Winn v. Jackson. six years; and that, consequently, the act of limitations, constituted no bar to the action. This court perfectly accords in opinion with the supreme court of the state. If it be true, that the condition of the bond was broken, at the time the marshal failed to bring the money into court, to be deposited in the bank, or pay it over to lermandez & Co.; and if it be true, that the breach of the condition of the bond was to the injury of Hernandez & Co., yet, it is not true, that Hernandez & Co. had, at that time, any right of action. The record of the proceedings in the court of admiralty shows that the Estrella and cargo were sold, and the proceeds received by the marshal; and that the suit was finally decided in the district court, on the day of 1817; by which final decrce the proceeds were ordered to be paid over to Hernandez & Co. An appeal was presented from that decree in this court; where it was affirmed at the February term in the year 1819, within less than six years before the institution of this suit. It is perfectly clear, that Hernandez & Co. had no right to demand of the marshal the proceeds of the sales, or to sue for the recovery thereof, until after the affirmance in this court. The right of action was suspended, during the pendency of the appeal in this court; and during such suspension, the statute of limitations did not run against him. We are, therefore, of opinion, that the supreme court of Louisiana have misconstrued neither the act of congress limiting actions upon marshals' bonds to six years from the time the right of actions accrues, nor any other act of congress, to the prejudice of the plaintiff in error. Judgment affirmed, with costs and six per cent. damages. *WINN's Heirs v. JACKSON and others. [*136 The judgment of the highest court of law of a state, deciding in favor of the validity of a statute of a state, drawn in question on the ground of its being repugnant to the constitution of the United States, is not a final judgment, within the 25th section of the judiciary act of 1789, ch. 20, if the suit has been remanded to the inferior state court, where it originated, for further proceedings, not inconsistent with the judgment of the highest court. ERROR to the Court of Appeals of Kentucky. This was an ejectment, originally brought in the Harrison circuit court of the state of Kentucky, by the plaintiffs in error, against the defendants in error, and judgment being rendered for the plaintiffs, the cause was carried, by writ of error, to the court of appeals, being the highest court of law and equity of that state. The judgment was reversed in the court of appeals, and the cause remanded to the Harrison circuit court, for further proceedings, not inconsistent with the decision of the court of appeals. Whereupon, the plaintiffs sued out their writ of error, under the 25th section of the judiciary act of 1789, c. 20, and brought the cause before this court, as being a suit where was drawn in question the validity of a statute of the state of Kentucky, on the ground of its being repugnant to the constitution of the United States, and the decision being in favor of its validity. February 1st, 1827. Postmaster-General v. Early. Wickliffe moved to quash the writ of error, upon the ground, that although the decision of the court of appeals was in favor of the validity of the statute which had been drawn in question, as being repugnant to the constitution of the United States, the judgment of that court was not "a final judgment," within the true meaning of the 25th sec*136] tion of the judiciary act of 1789, ch. 20, the case having been remanded to the circuit court of Harrison for further proceedings. (a) Motion allowed. The POSTMASTER GENERAL OF THE UNITED STATES v. EARLY and others. Suits by the postmaster-general.-Postmaster's bond. The circuit courts of the Union have jurisdiction, under the constitution, and the acts of April 30th, 1810, ch. 262, § 29, and of March 3d, 1815, ch. 782, § 4, of suits brought in the name of “the postmaster-general of the United States," on bonds given to the postmaster-general, by a deputy postmaster, conditioned "to pay all moneys that shall come to his hands for the postages of whatever is by law chargeable with postage, to the postmaster-general of the United States for the time being, deducting only the commission and allowances made by law for his care, trouble and charges, in managing the said office," &c. The postmaster-general has authority to take such a bond, under the different acts establishing and regulating the post-office department, and particularly under the act of April 30th, 1810, ch. 262, § 29, 42.1 CERTIFICATE of Division from the Circuit Court of Georgia. This was an action of debt, commenced in the circuit court for the district of Georgia, by the district-attorney of the United States for that district, in the name of the postmaster-general of the United States, against the defendants, on a bond executed by them, in June 1820, to the postmaster-general of the United States, the condition of which, after reciting that Eleazer Early (one of the co-obligors and defendants in the suit) is postmaster, at Savannah, provides, that if he shall perform the duties of his office, "and shall pay all moneys that shall come to his hands for the postages of whatever is by law *137] chargeable *with postage, to the postmaster-general of the United States for the time being, deducting only the commission and allowances, made by law, for his care, trouble and charges, in managing the said office," &c., "then the above obligation shall be void." (a) He cited Gibbons v. Ogden, 6 Wheat. 448. 1 Postmaster-General v. Reeder, 4 W. C. C. 678; Postmaster-General v. Rice, Gilpin 554; Postmaster-General v. Appleback, 16 Haz. Pa. Reg. 8. This last case was a suit in the district court for the eastern district of Pennsylvania, upon the bond of the postmaster of Cherryville, to recover a balance in his hands. The action was brought in 1831, and the defendant set up the presumption of payment arising from lapse of time. On the 19th of May 1835, the following opinion was delivered by HOPKINSON, J.