stated at the bar, are entirely concurred in by all of us who had the pleasure of knowing him. His revolutionary services and patriotic acts belong to the general history of his country. For myself, having had the honour of an appointment to this Bench upon the same day that he received his, we were, during his whole judicial life for about a quarter of a century, contemporaries, although he was advanced in years far beyond myself. I can therefore leave my own testimony to the justice of the eulogium which has been pronounced at the Bar, upon his social and judicial qualities. They will long be cherished in our memories with grateful satisfaction. The Court, therefore, directs the resolutions of the Bar to be placed upon its records, and will now adjourn as a just tribute of respect to the deceased."

Xiv

LIST OF ATTORNEYS, ETC.

THE DECISIONS

OF THE

SUPREME COURT OF THE UNITED STATES,

AT

JANUARY TERM, 1844.

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, for 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 was brought up by writ of error from the Circuit Court 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 VOL. II.-2

9

McNutt v. Bland et al.

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 Bland, 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 unsatisfied and unpaid, and said 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 ordinary 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 demanded, 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