court, as mentioned in sec. 73, page 1-99 j cannot'justly be limited to the term of the Court which made the appointment. It is true the lav/ requires the Court to make the appointment; but the last section defines the tenure of the office to continue commensurate with the causes which made it necessary to make the appointment ; otherwise he could not discharge all of the duties of his office. Again: It is the universal principle, in the construction of statutes, to regard the reason and spirit of the law, and the causes which induced the legislature to enact it. In the matter before us, it was most-obviously the motive with the legislature to prevent an interregnum , in the offices, and to hinder a failure of justice. The business confined to the term of the Court is not one hundredth part, in interest and amount, of that which, by the laws, is allowed to be done b}r the clerk in vacation. If the legislature intended to provide for the matters of less importance only, it appears they must have been guilty of extreme ignorance, folly,. or wickedness; the which, this Court would reluctantly ascribe to them- This Court will give the statute the construction claimed. '
    7. It is confidently believed that the law is every way regular and proper, and that there does not exist any possible valid objection to the deed, or the time or manner of its execution, probate," or to the recording of it. But whatever may be the nature of the legal rights . or liabilities of ’Haden and Puller, as to. the 'office, Puller being the incumbent by appointment, discharging the duties of .the office under colour of title, being the clerk de.. facto, whether he were clerk de jure or not, all of his acts, so far as the rights of the community and third. persons are concerned, are valid. The King v. Leslie, Andrews’ Rep. 163; Taylor v. Skrine, 2 S. C. Rep. 696; Jones w. Gibson, 1 N. H. Rep. 268, and the authorities there; Keyser et al. v. Kessam, 2 Rawles’s Rep. 139; Buckham v. Reigles, 15 Mass. Rep. 180; Nason v. Wellingham, 15 Mass. Rep. 170; Fowler v. Babee, 9 Mass. Rep. 231; The People v. Collins, 7 Johns. Rep. 550; 7 American Common Law Reports by Wheeler, 142; Biddle v. The County of Bedford, 7 Serg. and R. 392 and 393. Indeed, this doctrine is now regarded as settled, as elementary in principle, and no longer open to discussion.
    8th. The District Federal Court of Mississippi was not, nor is this Court competent .to declare ansíate law unconstitutional, which is in conformity with the decisions of the state tribunals; unless some .provision of the Constitution of the United .States has been contravened. As there is nothing in this law in the leást incompatible with the Constitution of the United- States, it was the duty of the Court below, and is now the duty of this Court, to give effect to the state laws. Jackson v. Lamphire, 3 Peters, 289; Shelby et al. v. Guy, 11 Wheat. Rep. 361.
    If this is not correct, it appears to involve the right of the federal tribunals to entér into the local, the municipal police of the several states, and abolish it — a doctrine unprecedented in its assumptions, and one which.will find no toleration' in this Court.
    The legitimacy of appointments,'elections, or qualifications of an incumbent in office, cannot be inquired into, collaterally; but their acts are valid, until their' acts are regularly superseded. If this were not so, the naming of only two of the officers, required to be elected under the constitution of Mississippi, Will show us to what infinity of confusion, and inextricable difficulties, the doctrine contended for by the opposite party would lead. For example :■ By the third section of the fifth article of the constitution of Mississippi, (Alden’s Revision, p. 33,) the governor is required to be at least thirty years of age; that he shall have been a citizen of the United States for twenty years, anu shall have resided in the state at least five years next preceding the day of his election. . .
    Mr. Key, for the defendants in error.
    1; By the constitution of Mississippi, the act of the second of March, 1833, of the Mississippi legislature, is void. The case stated shows there was no vacancy in the office. If there was, the constitution shows how the vacancy was to be filled, and that the legislature could not alter it. Therefore, there was no power in the Court to make the appointment; and Puller was not clerk of probates, having authority to receive and record the deed.
    2. Again. Suppose the law valid, what authority .did it give? Only to meet the exigency, arid act as clerk during the session of the Court, (one week,) this being the only evil the law sought to remedy; and as the power to appoint was only for such specific purpose, and on a particular contingency, such purpose and the occurrence of such contingency cannot be presumed, but must appear on the face of the proceedings.
    Mr.-Justice Story; and this Court have decided that otherwise it, is a nullity. 1 East, 64; 8 T. Rep. 178; 4 Wheat. 77; 6 Wheat. ,127; 2 Peters, 523.
    ' 3. Again. What authority did it give ? Only for the session of the Court, pro tempore; as if it had said, till the end of the term. This was all that ought to have been done; all that was necessary; and all that was done.
    If William P. Puller, therefore, on such an appointment, held over, it was the usurpation of the office, without authority, or the colour of authority; and then all his. acts are nullities.
    4. And this answers the argument and the authorities cited to show that Puller was clerk de facto, though not de jure; and that his official acts, as regards third persons, are valid.
    He was not clerk de facto under colour of. right, but a usurper; or holding over after his authority was gone, and there was no colouv for his official acts.
    What is an officer de facto, holding under colour of right, fo whose official acts this sanction is given ?
    1. Those .who hold under an authorized appointing power, but irregularly or improperly appointed, or not duly qualified. 2, Where the office is not Ml.
    But here there was no authority to appoint. ■ And if there was, the time of his appointment was over; and he was holding wrongfully, without any colour of right. So is 15 Mass. ; 5 Yerg. 271; 1 East, 79; King v. Corporation of Bedford, Andrews, 163.

      3. He could not be clerk de facto, because there was then a clerk de jure; and there-cannot be both at the same time. Suppose there are acts done by Haden at the same time, (and non constat, that there were not,) such acts would be valid.

      4. He was not clerk de facto, because he did not take the name of the office clerk pro tempore." The recording law requires the clerk to do the act. Here it-is done by a clerk pro tempore. No such officer recognised by the constitution.
    5. Again, If he was clerk de facto, he could only do necessary acts; attend the Court. This was all he need have done, and all he was in any way authorized to do, and for a limited time.' It was-so held-in Andrews, 166, 173; King v. Lisle, Andrews, 163.
    .Finally,- it is ■ settled. by the Mississippi law of 1840. This shows that the legislature have recognised the rights of those with whom the official acts-of Puller interfered; have declared his acts void, where they interfered with such rights, and that such right's shall be"secured. This is-a Mississippi statute, and a legislative construction of it;-and the Courts there will no doubt respect this act of 1-840: and this Court will not interfere and advise them to nullify it,
   Mr. Justice. Daniel

delivered the opinion of the Court.