-When the bond was taken, there was no law requiring one; it was customary to take it, and the supreme court have decided, that the postmaster-general had a right to take such bond. Lapse of time is alleged by the defendants; but it has not been such, in this case, as to raise a presumption of payment. The next question is, what is the effect of the proviso in the 3d section of the act of 1825. The law of 1825 is the first which requires a bond, and that proviso, or clause fixing two years for suit, applies to such bonds only. If otherwise, the plaintiff would be disabled from recovering, because he had not brought a suit, when he was not bound to do it. Before the act of 1825, he was not required to sue within two years, yet, for not suing within that time, he would, by the defendant's construction, lose his remedy. Verdict for plaintiff. Postmaster-General v. Early. The breach assigned was, that the said E. Early did not pay to the postmaster-general the moneys which came to his hands, as postmaster at Savannah, but that the sum of $7736.64 was still in arrear and unpaid. The defendants pleaded to the jurisdiction of the court, that this was not a suit in which the United States are a party, nor is the debt declared on, one contracted, authorized, or arising under a law of the United States, and over which jurisdiction has been given to this honorable court." On the argument of the cause in the court below, the opinions of the judges of that court were opposed upon the question of jurisdiction, and it was certified to this court for a final decision. March 9th. The cause was argued by the Attorney-General and Wheaton, for plaintiff; and by Webster and Berrien, for the defendants. On the part of the plaintiff, it was contended: 1. That the laws of the United States gave, and were intended to give, the jurisdiction now in question. Osborn v. Bank of the United States, 9 Wheat. 738, 825, 901, 902. If there was any apparent discrepancy in the laws on the subject, it grew out of the fact, that the post-office department existed long before the establishment of the present constitution, and congress had dealt with it as an existing institution of the government. The laws now in force, and the usage which had grown up under them, of the postmaster-general taking bonds to secure the official good conduct of his deputies, and bringing suits on them in the courts of the Union, would be best explained by a recurrence to this historical fact. The post-office act of April 30th, 1810, ch. 262, § 29, which is a consolidation of the former laws on the subject, directs the postmaster-general to "cause a suit to be commenced against any postmaster who does not *render his quarterly accounts, and pay over the balance [*138 to the postmaster-general;" and provides, "that all suits which shall hereafter be commenced for the recovery of debts or balances due to the general post-office, whether they appear by bond or obligations made in the name of the existing, or any preceding, postmaster-general, or otherwise, shall be instituted in the name of the postmaster-general of the United States." The 42d section of the same act repeals the former post-office laws, with a proviso, saving suits and the bonds given by deputy postmasters for the faithful execution of their several duties and offices. The act of the 3d of March, 1815, ch. 782, § 4, declares, "that the district courts of the United States shall have cognisance, concurrent with the courts and magistrates of the several states, and the circuit courts of the United States of all suits at common law, where the United States, or any officer thereof, under the authority of any act of congress, shall sue, although the debt, claim or matter in dispute, shall not amount to $100." It was admitted, that the clause giving the jurisdiction to the circuit courts, was awkwardly expressed in this last section, which seemed to have been drawn upon the supposition that the jurisdiction already resided in those courts; yet it was insisted, that this was equivalent to a declaration of the legislative will, that it should be exercised by them, since the district courts could not have a concurrent jurisdiction with the circuit courts in such suits, unless the latter had, by law, cognisance of the same. If it should be objected, that though the circuit courts might have cognisance of actions where any officer of the United States sues under the authority of any act of congress, yet there is Postmaster-General v. Early. no such act authorizing the postmaster-general to take the bond, on which this suit was brought; it was answered, that the authority to sue on such a bond, given in the 29th section of the act of 1810, is an implied authority to take it, and a legislative recognition of the notorious pre-existing practice of office, which is also strongly confirmed by the proviso in the 42d section, saving all suits and the bonds given by postmasters. Even if it were doubtful, whether he could take a bond for the faithful discharge, by his deputies, of their official duties, without an *express authority by law, a *139] bond might certainly be taken to secure the payment of moneys due to the government in the post-office department, as well as to an individual, or to a corporation. Dugan v. United States, 3 Wheat. 172. A mere voluntary bond, taken at common law, for a purpose not unlawful, and adapted as means to attain the end contemplated by the statute, would be valid, and a suit might be maintained upon it in a court of competent jurisdiction. 2 Ld. Raym. 1459; s. c., 2 Str. 745; 2 Dall. 122; 6 Binn. 292; 12 Mass. 367; Pet. C. C. 47. 