cation was denied; and thereafter, on April 22, 1875, they filed in the circuit court a petition for a writ of certiorari to remove the same into that court, which was granted. Thereafter the cause proceeded to final judgment in favor of the defendants in that court.

The action of the circuit court in the removal of the cause from the state court is assigned for error, and is first to be considered. The suit was pending in the state court, but was not at issue, when the removal act of March 3, 1875, took effect, and the right of removal is regulated by its provisions. The ground of the removal was that the suit, being one of a civil nature at law, in which the matter in dispute, exclusive of costs, exceeded $500 in value, arose under the constitution and laws of the United States. It is clear that the circuit court did not err in directing the removal of the suit from the state court; for, if we look at the nature of the plaintiff's cause of action and the grounds of the defense, as set forth in his petition, it is apparent that the suit arose under a law of the United States. The action, as we have seen, was founded on the official bond of Packard as marshal of the United States for that district, his sureties being joined as co-defendants, and the acts complained of as illegal and injurious being charged to be breaches of its condition. The bond was required to be given by section 783, Rev. St., and section 784 expressly gives the right of action as follows:

"In the case of a breach of the condition of a marshal's bond, any person thereby injured may institute, in his own name and for his sole use, a suit on said bond and thereupon recover such damages as shall be legally assessed, with costs of suit, for which execution may issue for him in due form. If such party fails to recover in the suit, judgment shall be rendered and execution may issue against him for costs in favor of the defendant; and the United States shall in no case be liable for the same."

Sections 785 and 786 contain provisions regulating the suit, the latter prescribing the limitation of six years after the cause of action has accrued, after which no such suit shall be maintained, with the usual saving in behalf of persons under disabilities.

The counsel for plaintiff in error assumes in argument that the suit was to recover damages for alleged trespasses. It was plainly upon the bond itself, and therefore arose directly under the provisions of an act of congress. Gwin v. Breedlove, 2 How. 29; Gwin v. Barton, 6 How. 7.

In McKee v. Rains, 10 Wall. 22, the removal of which was held to be unlawful, was made under the supposed authority of the act of March 3, 1863, and that of April 9, 1866. After the removal of the cause it was put at issue by the filing, on the part of the defendants, of an answer and an amended answer. In these answers it was alleged that in a proceeding in bankruptcy against Dreyfus & Co., duly commenced in the district court for that district by David Valentine & Co. as creditors, an order was made directing "that the marshal take provisional possession of all the property of the said defendants,

real and personal, belonging to the said firm of E. Dreyfus & Co., or the individual members thereof, and particularly the merchandise pretended to have been transferred to Moses Feibelman, at Delta, Louisiana, and all of the books of account, bank-books, and papers of or relating to the business of said firm of E. Dreyfus & Co., and hold the same subject to the further orders of this court; " that a writ was issued in pursuance of that order to the defendant Packard, commanding him to execute said order, which is the writ mentioned in the plaintiff's petition; that, in obedience to the command of the said writ, the said marshal did take into his possession and custody the goods and property therein described and referred to, and none other; and that the said goods and property so taken and held are the same as those mentioned in the plaintiff's petition, the same having come into the possession of the plaintiff in pursuance of a fraudulent conspiracy between the plaintiff and Moses Feibelman and the members of the firm of E. Dreyfus & Co., the bankrupts, the object of which was to prevent the same from coming into the possession of the assignee in bankruptcy of said bankrupts, and so to cheat and defraud their creditors, the said goods and property being, when so seized, the property of said bankrupts, and not of the said Moses Feibelman, nor of the plaintiff, neither of whom were entitled to the possession of the same.


The plaintiff moved to strike from the answer the foregoing defense, which motion was overruled. This ruling of the court is assigned for The ground on which this assignment of error is predicated is, that by the law of Louisiana a person in possession of personal property as owner, claiming title, cannot be disturbed in that possession by a seizure under judicial process running against another person; that a transfer in fraud of creditors cannot be attacked by a seizure by the marshal or sheriff, under an execution against the debtor, of the property in the hands of a third possessor; and that, consequently, in this suit, in which it was admitted that the goods had been taken out of the possession of the plaintiff, it was not competent to set up as a defense actual title in the bankrupts.

