This case is here upon a certificate as to the original jurisdiction of the circuit court of the United States of this action.
A circuit court of the United States, as provided in the judiciary acts of 1887, 1888, may take original cognizance of any suit, at common law or in equity, arrising under the laws of the United States, if the value of the matter in dispute exceeds $2,000, exclusive of interest and costs. [24 Stat. at L. 552, chap. 373] 25 Stat. at L. 433, chap. 866, U.S.C.omp. Stat. 1901, p. 508. But if, within the meaning of that act, the United States is the plaintiff in the action, then jurisdiction exists in a circuit court without regard to such value. United States v. Sayward, 160 U.S. 493, 40 L. ed. 508, 16 Sup. Ct. Rep. 371; United States v. Shaw, 3 L.R.A. 232, 39 Fed. 433; United States v. Kentucky River Mills, 45 Fed. 273; United States v. Reid, 90 Fed. 522.
The contention of the Fidelity Company is that the government, in this case, is to be beemed a nominal party only, its name being used as plaintiff simply under the authority of the above act of 1894, chap. 280. In support of this position our attention is called to the following, among other cases: Browne v. Strode, 5 Cranch, 303, 3 L. ed. 108; McNutt v. Bland, 2 How. 9, 14, 11 L. ed. 159, 161; Maryland use of Markley v. Baldwin, 112 U.S. 490, 28 L. ed. 822, 5 Sup. Ct. Rep. 278; Stewart v. Baltimore & O. R. Co. 168 U.S. 455, 42 L. ed. 537, 18 Sup. Ct. Rep. 105.
Browne v. Strode was a suit in the circuit court for the district of Virginia in which the persons named in the declaration as plaintiffs were justices of the peace, all citizens of Virginia. The suit was on a bond given by an executor in conformity with a Virginia statute, and was for the recovery of a debt due from the testator in his lifetime to an alien, a British subject. The defendant was a citizen of Virginia. This court held that the circuit court had jurisdiction, notwithstanding the justices and the defendant were all citizens of the same state. This was, we assume, upon the ground that the justices were nominal parties only, while the beneficial party was an alien, and the defendant a citizen of the state in which the suit was brought.
McNutt v. Bland was a suit upon a bond given by a sheriff and running to the governor of the state, conditioned for the faithful performance of the duties of his office. The statute authorized suit to be brought and prosecuted from time to time at the cost of any party injured until the whole amount of the penalty was recovered. The suit was brought in the name of the governor for the use of certain parties who were citizens of New York. The court held that the sheriff and his sureties, citizens of Mississippi, could be sued by the parties in interest in their own name, and that no sound reason could be perceived 'for denying the right of prosecuting the same cause of action against the sheriff and his sureties in the bond, by and in the name of the governor, who is a purely naked trustee for any party injured. He is a mere conduit through whom the law affords a remedy to the person injured by the acts or omissions of the sheriff; the governor cannot prevent the institution or prosecution of the suit, nor has he any control over it. The real and only plaintiffs are the plaintiffs in the execution, who have a legal right to make the bond available for their indemnity, which right could not be contested in a suit in a state court of Mississippi, nor in a circuit court of the United States, in any other mode of proceeding than on the sheriff's bond.'
Maryland use of Markley v. Baldwin, 112 U.S. 490, 492, 28 L. ed. 822, 823, 5 Sup. Ct. Rep. 278, 279, was an action in a state court on an administrator's bond in the name of the state for the benefit of one Markley, a citizen of New Jersey, the obligors in the bond being citizens of Maryland. The action was removed to the circuit court of the United States. After referring to the cases of Browne v. Strode and McNutt v. Bland, the court said: 'The justices of the peace in the one case and the governor in the other were mere conduits through whom the law afforded a remedy to persons aggrieved, who alone constituted the complaining parties. So, in the present case, the state is a mere nominal party; she could not prevent the institution of the action, nor control the proceedings or the judgment therein. The case must be treated, so far as the jurisdiction of the circuit court of the United States is concerned, as though Markley was alone named as plaintiff; and the action was properly removed to that court.'