author: Mr. Justice BALDWIN Mr. Justice DANIEL, Mr. Justice STORY;

text:
    Alexander G. McNutt, Governor of Mississippi, who sues for the use of Leggett, Smith, and Lawrence, v. Richard J. Bland and Benjamin G. Humphreys.
    By a law of the state of Mississippi,'sheriffs are required to give bond to the governor for the faithful performance of their duty.
    A citizen of another state has a right to sue upon this bond; the fact that the governor and' party sued. are citizens of the same state, will not oust the jurisdiction of the Circuit Court of the United States, provided the party, fpr whose use'the suit is brought, is a citizen of another state.
    Under the resolution -passed by Congress in 1789, relating to the use of state jails, and the law of Mississippi passed in 1822, a sheriff has no right to discharge a prisoner in. custody by process from the Circuit Court, unless such discharge is .sanctioned by an act of Congress, or the mode of it adopted as a rule by the Circuit Court of the United States.
    This case WasbrQught up by writ of error from tbe Circuit Coprt of the United States for the Southern District of Mississippi.
    It was a suit upon a sheriff’s bond, given by Bland, sheriff of Claiborne county, dated 10th November, 1837, and in the penalty of $15,000.
    At the May term, 1837, of the Circuit Court of the United States for the Southern District of Mississippi, Leggett, Smith, and Lawrence, citizens of New- York, instituted a suit against George W. McNider, a- citizen of Mississippi, and in November following obtained a judgment for .$3910 78.
    On the 30th December, 1837, Leggett,' Smith, and Lawrence sued out a writ of capias, ad satisfaciendum, against the body of the said George McNider, which was directed to the marshal of the state of Mississippi. The writ was executed, and McNider taken into custody. The marshal handed him over for safe keeping to Blahd, the sheriff of Claiborne county.
    Whilst thus in custody, McNider applied to McDougall, a judge of 'probate, duly commissioned in and for the county of Claiborne, for the benefit of the insolvent law of the state of Mississippi, passed in June, 1822. The forms of that law being complied' with, the judge directed McNider to be discharged from imprisonment, and the sheriff accordingly discharged him'.
    At May term, 1839, Leggett, Smith, and Lawrence brought suit against the sheriff and his securities, of whom Humphreys was one, using for this purpose the name of the governor of Mississippi, to whom the bond had been given. The breach assigned' was that the said Bland, in violation of his duty as sheriff, did discharge, release, and set at liberty his said prisoner, not by force or operation of law or in pursuance of any power or process emanating therefrom, but in violation thereof, and without the license or consent of said plaintiffs, or of their lawful agent or attorneys, and against their will, they the said plaintiffs being wholly unsatisfiéd and unpaid, and sáid judgment aforesaid being then and there in, full force and effect, and not in any respect reversed or annulled, paid off, or discharged.
    The defendants pleaded two pleas:
    1. That the act of June,. 1822, passed by the legislature of Mississippi, provided amongst other things that where an insolvent person should not be able to satisfy or pay his ordinaiy prison fees, if the creditor, upon -notice given to him or her, his or her attorney or agent, should, refuse to give security to the jailer or sheriff for the payment of such prison fees, or should fail to pay the same when c emanded, the sheriff or jailer should discharge such debtor out of prison; and it was further provided that whereas it Was unreasonable that sheriffs - should be obliged to go out of their counties to give notice to creditors at whose suit any person might be in custody of such sheriff, where any execution. should be delivered to the sheriff of any other county than that where any creditor resided, such creditor should name some person in the county where the execution was to be levied, to be his, her, or their‘agent for the particular purpose of giving to and receiving from the sheriff any notices which might be necessary relating thereto; and if any creditor should fail to appoint such agent, the sheriff should not be obliged ta give notice previous to the discharge of such prisoner for want of security for his prison feés, but such prisoner should be discharged without any notice to be given to the creditor so failing.
    The defendants then averred that Leggett, Smith, and Lawrence, at the time of the commitment, were not residents of Claiborne county, nor were they' ever so afterwards, and that they failed to appoint any agent or attorney to receive a notice from the sheriff; that McNider was unable to pay his prison fees, and that the plaintiffs wholly failed to give security to the sheriff for the payment of the said prison fees.
    2. That McNider was regularly, and according to the provisions of the acts of the legislature of Mississippi for the relief of insolvent debtors, brought before McDougall, a judge of probate, and then and there, by the order and warrant of the said judge, discharged' from the custody of the said sheriff.
    The replication of the plaintiffs to the first plea was, that at the time of the discharge of McNider, they had an agent residing within the state of Mississippi, to wit, in the county of Warren, and that no application whatever was made to the plaintiffs or their agent, for the payment of jail fees, or to give security for the same; nor was any notice whatever given to the plaintifts or their agent or attorney of an intention to discharge the prisoner, or of his application to be discharged, either for that cause or any other.
    The. replication to the second plea was, that the prisoner was, by virtue of process legally issuing from the Circuit Court of the United States, taken into custody by the marshal of the district, and by him, was delivered to the defendant, Bland, for safe keeping, who was then sheriff of the' county in which the prisoner was taken. That the prisoner was not discharged from custody aforesaid by virtue of any process emanating from any court of the United States or judge thereof, nor by virtue of any law of the United' States, but that he was discharged contrary to the provisions, of the several acts of Congress made and provided, prescribing the mode and manner of discharging prisoners confined under process from the courts of the United States.
    To both these replications the defendant demurred. There, was a joinder in demurrer as to the first; what was done with the second, the record did not show. •
    The court below sustained both demurrers.

      Jones, for the plaintiffs in error.

      Walker, for the defendants.

      Jones contended
    1. .That the laws of the United States and of Mississippi, and the bond of the sheriff, bound the defendant to receive and hold McNider as a prisoner, under the laws and jurisdiction of the United States, -not of the state of Mississippi.
    2. That the pleas of the defendant were insufficient, and whether the replications were good or not, the court would look to the first error in the pleadings, the insufficiency of the pleas.
    3. That the United States and Mississippi have each separate systems for insolvent debtors; that they cannot be reconciled with each other.
    4. That the courts of the United States and of the states can each look only to their respective systems and act upon them.
    5. That the state courts cannot discharge a debtor in confinement under execution from a court of the United States, either under the laws of insolvency, or by any other state authority.
    He considered this, case as coming fully within the principle established by this court in Duncan v. Darst, 1 Howard, 301. No state can change the laws of the United States. The insolvent law of Mississippi is confined to cases where persons are under execution by process issued by any court of record within the state. 1 Howard and Hutchinson, 637. It provides also, that no creditor shall receive any thing-unless he shall have obtained a judgment. The discharge by the sheriff in consequence of not being indemnified is also a branch of the state system. ' The .marshal- could not have discharged the prisoner, and the sheriff was pro hac vice the marshal. The latter, was responsible to the former for the fees.

      Walker contended
    that the equity of the case was with the defendants, inasmuch as the discharge had been ordered by a court of competent jurisdiction, which would have enforced its order by an attachment. The first replication averred that the plaintiffs had an agent in an 'adjoining county, which wás tendering'an immaterial' issue. The demurrer to this was therefore properly sustained . There was no question raised below as to the power of the state. But the court below had no jurisdiction in the case., as it was between citizens of the same state. Although this court hqs decided that where' the real, party is out of the State, he may use. the name of a nominal' plaintiff within’it, yet it has also decided that where the assignment is by operation of law, such a plaintiff cannot sue. The law of Mississippi gives no right of action on a sheriff’s bond, but provides other remedies. Howard and Hutchinson,. 625 et seq. They are by motion against the sheriff and his securities.
    - Jones, in reply.
    The replication must be overlooked, if the plea itself is bad, which is the case here. It is settled that .the real party, to a suit is the party for whose use it is brought. The governor’s name is only used proforma. If the argument on the other side be. sound, there is no remedy on the bond at all; for an escape could not be tried upon motion. The object of requiring a bond was to secure the interest of all the citizéns of the state, and yet the bond would become of no use in cases of escape. The law of Mississippi accepting the Resolutions of 1789, gives a remedy-to all parties concerned. How,ard and Hutchinson, 49.
   Mr. Justice BALDWIN

delivered the opinion of the court.

As the judgment- below was rendered on a general demurrer, it is necessary to ascertain in what part of the pleadings the first demurrable- defect occurred, which the defendant here alleges was in the declaration, inasmuch as it appears that the plaintiffs and defendants were citizens of Mississippi, and consequently the court below had not. jurisdiction of the case.