In support of this proposition, we are referred by counsel to various sections of the Revised Civil Code of Louisiana, and to numerous decisions thereon by the supreme court of that state; and the statement is made that the decision of this court in Hozey v. Buchanan, 16 Pet. 215, which, it is admitted, is not reconcilable with the conclusion insisted upon, was made without the point having been mentioned or considered as to the law of Louisiana, under which the case arose. But it is entirely immaterial, in our view of the case, what the law of Louisiana upon the point is, for the reason that that law has no application to it. The question relates, not to any law of that state, but to a law of the United States, and is, whether under the bankrupt act of 1867 the district court of the United States, sitting in bankruptcy, has jurisdiction to order the seizure and detention of goods, the property of the bankrupt, although in possession of another

under claim of title, and whether, in a subsequent action against the officer for obedience to such an order, he may justify the seizure by proof that the title to the property was at the time in the bankrupt. This was the very point decided by this court in Sharpe v. Doyle, 102 U. S. 686, a reference to which makes it unnecessary to repeat the grounds of the conclusion, that in such a case the defense here allowed, if established, should prevail.

All the other exceptions taken during the trial were directed to the admission of testimony in support of this defense, and are disposed of when the defense itself is adjudged to be valid.

There is, therefore, no error in the record, and the judgment is affirmed.

(109 U. S. 446)

CUNNINGHAM v. MACON & B. R. Co. and others

(December 3, 1883.)


Neither a state nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a state may be made a party in the supreme court of the United States by virtue of the original jurisdiction conferred on that court by the constitution; and wherever it can be clearly seen that the state is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction.

Where property of the state, or property in which the state has an interest, comes before the court and under its control, in the regular courses of judicial administration, without being forcibly taken from the possession of the government, the court will proceed to discharge its duty in regard to that property, and the state, if it choose to come in as plaintiff, as in prize cases, or to intervene in other cases when she may have a lien or other claim on the property, will be permitted to do so, but subject to the rule that her rights will receive the same consideration as any other party interested in the matter, and be subjected in like manner to the judgment of the court.

Where an individual is sued in tort for some act injurious to another in regard to person or property, or is proceeded against by mandamus in regard to a duty which he is personally bound to perform, and his defense is that he acted under the orders of his government, he is not sued as or because he is an officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him, and the state is not bound by the judgment of the court and generally its rights remain unaffected. Where the law has imposed upon an officer of the government a well-defined duty in regard to a specific matter, the performance of which is purely ministerial, and involves no element of discretion to be exercised by him, but in the performance of which one or more individuals have a distinct interest, a mandamus may issue, or a court of chancery may, by a mandatory decree or by injunction, compel the performance of the appropriate duty or enjoin the officer from doing that which is inconsistent with that duty, and with plaintiff's rights in the premises.

The governor of the state of Georgia, under authority of an act of the assembly passed December 3, 1866, indorsed $1,950,000 of the bonds of the Macon &

Brunswick Railroad Company, such bonds under the statute becoming a first mortgage on all the property of the railroad which could be enforced by fore. closure upon default of payment of the principal or interest when due. The company in 1870 executed a written mortgage confirming the lien created by the statute. In 1870 another series of bonds were indorsed under authority of an act passed October 27, 1870, and in that year the governor, on default in payment of the interest coupons on both series, placed the road in the hands of a receiver, and it was subsequently sold and conveyed to the state of Georgia for $1,000,000; the state afterwards taking up the whole of the first issue of bonds, and giving her own bonds in place of the bonds she had so indorsed. Plaintiff, a citizen of Virginia, and a holder of some of the second series of bonds, sought to have the sale to the state set aside, and filed a bill in the circuit court of the United States for the southern district of Georgia making the governor and the treasurer of the state of Georgia, the railroad company, certain of the directors of the company, and others, parties defendant. Held, that this was to all intents and purposes a suit against the state, and that this indirect way of making the state a party by proceeding against her officers was as open to objection as if she had been named as a defendant, and that the court had no jurisdiction.

Appeal from the Circuit Court of the United States for the Southern District of Georgia.