This cause comes before this Court upon a writ of error to the Circuit Court, of the United States, for the southern district of Mississippi.

The statement of the. case upon which the questions presented here for decision arise, is, as agreed by the parties upon .the record, substantially the following:

On the 24th of March, in the year 1838, James.Carter and Lewis Grigsby, merchants, executed a deed of trust to one William L. Moore, as trustee, to secure the payment of certain sums of money to the Commercial Bank of Columbus. This deed was regularly acknowledged by the grantois/before a justice of the peace, on the' 29th of March, 1839, and delivered to one William P. Puller, who had been appointed clerk pro tempore of the Probate Court of the. county of Lowndes; in said state, and who recorded the deed in the office of the clerk of probate for said, county, and endorsed thereon a certificate of record, signed Wilbam P. Puller, clerk, pro tempore.. That at the time this record and. certificate were made by Puller, as clerk pro tempore, One Robert Haden was the clerk of probate for the county of Lowndes, duly elected, qualified, and sworn: that Haden was elected in November, 1837, for two years, and entered on the discharge of his duties in the month of February, 1838; that .Haden' visited the .state of Tennessee on business, and did not return in time to perform the duties of clerk, at the March term of 1838. In consequence of his absence, the judge, of probate, upon commencing the Court of Probate of the March term .of 1838, appointed Puller,to act as clerk during the absence of Haden. The deed of trust to Moore was recorded by Puller during the absence of Haden,' but after the March term of the Court. Ha-den afterwards returned and resumed the duties of his office.

The original trustee, William L. Moore, having died, the Superior Court of Chancery; of the state , of Mississippi, at the January term; 1839, duly appointed Stephen Cocke, the plaintiff in error, trustee in lieu of. Moore.

.. At the May term of the Circuit Court of the United States for the southern district of Mississippi, the defendants in error-obtained a judgment against James Carter and Company. Execution- was sued out upon this judgment, and levied by the marshal on the property mentioned in the trust-deed, in the possession of Carter and Company. Upon the levy being made, Stephen Cocke, the trustee, claimed the property, gave the. bond required in such cases by the -law of Mississippi; and an issue was duly made to try the right to-the property. Upon the trial of this issue, the following question was submitted to the Court for its opinion thereon, viz.: That if the deed of trust Was properly and legally recorded, then it was admitted that the judgment in question was not a lien upon the property conveyed by the deed, and the. trustee was. entitled to the same; otherwise, if the deed was hot legally recorded, the property was subject tó satisfaction of the judgment. - Upon this question, the Court below adjudged that the trust-deed was not duly recorded; that the acts of Puller, as clerk pro tempore, in recording the deed, were without authority of law and altogether void; and so instructed the jury. To this opinion of the Court, thus given, the plaintiff in error excepted; and brings that opinion before this Court for examination.

The fourth article of the constitution of Mississippi, thirty-first section, declares, that “ the judicial” power of that state shall be vested in one High Court of Errors and Appealsyand such other Courts of Law and Equity as shall be afterwards provided for in that constitution. The same article, after authorizing and ordaining various superior tribunals in which the judicial powers shall be vested, at length, in the eighteenth section, declares, that there shall be established in each county in the state a Court of Probates, the judge whereof shall be elected by the qualified electors of the county, for a period of two years. The nineteenth section of the same article declares, that the clerks of the Circuit, Probate, and other inferior Courts, shall also be elected by the qualified electors of the county, for the period of two years. See Laws of Mississippi, by Howard and Hutchinson, 24, 26.

The legislature of the state, in organizing their judiciary, as it was indispensable they should do, (as the constitution had limited its own action to the direction that'the Courts therein named should be established; leaving their organization and distribution to the legislative authority,) by a s- .iute passed in March, 1833, and by sections 1, 2, and 3, of that statute, established a Court of Probates in each county of the state; provided for the election of judges and clerks of the several Courts; prescribed to them the oath of office they should take, and to the clerks the bonds they should ex mte, before assuming their official functions. Laws of Mississippi, 469.

By the eighth section of the statute, the legislature declared, that in case the clerk of probate “shall be at any time unable from sickness, or other Unavoidable causes, to attend said Court, it shall be lawful for the judge of probate to appoint a person to act as clerk- pro tempore, who shall take an ©ath faithfully to discharge all the duties of his office,” &c.; vide p. 470, Laws of Mississippi. By the fifth section of the same statute, vacancies in the offices of judge and clerk are to' be filled as the original appointments were made; viz., by election.

By. the fifth section of another statute of Mississippi, concerning real estate and conveyances, passed June 13, 1822, it is declared, that deeds of trust and mortgages shall be valid as to subsequent purchasers for valuable consideration without notice, and as to all creditors, .from the time when such deeds of trust or mortgages shall have, been acknowledged, proved, or certified, and delivered to the clerk of the proper Court to be recorded, and from that time only. From this provision the question of priority arises.

In support of the decision of the Circuit Court, it has been insisted that the' power of the judge of the Probate- Court to appoint a clerk of probate pro tempore, is limited 'to the term of the Court, and to the exigences and necessities of the term; and dops not extend'to a period beyond the term, nor to any acts performed by the person so appointed out of Court.

From this position, claimed by counsel as a legitimate deduction from the statute, it is argued that the clerk, having been appointed by an exercise of power wholly illegal and void, nay, even without colour of authority, his acts, too, must be merely voi,d, and nof entitled to the effects properly-attributable to the acts of one who may be considered as an officer de facto', in contradistinction to him whose commission and qualification are in all respects regular, and who therefore may be called an officer de jure and de facto.

In reasoning -from the language of the statute, it would seem difficult to perceive any thing in it which limits .the appointment pro tempore, to the session of the Court. The expression in the law is, from sickness or unavoidable causes;” now, it is quite as probable that these causes would operate beyond, as well- as during the continuation of the Coun. The only fair inference deducible from the words of the law is%that the causes requiring an appointment, should, like the appointment itself, be temporary; so that the provision of the statute should not' be perverted to cover a permanent disqualification of the regular clerk, and thereby prevent his removal or the election of a successor, under proper circumstances. The precise duration of that temporary cause, it could hardly have been the intention of the lawmakers to define. To ascribe to them an intention to restrict the duties - of a clerk pro'tempore to the session of the. Court, would be imput-ing to them an act of utterly useless legislation; since none can fail to perceive, on looking into the law, that the duties of the clerk of probate are as extensive and as important, during vacation, as they are during term-time; if, indeed, they are not more so.