By the law of that state, How. and Hut. 290, 291, all sheriffs must give a bond to the governor of the state for the time being, and his successors, conditioned for the faithful performance of .the duties of his office; which bond may be put in suit and prosecuted from time to time at the costs and charges of any party injured, until the whole amount of the penalty thereof be recovered. This suit was accordingly brought in the name of the governor, for the use of Leg-get, Smith, and Lawrence, citizens of New York.

The parties in interest, therefore, had a right to sue the defendants in the Circuit Court in their own names, by a bill, in equity in an appropriate use, or by an action of debt, or for an escape against the sheriff himself, as in Darst v. Duncan, 1 How. 301, if he made out a cause of action in either form, and we can perceive no sound reason for denying the right of prosecuting the same cause of action against the sheriff and his sureties in the bond, by and in the name of the governor, who is a purely naked trustee for any party injured. He is a mere conduit through whom the Jaw affords a remedy to the person injured by the acts or omissions of the sheriff; the governor cannot prevent the institution or prosecution of the suit, nor has he any control o.ver it. The real and only plaintiffs are the plaintiffs in the execution, who have a legal right to make the bond available for their indemnity, which right could not be contested in a suit in a state.court of Mississippi, nor in a Circuit Court of the United States, in any other mode of proceeding than on the sheriff’s bond.

It would be a glaring defect in the jurisprudence of the United States, if aliens or citizens of other states should be deprived of the right of suit on sheriffs’ bonds in the-federal courts sitting in Mississippi, merely because they were taken in the name of the governor for the use of the plaintiffs in mesne or final process, who are in law and equity the beneficiary obligees; we think this defect does not exist. The constitution éxtends the judicial power to controversies between citizens of different states; the 11th section of the Judiciary act gives jurisdiction td the Circuit Courts, of suits between a citizen of the state where the suit is brought, and a citizen of another state. In this case there is a controversy and suit between citizens of New York and Mississippi; there is neither between the governor and the defendants: as’ the instrument of the state law to afford a remedy against the sheriff and his sureties, his name is in the bond and to the suit upon it, but in no just'view of the constitution or law can he. be. considered as a litigant party: both look to things not names— to the actors in controversies and suits, not to the mere forms or inactive instruments used in conducting them, in virtue of some positive law.

This court must have acted on these principles in Browne et al. v. Strode, 5 Cranch, 303, which was a suit on an administration bond of an executor, for .the faithful execution of the testator’s will, in conformity with a law of Virginia, 5 Hen. st. 461, which requires all such bonds to be payable to the justices of the county court, where administration is granted, but may be put in suit and prosecuted by, and at the costs of the party injured. ’ Th.e object of that suit was to recover a debt due by the testator to a British subject; the defendant was a citizen of Virginia; • the persons named in the declaration as plaintiffs were the justices of the-county, who were also citizens of’Virginia, yet it was held that the Circuit Court of that state had jurisdiction. We are aware of no subsequent decision of this court, which in the least impairs the authority of that case, or contravenes the principle on which it was decided; that where the real and only controversy is between.citizens of different states, or an- alien and a citizen, and the plaintiff is by some positive law compelled to use the name of a public officer who has not, or ever had any interest in, or control over it, the courts of the United States will not consider any others as parties to the suit, than the persons between whom the litigation before them exists.

Executors and administrators are not. in this position, they are the actors in suits brought by them; the personal property of the decedent is vested in them; the persons to whom they are accountable, for whose benefit they act, can bring-no suit to assert their rights against third persons, be the cause of action what it may; nor can they interfere with the conducting of the suit to assert their rights to the property of the decedent, which do not vest in them. The personal representative is, therefore, the real party in interest before the court, 12 Pet. 171, and succeeds to all the rights of those they represent, by operation of law; and no other persons are capable, as representatives of the personalty, of suing or being sued. They are contradistinguished, -therefore, from ássignees who claim by the act of the parties, and may sue in the federal courts in cases where the decedent could not. 8 Wheat. 668; 4 Cranch, 308, S. P. By the 11th section of the Judiciary act, assignees cannot sue where the assignor could not, nor can they sue in their own names if the assignor could, unless the assignees were aliens or citizens of another state than that of the defendant, and the instrument sued on was so assigned as to vest the right of action in the assignees, in which latter case, the suit must be by the party originally entitled to sue. Thus where the payee of a promissory note, which was -neither negotiable nor assignable, so as to sustain an action by the assignees, sued for the use of a corporation incapable of suing in the federal courts, this court held that the Circuit Court had jurisdiction, on the ground that the suit was on a contract between the plaintiff and defendant. The legal right of acting being in the plaintiff,-it mattered not for whose use the suit was brought, the parties being citizens of different states. Irvine v. Lowry, 14 Pet. 298. In that case the decision in 5 Cranch was reviewed and affirmed; and as it is in all respects analogous to,-it must govern this and similar cases, where the cause of action is not founded on a contract between the parties or their legal reptesentatives.

The objection to the jurisdiction cannot, therefore, be sustained.

The next- question arises bn the defendants’ first plea in bar, which sets up a discharge of the prisoner by the sheriff, in default of the plaintiff in "the execution paying.the prison fees due, pursuant to the act of 22d June, 1822, sects. 35, 47; Hut. and How. 640—644.

This law, by its own forcé, cannot apply to persons committed on •executions from the courts of the United States, it must first be adopted byact of Congress, or some rule of court under the authority conferred on the courts of the United States by law. It is a peculiar municipal regulation, applicable and intended to apply only to persons committed.under state process, as clearly appears by the 62 section of the saíne law, in the revised code, as to process of the United States. How. and Hut. 649, 650. After reciting in full the resolution of Congress relating to* jails, passed in 1789, 1 Story, 70, it proceeds, "And whereas it is just and reasonable to aid the United States therein, on the terms aforesaid, until other provisions shall be made in the premises, it is enacted,. That all sheriffs, &c., -within this state, to whom any person or persons shall be sent' or committed by virtue of. legal process, issued by or under-the authority of the. United States, shall be, and are hereby required to receive such prisoners into custody, and to keep the same safely until they shall be discharged by due .course of law, and be liable to the same pains and penalties, and the parties aggrieved be entitled' to the same remediés, as if such prisoners had been committed under the authority of tire state. The sheriff may, require of the marshal the fillfilment of the proposals of the general government, with regard to rent and sustenance, at least.quarter yearly; and on the discharge, of the prisoner shall make a statement of charges, &c., to enable him to make his return to the. proper department of the general government.”

'

Taking this section of the law in connection with the resolution of. 1789, there appears an evident intention in the legislature, that the law ..should cover the whole resolution, so as to carry it- into effect in all its parts and . provisions. Hence the terms in each must .be made to harmonize; whereby the phrase in the 62d section,. “ and tb keep the same safely until they shall be discharged, by due course; of law,” will be referred to the corresponding phrase in the-resolution, “ until they shall be discharged by due course of the law thereof,” (the United States,) so as to authorize no discharge, by virtue of any state law, incompatible with the resolution. If any doubt could arise on these words in the resolution, “ all prisoners committed under the authority of the United States,” whether they applied to cases between individuals, it is removed by the explicit language of the law, “any person or.persons who shall be sent or committed by virtue of legal process, issued by, or under the authority of the United States,” &c., “ and the parties aggrieved shall be entitled to the 'samé remedies,” &c;, which necessarily embrace all cases, civil or criminall

As it would be wholly inconsistent with this view of the resolution.and law, for the legislature to authorize the sheriff to discharge any. person from custody, otherwise than by the due course of the laws of the United States; we cannot attribute such an .intention to them, unless the words of their act clearly indicate it; but there is nothing in the act to that effect, or any words, which admit of such construction. On the contrary, as the resolution of Congress positively requires .it, aS the preamble to the- state law declares it to be “just.and reasonable to.aid the United States therein,” the enacting part must be. taken-accordingly; otherwise the laW would conflict with the resolution.

