Considering the capacity of carrying on the trade of banking as an important feature in the character of this corporation, which was necessary to make it a fit instrument for the objects for which it was created, the court adheres to its decision in the case of M'Culloch v. The State of Maryland, and is of opinion that the act of the state of Ohio, which is certainly much more objectionable than that of the state of Maryland, is repugnant to a law of the United States made in pursuance of the constitution, and, therefore, void. The counsel for the appellants are too intelligent, and have too much self-respect, to pretend that a void act can afford any protection to the officers who execute it. They expressly admit that it cannot.

It being, then, shown, we think conclusively, that the defendants could derive neither authority nor protection from the act which they executed, and that this suit is not against the state of Ohio within the view of the constitution, the state being no party on the record, the only real question in the cause is, whether the record contains sufficient matter to justify the court in pronouncing a decree against the defendants? That this question is attended with great difficulty has not been concealed or denied. But when we reflect that the defendants, Osborn and Harper, are incontestably liable for the full amount of the money taken out of the bank; that the defendant, Currie, is also responsible for the sum received by him, it having come to his hands with full knowledge of the unlawful means by which it was acquired; that the defendant, Sullivan, is also responsible for the sum specifically delivered to him, with notice that it was the property of the bank, unless the form of having made an entry on the books of the treasury can countervail the fact that it was. in truth, kept untouched, in a trunk, by itself, as a deposit, to await the event of the pending suit respecting it. we may lay it down as a proposition, safely to be affirmed, that all the defendants in the cause were liable in an action at law for the amount of this decree. If the original injunction was properly awarded, for the reasons stated in the preceding part of this opinion, the money having reached the hands of all those

to whom it afterwards came, with notice of that injunction, might be pursued, so long as it remained a distinct deposit, neither mixed with the money of the treasury, nor put into circulation. Were it to be admitted that the original injunction was not properly awarded, still the amended and supplemental bill, which brings before the court all the parties who had been concerned in the transaction, was filed after the cause of action had completely accrued. The money of the bank had been taken, without authority, by some of the defendants, and was detained by the only person who was not an original wrongdoer, in a specific form; so that detinue might have been maintained for it, had it been in the power of the bank to prove the facts which are necessary to establish the identity of the property sued for. Under such circumstances, we think a court of equity may afford its aid, on the ground that a discovery is necessary, and also on the same principle that an injunction issues to restrain a person who has fraudulently obtained possession of negotiable notes from putting them into circulation, or a person having the apparent ownership of stock really belonging to another, from transferring it. The suit, then, might be as well sustained in a court of equity as in a court of law, and the objection, that the interests of the state are committed to subordinate agents, if true, is the unavoidable consequence of exemption from being sued,-of sovereignty. The interests of the United States are sometimes committed to subordinate agents. It was the case in Hoyt v. Gelston, in the case of The Apollon, and in the case of Doddridge's Lessee v. Thompson and Wright, and in many others. An independent foreign sovereign cannot be sued, and does not appear in court. But a friend of the court comes in, and, by suggestion, gives it to understand that his interests are involved in the controversy. The interests of the sovereign, in such a case, and in every other where he chooses to assert them under the name of the real party to the cause, are as well defended as if he were a party to the record. But his pretensions, where they are not well founded, cannot arrest the right of a party having a

to the thing for which he sues. Where the right is in the plaintiff, and the possession in the defendant, the inquiry cannot be stopped by the mere assertion of title in a sovereign. The court must proceed to investigate the assertion, and examine the title. In the case at bar, the tribunal established by the constitution, for the purpose of deciding, ultimately, in all cases of this description, had solemnly determined that a state law imposing a tax on the Bank of the United States was unconstitutional and void, before the wrong was committed for which this suit was brought.

9 Wh. 870.

THE BANK OF THE UNITED STATES v. THE PLANTERS' BANK OF GEORGIA.

FEBRUARY TERM, 1824.

[9 Wheaton's Reports, 904-914.]

The questions in this case are stated fully in the following opinion of the court as given by the chief justice:

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 notes, "or bearer," and states that the notes were "July transferred, assigned, and delivered" to the plaintiffs, "who thereby became the lawful bearer thereof, and entitled to payment of the sums therein specified; and that the defendants, in consideration 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 jurisdiction 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 Osborn v. The 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.

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 eleventh 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 eleventh 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, and must, as a state, be a party on the record. A suit against the Planters' Bank of Georgia is no more a suit against the state of Georgia than against any other individual corpora tor. 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 eleventh amendment. 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 amendment. This is not, we think, a case in which the character of the defendant gives jurisdiction to the court. If it did, the suit could be instituted only in the supreme court. This suit is not to be sustained because the