Several authorities have been cited in argument, some from the English and some from the American cases, in order to, show that the recording,of the trust-deed in, question by .the clérkof probate 'cannot be supported even as the act of the clerk de facto. These authorities, however, do not establish the position they have been brought to maintain; and‘in some, instances, they operate directly against it, The first case relied on (and it is a leading case) is that of he King v. Lisle, Andrews, 163, 174. This was a quo warranto to remove a burgess of Christ Church, on the ground that he had been nominated by one Goldwire, calling himself mayor of the corporation, when he had never been appointed mayor. The Court say, the nomination by Gold-wife could not be supported, because he was not even by any colourable title or pretext mayor of the corporation; evidently putting hfi act on the same footing with an attenapt at usurpation by any other private person There is a remark by the Court in delivering its opinion, which is regarded as not without its .bearing, upon the present caseand that remark is this, “that supposing Goldwire was mayor.de facto, yet the acts here found fo be performed by him are not good ; because they were not necessary for the preservation of the corporation.’? In these cases the Court say, “the proper distinction is-between such acts as are necessary and for the good of the body, which comprehend judicial and ministerial acts, and such as are arbitrary and volun-. tary.” The second case from the English books is that of Knight and Wife v. The Corporation of Wells, 1 Lutwyche, 509, 519. This was an action of debt .against the corporation, upon their -bond to the wife of the plaintiff; and the objection taken to the recovery wás, that the person who put the corporate seal to the bond, was not qualified by the charter to be mayor. He had been elected to the office of mayor, however. .The case seems to have been much considered, for it was twice argued; and it was resolved by all the Court, that .although- the mayor might not be qualified according to the chapter, yet he-had been elected, and, in virtue of his election¿ was mayor de facto, and that therefore all judicial and ministerial acts performed by him were good.

The cases of the People v. Collins, 7 Johns. 549, and of McKinstry v. Turner, 9 Johns. 135, are in strictest accordance with the authority from Lutwyche. In the. People Collins, the Court say, in- speaking of the poweiS exercised by the officers whose acts were impeachéd;’“ They were commissioners de facto, since they came into office by colour of title; and it is a well settled principle of law, that the acts of such persons are valid when they concern the public, or third- persons who have an interest in the acts done; and this riile is adopted to prevent the failure of public justice. Thedimitation of this rule is as to such acts as-are arbitrary and voluntary, and do not affect the public utility. The doctrine on this subject is to be found at large in the ease of The King v. Lisle, Andrews, 263.” So, too, in 15 Mass. 173, Bucknam v. Ruggles, this matter is very fully -treated. The Court say that, although the officer did not comply with the .requisites' of the constitution, yet, having, been appointed, and thus having; colour of title, his acts are valid in respect to third persons who may be interested in such acts: that such a rule' is necessary to prevent a failure of justice. Besides, the. officer’s title to his .office ought not to be determined in a collateral way. In ádditión to other authorities to this point, is quoted 3 Cru. Dig. tit. Officer, sec. 71, 75, for the principle that, by- the test and corporation acts in England, all persons are disabled in law to all intents and purposes to hold certain offices, unless they take the oaths required; yet, notwithstanding this disabling clause, it has been held, that the acts of officers not qualified by those statutes may be .valid as to strangers. The case of Williams et al. v. Peyton’s Lessee, cited for the.plaintiff in error, from 4 Wheat. 77, is thought to have no application to the question now under consideration; ajl that was ruled in that case was this, that where a title depends upon the acts of a ministerial officer to be performed in pais, proof of the performance of those acts is necessary to sustain such title,.: a principle' which none perhaps will dispute; but, whether affirmed or denied, cannot apply to the present case. So, too, the case of Davidson and another v. Gill, cited from 1 East, 64, having been ruled exclusively Upon a provision of the statute 13 Geo. 3, c. 78, requiring that certain proceedings of justices, should, in relation to closing and opening ways, in order to give them validity, appear on the face of those proceedings, in á prescribed schedule or form set forth in the statute; is considered as wholly inapplicable.

If then the appointment and the acts of the clerk of probate depended for their validity upon the principles'which apply to the acts of officers de facto, a just interpretation of the authorities adduced inbehalf of the plaintiff in error, gives validity to both. That the judge had power to appoint a clerk pro tempore, seems never to have been questioned; that he did appoint is equally indisputable the irregularity alleged is in the failure to limit the apr pointment to the term of the Court. Admit, for the present, that the appointment should have been thus limited, and .that the clerk has admitted the deed to probate after the term; yet, in his character of clerk, was he not within the very definition of the authorities, and within the concessions of the counsel, clerk de facto, acting colore officii; .and must not his acts therefore be valid so far as regards third persons who are interested in them? An affirmative answer to this inquiry is unavoidable.

But the appointment of this officer, and his acts when so appointed, rest upon a foundation still broader arid firiner than that which sustains the actings of an officer de facto. By the law of Mississippi, the judge had the power to appoint, pro- tempere, whenever from sickness or unavoidable causes the clerk could not attend.

By the investiture of that power, it remained with the judge, in the exercise of judicial discretion, to decide upon the propriety and necessity for the execution of the power: .he did decide upon them; and he-must be presumed to have decided properly.

The correct legal principle applicable to such proceedings is this: That in every instance in which a tribunal has decided upon a matter within its regular jurisdiction, its decision must be presumed proper, and is binding until it shall be regularly reversed by a superior authority; and cannot be affected, nor the rights of persons, dependent upon it be impaired,-by any collateral proceeding. This principle has been too long settled to admit of ■doubt at this day, and"has been repeatedly and expressly recognised in this Court, as in the cases of Thompson v. Tolmie and others, 2 Peters, 157; The United States v. Arredondo, 6 Peters, 720; Voorhees v. The Bank of the United States, 10 Peters, 473, and The Philadelphia and Trenton Rail Road Company v. Stimpson, 14 Peters, 458. It cannot then be permitted, in this collateral ' inquiry, to insist that the judge has either misapprehended or transcended his authority: he has exercised the discretion vested in him by the statute; that discretion has led him to the conclusion, that the necessity for an appointment was coextensive with the absence of the ordinary clerk, an absence deemed by him unavoidable; and the discretion of the judge pro hac vice, at any rate must be conclusive. But beyond these legal presumptions, this Court, upon a review of the constitution and statute of Mississippi, are satisfied that the appointment of the clerk of probate pro tempore, was fully warranted in the manner and to the extent in which it was made. They therefore decide that the decision of the Circuit Court for the Southern District of Mississippi is erroneous, and accordingly do revérse the same.