The act of Congress passed in 1800 provides for the mode of discharging .insolvent debtors, committed under process from the courts of the United States, and the cases- in which -it may be done; it is obligatory on the sheriffs' in every county of the states who have acceded to the resolution of 1789, and no- discharge under any state law not adopted by Congress, or a rule Of court, can exonerate the officer. Vide 1 Story, 715; 3 Story, 1932, 1939; Suydam v. Broadnax, 14 Pet. 75; 10 Wheat. 36, 37. From the time of Palmer and Allen, 7 Cranch, 554, to Darst v. Duncan, the language and decisions of this court have been uniform for more than forty years, that a state law, which is “'a. peculiar municipal regulation, not having any immediate relation to the progress of a suit, but imposing a restraint on state Officers in the execution of the process of their courts, is altogether inoperative upon the officers of the United States-ini the éxecution of the mandates which issue to them. By the process acts of 1789, 1792, and 1828, Congress haye adopted such state laws as prescribe the modes of process and proceedings insuits at common law, as are not in. conflict .with the laws of the United States, which can be executed by the courts of the United States; which impose no restraint on, or obstruction of their process from its inceptioirtill ultimate satisfaction from the defendant, or the marshal, sheriff, or other officer, intrusted with its execution.” 2 Pet. 525; 10 Wheat. 40, 56, &c. “Congress, however, did not intend to defeat the .execution of judgments rendered in the courts of the United States, but meant they should have full effect by force of the state laws adopted, and therefore all state laws regulating proceedings affecting insolvent persons,” or that are addressed to state courts or magistrates in other respects, which confer peculiar powers on such courts and magistrates, do not bind' the federal courts, because they have no power to execute such laws. 1 How. 306; 14 Pet. 74, S. P. For these reasons we are of opinion that the defendants’ first plea is defective, in not setting .forth a case which justifies the discharge of the person committed on the execution.

The second plea sets up a discharge .of the prisoner pursuant to the laws of Mississippi, as an insolvent debtor’, by order of a judge of probate; which presents a ease covered by the decision of this court in Darst v. Duncan, that such a discharge by a sheriff was no defence to an action of debt for an escape. 1 How. 304. The judgment of the court below .must therefore be reversed, and judgment rendered for the plaintiff. . .

Mr. Justice DANIEL,

dissented.

From the opinion just pronounced on-the part of the court in this cause, I am constrained to differ,' Although'it ever must be with unaffected diffidence that-I,shall find myself opposed to a majority of my brethren, still a-feeling like that just adverted to, should not, and propérly cannot, induce in me a relinquishment of conclusions • formed from examinations carefully made, and upon decisions which appear to be distinctly, as they have been repeatedly announced. My. opinion.-is, that the judgment of the Circuit-Court against the plaintiff below ought to be affirmed, -for the reason that the court could not properly take cognisance of his cause'. Under systems of polity compounded as are the federal and state governments of this Union, instances of conflicting power and jurisdiction, real or appa:rent, will frequently arise, and will -sometimes run into niceties calculated to perplex the most astute and' practised expositors. For myself, I must believe that the surest preventive of such instances, their safest and most • effectual remedy when they shall occur, will be found in an adherence to limits which language in its generally received acceptation prescribes,- and in shunning not merely that which such acceptation may palpably forbid; but, -as fkr -as possible, whatever is ambiguous or artificial. In adopting or commending the rule thus indicated, I undertake to propound no new. principle of construction to this court, to essay no innovation upon its doctrines. I plant myself, on the contrary, upon its oft repeated decisions, and invoke their protection for the inteipretation now insisted upon.

The action in. the Circuit Court was instituted in the name of Alexander McNutt, governor of the state of Mississippi, (who was the successor of Charles . Lynch,) who sues for the use of Thomas Leggett and others, citizens of the. state of New York, against Bland, Humphreys, and Geissen, citizens of the state of Mississippi. It was founded oh a bond executed by Bland, as sheriff of the county of •Claiborne in the .state above mentioned,, The pleadings,.so far as they relate tq the conduct pf the, sheriff in fulfilment, of his duties, or in dereliction .thereof, are irrelevant to the question here raised, and need not therefore be examined. The proper question for consideration here is'this — whether upon the case as presented upon the declaration, the Circuit Court-of Mississippi could take jurisdiction. McNutt i.s the party, plaintiff upon the’ record,jin whom is the legal right of action. Leggett .and others, who-are said to be the beneficiaries in the suit, and in whom is the equitable interest, are not- the legal parties to the.shit at law, and could not:maintain an action Upon the bond, to which they were not parties.

Is McNutt to .be considered as suing in his -púyate individual character, and the aíjdition “ governor of the state of Mississippi,” to be regarded as merely, rephrase of description ? .Or is he to be viewed, as thé representative of the ftate of Mississippi, or rather as identified with the sovereignty qf that state, and having vested- in him (he exercise of her executive authority'-? — Let both branches of this inquiry be cursorily pursued. If McNutt is to be .regarded as a private party to the actiqn, whether in his own interes(, or as the private .agent of the state for. certain purposes, it would indeed seem to bé too late, and entirely supererogatory, to construct an argument to prove, that tq warrant either the.commencement or prosecution of a suit in his name- in a Circuit Court of. the United States, his citizenship must be averred and shown upon the record. Decisions to this effect may b,e said to have been piled upon the question, for they may be traced from a.period coeval almost with the passage of the judicial act, down to a comparatively recent .day; ranging through at least ten vdlumés of the decisions of this court: and ruling, it is belieyed without an exception, that wherever jurisdiction is to be claimed from the citizenship or alienage of parties, such citizenship.or alienage must be ■ expressly set forth : ruling moreover, that wherever jurisdiction.' is claimed from the character of parties, it must be understood as meaning the parties to the record.

The first case in support of these positions, is that-of Bingham v. Cabot et al., from 3 Dall. 382, instituted, in 1797, in which the plain-tiffs were styled in nar. as-John Cabot, (with the co-plaintifis,) described as being “all of pur said district of Massachusetts,” and as complaining that “ said William at Boston being indebted, &c.”— Lee, attorney-general, insisted “ that there was not a sufficient allegation in the record of the citizenship of the parties to maintain the jurisdiction of. the Circuit Court; which is of limited jurisdiction.” Dexter, on the-other hand, urged-» that stating in the declaration the party to be of a particular place',-designates his home, and of course his citizenship.” The court were clearly of opinion,.» that it was necessary to set forth the citizenship (or alienage where- a foreigner was concerned) of the respective , parties, in order to bring the case'within the jurisdiction of the Circuit Court.” In the year 1797, were decided in the Supreme Court the cases of Turner v. Eurille, and of Turner, admin., &C., v. The Bank of North America, reported in 4 Ball., the former at pp. 7 and 8, the latter on pp. 8, 9, 10 and 11. The declaration in the former case set Out a .demand by the Marquis de Casa Eurille, of ——, in the island of ——, against Stanley and the intestate, of Turner and Greene, merchants and partners at Newbern in the said district. Upon objection to the jurisdiction for want 'of a proper description óf parties — By the Gourt— “ Thp decision' in the case of Bingham v. Cabot et al. must govern the present case; let the judgment be reversed with costs.” Turner, admin. of Stanley, v. The Bank of North America was an action upon a promissory note drawri at Philadelphia by Stanley, endorséd by'Biddle and Com-: pany to the Bank of North Ainprica. The nar. stated that the president and. directors were citizens of the state of Pennsylvania, that Turner the administrator, and Stanley the intestate, were ; citizens of the state .of North Carolina; hut of Biddle and Company, the payers and endorsers, there w^s no other description than “ that they used trade and merchandise at Philadelphia or North Carolina.” Ells-worth, chief justice, in delivering the .opinion of the. court; after remarking that the Bank of North America, as' well as the drawer of the no e, was properly described, proceeds thus; “The. error assigned is, that it does not appeal; from, the record that Biddle and Company; the promisees, or any .of them, are citizens of .a state other •than that;of North Carolina. ■ The' Circuit Court, though an. inferior court in the language of the Constitution, is not so in the language of the common law.- A Circuit Court, howéver,- is of limited jurisdiction, and has cognisance not of cases generally, but only of a.few specially circumstanced; and a fair presumption.is, not (as--with regard to a court of general jurisdiction), that a cause is within its' jurisdiction unless the contrary appears, but rather that a cause is Without its .jurisdiction till the contrary appears. ' This, renders it necessary to set forth, upon the record of a Circuit Court, the facts and circumstances Which give jurisdiction, either expressly or in such manner as to render them certain by legal intendment. Among thosé circumstances, it is necessary, where the , defendant is a itizen of one state, to show that the plaintiff is a citizen of some other state, or an alien. Here the description of the promisee only is, that he used trade at Philadelphia 'Or North Carolina, which contains no averment that he.was a citizén of a state other than Norik.Carolina, or an alien. We must therefore, say there was error.” In Mossman v. Higginson, 4 Dall. 14, the same doctrine is affirmed, and the Court conclude their opinion with the following explicit language: “ Neither the Constitution; nor the. act of Congress, regards, on this point, the subject of the suit, but the parties. A description of the parties is therefore. indispensable to the exercise of jurisdiction. There is. here no such description.” The case of Course et al. v. Stead et ux., 4 Dall. p. 22, is marked by one trait which peculiarly illustrates and énforces the principle pried in the cases previously cited. In this last case, a supplemental bill was filed making a new party to a suit previóusly pending, but in the supplemental bill no description .of the citizenship of this new defendant was given: the absence of; such description having been assigned for error, it was • contended that such a description was not necessary in the supplemental suit, which is merely an incident of the. origirial bill brought-in the same court; but the Supreme Court sustained the objection* and reversed the decree of the Gircuit Court on the ground of jurisdiction. Next in the order of time is the case of Wood v. Wagnon, 2 Cranch, 9. Where the statement in the pleadings was that Wagnon, a citizen of Pennsylvania, showeth, that James Wood, of Georgia, See. The judgment was reversed for the defect that the plaintiff and defendant were not shown by the pleadings to be citizens of different states.

