# McNutt v. Bland

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## Dissenting Opinion

    Daniel
United States Supreme Court
43 U.S. 9
McNutt v. Bland
THIS case was brought up by writ of error from the Circuit Court of the United States for the southern district of Mississippi.
It was a suit upon a sheriff's bond, given by Bland, sheriff of Claiborne county, dated 10th November, 1837, and in the penalty of $15,000.
At the May term, 1837, of the Circuit Court of the United States for the southern district of Mississippi, Leggett, Smith, and Lawrence, citizens of New York, instituted a suit against George W. McNider, a citizen of Mississippi, and in November following obtained a judgment for $3,910.78.
On the 30th December, 1837, Leggett, Smith, and Lawrence sued out a writ of capias ad satisfaciendum, against the body of the said George McNider, which was directed to the marshal of the state of Mississippi. 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, using for this purpose the name of the governor of Mississippi, to whom the bond had been given. 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 of 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 suit any person might be in custody of such sheriff, where any execution should be delivered 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; and if any creditor should fail to appoint such agent, the sheriff should not be obliged to give notice previous to the discharge 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.
The replication to the second plea was, that the prisoner was, by virtue of process legally issuing from the Circuit Court of the United States, taken into custody by the marshal of the district, and by him was delivered to the defendant, Bland, for safe keeping, who was then sheriff of the county in which the prisoner was taken. That the prisoner was not discharged from custody aforesaid by virtue of any process emanating from any court of the United States or judge thereof, nor by virtue of any law of the United States, but that he was discharged contrary to the provisions of the several 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.
Jones, for the plaintiffs in error.
Walker, for the defendants.
Jones contended,
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 a prisoner, under the laws and jurisdiction of the United States, not of the state of Mississippi.
2. That the pleas of the defendant were insufficient, 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 have each separate systems for insolvent debtors; that they cannot be reconciled with each 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 How., 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 anything 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 discharged the prisoner, and the sheriff was pro hac vice the marshal. The latter was responsible to the former for the fees.
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 question raised below as to the power of the state. But the court below had no jurisdiction in the case, as it was between citizens of the same state. Although this court has decided that where the real party is out of the state, he may use the name of a nominal plaintiff within it, yet it has also decided that where the assignment is by operation of law, such a plaintiff cannot sue. The law of Mississippi gives no right of action on a sheriff's bond, but provides other remedies. Howard & Hutchinson, 625 et seq. They are by motion against the sheriff and his securities.
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 citizens of the state, and yet the bond would become of no use in cases of escape. The law of Mississippi accepting the Resolutions of 1789, gives a remedy to all parties concerned. How. and Hut., 49.
Mr. Justice BALDWIN delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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