This cause came on to be heard .on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by Counsel. On consideration whereof, It is now here ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs'; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions for further proceedings to be had therein, in conformity to this opinion, and according to law and justice..


author: Mr. Justice Story

text:
    Hugh M. Keary, Patrick F. Keary, and Charles A. Lacoste, Plaintiffs in error, v. The Farmers and Merchants Bank of Memphis, Defendants in error.
    A' promissory note was drawn by Hugh M. Keary, and Patrick F. Keary, dated at Pinkneyville, Mississippi, in favour of Charles A. Lacoste, payable twelve months after date at the Planters Bank of Natchez. The note was endorsed by Charles A. Lacoste to the Farmers Bank of Memphis, Tennessee. The note having been protested for nonpayment, the Farmers Bank of Memphis instituted a suit in the Circuit Court of Mississippi, against the drawers and endorser, alleging that they were citizens'of Tennessee, and that the defendants were citizens of Mississippi. The action was against the drawers and endorser of the note; they being joined in the suit' in pursuance of a statute of Mississippi of 1837, which required that in all actions on bills of exchange and promissory notes, the plaintiff shall be compelled to sue the drawers and endorsers, resident in the .state jn the county where the drawers live, in a joint action. This statute had been adopted by the Judge of the District of Mississippi, in the absehce of the Judge of the Supreme Court assigned' to that circuit, by a rule of Court; and in conformity with the rule this suit was instituted. The defendants pleaded to- the jurisdiction of the Court, on the ground that the drawers and drawee of the note were, when it was made, • citizens df Mississippi; arid this plea being overruled bn demurrer, the Circuit Court, on the failure of the drawers to plead over, and the failure of Lacoste to appear, gave a judgment for the plaintiff.
    This action cannot be sustained in the Circuit Court, jointly against the drawers and endorser of the note. The statute of Mississippi is not in force or effect in the Courts of'the United States; the solé authority to regulate the practice of the Courts of the United States being in Congress. .
    So far as the acts of Congress have adopted the forms of process, and modes of proceeding and pleadings in the State Courts, or have authorized the'Courts thereof to adopt them, and they have actually adopted them, they are obligatory; and no farther. But no Court of the United States is authorized to adopt by rule any provisions of state laws which are ’ repugnant to, or incompatible with the positive enactments of Congress, upon the jurisdiction, or practice, or proceedings of such Courts.
    The law of Mississippi is repugnant to the provisions of the act of Congress giving jurisdiction to the Courts of the United States; and‘organizing the Courts of the ' United States.
    No suit against the drawers Of the note could be maintained in the Circuit Court. The eleventh section of the judiciary act of 1789, allows suits on promissory notes to be brought in the Courts of the United States in cases only where the suit could have been brought in such Court, if no assignment had been made. The makers and payee of the note having been citizens of Mississippi, the Circuit Court had no jurisdiction of a suit against the makers. Between Lacoste, the endorser, and the plaintiffs below, it was different; for on his endorsement to citizens of another state, he was liable to a suit by them in the Circuit Court. But the joining of those who could not be sued in the Circuit Court with the endorser, made the whole action erroneous. The action was founded on distinct and independent contracts. t
    IN error to the Circuit Court of the United States for the District of Mississippi.
    In the District Court for the southern district of Mississippi, an action was instituted by the President, Directors, and Company of the Farmers and Merchants Bank of Memphis, citizens of Tennessee, against the plaintiffs in error,. Hugh M. Keary, Patrick ' F. Keary, and Charles A. Lacoste, citizens of the state of Mississippi, on a promissory note drawn by Hugh M. Keary, and Patrick F. Keary, ih favour of, and endorsed to the bank by Charles A. Lacoste. The action was afterwards transferred to the Circuit Court of the United States for the district of Mississippi.
    By a statute of Mississippi, suits on promissory notes are prohibited to be brought in any other form than against all the parties, drawers and endorsers, in a joint action; and the action must' be prosecuted in the county in which the drawers reside.
    By a rule of the Circuit Court, adopted by the district judge, sitting in the Circuit Court; artd, in the absence of .the judge of the Supreme Court assigned to sit in that Circuit, thte practice of the Courts of Mississippi,'in conformity with the statute, was adopted as the practice of the Circuit Court.
    Process was served on all the defendants; and two of the defendants, Hugh M. and Patrick F. Keary, entered a plea to the jurisdiction of the Court; averring- that the cause of action,
    ’ if any, accrued to the plaintiffs, by virtue of the promissory note, made payable to the order of Charles'A. Lacoste, and by him, Lacoste, endorsed to the plaintiffs: and that, at the time of making the aforesaid note, and at the time of the. commencement of the plaintiffs^ action, the said defendants, and Charles A. Lacoste, were citizens and residents of the said state of Mississippi-
    The plaintiffs -below, the defendants in error, demurred to this plea, and the Circuit Court sustained the demurrer. ■- The defendant, Lacoste, having made default, and. no further plea having been entered by the other-defendants, the Court rendered a joint ■judgment against all the defendants.
    The defendants prosecuted this writ of error.