In Hepburn and Dundas v. Elzey, 2 Cranch, 445, the decision turned upon a defect in the description of a party necessary to give jurisdiction. Winchester v. Jackson, 3 Cranch, 515. The writ of error was dismissed for want of jurisdiction, the parties not appearing upon the record to be citizens of different states. In Kemp’s Lessee v. Kennedy, this court declare, that “ the‘courts of the United States are all of limited jurisdiction, and their proceedings are erroneous if the jurisdiction be not shown upon them.” 5 Cranch, 185. The same in effect, the same indeed in terms, is the decision of this court in Montalet v. Murray, 4 Cranch, 46. Again, the principle that the character yhich authorizes access to the Circuit Court must be apparent upon the record, is strikingly exemplified in Chappedelaine et al. v. Dechenaux, 4 Cranch, 306. In this case, the plaintiffs were trustees, not suing in their own interest; yet as they were aliens .and as such entitled to sue in the Circuit Courts of the United States, this court, in virtue of that character, and their .title flowing therefrom- apparent on the record, sustained the jurisdiction of the Gircuit Court. Passing, with a mere mention of them, the cases of the Hope Company v. Boardman et al., 5 Cranch, 57; Hodgson and Thompson v. Bowerbank et al., 5 Cranch, 303 ; Skillem’s Ex’rs v. May’s Ex’rs, 6 Cranch, 267; The Corporation of New Orleans v. Winter, 1 Wheaton, 91, all full to the point; I will quote an emphatic and more Comprehensive affirmation-of Judge Washington in reference to the powers of the Circuit Courts, expressed in the opinion of that judge in McCormick and Sullivant, 10 Wheat. 199: “ They are all (says he) of limited jurisdiction. If the jurisdiction be not alleged in the proceedings, their-judgments and. decrees are erroneous, and may upon a writ of' error dr appeal be-reversed for that cause.” But the fullest and clearest exposition and vindication of the doctrine contended for in this opinion, will be found in the reasoning of Chief Justice Marshall, in delivering the decision in the case of Osborn v. The Bank of the United States. The portion of the reasoning particularly referred to' commences on the 856th page of the 9th volume of Wheaton: “The judicial power of the Union,” says the chief justice, ««is also extended to-controversies between citizens of different states; and it has been decided, that-the character of the parties must be ¿shown bn the record. Does this provision depend on the character of those -whose interest is' litigated, or of those who are parties on the record ? In a suit, for example, brought by or against an executor, the creditors or. legatees of Ms testator are the persons really concerned in interest: but it has never been- suspected that, if the executor be a resident of another. state,, the jurisdiction of the federal courts could be ousted by the. fact that the creditors or legatees were citizens of the same state with the opposite party. The universally received construction in this case is, that the jurisdiction is neither given, nor ousted by. the relative situation of the parties fcon- . cerned in interest, but by the relative situation of the parties named' on the record.' Why is this construction universal ? No case can' be imagined in which the- existence of an interest out of the party on the record is more unequivocal than in. that which has been stated. Why then is it universally admitted, that this interest in no manner affects the jurisdiction of the court? The plain and obvious answer is, because the jurisdiction'of the court depends not upon this interest, but upon the actual party on the record.” • Again he remarks, p. 857, “It may, we think, be laid down as a rule which admits of no exception, that in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the 11th amendment, which restrains, the jurisdiction granted by the Constitution over suits against states, is of necessity limited to those suit in which a state is a party on the record.”

This reasoning of the late chief justice seems to meet the present case in every aspect of which it is' susceptible, and' to dispel eyery shade of doubt that could' possibly be cast upon it. The doctrine this reasoning so well sustains, is reaffirmed by the same judge, in the still later, case of the State of Georgia v. Juan Madrazo, 1 Pefers, 122; and ,amongst other authorities there cited, the principles ruled as above mentioned in Osborne v. The Bank of the United States are referred to and approved. Vide also Keary et al. v. The Farmers’ and Mechanics’ Bank of Memphis, 16 Pet. 90.

Alexander McNutt, in the case under examination, must bé regarded as a private person acting in a private capacity; at most as- a mere agent under a law of Mississippi, in whom the interests of other individuals may to a particular extent have been vested, and through whom they were authorized to sue. He represented or was identified with no political or fiscal rights or interests, of the state of Mississippi. That state, had no interest involved in the. conducting of lhat suit by McNutt, and much less was she a party to the record. in that suit. Standing then in the relation of a mere agent in the transaction, arid there being no law of the United States investing the federal courts with jurisdiction as incident to such agency, he could have access to-those courts, and the courts themselves could have jurisdiction, solely in virtue of his character of citizen of a. state different from that in which the defendants resided, and that character, it was indispensable should appear upon the record. These.are positions which it has séemed to me impossible successfully to assail; positions encompassed with a chain of authorities comprehending the entire existence and duration of the government itself. ' This, however, is said to have been broken by the act of this court, and by that act an opening made for farther power and jurisdiction in the Circuit Courtsi The'mean by which such important consequences are supposed to have been effected, is the decision of the case of Browne et al. v. Strode, to be found in 5 Crarich, 303. In this case, which was submitted without argument, and in which the certificate directed to the Circuit Court is comprised in two lines, no reason whatever is assigned for' the conclusion at which the court appear to have arrived. The facts of the case; as presented in the short abstract of it, are thus stated: “It was an action upon án executor’s bond given in conformity with the laws of ’Virginia. The object of the suit was to recover a debt due from the testator in his lifetime to a British subject. ' The defendant was a citizen of Virginia. The persons named in the declaration as plaintiffs, were the justices of the peace for the county of Stafford, and were all citizens of Virginia.” • The court ordered it to be certified afe. their opinion “that the court below has jurisdiction in the case.” This is the whole case, and it is confidently believed tb stand entirely solitary; without support, and without .a likeness-in- the whole history, of our jurisprudence: and, in commenting upon this case, it may be safely asserted, that if the court in their certificate have intended to affirm, that the holders of equitable interests, cestui que trusts, who are not the holders of the legal interests, or rights of action at law, are in actions at law the regular and' proper parties to the record, then’, indeed, they have not merely overturned the series of decisions in this court, from the case of Bingham v. Cabot, in 3 Dall., decided in 1798, down to the case of the Governor of Georgia v. Madrazo, 1 Peters, 110;—they have reversed, moreover, what is believed has been regarded as a cantín Of the law, wherever the principles of the common law have been adopted; and this they have accomplished by one short sentence, and without a single word to explain this mighty-revolution; But can it be reasonably presumed that this court have in so cursory a mode intended to reverse its own well-considered, well-reasoned, and oft-repeated decisions; and. this, too, without professing to review them — nay, without one word of reference to them of any kind ? A presumption like ibis seems scarcely compatible, with that cautious reluctance with which innovation otí settled principle's is always admitted by the courts. Is it not far more probable, that the short and isolated abstract in'' question, exhibits an imperfect picture of the action and purposes of the' court as applicable to some particular state of case which may not be fully and accurately given, for the record of the case, in the court below is not .set out tin extenso. Rut let it be- supposed that the objects and the language of the court, in the caée of Browne and Strode', aye accurately givén; still the inquiry recurs, does that case establish the law of this cause at the present day? Browne and Strode was decided in 1809. Turning, for the moment, from the decisions of this court-pridr to 1809, supposed (strong, and explicit, and numerous as they ¿re) to have been silently demolished by Browne-and Strode, what must be understood with respect to the decisions of Skillern’s Ex’rs v. May’s Ex’rs, 6 Cranch, 267; Of Osborne v. The Bank of the United States, 9 Wheat. 733; of McCormick v. Sulliyant, 10 Wheat. 199, and of The Governor of Georgia v. Madrazo, 1 Peters, 110—all posterior in date to 1809 ? If these cases are to be. received upon the import solely of their own terms,- uninfluenced by any reference to. prior decisions, still as they are posterior tin 'time to Browne and Strode',, and are wholly -irreconcilable therewith, they should be'understood as-controlling and reversing that decision. How much stronger then, nay how .irresistible appears this conclusion, when it is ascertained that the several decisions subsequent to 1809 refer expressly to those of previous date, .rely upon them as forming their own foundation, and reaffirm them as the law of the federal courts.

