McNutt v. Bland. 2 H. 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 [17] 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 same remedies," &c., which necessarily embrace all cases, civil or criminal. 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 posi tively 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 1800,1 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, 1932,2 1939;3 Suydam v. Broadnax, 14 Pet. 75; 10 Wheat. 36, 37. From the time of Palmer and Allen, 7 Cranch, 554, to Darst v. Duncan, 1 H. 301, the language and decisions of this court have been uniform for more than 40 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 in the execution of the mandates which issue to them. By the process acts of 1789,4 1792,5 and 1828,6 congress have adopted such state laws as prescribe the modes of process and proceedings in suits at common law, as are not in conflict with the laws of the United States, 2 Stats. at Large, 4. 2 4 Ib. 1. 3 Ib. 19. 4 1 Ib. 93. 5 Ib. 275. 6 4 Ib. 278. McNutt v. Bland. 2 H. which can be executed by the courts of the United States; which impose no restraint on, or obstruction of their process from its inception till 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 [ 18 ] 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 case 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. DANIEL, J., 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 properly 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 cognizance 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 apparent, 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 far as possible, what McNutt v. Bland. 2 H. ever is ambiguous or artificial. In adopting or commending the rule thus indicated, I undertake to propound no new principle [19] 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 interpretation 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 on a bond executed by Bland, a sheriff of the county of Claiborne, in the State above mentioned. The pleadings, so far as they relate to the conduct of 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 is the party plaintiff upon the record, in 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 suit 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 private individual character, and the addition "governor of the State of Mississippi," to be regarded as merely a phrase of description? Or is he to be viewed as the representative of the State of Mississippi, or rather as identified with the sovereignty of that State, and having vested in him the 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 action, whether in his own interest, or as the private agent of the State for certain purposes, it would indeed seem to be too late, and entirely superrogatory, to construct an argument to prove, that to 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 be 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 volumes of the decisions of this court; and ruling, it is believed 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 McNutt v. Bland. 2 H. wherever jurisdiction is claimed from the character of [ 20 ] 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 plaintiffs were styled in nar. as John Cabot, (with the co-plaintiffs,) described as being "all of our 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 Dall., 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 of parties - By the court: "The 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 drawn at Philadelphia by Stanley, indorsed by Biddle and Company to the Bank of North America. 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; but of Biddle and Company, the payers and indorsers, there was no other description than " that they used trade and merchandise at Philadelphia or North Carolina.” Ellsworth, chief justice, in delivering the opinion of the court, after remarking that the Bank of North America, as well as the drawer of the note, was properly described, proceeds thus: "The error assigned is, that it does not appear 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 constitu- [ 21 ] tion, is not so in the language of the common law. A cir McNutt v. Bland. 2 H. cuit court, however, is of limited jurisdiction, and has cognizance 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 those circumstances, it is necessary, where the defendant is a citizen 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 citizen of a State other than North 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. 22, is marked by one trait which peculiarly illustrates and enforces the principle ruled in the cases previously cited. In this last case, a supplemental bill was filed making a new party to a suit previously 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 original bill brought in the same court; but the supreme court sustained the objection, and reversed the decree of the circuit 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, &c. 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 [ 22 ] to give jurisdiction. Winchester v. Jackson, 3 Cranch, 514. 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, |