      The case was argued by Mr. Henderson, for the plaintiffs in error; and by Mr. Jones, for the defendants.
    Mr. Henderson contended'
    1. That the declaration, in joining the defendants, as drawers and endorser of the J note sued on, and shoeing the separate contracts and undertakings of the drawers and endorser, nevertheless alleges and claims a joint damage only; thus setting forth a defective cause of action, not authorizing the judgment rendered.
    2.. The judgment of the Court is rendered jointly, against the defendants on separate contracts and assumpsits, in violation of the contracts declared on’.
    3. There is error in this, that the plea fo the jurisdiction of the Court shouldhave been sustained; and the judgment rendered is void -for want of jurisdiction.
    The obvious error in the judgment of the'Circuit Court was the want of jurisdiction, over the parties.. The suit, pursuing the form of action prescribed by the statute of Mississippi, is against the drawers and endorser of the note, and there is a general judgment against all. Thus, while .nó right under the judiciary act of 1789 exists to sue in the Circuit Court, the parties, whose only obligations were to the endorser of the note, both citizens of Mississippi, the Court allow proceedings against them, because, by the Mississippi statute, the suit must be against all the parties; and to the plaintiffs below, as citizens of Tennessee, the endorser only was answerable in the Circuit Court of the United States.
    The rule of Court which adopted the practice under the Mississippi statute, was not authorized, by' the judiciary act. The Courts of the United States have no authority to make such rules; the power is only in Congress. Cited, 2 Laws of the United States, sect. 11, p. 61. Jurisdiction cannot be given by rules of Court.,
    There is also a defective cause of action in law, as set forth in the declaration, which can authorize no' judgment thereon. The action is joint, the breach and damages complained of as joint, •and a joint judgment is thereupon rendered. Whereas, the causes of action are the separate liability of drawers and endorser, being contracts and assumpsits wholly distinct - and independent, the respective obligations of which are violated by conjoining them, and adjudging a- joint responsibility, different and adverse to their several' undertakings'.
    Mr. Jones, for the defendants in error,
    maintained that the plea was'bad, and had been properly overruled by the Circuit Court.
    2. That the endorsement of the note was not like endorsements in general, a new note between the -endorser and the endorsees -alone, but a new note, in which the drawers and endorser took the relation of joint pfomissors to the endorsees.
    That, whatever be' the precise mode or form in which the statute may be held to hávé operated the effect of joint liability, it has, in operating that' specific effect, necessarily, given to the contract of endorsement the new and enlarged effect of creating a joint obligation or promise, direct and immediate, from the drawers and endorser to the endorsees.
    That this action, therefore, is not on -a mere assignment of the original chose in actitín; but substantially on an original undertaking, imposed by the subsequent contract of endorsement alone.
    That, as the jurisdiction'of the Court would have-been unquestionable, had a suit on the endorsement, between endorsees and endorser, been allowed, so it cannot, in any reason, be taken away by any enlargement or modification of the contract of endorsement itself, created by the local law of the state.
    This is the only mode in which the action would be legal in the state of Mississippi. If the point now made by the counsel for Jhe plaintiffs' in error is sustained, the jurisdiction' of the Courts of the United States uncommercial cases, which were the object of the judiciary act of 1789, will be defeated.
    There is a plastic power in Courts, over commercial instruments, under anomalous circumstances of irregularity in their frame, so as.to. mould them to their primary ends and purposes. Thus, an endorser is held liable as the drawer of a new bill or note, when upon no other, hypothesis could any action be framed on "the instrument. The endorsement, without a prior endorsement of the payee, or special endorser, of a bill payable to a. fictitious payee, has been held binding. A bill, or prior endorsement forged, or made by a feme covert, or an infant, has been held to bind a subsequent endorser, in the hands of a boná fide holder. To these may be added many special instances, still more andmalous. Chitty on Bills, 109, 265, 268, 626, 627, 584, 588, 589 ; Baylis on Bills of Exchange, 85; Kyd on Bills, 150; Buller v. Cripps, 6 Wend. 30; Lambert v. Pack, 1 Salk. 127; Hill v. Lewis, 1 Salk. 132; 1 Strange, 441; Heylin v. Adamson, 2 Burr. 674 ; 3 East, 482; Gibson v. Mivet, 1 H. Black. 587; 1 Strange, 478; Critchlew v. Berry, 2 Cowp. 182; 2 Bing. N. C. Rep. 439; 4 Mass. 258; 7 Pickering, 291; 16 Pickering, 533; Bush v. Reeves, 3 Johns. 439.
   Mr. Justice Story

delivered the opinion of the Court.

This is a writ of error to the Circuit Court of the district of Mississippi. The original aGtion is assumpsit upon a promissory note, signed, by Hugh M. Keary and Patrick F. Keary, dated at Pinkneyville, in the state of. Mississippi, on the 18th of February, 1838, whereby (as the declaration alleges) the makers promised twelve months after date, to pay to Charles A. Lacoste, by the name and description of Briggs, Lacoste, and Company, or order,four thousand eight hundred and sixty-three dollars and fifty-five cents, payable and negotiable at the Planters Bank in Natchez, and which note was endorsed by Lacoste, by the name and description of Briggs, Lacoste, and Company, to the plaintiffs, The Farmers and Merchants Bank of Memphis. The declaration, avers that the plaintiffs are citizens of Tennessee, and that the defendants are citizens of Mississippi; the makers and the endorser being joined in the suit. This joinder was in pursuance of a statute of Mississippi, of the 13th of May, 1837, (Laws of Mississippi, edit. 1838, p. 717,) whereby it is enacted, “That in all actions founded upon bills of exchange and promissory notes, the plaintiffs shall be compelled to sue the drawers and endorsers, living .and resident in this state, in a joint action; and such suit' shall be commenced in the county where the drawer or drawers reside, if living in the state; and if the drawer or drawers be dead, or reside out of the state, the suit shall be brought in the county where the first endorser resides.” It seems that this statute had been adopted by the district judge of the district of Mississippi, in the absence of the judge of this Court, assigned to that circuit by a rule of Court; and upon the footing of that rule the present suit was brought.

The makers of the note pleaded a plea to the jurisdiction of the Court, averring that the cause of action accrued to the plaintiffs by virtue of the promissory note made payable to and endorsed by Lacoste to them; and that they, the makers, at the time of making the note and at the tirtie of the commencement of the action, were citizens and residents of the state of Mississippi. To. this plea there was a demurrer, which upon the hearing was oferrüled, and the makers assigned to plead over; which, having •failed to do; and. Lacoste, the other defendant, having failed to appeáf, judgment was finally rendered against all the defendants; and from that" judgment the present writ of error has been brought to this Court.

' The first and main question presented to us for consideration is, whether the present, action is sustainable in the Circuit Court jointly against the makers and the endorser, under the circumstances disclosed iri the record. In our judgment it is not. The statute of Mississippi, proprio vigore, is ■ of no force or' effect in the Courts of the United States, it not being competent for. any state legislature to regulate the forms of suits of modes of proceeding or pleadings fin the Courts of the United States; but the Sole' authority for this purpose belongs to the Congress of the United States. So far as the acts of Congress have adopted the forms of process, arid modes of proceeding and pleadings .in the State Courts, or have authorized the Courts thereof to: adopt them, and they have been actually adopted, they are obligatory; but ■ no farther. But no Court of the United States is authorized to adopt by rule any provisions of state laws which are repugnant to or incompatible with the. positive enactments of Congress upon the subject of the jurisdiction, or practice, or prpceedings in such Court.