The only decision in this court which would appear, upon a superficial view of it, to give colour to the decision of Browne, et al. v. Strode, is the case of Irvine v. Lowry, reported in 14 Peters, 293. An attentive examination of the latter case, however, will show that, so far from resembling Browne and Strode, the facts of the two cases differ essentially: and that' the former does not Sustain, but, in effect, contradicts the latter. In Irvine v. Lowry the action Was in the name of Irvine the payee of the note, for the benefit of the Lumberman’s Bank. On behalf of Lowry the defendant, exception was taken to the jurisdiction upon the ground that the Lumberman’s Bank, the beneficiaries in the suit, consisted, in part, of persons who' were citizens of the same state to which the- defendant belonged. The case of Browne et al. v. Strode was relied on to show that thesO beneficiaries and not the nominal parties or those who held the legal interest, should be considered the true parties on the record. This exception was overruled, and the jurisdiction sustained in the name of the party holding the legal right, in conformity with the current of authorities before cited. ’Tis true that, in the opinion delivered in this case, the decision in Browne et al. v. Strode is mentioned, and accounted for upon an hypothesis which by no means divests' it of its anomalous character, any more than it rests the case of Irvine v. Lowry upon any real similitude with. it. The argument is this,, that although in Browne et al. v. Strode the plaintiffs and defendant were citizens of the- same state, yet the -statute of Virginia, which requires the executor’s bond for the protection of creditors and legatees, passes the legal right to those whose interests the bond is designed -to protect. To this reasoning several answers at once present themselves, either of. which appears to be sufficient. 1. If this could be so understood,tit would leave the objection precisely where it stood before. The parties to the action would still be all citizens to the same state, whereas the judicial act declares they shall be (that is the plaintiffs and defendants) of different states. 2. The Virginia statute profess.es to effect no such transmutation of legal rights.. 3. It confers no right of. action on the beneficiaries under the bond. 4. It orders the prosecution of. the suit in the names of the justices the obligees, and by consequence', forbids such proceeding in the names of any other persons. 5. In point of fact, in the case commented on, (as doubtless would be found to be the fact in every suit ever instituted under the statute,) the action was'brought in the names of the justices, so that those whose interests were designed to be protected .by the bond, were never parties to the suit at all, much less the real or only parties representing the right of action under the bond.

My mind, then, is impelled, by considerations like these, to the deductions, that Browne v. Strode does not furnish the rule for the decision of this cause 5 and that, if it ever was a rale for the federal courts, it has been'clearly and emphatically annulled. As a corollary from the above reasoning and 'the cases adduced in support thereof, it follows, that Alexander McNutt, without appearing as . the party plaintiff upon the record to be a citizen of some state, other than that . to which the defendants belong, could have no standing in the Circuit Court; and that failing so to appear, the Circuit Court could have no jurisdiction over the cause.

It cannot be requisite here to meet any argument, should any be attempted, designed to maintain the right of McNutt to sue in virtue of his character of governor of Mississippi, and as such representing the sovereign or supreme executive power of that state. " In that aspect, the suit would be virtually by the state herself, and not be the suit of Alexander McNutt; such a suit, too, could take place only where some direct right or interest of the state should be involved. Of sueh a controversy, the Circuit Court could unquestionably have no jurisdiction; this having been settled as one of those instances, the cognisance whereof belongs exclusively to the Supreme Court. Vide The State of Georgia v. Brailsford, 2 Dall. 402, and The Governor of Georgia v. Madrazo, 1 Peters, 110; Fowler et al. v. Lindsay et al. 3 Dall. 411.

To any argument, ab inconveniente, which may be urged in support of the jurisdiction in this case, I would simply oppose the observa- - tions of two distinguished members of this bench, in reply to a similar argument addressed to them in the case of Turner, admin., &c. v. The Bank of North America, 4 Dall. 10; in which Chief Justice Ellsworth inquired: “ How far is it intended to carry this argument? Will it be affirmed that, in every case to which the judicial power of the United States - extends, the federal courts may exercise jurisdiction without the intervention of the legislature to distribute and regulate the power?” And Chase, justice? remarked: “If Congress has given the power to this court, we possess it, not otherwise; and, if Congress has not given the power to this or any other court, it still remains at the legislative disposal.” Est boni juditis ampliare jurisdictionem was once quoted as a wise judicial maxim; how far this may accord with systems differently constituted from ours, and having their foundations in a large and almost undefinable discretion, it is, perhaps, unnecessary here to inquire ; it seems, however, scarcely compatible with institutions under which the political and civil state is referred, almost exclusively, to legislative or express regulation.

Upon the views above given, I conclude that the judgment of the Circuit Court should be affirmed.

ORDER.

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 Co'Urt, with directions to that'court, to enter judgment in this case for the plaintiff in that court.

Mr. Justice STORY;

The decree of the Circuit Court in this case ..was reversed on the 30th of January,, 1844, and the cause remanded, with directions to enter judgment for the plaintiff. .-On the '31st of January, Jones, for the plaintiff in error, suggested the death of Bland, and moved that the writ of error stand against the survivor, Humphreys, and that judgment be entered against him alone.

Mr. Justice STORY, in delivering the.opinion of the court said, that, if Bland died since the commencement of the term, the judgment might be entered against both defendants, on a day prior to the death of Bland, nunc pro tunc. If he died before the Commencement. of thetérm, then upon the suggestion-of his death before the term-being entered of record, the cause of action surviving, the judgment might be entered against. thé ■ surviving defendant, Hmnphreys. There certainly is no objection in this case, under all the circumstances, to granting the application as asked for by the plaintiff’s counsel; that ■ is, to enter the suggestion of Bland’s,death upon the record,-and- then entering judgment agáinst Humphreys alone, as the survivor; and it is accordingly so ordered by-the court.'

Alexander McNutt, Gov., &c., plaintiff in error,

v.

Kichard J. Bland et al.

Mr. Jones, of counsel' for the plaintiff in error,'.having -suggested the death of Richard j. Bland, one of .the co-defendants, since the last continuance of this cause,-now here-moved the court that his writ of error stand as against the surviving defendant. . Whereupon this court not being, now here sufficiently advised of and concerning what order to render ih;the premises, took time to consider.

January 31,1844.

Alexander McNutt, Gov., &c., plaintiff in error,

2).

Kichard J. Bland et al.