A. G. Magrath and W. W. Montgomery, for appellant. *Joseph H. Choate and Clifford Anderson, for appellees.

MILLER, J. This is an appeal from the decree of the circuit court for the southern district of Georgia, dismissing the bill of complainant on demurrer. The bill is filed by Cunningham, a citizen of the state of Virginia, against Alfred H. Colquitt, as governor of the state of Georgia, J. W. Renfroe, as treasurer of the state, the Macon & Brunswick Railroad Company, and A. Flewellen, W. A. Lofton, and George S. Jones, styling themselves directors of said railroad company, John H. James, a citizen of Georgia, and the First National Bank of MaThe bill sets out, with reasonable fullness and with references to exhibits which make its statements clear, what we will try to state. as far as necessary, in shorter terms.


It alleges that on the third day of December, 1866, the assembly of Georgia passed an act authorizing the governor to indorse the bonds of the Macon & Brunswick Railroad Company to the extent of $10,000 per mile, and that under this authority the governor indorsed bonds to the amount of $1,950,000, which were afterwards negotiated by said company. The statute under which this was done made the indorsement of these bonds to operate as a prior mortgage upon all the property of the company, which could be enforced by a sale by the governor upon default in payment of the bonds so indorsed, or interest on them as it fell due. In addition to this the company executed and delivered to the governor, on the twenty-second of June, 1870, a written mortgage confirming the lien created by the statute, which was duly acknowledged and recorded. October 27, 1870, the legislature, by an act amending the act of December 3, 1866, authorized the governor to indorse an additional $3,000 per mile of the bonds of the company, which was done, and of this series of bonds the complainant became the holder and owner of 19 for $1,000 each.


It is then alleged that on July 1, 1873, the company failed to pay its interest coupons upon both these sets of indorsed bonds, and that in a few days thereafter the governor, under the power vested in him by the act of 1866, took possession of the road and the property of the company and placed them in the hands of Flewellen as receiver; and that on the first Tuesday in June, 1875, he sold said road to the state of Georgia for the sum of $1,000,000, and made a conveyance of it to the state accordingly, a copy of which is filed as an exhibit to the bill. It is also alleged that the state of Georgia has taken up since that time the entire issue of $1,950,000, giving her own bonds in place of the bonds which she had so indorsed.

The bill assails this transaction because the governor, in advertising the sale, gave notice that he would accept in payment for bids bonds of the state at par, or bonds of the first series of $1,950,000 at their market value, or cash, and would not receive any of the second series of $600,000 in payment. Also because the sale was made improvidently, at a bad time, as the governor was informed by his agent, Flewellen, and because the governor was not authorized to bid for the property, and the state had no constitutional power to make the purchase. And it is further alleged that if the sale is not absolutely void, it is voidable, because under the statutory and executed mortgages the state is trustee of the property mortgaged for the benefit of the bondholders, and her purchase can be set aside by the beneficiaries under the trust when they elect to do so. The bill insists that by the taking up and payment of the first series of indorsed bonds their lien on the property is extinguished, and that of the second series is now become paramount, and this suit is brought to foreclose that mortgage lien. And if the court shall be of opinion that the sale was valid, then the bill insists that the holders of the second series were entitled to be paid pro rata under that sale, and that when the legislature of Georgia appropriates any money to pay the bonds which it gave in exchange for $1,950,000 of the indorsed railroad bonds, the amount so appropriated should be divided pro rata between these bonds and the $600,000 of the second series of indorsed bonds.

The prayer of the bill is for the appointment of a receiver, to whom all the property of the company shall be delivered; that the mortgage be foreclosed and the proceeds applied to payment of the bonds of the second series so far as necessary for that purpose. Or, if the court shall be of opinion that the sale was valid, that Renfroe be enjoined from paying the coupons of interest on the state bonds exchanged for the first series of bonds, and that the holders thereof be made parties to the suit, and be compelled to account to the holders of the $600,000 series of bonds for their pro rata share of said exchanged bonds; and the bill prays that Colquitt, the governor, and Renfroe, the treasurer, and the three directors of the company be compelled by subpoena to appear and answer it and certain interrogatories in it, and produce

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