Planters' Bank is suable in the federal courts, but because the plaintiff has a right to sue any defendant in that court, who is not withdrawn from its jurisdiction by the constitution, or by law. The suit is against a corporation, and the judgment is to be satisfied by the property of the corporation, not by that of the individual corporators. The state does not, by becoming a corporator, identify itself with the corporation. The Planters' Bank of Georgia is not the state of Georgia, although the state holds an interest in it.

It is, we think, a sound principle, that, when a government becomes a partner in any trading company, it devests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted. Thus, many states of this union, who have an interest in banks, are not suable even in their own courts; yet they never exempt the corporation from being sued. The state of Georgia, by giving to the bank the capacity to sue and be sued, voluntarily strips itself of its sovereign character, so far as respects the transactions of the bank, and waives all the privileges of that character. As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other powers, in the management of the affairs of the corporation, than are expressly given by the incorporating act.

The government of the union held shares in the old Bank of the United States; but the privileges of the government were not imparted by that circumstance to the bank. The United States was not a party to suits brought by or against the bank, in the sense of the constitution. So with respect to the present bank. Suits brought by or against it are not understood to be brought by or against the United States. The government, by becoming a corporator, lays down its sovereignty, so far as respects the transactions of the corporation, and exercises no power or privilege which is not derived from the charter.

We think, then, that the Planters' Bank of Georgia is not exempted from being sued in the federal courts by the circumstance that the state is a corporator.

2. We proceed next to inquire whether the jurisdiction of the court is ousted by the circumstance that the notes on which the suit was instituted were made payable to citizens of the state of Georgia.

Without examining, whether in this case the original promise is not to the bearer, the court will proceed to the inore general question, whether the bank, as endorsee, may maintain a suit against the maker of a note payable to a citizen of the state. The words of the judiciary act, section eleventh, are, "Nor shall any district or circuit court have cognizance of any suit, to recover the contents of any promissory note, or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange."

This is a limitation on the jurisdiction conferred by the judiciary act. It was apprehended that bonds and notes, given, in the usual course of business, by citizens of the same state to each other, might be assigned to the citizens of another state, and thus render the maker liable to a suit in the federal courts. To remove this inconvenience, the act, which gives jurisdiction to the courts of the union over suits brought by the citizen of one state against the citizen of another, restrains that jurisdiction, where the suit is brought by an assignee, to cases where the suit might have been sustained, had no assignment been made. But the bank does not sue in virtue of any right conferred by the judiciary act, but in virtue of the right conferred by its charter. It does not sue because the defendant is a citizen of a different state from any of its members, but because its charter confers upon it the right of suing its debtors in a circuit court of the United States.

If the bank could not sue a person who was a citizen of the same state with any one of its members, in the circuit court,

this disability would defeat the power. There is, probably, not a commercial state in the union, some of whose citizens are not members of the Bank of the United States. There is, consequently, scarcely a debt due to the bank for which a suit could be maintained in a federal court, did the jurisdiction of the court depend on citizenship. A general power to sue in any circuit court of the United States, expressed in terms obviously intended to comprehend every case, would thus be construed to comprehend no case. Such a construction cannot be the correct one.

We think, then, that the charter gives to the bank a right to sue in the circuit courts of the United States, without regard to citizenship; and that the certificate on both questions must be in favor of the plaintiff.

9 Wh. 910.

POSTMASTER GENERAL v. EARLY AND OTHERS.

JANUARY TERM, 1827.

[12 Wheaton's Reports, 136-152.]

Early was postmaster at Savannah, and with the other de fendants executed a bond to pay over postages received by him. He did not do this, and was sued with his co-obligors in the circuit court for the district of Georgia by the postmaster general in his own name. He pleaded to the jurisdiction of the court on the ground, that, as the postmaster general had sued in his own name, the United States was not a party to the suit. The opinions of the circuit judges being opposed, the case was certified to the supreme court, the opinion of which was delivered by Chief Justice Marshall, as follows:

The postoffice department was established at the commencement of the Revolution, under the superintendence of a postmaster general, who was authorized to appoint his deputies, and was made responsible for their conduct. Soon after the adoption of the present government, in September, 1789, congress passed a temporary act, directing that a postmaster general should be appointed, and that his powers, and the regulations of his office, should be the same as they last were, "under the resolutions and ordinances of the last congress." The power of appointing deputies, therefore, and the responsibility for their conduct, still remained with the postmaster general.

This act was continued until the first day of June, 1792. In February, 1792, an act was passed detailing the duties and powers of the postmaster general, and fixing the rates of postage. It directs his deputies to settle at the end of every three months, and to pay up the moneys in their hands; on failure to do which, it becomes the duty of the postmaster general "to

cause a suit to be commenced against the person or persons so neglecting or refusing. And if the postmaster general shall not cause such suit to be commenced within three months from the end of every such three months, the balances due from every such delinquent shall be charged to and recoverable from him." This act was to take effect on the first of June, 1792, and to continue for two years. In May, 1794, a permanent act was passed. It retains the provision requiring the postmaster general to settle quarterly with his deputies, but omits that which makes it his duty to cause suits to be instituted within three months after failure.

In March, 1799, the subject was again taken up, and congress passed an act which retains the clause making it the duty of the deputy postmasters to settle their accounts quarterly, and reinstates that which directs the postmaster general to cause suits to be instituted against delinquents; substituting six months in the place of three after the expiration of the quarter, under the penalty of being himself chargeable with the arrears due from such delinquent. This act declares that all causes of action arising under it may be sued before the judicial courts of the several states and of the several territories of the United States.

In April, 1810, congress passed an act for regulating the postoffice establishment, which enacts, among others things, that all suits, thereafter to be brought for the recovery of debts or balances due to the general postoffice, should be instituted in the name of "the postmaster general of the United States." This act also authorizes all causes of action arising under it to be sued in the courts of the states and territories.

In March, 1815, congress passed "An Act to vest more effectually in the State Courts, and in the District Courts of the United States, Jurisdiction in the Cases therein mentioned."

This act enables the state courts to take cognizance of all suits arising under any law for the collection of any direct tax or internal duties of the United States. The fourth section contains this clause: "And be it further enacted, that the dis