On consideration of the. motion made in this case on a prior -day of the present, term of this court, to wit: on Wednesday, the 31st day of January., it is now here ordered by this court that the suggestion of Bland’s death be entered on the record, and that then judgmeat be entered against Humphreys alone, as the survivor, and that the mandate of this court direct the Circuit Court to enter judgment for the plaintiff against Benjamin G. Humphreys aloné as the survivor. March 12th,. Í844.


source: Caselaw Access Project

author: Mr. Justice CATRON Mr. Justice DANIEL

license: Public Domain

text:
    William M. Gwin v. James W. Breedlove.
    A statute of the state of Mississippi, passed on the 15th of February, 1828, provided that if a sheriff should fail to pay-over to a plaintiff' money collected by execution, the amount collected, with 25 per cent, damages, and 8 per cent interest, might be recovered against such sheriff and his sureties, by motion before the court to which such execution was returnable.
    A marshal and his sureties cannot be proceeded against, jointly, in this summary way, but they must be sued as directed by. the act of Congress.
    Bui the marshal himself' was always liable, to an attachment, under which he could be compelled to bring the money into court; and by the process act.of Congress, of May, 1828, was also liable, in Mississippi, to have a judgment entered against-himself by motion.
    This motion is not a new suit, but an incident of the prior one; .and hence,’ residence of the parties in different states need not be averred in order to give jurisdiction to the court,
    Such parts only of the laws of a state as are applicable to the. courts of the. United States are adopted by the-process act of Congress; a penalty is not adopted, and the 25 per cent damages cannot be enforced
    A marshal who receives bank-notes in satisfaction of an execution, .when the return has not been set aside at the instance of the plaintiff, or amended by the marshal himself, must account to the plaintiff in gold or silver; the'Constitution of the United States recognising only gold and silver as a legal tender.
    This case was brought up by writ of error, from the Circuit Court of the United States for the southern district' of Mississippi', and arose upon the following statement of facts.
    At some period prior to the 13th day of February, 1839, James W. Breedlove, the defendant in error, had recovered a judgment in, the Circuit . Court of the United States for the southern district of Mississippi, against certain persons there, for the sum of $12,976, with interest at the rate of 8 per cent, per annum, from the 24th of May, 1838,. until paid; and on the said 13th of February, an execution was issued upon the judgment, and placed in the hands of Gwin, the marshal. The sum of $5000 was collected in. unexceptionable money, and paid over to the plaintiff; the balaAce was received in notes of the Commercial Bank of Vicksburg, and Planter’s Bank of Mississippi, which the plaintiff refused to receive.
    At the November.term, 1839, of the Circuit Court of the United States, Breedlove moved for a judgment against Gwin, the marshal, for the sum of $7976, being the balance.due to the plaintiff on the execution. . This motion was made under a statute passed by the legislature df Mississippi on the 15th day of February, 1828, which had been adopted in-the practice of the Circuit Court by a rule of .that court. Th$statute provided, (Howard and; Hutchinson, 296,) . that* if the sheriff should fail to pay, on demand by the plaintiff, money collected by execution, such sheriff and his sureties should be liable.to pay to the plaintiff the whole amount of money so collected, together with 25 per cent, damages thereon,' with interest at the .rate of 8 percent, per annum, to be recovered by motion before the court to which such execution-is made returnable. The statute further provided .for'a jury, if the-sheriff should deny that-the-money was collected-by him. In case the sheriff failed to return, an execution on the return day thereof, (Howard and Hutchinson, 298,) the plaintiff was allowed to recover judgment against the' sheriff and his sureties, with 5.per cent, damages, by motion before the court. It was also declared to be a misdemeanor for the sheriff to refuse to pay over money which he had collected, and punishable on conviction, by removal from office. Howard-and Hutchinson, 299.
    The reasons filed in support of the motion were, that the marshal had made the money and failed, or refused, to pay it over to the plaintiff.
    Gwin demurred, to the motion.; but- the .demurrer being overruled, he filed four pleas. In the first two, he denied having received money. In the-last two, he alleged that he had collected and received notes of the Planter’s Bank of the State of Mississippi, and of the Commercial and Rail Road Bank of Vicksburg, due and payable, on demand, when said banks, were paying gold and silver on all their notes payable on demand; which notes, so collected and received, were collected and received without any instructions from the plaintiff or his attorney that gold or silver Would be .required, and at a time • when the bank-notes received were the current circulating .medium; and the same were tendered to the attorney of the plaintiff, before the suspension of specie payménts -by any or either of said banks — all of which said bank-notes said defendant had always been ready and willing, and. was then ready and willing’, to pay over to the plaintiff ■ or his attorney.
    ■The plaintiff joined issue upon the first two pleas, and replied, specially, to-the last two, that ^ the defendant was, previous to the reception of the notes, instructed, that gold of silver would be required of him. Issue was joined upon the last' two replications. •
    Evidence was offered at the trial, that the attorney of the plaintiff, Breedlove, told the marshal frequently, before the money'was collected, that specie would be required; that he had demanded the money of the marshal, who refused to pay him; that the marshal never tendered him any bank-notes, and that the notes of those banks, before their suspension, were .received in the community everywhére as'specie, and by the sheriffs and officers in collection of executions.
    The execution was'issued on the I3th of February, and-the banks suspended specie payments on. the 15th or 22d of March, Í839.
    The counsel for the .defendant prayed-the court-to instruct the jury as follows:
    1. That if the jury believe from the evidence .that bills of- exchange and bank-notes were received by the marshal, and not gold or silver, then the jury will find the issues on'the first and second pleas in favour of the defendant.
    2. If the jury believe that the instructions given to the marshal were intended to authorize the marshal to collect, gold or silver, or its equivalent, and he collected bank-notes which were equivalent to gold or silver, then they'should find the issue for the defendant.
    3. And that if they find that the marshal received bank-notes or bills of exchange and not money in specie, which the plaintiff refused to receive as money, then they must find the issues.for the defendant, as the issue is, whether he received and collected money or not.
    The first and third of which charges, the court refused to give, but gave the second charge to the jury; to which refusal to give the first and third charges, the defendant excepted. •
    The jury found for the plaintiff.
    Walker, for Gwin, the plaintiff in error.

      C. Cox, for the defendant.

      Wallcer made the following points:
    1. That the statute of Mississippi had not been strictly pursued.
    2. That it did not apply to marshals of the United States.

      3. That there is a want of jurisdiction, inasmuch as the record does not show, in 'any part of it, that Breedlove was not a citizen of Mississippi.
    1. The statute is highly penal in its character; and, therefore, like all other penal statutes, must be construed strictly. It provides (Howard and Hutchinson, 296) two remedies against sheriffs; one for not paying over the money which they may have collected, and the other for neglecting to levy the execution.. The motion below was under the first head, which was an erroneous proceeding, because bank-notes are not money. The return states the collection to have been ift bank-notes; but, if they had been notes of a mercantile firm, it would clearly not have been money. The one is no more money than the other. The statute is so highly penal that a refusal on the part of the sheriff to pay, is declared to be a misdemeanor, (page 299,) ■and punished by removal from office.
    The agreement of the sheriff, to receive any thing but money, does not bind the plainfiff. 5 Howard, 246. Where the sheriff returned that he had received bank bills, it was not considered a legal return or binding on the plaintiff, and a new 'execution was awarded. 5 Howard, 621. A sheriff cannot take a negotiable note and return the execution satisfied. 1 Cowen, 46. The payment must be in Cash. 9 Johnson, 263. There feeing no money received, the remedy pursued ought to-have been for omitting to collect the money. How ard and Hutchinson, page 642, sec. 42.
    2. The statute does not apply to marshals. It was passed on 16th February, 1828, The process act of Congress was passed on 19th May, 1828-; but no rulé Of court has ever adopted the state law. How came marshals,' then, to be .under the state law ? Their duties are pointed out by acts of Congress, (Gordon’s Digest Laws of the United States,- articles 610 — 611,)' and a party injured may sue on their bond and recover damages legally assessed. But the sheriffs, under the state law, are subject also to a .penally of 25 per cent, in addition: Can the marshals be legislated by a state into this responsibility? The sheriffs are also to be removed from office: Can a state law require the President of the United States to remove a marshal ? If not, where can the line be drawn ?
    The words in the act of Congress of 1828 are borrowed from the act of 1792, and direct that the process at common law used in átate courts should be. adopted in the courts of the United States. But the process in the original suit below had been exhausted. The motion against the marshal was a new proceeding, and not a part of the process of the other case.
    10 Wheat. 1, 32; 6 Peters, 658; 7 Cranch, 654; 1 Howard, 300.
    2 Dallas, 396,
    5 Mason, 26,
    , 2 Peters, 300
    1 attac]jment ¡awof states are not included > .• , \ in the process act. ,

      ,

    The courts of the United States do not adopt state, criminal, or penal laws; 17 Johnson, 1, 4.
    3. Breedlove is not shown in the record to have been a citizen of another state. This court has decided that, as the courts of the United States are of limited jurisdiction, it must appear on the face of the record. 10 Wheat. 192; 2 Cranch, 9; 2 Bald. C. C. R. 275; 13 Peters, 45; 4 Wash. C. C. R. 32.