2. If, then, the bond was a lawful bond, and the postmaster-general was authorized to cause a suit to be commenced on it, in his official name, and if the intention of congress to vest jurisdiction over such suit in the circuit courts was sufficiently manifested, the only remaining question would be, whether the laws conferring this jurisdiction were consistent with the constitution, by which the judicial power is extended to "all cases in law and equity arising under the laws of the United States," and to controversies to which the United States shall be a party." That this was a case arising under the laws of the Union, was self-evident; and that it was a controversy to which the United States is a party, would appear from an examination of the record. The suit is brought by the district-attorney of the United States, in the name of the postmaster-general, not for his own benefit, but as the public agent of the government, and a trustee for the United States. The acts of public officers, within the sphere of their authority, are the acts of the government; and the money to be recovered being the property of the United States, when recovered, the United States are parties to the suit. Osborn v. Bank of the United States, 9 Wheat. 902. There was a distinction between a formal party to the suit, and a substantial party to the controversy. This distinction might be illustrated by the ordinary principle applicable to assignments of choses in action, where the suit is brought by the assignee, in the name of the assignor, but the latter cannot control it." 1 Wheat. 235; 5 Ibid. 277. So *also, the assignee of the crown has *140] a right to sue in the name of the crown. Cro. Jac. 82. There, the crown is no party to the controversy, though a party to the suit; here, the postmaster general is the nominal party on the record, but the United States is the real party to the controversy. In the case of Brown v. Strode, 5 Cranch 303, where the suit was brought in the name of "the justices of the peace for the county of Stafford," who were citizens of Virginia, against the defendant, a citizen of the same state, to recover a debt due to a British subject, the alien was there considered as the substantial party to the suit, it being brought for his benefit. So, in England, many suits in which the public is concerned, are not brought in the name of the crown. Thus, at common law, independent of any statutory provision, the attorney-general exhibits, in his own name, an information of debt, which is called the king's Postmaster-General v. Early. action of debt; or, if a discovery is wanted, an English information in the exchequer, called the king's bill in equity. Here, the attorney-general is the nominal party, whilst the crown is the substantial party for whose benefit the suit is brought. Bunb. 225, 262, 558, 223; Parker 37, 279; HALE, in Harg. L. Tr. 216; 2 Anstr. 558; Coop. Eq. Pl. 21-2; Mitf. Eq. Pl. 22; Barton's Eq. 59. And the prosecutions under the revenue laws are frequently brought by the commissioners of excise and the customs, or by their order, in the name of the attorney-general; or, in minor cases, by the inferior officers of the revenue; but the public is always considered as the substantial party to the suit. 2 East 362; 1 Chit. Com. Law 801, 824. For the defendants, it was argued, that whatever might be the extent of the judicial power, as defined in the constitution, the tribunals inferior to the supreme court, and created by congress, could only exercise such jurisdiction as was expressly conferred upon them by statute. But it was insisted, that this was not "a case arising under the laws of the United States," nor "a controversy to which the United States are a party." And in this view, it was *insisted: 1. That there was no law of congress which, in terms, required or authorized the postmaster-general to take the bond [*141 on which the suit was brought. There was, indeed, no express inhibition of such a bond, but the supposed implied authority to take it was negatived by the obvious policy of the post-office laws. That policy was to secure the collection of the dues to the department, by requiring prompt settlements, enforced by the personal responsibility of the postmaster-general, as provided in the 29th section of the act of 1810. It was not meant to rely upon this provision as constituting a ground of defence for a deputy-postmaster sued by the postmaster-general for official negligence, upon the primary obligation imposed on him by accepting the office, and not accounting for the public moneys received in his official capacity. It was only contended, that it excluded the idea of the postmaster-general being authorized to take a security not expressly authorized by the law, from an agent appointed by him, removable by him, and accountable to him. This inference was supported by the new provision inserted in the 3d section of the amended postoffice act of 1815, expressly authorizing and requiring him to take such a bond. This was a legislative declaration, negativing the right under any pre-existing statute. The question here was not, whether this might not be good, as a voluntary bond at common law. Without stopping to inquire whether the United States have a system of unwritten law, to which an official bond, not authorized by any statute of congress, can be referred for its validity, it was said, that the cases cited to show that the bond might be sustained at common law, were foreign to the present inquiry. This was a question of jurisdiction, which depended upon the other question, whether this bond (admitting it to be valid at common law), when made the foundation of an action, presented a case arising under the laws of the United States. To make it a case arising under those laws, the bond must not only be valid, but must be authorized by statute; and the case could no more be said to arise under the laws of the United States, than that of a voluntary bond taken by the marshal, or the collector, from their deputies. *2. But even supposing the bond in question was authorized to be taken by the laws of the United States, jurisdiction of a suit brought [*142 |