Adler v. Newcomb

1 F. Cas. 177, 16 Int. Rev. Rec. 142

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: September 15, 1872
• Status: Published

Opinion

TREAT, District Judge,

held that, while the act of 1806 allowed a party injured by breach of the condition of marshal’s bond to be substituted in the place of the United States and to bricg suit in his own name, it was not intended thereby to take from the federal courts the jurisdiction they previously had over such cases. The act did not change the jurisdiction, but simply conferred upon an injured party the right to sue in his own name instead of in the name of the United States to his use, and in legal intendment the federal courts had now the same jurisdiction over such cases as they had before the act was passed; and therefore in the present case the court had jurisdiction, notwithstanding the fact that the suit was between citizens of the same state.

On the argument upon the demurrers a point was raised as to the mode of pleading, and on this point the court held that the position [petition] was defective, in this: that it asked judgment for the whole penalty of the bond instead of asking only for the damages sustained, siuce by section 3 of the act of 1806 (2 Stat. 372) it is prjvided that after any judgment rendered on the bond of a marshal, such bond shall remain as a security for future breaches until the whole of the penalty shall have been recovered. Upon this ground the demurrer was sustained, and leave given to plaintiff to amend.