      C. Cox, for defendant, argued:.
    1. That it was no_ ground of exception to defendant’s motion; that it does not show him to be a citizen of a state other than Mississippi'; in all other respects it is formal.
    2. The plaintiff was accountable on his return, and on' the facts established by the verdict, for the amount of $7000 in money,
    3. The statute of Mississippi is applicable to the present case.
    1. The question of jurisdiction was settled by the original judgment;.'and a ministerial officer of-the court cannot be permitted to raise the objection. After an appearance, the objection cannot be made. 3 Peters, 459 ; 5 Howard, 432 ; 9 Peters, 156.
    . 2. Issue was joined below upon the question whether the marshal received notice’ that coin would be required, and decided against him. The plaintiff below was, therefore, entitled to consider the marshal’s return as of money. A tender of bank-notes is good, unless objected to. 10 Wheat. 333.
    3. The act of Congress of 1828 was subsequent to the statute of Mississippi. ' Process means the proceedings until the end of the suit, the possession of the fruits of the judgment. 10 Wheat. 1, 51.
    The statute, of Mississippi was adopted by rule of court.
    The bond of the marshal is a cumulative remedy. All courts have authority over their officers, and the remedy for injury is by motion. There is nothing unusual in the proceeding. All amercements are penal. In 9 Peters, 156, a judgment was entered on motion and refused to be re-opened.

      Walker, in reply.
    If the return of the marshal was that the execution was satisfied, was it not an end of that suit ?.
    No matter who makes .the question of jurisdiction, the court will always notice it. The original judgment does not settle it, because the proceedings there do not make the necessary averment.
    The case in 9 Peters does not apply: there is no case where the penal laws of a state have been applied to marshals.
   Mr. Justice CATRON

delivered the opinion of the court.

The writ of error in this case is prosecuted by the former marshal to reverse a judgment recovered against him by motion in the Circuit Court of the United States for the district of Mississippi. The proceeding in this form, is founded on a law of that state governing sheriffs ; as will be seen by the statement of the reporter.

The first objection raised on behalf of the plaintiff in error is, that it does not • appear on the record, that Breedlove was a citizen of á different state from the defendant; and therefore it is insisted .the court below had no jurisdiction as'betwéen the parties. As this does not appear, in an, ordinary case jurisdiction would be wanting. On the other hand, it is contended that the motion against the ministerial officer of the court for not performing his duty, was an incident; and part of, the proceeding, in the suit of Breedlove against Marsh and others, in which the execution issued; and that no question of jurisdiction can be raised.

The motion for a judgment being a proceeding according to the statute of Mississippi, it is also’objected that Congress by the act of 1806 (ch. 31,) had provided a complete and exclusive remedy on marshal’s bonds by suit; but if it was otherwise; still, the additional remedy furnished by the state law when substituted, must be treated as an independent suit, in like manner as an action on the marshal’s bond, and the residence of the parties be such as to give "the federal court jurisdiction.

These propositions are so intimately blended that it is most convenient to consider them together.

. We think it true beyond doubt, that if the bond had been proceeded on against the marshal and his sureties, it could not have been done by motion, according to the state practice prescribed by the statute of Missis°sippi; but the proceeding must have been according to the act of Congress. Yet before the act óf 1806 was passed, and ever since, the common law remedy by attachment has been the • most usual to coerce the marshal to perform his various duties; and among others, to bring into court moneys collected on executions. So in- the state courts, nothing is more common than to proceed by attachment against the sheriff, instead of resorting to a summary motion, for judgment against him by force of a statute, where he withholds moneys collected. The marshal’s bond is for twenty thousand dollars;. the sureties are bound to this amount only; and if no other remedy existed save on the bond, after the penalty was exhausted, he might set the court 'at defiance: the marshal could also be sued in assumpsit,' by the plaintiff in the execution. It has therefore never been true, that a suit on his bond, governed by the acts of Congress, furnished the exclusive remedy as against the marshal himself; and we think that Congress intended by the new process act of. 1828, to add the cumulative ■ remedies, then existing by statute-, in the new states, where they could be made to apply, because they were more familiar to the courts and country, and better adapted to the certain and speedy administration , of justice. In our opinion, the act of Mississippi authorizing a judgment by motion, against a sheriff for failing to pay over moneys collected on execution, to the party on demand, or into court at the return day, was adopted by the act of 1828, and' does apply in a case like the present, as a mode of proceeding in the courts of the United States, held in the district of ■Mississippi; and could be enforced against the marshal in like manner it could be against a sheriff in a state court.

The same facts that justified the judgment against the goods, &c., of the marshal, would have authorized an attachment against his person; operating even more hastily than a capias ad satisfaciendum', founded on a judgment; and therefore no objection to this means of coerción can be. perceived, that did not apply with still more force to-the old mode by attachment. The latter remedy was never-deemed an independent suit, but a means to compel the ministerial officer of the court to perform his duty, so that the plaintiff should have the fruits of his judgmént; and tire same end is attained by the new remedy under the- state law; each, is an incident of the suit between the plaintiff arid defendant to the execution; of which the proceeding against the officer is part; and to that suit the question of jurisdiction must be referred: It follows the officer had no right to raise the question.

The next inquiry is, to what extent does the statute of Mississippi apply to the courts of the United States held there ?

It is contended for the defendant in error, that the act of Congress of 1828, did intend, and could only have -intended, to adopt the state law entire; that when the process' and modes of proceeding were adopted, the provision carried with it the penalties prescribed to enforce their performance; to recognise part as governing the practice of the federal courts,, and reject other parts, as not applicable to them, would bréak up the whole system. That so doing' is a delicate, and difficult duty, experience has taught us; it is impossible, however., to do otherwise in many cases. That of Amis v. Smith, 16 Peters 303, was an instance. It also came np from Mississippi. By the laws of that state, the sheriff is commanded to take a forthcoming bond for the delivery of property oh the day of sale, levied on by virtue of an execution; if the bond is forfeited for not delivering the property, it-operates as a hew judgment against-the defendant to the execution* and also against the 'sureties to the bond; and no writ of érror is afterwards allowed to reverse the original judgment. Pursuant' to the laws of Mississippi a delivery bond had been taken by the marshal; it Was forfeited, and then the defendant prosecuted a writ of error to this ' court .to reverse the judgment on which the execution issued. It was held here, that that part of the state law authorizing the delivery bond to be given, was adopted by the act of 1828, and that a new execution might issue on it; but the part cutting-off the writ of error.must be rejected. An other. instance will be given, which is presented by the' statute of Mississippi, on which the present motion against the marshal was founded. The 27th and '28th sects, enacts, that if the sheriff shall make a false-return on an execution or other process, to him directed, for every such offence he shall pay a fine of $500, one half to the plaintiff, and the other half -to the use of the literary fund, recoverable by motion. -If the fact that the return is false does not appear of record, the court -shall immediately empannel a jury to try such fact, and on its being found, proceed to assess the fine.

The recovery of the penalty, could with quite'as much propriety nave been on conviction by indictment as on a summary motion; and -in neither mode can it be plausibly contended that the courts of the United States could inflict the penalty on its marshal; the motion and assessment of the fine, being distinct from thé process and mode of proceeding in the cause of which 'the execution was part, on which the false return was made. This being an offence against, the state law, the courts of the state alone cptild punish its commission; the courts of the United States having no power to execute the penal laws of the individual states.

A judgment below, for 25 per cent, damages was given against the marshal for felling, to pay over, the- debt collected; the penalty-amounted to $1750. The motion for. judgment was founded on the 25th section of the act; it declares judgment on motion shall be rendered against the marshal, for .the money collected, with legal interest: and also, for 25 per cent..damages qn the amount.

This is just as much the .infliction of a penalty, as if a fine had been imposed under the 27th and 28th sections for a false-return; and for the -same reasons was beyond the competency of the Circuit Court; and for so much the judgment cannot stand.

We next come to the question wUether the marshal is rendered liable by his return, and the proofs, and pleadings.

By.the state statute he was allowed to contest the fact by pleading to the motion, that he had not received the money. . He first demurred to the written grounds of the motion; being in the nature of a declaration. The demurrer was over-ruled, and the defendant had leave given to plead oyer, He pleaded 1st, That he, did not receive or collect on said execution the moneys specified in. the motion, The 2d plea is to the same effect, but for- the larger sum, including a bill of exchange, about which there is no controversy,

3d, That he received and collected the notes of the Commercial and Railroad Batik of Vicksburg, and the Planter’s Bank of Mississippi, due and payable at said', banks; and which were paying specie on their notes on demand; that is on the 12th day of March, 1839; which notes were collected and received without-any instructions, from the plaintiff or his attorney that gold or silver would be required ; and at a, time when the bank-notes were the current circulating medium; and that the same on the day aforesaid were tendered to the attorney of the plaintiff before the suspension of spdeie payments by the hanks — ail of which , bank-notes he has always been ready, and is yet ready and willing to pay over to the plaintiff. The 4th plea is the same in substance.

