The case of The Bank v. Deveaux, having.decided that this Court will look into the individual characters of the corporators plaintiffs, in order to give jurisdiction, where it depends on circumstances of the person, it was contended in the Court below, that this Court was bound, in justice, to look behind the charter of the Bank defendant, in order to determine the individual characters of the corporators defendants also. And the pleas were so drafted, as to exhibit to the Court two grounds on which to decide against the jurisdiction of the Circuit Court, as depending on individual character. The one was, that a citizen of one State was suing a citizen of the same State; the other, that the State of Georgia was a defendant, being a member of the corporation defendant, and was exempt from suit under the 11th amendment. And on both these grounds, I see not how I can refuse my assent to the doctrine of the pleas. The case of Deveaux forms, I presume, one of the canons of this Court. On no other ground can that decision be law, but that the individual corporators were the real parties plaintiffs. The same principle, when applied to the corporation defendant, will make the individual corporators here the real defendants to the suit. If, then, the real plaintiffs and the real defendants are so related in personal character, as to preclude this Court from taking jurisdiction, I see no ground on which we can sustain the demurrer, unless we reverse the decision in Deveaux's case. So, also, with regard to the State of Georgia. An original suit against that State for the recovery 1824. U.S. Bank V. Planters' V. Planters' 1824. of a debt, could not be maintained. Yet, if an U.S. Bank original suit against a corporation, be an original suit against each corporator, I see not wherein the case differs from that of a direct suit against the State. Suppose the case of a joint bond, given by a State and individuals, to an individual contractor, citizen of another State, what would except a suit on such a bond from the operation of the 11th amendment of the constitution? If it be said that the amendment alluded to has regard only to suits instituted against States in their sovereign capacity, I would ask, in what other capacity can a State appear, or even exist? In every possible form and shape, it is a sovereign State, or it is nothing. And this very stock, held in this Bank, is the property of the people of Georgia, held by them in the name and capacity of the State of Georgia. If any dispute were to arise on the title to the stock, in what capacity could they sue or be sued for the interest held by them in the stock, unless in their sovereign capacity? capacity? It is not because it imparts its own immunities to the other stockholders, that this action cannot be maintained, but because that the judicial power must reach each and every defendant, in order to bring a case within the prescribed limits of the constitution. Each defendant occupies his own 'peculiar rank, claims his own peculiar immunities; but they are not suable in the Courts of the United States, as long as any one of them is exempted from suit in those Courts. I am here expressing a technical opinion, founded on the authority of the case of The Bank v. U.S. Bank Deveaux. That decision brings it strictly within 1824. the letter of the 11th amendment; although I am ready to admit, that, unaffected by that decision, it is not within its purview. Although not responsible for that decision, I acknowledge its obligation, until overruled. The last question which the pleadings in this cause present, arises out of the nature of the contract, the form of the declaration, and that provision of the Judiciary Act, which precludes suits by an assignee of choses in action, when the suit could not be brought in the Courts of the United States, as between the original parties. The plaintiff counts upon a number of promissory notes, payable to A. B. or bearer, commonly called bank notes, delivered to A. B., and by him "transferred, assigned, and set over" to the plaintiffs in this action. The plea states, that, as between the original promisor and promisee, suit could not have been brought in the Circuit Courts of the United States; and, therefore, it cannot, as between the present parties, the promisor and assignee. As all the facts are admitted by the demurrer, it is difficult to see on what ground this case is to be excepted from the operation of the provisions of the Judiciary Act on this subject. Whatever difficulties may be suggested, on the technical meaning of the term assignment, it is very clear that he who acquires a chose in action, by mere delivery, has been recognised in the laws of the United States as an assignee. If any considerations could be introduced into the case, besides what the pleadings bring out, there might be Planters' Bank. 1824. U.S. Bank V. Planters' much reason to doubt, whether the case of Bank bills, properly so called, and particularly so declared on, came within the general law applicable to promissory notes; but here, non constat, that the notes declared upon were ever thrown into circulation, as the representative of property, as a currency, a substitute for gold and silver. But the case does not rest here. This ground of defence depends not on a constitutional provision, but on an act of Congress; and if it be true, that the unrestricted right to sue on all its contracts, be vested in the Bank of the United States, whatever their origin, or whatever their amount, it follows, that such a provision amounts to a repeal of the law here relied on. I rather think, that the improbability of such a provision being intended by the Legislature, operates against the construction that would sustain it. But if such be the legal construction of the incorporating act, there can be no doubt of its being fatal to this plea. CERTIFICATE. This cause came on to be heard on the transcript of the record of the Circuit Court of the United States for the district of Georgia, and on the questions in said cause, on which the Judges of the said Circuit Court were divided in opinion, and was argued by counsel: On consideration whereof, this Court is of opinion, 1. That the averments in the declaration in said cause, are sufficient in law to give the said Circuit Court jurisdiction in said cause. 2. That, on the pleadings in the same, the plaintiffs are entitled to judgment. All which is ordered to be certified to the said Circuit Court. INDEX ΤΟ THE PRINCIPAL MATTERS IN THIS VOLUME. A. ADMIRALTY. 2. A decree of acquittal, on a pro- tion, beyond its own territory, ex- 370 7. Id. and search for enforcing the reve- 371 |