It is obvious that the latter clause of. the statute of Mississippi already cited, which provides for the bringing of suits upon bills of exchange or promissory notes, in the county where the drawers live, or, under certain circumstances, in the county where, the first endorser lives, is utterly incompatible with and repugnant to the known organization arid jurisdiction of the Courts of the United States:' Suits in these Courts are, by the judiciary act of 1789, ch. 20, sect. 11, to be brought in the district whereof the defendant (being a citizen of the United States) is an inhabitant, or in which he shall be found at the time of serving the writ; and the suits are cognisable in no other places'than those assigned for the regular holding of the terms of the Courts. There is no pretence therefore to say, that the Circuit Court could by any rule adopt ■the state law upon this subject.

As little real ground is there for maintaining, that the Court had authority to adopt the other part of the state statute requiring that the drawers and endorsers of bills of exchange and promissory notes should be compellable .to be joined by the plaintiff in a joint action. The judiciary act ,of 1789, ch. 20, in the eleventh section, gives jurisdiction to the Circuit Court of suits between a citizen of the- state where the suit is brought, and a citizen of ' another state; and, among other exceptions, not applicable to the present suit, it excepts “any suit to recover the contents of any promissory note or other chose in action in favour of an assignee,' unless the suit might have been prosecuted in such Court to-recover the contents, if no assignment had been made; except in cases of foreign bills of exchange.” It is plain upon the language of this clause, that as the makers and the payee of the promissory note in . this case, were all citizens of Mississippi, no,suit could have, been maintained between them, (the-original parties,) in the Circuit Court.' But the same objection does not apply to a suit on the same note- by the plaintiffs as endorsees against their immediate endorser, Lacoste; for there is an immediate privity of contract between them, and tíéy are citizens of different states. This was long since settled by the decision of this Court in Young v. Bryan, 6 Wheat. 146. So that it is manifest, that as between the makers and the-plaintiffs the present suit is not maintainable; and as between the endorser and the plaintiffs as endorsees, it is maintainable by the laws of the United States. The result therefore of giving effect to .the statute of Mississippi, and the rule of the Court adopting the same, would be, either, that the Circuit Court, in contravention of the express terms of the judiciary act of 1789, ch. 20, would be obliged to maintain jurisdiction over the makers, which is prohibited by that act, or else would be compellable to Surrender jurisdiction over the endorser, which the same act confers on. it. ' Certainly such a doctrine cannot be asserted to be well founded in law. If it were admitted, it would enable the state legislatures, by merely changing the modes of remedial justice, or requiring different' parties under different and distinct contracts to be joined in one and the same suit, to oust the Courts of the United States of all the legitimate jurisdiction conferred upon them by the Constitution and the acts of Congress.

For these reasons we are of opinion that the present suit,so far as it respects the jurisdiction of. the Circuit Court over the makers of this note, is ill founded; and that the plea of the makers to the jurisdiction is good in point of law; and that the suit being a joint action, found upon distinct and independent contracts, is incapable of being sustained in the Courts of the United States against any of the defendants. The consequence is, that the judgment must be ..reversed, and the cause remanded to the Circuit Court, with directions that the plaintiffs take nothing by ■their writ.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of Mississippi, and was argued by counsel. On consideration whereof, iris now here orderéd and adjudged by this Court, that the judgment of the said Circuit Court in this cause bé, and the same is hereby, reversed and annulled; and that this cause be, and the same.is hereby, remanded to the said Circuit Court, with directions to enter judgment for the defendants, in conformity to the opinion of this Court.


