Page:Federal Reporter, 1st Series, Volume 3.djvu/194

 FOSS ». FIKST NAT. BK. OP DENVEB. 187 �tion, or of a treaty. This question, was raised upon tha Becond section of the third article of the constitution, which iimits the judicial power of the United States to "cases in law and equity arising under this constitution, the laws of tha United States, and treaties made or which shall be made under their authority," and it was claimed that a case against a bank of the United States was not necessarily a case arising under a law of the United States. But the supreme court, in the case of Oshorn v. United States Bank, 9 Wheat. 738, in which an elaborate opinion was delivered by Chief Justice Marshall, held that the act of congress conf erring jurisdiction upon the circuit courts in ail suits by or against sueh banks, irrespective of the subject-matter, was constitutional. �This ruling applies with fuU force to the construction of the above-quoted proyision of the Eevised Statutes. �2. It seems to be well settled that the joining in a, suit of merely nominal or formai parties can bave no effect, either in conf erring or excluding jurisdiction. Browne v. Strode, 5 Cranch, 303 ; Wormley t. Wormley, 8 Wheat. 421 ; Wood et al. V. Davis, 18 How. 467. Trustees and exeeutors do not be- long to this class. They are, although suing for others, the real prosecutors of the suit. They are parties to the con- tract. McNutt v. Bland, 2 How. 9-10 ; Knapp v. Railroad Co. 20 Wall. 117. In the latter case, which was a suit by a trustee, the court said : "He is not a mere passive instru- ment in the litigation. On the contrary, he is active in pros- ecuting it, and would be remiss in his duty if he failed in using ail proper means to bring it to a suecessful issue. As the cause of action is vested in him, the court looks to his cit- izenship in determining the question of jurisdiction, and not to the residence of those persons who are beneficially inter- ested in the subject-matter of the litigation." McNutt v. Bland was a suit on the officiai bond of a sheriff executed to the governor of the state. The action was brought in the name of the governor of Mississippi, against a citizen of that state, but for the use of citizens of another state. _ The juris- diction was upheld upon the ground that the governor was a nominal party only, the court observing that "in no just ����