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Osborn

V

(1824. cases cited, the individual is acting distinctly as the organ of government;

but let them take tbc character of a mere contractor, a factor, a broker, U.S. Bank.

a common carrier, and then let laws authorizing them to sue in the Courts of the United States be passed, and I will acknowledge the cases to be in point; though I will still dispute the principle, that a repetition of error can convert an act into law or truth. The distinction is a clear one between all these cases and the Bank. The latter is a mere agent or attorney, in some instances; in others, and especially in the cases now before the Court, it is a private person, acting on its own account, not clothed with an official character at all. But the acts of public officers are the acts of government; and emphaticaily so, in suits by the Postmaster-General; the money to be recovered being the property of the United States, it may be considered that they are parties to the suit, just as those States are to the suits by or against their Attorney-General, where he is by law authorized to bring and defend suits in his own name officially. When the United States are parties, the grant of jurisdiction is general. But, there is express law also for every contract that the Postmaster enters into, or it will be in vain for him to bring his suit in his own name or otherwise. It would be in vain for him to rely simply on his being made Postmaster under an act of Congress; in which point alone, there would seem to exist any analogy between his case and that of the Bank.

As to the instance of the action given under the patent law, it has been before remarked, that so

entirely is its existence blended with an act of 1824. Congress, that to prosecute it, it is indispensable

Osborn that the act should be set forth as the ground of

V. S. Bank. action. I rather think it an unfortunate quotation, since it presents a happy illustration of what we are to understand by those cascs arising under a law of Congress, which in their nature admit of an exercise of original jurisdiction. The plaintiff must recover, must count upon the act of Congress; the constitutional characteristic appears on the record before the defendant is called to answer; and the repeal of the statute before judgment, puts an end to his right altogether. Various such cases may be cited. But how the act of Congress is to be introduced into an action of trespass, ejectment, or slander, before the defendant is called to plead, I cannot imagine.

Upon the whole, I feel compelled to dissent from the Court, on the point of jurisdiction; and this renders it unnecessary for me to express my sentiments on the residue of the points in the cause.

Decree affirmed, except as to interest on the amount of the specie in the hands of the defendant, Sullivan.

1821.

U.S. Bunk

(CONSTITUTIONAL Law.]

. Planters'

Bank.

The BANK OF THE UNITED STATEŚ

V.
The PLANTERS' BANK OF GEORGIA.

Thi Circuit Court of the United States have jurisdiction of soits

bioutie by the Bank vi the United States against another Bank, in-
ciu porated under a law ui in State, and of which the State itself is
a stockholder, together with private individuals, wiw are citizens of
the same State with son of the stockholders of the Bank of the

United States.
The Bank of the United States may suc in the Circuit Courts, as en.

dorsee or bearer of a promissory votc, although the original payee
or endorser could not sue in the same Courts, being a citizen of the

same State with the defendants. The circumstance that a State is a member of a private corporation,

will not give this Court original jurisdiction of suits where the cor. poration is a party, or oust the Circuit Courts of the jurisdiction vested in them by law.

March 11th.

THIS cause was brought up on a certificate of a division of opinion between tho Judges of the Circuit Court of Georgia, upon the questions arising in it, and was argued by the same counsel with the preceding case of Osborn o. The Bank of the United States.

March 20th.

Mr. Chief Justice Marshall delivered the opinion of the Court.

In this case, the petition of the plaintiffs, which, according to the practice of the State of Georgia, is substituted for a declaration, is founded on promissory notes, payable to a person named in the note, " or bearer," and states, that the notes were

Planters'

" duly transferred, assigned and delivered” to the 1824. plaintiffs, “who thereby became the lawful bearer

U. 8. Bank thereof, and entitled to payment of the sums therein specified; and that the defendants, in conside

Bank. ration of their liability, assumed," &c.

The Planters' Bank pleads to the jurisdiction of the Court, and alleges, that it is a corporation, of which the State of Georgia, and certain individuals, who are citizens of the same State with some of the plaintiffs, are members. The plea also alleges, that the persons to whom the notes mentioned in the petition were made payable, were citizens of the State of Georgia, and, therefore, incapable of suing the said Bank in a Circuit Court of the United States ; and being so incapable, could not, by transferring the notes to the plaintiffs, enable them to sue in that Court.

To this plea the plaintiffs demurred, and the defendants joined in demurrer.

On the argument of the demurrer, the Judges were divided on two questions :

1. Whether the averments in the declaration be sufficient in law to give this Court jurisdiotion of the cause ?

2. Whether, on the pleadings in the same, the plaintiffs be entitled to judgment ?

The first question was fully considered by the Court in the case of Osborne v. T'he Bank of the United States, and it is unnecessary to repeat the reasoning used in that case. We are of opinion, that the averments in the declaration are sufficient to give the Court jurisdiction of the cause.

Vol. IX.

114

1824.

U.S. Bank

Planters'
Bank.

2d. The second point is understood to involve two questions :

1. Does the circumstance that the State is a corporator, bring this cause within the clause in the constitution which gives jurisdiction to the Supreme Court where a State is a party, or bring it within the 11tb amendment ?

2. Does the fact that the note is made payable to a citizen of the State of Georgia, or bearer, oust the jurisdiction of the Court ?

1. Is the State of Georgia a party defendant in this case? If it is, then the suit, had the 11th amendment never been adopted, must have been brought in the Supreme Court of the United States. Could this Court have entertained jurisdiction in the case ?

We think it could not. To have given the Supreme Court original jurisdiction, the State must be plaintiff or defendant as a State, ind must, as a State, be a party on the recordA suit against the Planters' Bank of Georgia, is no more a suit against the State of Georgia, than against any other individual corporator. The State is not a party, that is, an entire party, in the cause.

If this suit could not have been brought originally in the Supreme Court, it would be difficult to show, that it is within the 11th amendinent. That amendment does not purport to do more than to restrain the construction which might otherwise be given to the constitution ;' and if this case be not one of which the Supreme Court could have taken original jurisdiction, it is not within the amend

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