author: Mr. Justice McLean

text:
    John Gordon, Plaintiff in error, v. James Longest, Defendant in error.
    An action was instituted in the Circuit Court of' Jefferson county, in the state of .Kei tucky, by a citizen of that state, under an act of the legislature of Kentucky, agains» a citizen of the state of Pennsylvania, to recover damages, alleging the same in the, declaration to be one thousand dollars, for having taken on board of the steamboat Guyandotte, commanded by him, a slave belonging to the plaintiff, from the shore of Indiana, on the voyage of the steamboat, proceeding up the Ohio river from-Louisville to Cincinnati. The act of the legislature of Kentucky subjects the master of a steamboat to the penalties created by the law, who shall take on board the steamboat under his command, a slave from the shore of the Ohio, opposite to Kentucky, in the same manner as if he had been taken on board from the shores oí rivers within the state. .On entering’ his appearance, the defendant claimed tq remove the cause to the Circuit Court of the United States for the district of Kentucky, he being a citizen of Pennsylvania, and the plaintiff a citizen of Kentucky and offered to comply, with the requisitions of the judiciary act of 1789. The Court refused to allow the removal of the cause; deciding that it did not appear *~-^s satisfaction that the damages exoeeded five hundred dollars. The case went on to trial, and the jury gave a verdict for the plaintiff for six hundred and fifty dollars; and on a writ of error to the Co»irt of Appeals of Kentucky, the judgment of the’ Circuit Court on the verdict was affirmed. Before the Court of Appeals the plaintiff in error excepted to the jurisdiction of the Court of Jefferson county,, and also to the constitutionaiity of the law of Kentucky on which the suit was founded. Held, That the decision of the Court of Appeals was erroneous; and- the judgment of that ’ Court was reversed.
    It has often been decided that the sum in controversy iff a suit, is the damages claimed in the declaration. If the plaintiff shall recover less than five hundred dollars, it cannot affect the jurisdiction of the Court;' a greater sum having been claimed in his writ But in such case, the plaintiff does not recover his costs; and, at the discretion of the Court, he may be adjudged to pay costs.
    The damages claimed by the plaintiff in his suit give jurisdiction to the Court; whether it be an original suit in the Circuit' Court of the United States, or brought there by petition from a State Court.
    The judge of the State Court to which an application is made for the removal of a cause into a Court of the United States, must exercise a legal- discretion as to the right claimed to remove the cause. The defendant being entitled to a right to have the cause removed under the law of the United States, on the facts of the case, the judge of the State Court has no discretion to withhold that right.
    The application to remove the cause having been made ip proper form, and no objection having been made to thf fecti on which it was founded, it was the duty of the State Court “to proceed nó further in the cause;” and every step subsequently taken in the exejcise of a jurisdiction in the case,, whether in the same Court, or in the Court • of Appeals, was coram non judice.
    One great object in the establishment of the Courts of the United States, and regulating their jurisdiction, was to have a.tribunal in each state, presumed to be free from local influence; and to which all who were nonresidents or aliens, might resort for legal redress. And this object would be defeated, if a state judge, in the exercise óf his discretion, may deny to the party'entitleá.'to it, a removal of the cause.
    ÍN error to the Court of Appeals of the state of Kentucky.
    In the Jefferson Circuit Court of the state 0/ Kentucky, James Longest, of the state of. Kentucky, instituted an action against John Gordon, to recover the value of á certain slave belonging to him, which John Gordon, who was commander of the steamboat Guyandotte, then proceeding from Louisville up the Ohio river to Cincinnati, was alleged to have taken on board the Guyandotte from the Indiana shore or side of the Ohio, as a passenger to Cincinnati. .
    John-Gordon was a citizen of the state of Pennsylvania; and, proceeding according to the provisions of the judiciary act of 1.789, he claimed before the Circuit Court of Jefferson county, to remove the ' cause to the Circuit Court of the United States, for the district of Kentucky.
    The declaration filed in the- case, in the Jefferson Circuit Cbuijt, claimed damages in one thousand dollars.
    .The Circuit'Court decided that it did not appear that the amount in controversy in the suit exceeded five hundred dollars, exclusive of .costs; and refused to allow the removal of the cause to the Circuit Court ofthe United States.
    The case came op for trial-on the 21st day of March, 1838; and a jury gave a verdict for the plaintiff, for six hundred -find fifty dollars, on which judgment was entered for the plaintiff.
    ■ On the trial, the defendant asked the Court to' instruct the jury,'
    1. That so much of the act entitled “ an act to amend an act to. prevent masters of vessels and others from employing and removing persons of colour from this state, approved February 12th, 1828, as is in the following words, to wit: “ Be it further enacted that • the liabilities under the said act shall accrue whenever the person of colour shall be taken on "board any steam vessel, from the shore of the Ohio river opposite the state, to the same extent as if they were taken on board from the shores or rivers within the state,” is not within the constitutional power of the legislature of the state of Kentucky, under the Constitution of the United States.”
    2. That under the Constitution and laws of the United States, a steamboat-captain navigating the Ohio river, is not guilty of a breach of duty, by taking persons of colour from the Indiana shore, and transporting them in their steamboats; provided such captain shall,in good faith,believe such persons of colour are free; and that the'act of the Kentucky legislature, if to the contrary, is unconstitutional and void.
    . 3. If the jury believe from the evidence, that the negro was taken from'the Indiana shore by the plaintiff in good faith, believing him to be free, and that he was taken by the plaintiff as a passenger in the navigation of his boat; that in such case the jury ought to find for the defendant the issue in the case.
    4. That although persons of colour in Kentucky are in law presumed to be slaves, they, are in Indiana presumed, prima facie, to be free; and if the plaintiff took the slave from .the. Indiana shore in good faith, and under the belief that he was free, and that he was taken by the defendant as a passenger, in the navigation of the said boat'; that in such case the jury ought to find for the defendant. .
    5. ' That if the defendant was a citizen of the state of Ohio, residing thére, and the steamboat Guyandotte, of which he was commander, did belong to the port of Cincinnati in said state; and the negro Jim did. come on board- said boat at .the Indiana shore of the Ohio river) and the said Gordon acted itr-good faith, and did not know that the said negro Jim- was a slave, that, then he is not liable to pay .damages to the. plaintiff, for having permitted the said slave to come on board the boat, and having taken him on board said boat to Cincinnati, .in the state; of Ohio.
    6. That if the jury believe from the evidence, that the slave Jim was taken on board the Guyandotte from the state of Indiana, the plaintiff cannot recover in this action.
    7. If the jury believe from the evidence, that the defendant in the navigation of his boat took the slave in the declaration mentioned from the Indiana shore, believing him to be free, and that slave was at the time a runaway slave of plaintiff, in that case they find for defendant.

      8. That to enable the plaintiff tó recover in this action, the jury .must belié've that the defendant took plaintiff’s slave from Louisville, or from the Kentucky shore:
    The Court refused'to give those instructions.
    On the. motion of the counsel for the plaintiff, the Court instructed. the jury, that if they find from the evidence, that the defendant was captain of the steamboat Guyandotte, put out his yawl when .opposite to Jeffersonville,'in the state of Indiana, took the plaintiff’s negro on board, and carried him to Cincinnati, in the state of Ohio, and that he was lost to the plaintiff, the defendant |s liable in this action; and they ought to find for the plaintiff all the damages he has sustained.
    To which opinions of the Court, in refusing, to give the instructions asked, and in giving the instructions for the. plaintiff, the defendant excepted; and -he prayed an appeal to the Court of Appeals of the state of Kentucky.
    . Before the Court .of Appeals, the appellant assigned for error, among others, the following:
    1. The Court erred in refusing to remove this cause to the Federal Court, upon the petition of the . appellant, fileff on his first entering his appearance to the suit. The appellant claims that he had a right to a trial in the United States Court, and that the whole proceedings in this cause, subsequent to the application to .remove, are against law.
    2. The Circuit Court erred, in each and every instruction given on the trial, at the instance of the plaintiff.
    3. The Court erred in refusing to give each and every" instruction asked by the appellant, Gordon, on the last trial.
    4-, The Circuit Court has, in. violation of the Constitution of the United States and of an act of Congress, clung to' a jurisdiction that did not rightfully belong to a State Court, and, on the trial of the cause, given instructions in violation of the Constitution of the United States, and the appellant relies, upon each and every article of the Constitution of the' United States for a reversal.
    The Court of Appeals affirmed the judgment of the Circuit Court, and the plaintiff in that Court prosecuted this writ of error.

      The case was argued by Mr. Crittenden,' for the plaintiff in error. Mr. Benton appeared for the defendant.
    The opinion of the Court was given on the first exception to the decision of .the Court of Appeals of the state of Kentucky; and on no other question in this, case." The argument of the counsel for the plaintiff in error, on the other exceptions, is, therefore, omitted,
    Mr.- Crittenden contended that, by the eleventh and twelfth sections of the judiciary act of 1789; the plaintiff in error had a right to a trial before a Court of the United States. The statute gives the .right to remove a cause from a' State Court to a .Federal Court, if the defendant is a citizen of another state from that in which the suit may be brought; when the value in controversy exceeds five hundred, dollars.
    The plaintiff’s declaration claims damages to the amount of one thousand dollars; and the verdict was for six hundred and.fifty .dollars.
    ■ The act of Congress says, that when it shall appear to the satisfaction of the Court that the sum or value, in controversy exceeds five hundred dollars, the cause may be removed to the Circuit Court; if the question of the amount in controversy is left to the decision of the Court exclusively, there is. an end of the case fbr the plaintiff iñ error. . But if it was to be settled on evidence satisfactory to. the judicial eye, here' was that evidence, ample and sufiicient.to satisfy the judge..
    The .damages laid in the.declaration, showed the claim of the plaintiff to be one ^thousand dollars. This was conclusive in favour of the plaintiff'in. error,
   Mr. Justice McLean

delivered the opinion of the Court.

