JUDGES OF THE SUPREME COURT OF THE UNITED STATES DURING THE TIME OF THESE REPORTS. The Hon. ROGER B. TANEY,* Chief Justice. JOHN NELSON, Esq., Attorney-General. *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. ATTORNEY AT LAW THE DECISIONS OF THE Supreme Court of the United States, AT JANUARY TERM, 1844. 9*] *ALEXANDER G. McNUTT, Governor | the marshal of the State of Mississippi. 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. 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, or of Mississippi, to whom the bond had been using for this purpose the name of the Governgiven. 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 to Hope Ins. Co. v. Boardman, 5 Cranch, 57. NOTE-As to jurisdiction of federal courts depend-holders, and jurisdiction depending upon it, see note As to citizenship of a corporation, and its stock As to residence of assignor, and co-taxable conveyance to enable suit to be brought, affecting jurisdiction, see note to McDonald v. Smalley, 1 Pet., 620. sippi. 2. That the pleas of the defendant were in. sufficient, 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 suit any person might be in custody of such a prisoner, under the laws and jurisdiction of sheriff, where any execution should be delivered the United States, not of the State of Missis 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; 11*] and if any creditors should fail *to ap-have each separate systems for insolvent debtpoint such agent, the sheriff should not be ors; that they cannot be reconciled with each obliged to give notice previous to the discharge other. of such prisoner for want of security for his prison fees, 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 plaintiffs 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. 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 & 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 dis charged the prisoner, and the sheriff was pro hac vice the marshal. The latter was responsible to the former for the fees. Mr. 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 was tendering an immaterial issue. The demurrer to this was, therefore properly sustained. There was no The replication to the second plea was, that question raised below as to the power of the the prisoner was, by virtue of process legally State. But the court below had no jurisdic issuing from the Circuit Court of the United tion in the case, as it was between citizens of States, taken into custody by the marshal of the same State. Although this court has dethe district, and by him was delivered to the cided that where the real party is out of the defendant, Bland, for safe keeping, who was State, he may use the name of a nominal then sheriff of the county in which the prisoner *plaintiff within it, yet it has also decided [*13 was taken. That the prisoner was not dis- that where the assignment is by operation of charged from custody aforesaid by virtue of any law, such a plaintiff cannot sue. The law of process emanating from any court of the United Mississippi gives no right of action on a sherStates or judge thereof, nor by virtue of any iff's bond, but provides other remedies. (Howlaw of the United States, but that he was dis- ard & Hutchinson, 625 et seq.) They are by charged contrary to the provisions of the sev-motion against the sheriff and his securities. eral 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. 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 Mr. 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 pro forma. 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 cit izens of the State, and yet the bond would be come of no use in cases of escape. The law of Mississippi accepting the Resolutions of 1789, gives a remedy to all parties concerned. (Howard & Hutchinson, 49.) |