On the first two pleas issues were joined to the country: T<>' thé other two, the plaintiff replied — That previous to the reception of the bank-notes, the defendant was instructed that gold and silver would be required upon the execution; and issues were tendered to. the country; which were joined on the single point, whether the marshal had been instructed that gold or silver would be required.

Two instructions were asked on behalf of Hie marshal and refused' — First,

“ If the jury believe from- the evidence that bills of exchange and bank-notes were received by the marshal, and not gold and silver, then the jury will find’ the issues on the first and second pleas in favbur of the defendant.”
3d. “And that if they find that the marshal received bank-notes or bills of exchange, and not money in specie, which the plaintiff refused to receive as money, then they'must find the issues for the defendant; as the issue is,.whether he received and collected money, or not.” ^

The 2d instruction asked was given, and need not be noticed.

The return of the marshal was, that he had received on the execution, bank-notes due on demand and payable in specie — on the two banks, named in the return, amounting to $7000 — the subject of the present motion.

No question is, or can be raised, oil the two last issues; they were found against the defendant on the proof, that he had been instructed, that nothing but gold or silver would be received in satisfaction. The merits of the case therefore turn on the two instructions refused; they are referable to the facts giving rise to the instructions; the facts briefly are, that the marshal wastinstructed to collect specie on the execution; he failed to do so, and took .bank-notes from the debtor to the amount of $7000 in lieu of specie. A few days after the .notes were received, one of the banks at which a part of them were payable suspended specie payments, and its- notes thereby became depreciated in value. The instructions 'raise the question, who shall bear the loss: If the officer’s return is treated as a nullify, then it will fall on ftfarsh and others, defendants to the execution; if the marshal’s offer to deliver the notes to Breedlove’s attorney, and his plea of tender had been good, then the execution creditor must have sustained the loss — but failing in these grounds of defence the officer must bear it himsélf.

By the Constitution of the United ’ States (section-ten) gold or silver coin made current by law can only be tendered in payment of debts': Nevertheless, if the debtor pays bank-notes, which are received by the creditor in discharge Of the contract, the payment is .just as valid as if gold or silver had been paid. Had Marsh paid his creditor Breedlove in the manner he did the marshal, then there can be no doubt Breedlove could-not have treated the payment as a nullity,' and on this assumption have issued an execution on his judgmént, and enforced payment again in specie.

By the writ of execution the marshal was- commanded to collect so many dollars.; this meant gold or silver of course: And the court of errors and appeals of Mississippi, in the case of Nutt v. Fulgham,(5 How. R. 621,) ordered the return of a, sheriff, like the one before us, to be struck out, on motion of the plaintiff in the suit. That court says: « The return of the sheriff, that he took the Union bank-notes, is not a legal return; and the plaintiff is not bound by it, unless the plaintiff had agreed to receive that kind .of money .or notes in payment; and no such agreement appears.

In the case before us no motion was made, to strike out the return on part of the plaintiff Breedlove; ,nor did the marshal ask leave to alter his return, stating-he had not made the money: the three parties interested, treated the payment as a valid discharge-of the judgment against Marsh; and we think, for the purposes of this motion, at least, it must be so deemed. Gwin, the marshal, did. receive banknotes in payment, and intendéd they should be taken in .discharge of the execution; the record throughout shows he did so receive them — i-and, that they were received as money: Still, he could only pay into court-gold or silver, if required by the execution creditor to do so; and therefore he rah the risk of converting the notes into specie when he took them; having, incurred the risk, the marshal must bear the loss of depreciation. We apprehend this view of an officer’s responsibility who collects bank-notes, is in conformity to the general practice of the courts, and collecting officers, throughout the country.

This court therefore reverses so much of the judgment of. the Circuit Cpurt, as adjudged the plaintiff in error Gwin, to. pay the twenty-five per cent, damages, on the amount recovered against him: — And affirms, the residue of said judgment.

Mr. Justice DANIEL

I am unable to concur with the majority of the court in their opinion just announced. .’¡Tis my opinion, that the judgment of the Circuit Court- should, have been wholly reversed.

Congress, by express enactment, ’have defined the duties and responsibilities of the marshals, and prescribed the modes in which they shall be enforced. These express regulations, designed for the government of the peculiar officers of the federal courts, cannot, I think, be varied or controlled by rules established by the states for the conduct of their respective ministerial agents; but must be of paramount authority.

' The laws' of Mississippi, therefore, denouncing penalties against the misconduct of, sheriffs, and directing the manner of enforcing them, cannot govern this case. Should it be conceded, however, that the laws of Mississippi concerning sheriffs could have effect in this motion against the marshal, it seems obvious, to my mind, that the appropriate remedy under the state law for an act like that com" plained of, has not, in this case, been adopted. The. alleged delinquency in the marshal, made the foundation of this motion, a delinquency identically the same for which a like proceeding is authorized against a sheriff, is the refusal to pay over money actually made and in his hands, and collected in satisfaction of an execution. For such a refusal, a, peculiar penalty, the very same sought' and adjudged by the court in this instance, is provided. By the return of the marshal, relied on in proof by the plaintiff, it is conclusively shown, that the money which the officer was commanded to make, had never been received 5, but that he had received, in part, that which was not money, and which had never been converted into money, and which the plaintiff, in the execution, would never have received in lieu of money. Nay, the oral evidence introduced by the plaintiff was brought in to prove, that, the marshal, in opposition to the plaintiff’s' positive instructions, had received that which was not money, excluding, unonthis.proof as well as upon the return, every inference that money had- been actually received in satisfaction of the process in his hands. A refusal or an omission to levy or to return an execution, the statutes of Mississippi designate as different and distinct offences, and the conduct of the marshal as shown in the proofs, approaches more nearly to either of these than it does to the misfeasance alleged in the notice, and, for which, the court has awarded a penalty against him, although the fact charged is positively disproved by all .{he testimony, as it is also by the plaintiff’s replications to the defendant’s 3d and 4th pleas. But whether or not the conduct of the marshal can in literal strictness be denominated a failure or refusal to levy or to return an execution, it is surely not a failure or refusal to pay ove* money actually levied, and, therefore, the proceeding, under colour of the statute of Mississippi, is not the proceeding appropriate to the act of the officer, however that act ■may be characterized. This is, too, á statutory proceeding, and should strictly conform to the power which authorizes it. It cannot be extended either to' modes or objects not -clearly embraced within the terms of that authority. It cannot, therefore, in any event, warrant the judgment now proposed, as that is clearly for a penalty wholly different from the one imposed by the law of Mississippi, for an offence such as is assumed by the court to have been committed in this instance. Surely the law of Mississippi either should or should not govern this'case.

Again, I do not think that the jurisdiction .of the Circuit Court is made out as between the parties to the. judgment. The motion on which it is founded is neither process nor a mode of proceeding in die suit between Breedlove and Marsh and Company, nor can it be deemed an execution or process or proceeding upon or regularly incident to the judgment between those parties. It is a distinct and substantive and original proceeding against a third person no party to the controversy, A right of action is claimed against this third person for his own acts or delinquencies, independently of the contract or controversy between the parties to the judgment. In his character of officer of the court, he would, doubtless, be amenable to the authority it possesses to supervise the conduct of its own officer, and to secure the enforcement of its own judgments; an attachment would, therefore, lie against him; to effect these ends of justice. He would, also, be liable upon his official bond as marshal; because the judicial act confers a right of action thereon, without restriction as to-citizenship, on all persons who may be injured by a breach of the- condition of that bond. But if a farther or different recourse is sought against the marshal, one which may be supposed to arise neither from the inherent power'of the court over its peculiar officer, or its judgments; then- it is presumed that those who-seek such recourse, must show their right as arising out of their character to sue in the federal courts; they must show themselves by regular averment' to be citizens of a state other than that of him whom they seek to implead. The present case closely resembles that of Course et al. v. Stead et ux., 4 Dall. 22, in which it was ruled that the want of a proper description of parties in a supplemental suit was not cured by a reference to the original suit.

The judgment should, I think, be reversed,

ORDER»

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 so much of the judgment of the- said- Circuit Court in this- cause as adjudges WiDiam M. Gwin, the .plaintiff in error, to pay 25 per cent, damages thereon be, and the same is hereby reversed and- annulled, and that the residue of the -judgment of the said Circuit Court in this cause, be in all respects, and the same is hereby affirmed.