This is awrit-of error- to the Court of Appeals of the state of Ken-, tucky,'under the twenty-fifth section of the judiciary act of 1789.

.An action!was commenced in the Circuit Court of-Kentucky by the defendant in.error, against the plaintiff, to recover the value of a 'certain- slave which the defendant took on board a steamboat, at Louisville, of which he was master, as a passenger; a&d conveyed him out of the state, in violation of the statutes of Kentucky.

By an act of the Kentucky legislature of 1824, to prevent the escape and removal of slaves, the masters of vessels, &c., receiving slaves on board and removing them from that state, were made liable to the owners .of such slaves for any loss they might sustain thereby. And by a subsequent act of 1828, it was enacted that the liabilities under the first act “shall accrue whenever th,e persons of colour shall be taken on board any steam vessel from the shores of the Ohio river,, opposite the state, to the same extent as if they were taken oh board from the shores or rivers within the state.”

On entering his appearance, the defendant filed his'petition to remove the cause to the Circuit Court of the United 'States, for the district of Kentucky, on the ground that he was a citizen of Pennsylvania, and the plaintiff a citizen of Kentucky r and the defendant. offered to give bond and security according to law. The citizenship of the parties, as alleged, wás.admitted; but the plaintiff objected to the removal, and the Court decided it djd not appear to its satisfaction that the amount in controversy exceeded-five hundred dollars, exclusive of costs, and on that ground refused the prayer >pf the petition.

After the rejection * of his petition, the defendant pleaded not guilty ; and a jury, being called and sworn, found the defendant guilty, and assessed the-plaintiff’s damages at four hundred and twenty dollars, on which verdict a judgment was entered.

During the trial several exception^ were taken to the rulings of the-Court, which it is not necessary now particularly to notice. On these exceptions a.writ of error was taken to the Court of Appeals. Several errors were assigned in that Court, on which a reversal of the judgment of the Circuit Court was prayed. Among others, was one that the-Court erred in overruling the application to remove the cause to the Circuit Court of the United States. '

'The. Court of Appeals reversed the judgment on the ground that the plaintiff was only entitled , to recover the damages he had actually sustained by the act of the defendant, which was not' in accordance with the instruction to the jury by the Circuit Court.

The cause was remanded to .the Court below for further proceedings. A jury being again called to try.the cause, found the defendant guilty, and assessed the plaintiff’s damages at six hundred and fifty dollars. Judgment was entered upon, this verdict, and the cause was again removed to the Court of Appeals, by a writ of error, on certain exceptions taken at the trial.

Among the other errors again assigned in the Court of Appeals, was the refusal, by the Circuit Court, to permit .the cause to be removed to the Circuit Court of the United States.

The Court of Appeals affirmed the judgment; and the cause is now brought here, by a writ of error, from that Court.

. It is unnecessary to notice the other questions raised by the exceptions, as the judgment of this Court must turn upon the overruling, by the State Court, of the application of the defendant for the removal of the- cause to the Federal Court.

In their opinion the Court of Appeals did not notice this point, although it was assigned for error on each of the writs of error which were prosecuted before that Court.

The twelfth section of the judiciary act of 1789, provides “that, if a suit be commenced in any State Court against an alien, or, by a citizen of the state, is brought against a citizen of another state, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of'the Court, and the defendant shall, at the time of entering his appearance in such State Court, file a petition for the removal of the cause for trial into the next Circuit Court, to be held in the district where the suit is pending; and offer good and sufficient surety for his entering in such Court on the first day of its session, copies of said process against him, and also for his ’then appearing and entering special bail in the cause, if spe Jal bail was originally requisite therein, it shall then be the duty of the State Court to accept the surety, and proceed no further in the cause.”

In the declaration, the plaintiff laid his damages at the sum of one thousand dollars, an,d this was the amount named in the writ.

Under the above section it must be made to appear to the satisfaction of the State Court that the defendant is an alien, or a citizen of some other state than that in which suit is brought; and that the matter in controversy, exclusive of costs, exceeds the sum of five hundred dollars.

It being admitted on the record, that the defendant was a citizen of Pennsylvania, and the plaintiff a citizen of Kentucky, the only question before the Court was the amount in dispute. The damages claimed in the writ and declaration were, unquestionably, the sum in controversy. This is not an open question. It has been often decided, that if the plaintiff shall recover less than five hundred, dollars, it cannot affect the jurisdiction of the Court; a greater sum being claimed in his writ. But in such case the plaintiff does not recover his costs; and,at the discretion of the Court, he may be adjudged to pay costs.

The damages claimed by the plaintiff in his writ, gives jurisdiction to the Court, whether it be an original suit in the-. Circuit Court of the United States, or brought here by petition from a State Court. From the decision of the state judge, he seemed to consider the application fof the, removal of the cause as a matter to be decided by his discretion. But he must-exercise a legal discretion. The defendant was entitled to a right under the law of the United States; and, on the facts of the case, the judge had no discretion to withhold that, right. No objection can be made .to the form of the application, nor to the facts on which it was founded. This being clear, in the language of the above act, it was the duty of the .State Court “ to proceed no further in the cause.” And every step subsequently .taken, in the exercise of a jurisdiction in the case, Whether in the same Court or in the Court of Appeals, w-.°s coram non judice.

This is the first instance known to -us, in which a State Court has refused to a party a right to remove his' cause to the Circuit Court of the United States. And it is impossible to conceive of a case, in which the right of removal could be more unquestionable than in this case.

One great object in the establishment of the Courts of the United States and regulating their jurisdiction was, to have á tribunal in each state, presumed to be free from local,influence; and to which all who were nonresidents or aliens might resort for legal redress. ■ But this object would be defeated, if a state judge, in the' exercise of bis discretion, may deny, to the party entitled to it, a removal of his cause.

A more summary remedy might have been pursued by the defendant-'than the one which this Court can now give to him. But the cause being brought before us, through the Supreme Court of the state, we reverse the judgment of affirmance by that Court, and direct the cause to be remanded, with instructions that it shall be transmitted to the Circuit Court of the state; which shall be directed to enter an allowance of the petition of the defendant for the removal of the cause to the Circuit Court of the United States for the district of Kentucky, nunc pro tunc.