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Hon. ROGER B. TANEY,1 CHIEF JUSTICE.
Hon. JOSEPH STORY,
Hon. JOHN M'LEAN,
Hon. HENRY BALDWIN,
Hon. JAMES M. WAYNE,

ASSOCIATE JUSTICES.
Hon. JOHN CATRON,
Hon. JOHN MÖKINLEY, AND
Hox. PETER V. DANIEL,
JOHN NELSON, Esq., ATTORNEY-GENERAL.
WILLIAM THOMAS CARROLL, ESQ., CLERK.
BENJAMIN C. HOWARD, Esq., REPORTER.
ALEXANDER HUNTER, Esq., MARSHAL.

ALEXANDER G. M'Nutt, Governor of Mississippi, who sues for the

use of LEGGETT, Smith, and LAWRENCE, v. RICHARD J. Bland and BENJAMIN G. HUMPHREYS.

2 H. 9.

The circuit court has jurisdiction, under the 11th section of the Judiciary Act of 1789, (1

Stats. at Large, 78,) of a suit in the name of the governor of a State, on a sheriff's bond
to the governor, if the parties beneficially interested in that suit be citizens of another

State and competent to sue the defendant.
The act of the State of Mississippi, granting the use of its jails to the United States, was

intended to be in conformity with the resolution of congress on that subject, of September
23, 1789, (1 Stats. at Large, 96,) and consequently prisoners of the United States could
be discharged only by due course of the laws of the United States.

1 The Chief Justice was attacked, very early in the session, by a severe indisposition, which rendered him unable to take his seat upon the bench during the remainder of the term. VOL. XV.

1

McNutt v. Bland. 2 H.

The discharge of a debtor committed on an execution out of a circuit court of the United

States, for non-payment of prison fees, under the authority of a state law or by a state

officer under a state insolvent law was not legal. If one defendant in error die, before the term begins, and the cause of action survives, the

death may be suggested and judgment taken against the survivor.

ERROR to the circuit court of the United States for the southern district of Mississippi, in an action of debt upon a sheriff's bond, instituted by Leggett, Smith, and Lawrence, citizens of New York, in the name of the plaintiff in error, to whom, as governor of the State, the bond was given pursuant to a statute of the State.

The breach assigned was that Bland, the sheriff, discharged from his custody, one M’Nider, who had been committed to the sheriff's custody in jail by the marshal of the United States, on an execution in favor of Leggett, Smith, and Lawrence, out of the circuit court of the United States.

The defendants pleaded: 1. That the prisoner was discharged pursuant to a statute of the State, for non-payment by the creditors of the prison fees: and 2. That he had been regularly discharged from imprisonment, as an insolvent debtor, by a judge of probate, pursuant to the laws of the State for the relief of insolvent debtors.

To the first of these pleas the plaintiff replied that they had an agent residing in Mississippi, and no notice was given to him, and to the second that the discharge was not pursuant to any act of congress, and that the debtor was imprisoned under an execution issuing from a circuit court of the United States.

The defendants demurred to both these replications, and the circuit court rendered a judgment in favor of the defendants.

Jones, for the plaintiff.

Walker, contrà.

*

[ * 13 ) BALDWIN, J., 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. & 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

McNutt v. Bland. 2 H.

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 Leggett, 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 law [ * 14 ] 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 over 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 extends the judicial power to controversies between citizens of different States; the 11th section of the Judiciary Act gives jurisdiction to 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. 2. 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

McNutt v. Bland. 2 H.

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. The 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 ( * 15 ) 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 assignees 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

McNutt v. Bland. 2 H.

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 representatives.

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

The next question arises on the defendants' first plea in [ *16 ] 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 220 June, 1822, $$ 35, 47; Hut. & How. 640-644.

This law, by its own force, cannot apply to persons committed on executions from the courts of the United States, it must first be adopted by act 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 62d section of the same law, in the revised code, as to process of the United States. How. & 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 remedies, as if such prisoners had been committed under the authority of the State. The sheriff may require of the marshal the fulfilment 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 to keep the same safely until they shall be discharged by due course of law,"

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