Opinion of the Court.

the cases cited, therefore, can be regarded as affecting the authority of that case.

As to the act of Congress which declares that sureties on bonds given to the United States shall have the same right of priority which the United States have by law, we do not think that it contains anything to modify the result to which we have come. The act referred to is now to be found in § 3468 Rev. Stat., and is as follows:

"Whenever the principal in any bond given to the United States is insolvent, or whenever such principal being deceased, his estate and effects which come to the hands of his executor, administrator, or assignee, are insufficient for the payment of his debts, in either of such cases any surety on the bond, or the executor, administrator, or assignee of such surety, pays to the United States the money due upon such bond, such surety, his executor, administrator, or assignee, shall have the like priority for the recov ery and receipt of the moneys out of the estate and effects of such insolvent or deceased principal as is secured to the United States; and may bring and maintain suit upon the bond in law or equity, in his own name, for the recovery of all moneys paid thereon."

We do not understand that this section was intended to embrace recognizances in criminal cases. The section is taken from, and is substantially a reproduction of, the proviso of the 65th section of the act to regulate the collection of duties, approved March 2d, 1799, 1 Stat. 676. That section related to bonds given for the payment of duties, and declared that, if not satisfied when due, they should be prosecuted without delay; and in all cases of insolvency, or where an estate in the hands of executors, administrators, or assignees should be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States, on any such bond or bonds, should be first satisfied; and any executor, administrator, or assignee who should pay other debts before paying the United States, should be personally liable; and the proviso then declared that if the principal in any bond given for duties or goods, wares, or merchandise imported, or other penalty, should be insolvent, or if, being deceased, his estate should be insuffi

Opinion of the Court.

cient to pay all his debts, and if, in either of such cases, any surety on the said bond or bonds, or the executors, administrators or assignees of such surety, should pay to the United States the money due upon such bond or bonds, such surety, &c., should have the like advantage, priority, or preference for the recovery of the said moneys out of the estate of such insolvent, or deceased principal, as were reserved or secured to the United States, and should and might bring and maintain a suit or suits upon said bond or bonds in law or equity in his, her, or their own name or names for the recovery of all moneys paid thereon.

The only difference between section 3468 of the Revised Statutes and this proviso is, that the latter in terms relates to bonds given for duties, whilst the former uses the more general terms "whenever the principal in any bond given to the United States is insolvent, &c." If it was intended by Congress to enlarge the scope of the section so as to include other bonds than those given for duties (as seems to be the necessary inference from the language), still it is restricted to "bonds:" the words are, "whenever the principal in any bond given to the United States is insolvent, &c.," and any "surety on the bond" pays the money due upon "such bond," such surety shall have the like priority, &c., and may bring and maintain a suit upon "the bond" in his own name, &c. This cautious phraseology, so carefully avoiding any general words of enlargement beyond the article of "bonds" alone, seems to imply that, in extending the peculiar privileges given to sureties, it was only intended to do so in reference to obligations of the same general character with those referred to in the original act, that is to say, bonds conditioned for the payment of money, or, at most, to embrace, besides, those conditioned for the performance of some civil duty, such as the faithful discharge of the duties of an office, &c. Had it been intended to include sureties for appearance in criminal cases, the word "recognizance," or some other appropriate term, or some general word adapted to the purpose, would naturally have been used. The revisers would not have proposed, nor would Congress have made, such a fundamental change in the law as the extension of this provision to criminal

Opinion of the Court.

cases, without employing more appropriate terms for that purpose than those which the section contains. It will not be inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such intention be clearly expressed. McDonald v. Hovey, ante, p. 619.

Our opinion is that the right of subrogation does not exist in this case.

But if the sureties were entitled under the act to the same priority which the United States have, they are not entitled to use the name of the United States in prosecuting their claim. The statute expressly declares that they must sue in their own The reason is obvious. The government has many advantages in proceeding which are not possessed by individuals, and is not liable to costs; and individuals prosecuting claims against other individuals ought not to have the advantage of the name and prestige of the United States. In the case of United States v. Preston, 4 Wash. Cir. Rep. 446, the surety in a duty bond, having paid the judgment recovered on it, brought an action in the name of the United States, for his own use, against the assignees of the principals, and contended that he was entitled to every advantage which the United States are entitled to in such a suit, as to sue in the federal court, to require special bail, to demand a trial at the return of the writ, to exclude equitable defences, &c. The court, by Mr. Justice Washington, held that the action could not be brought in the name of the United States, but only in the name of the surety himself, and that the only advantage which the law gave to the surety was that of priority over other creditors, and not in the form and modes of proceeding.

As it is conceded that the United States have received full satisfaction of the recognizance on which the present suit is based, and that this suit is not prosecuted for the benefit of the United States, but solely for the benefit of the sureties, we are of opinion that it cannot be sustained; but that the bill ought to be dismissed, as well on the ground that the sureties are not subrogated to the rights of the United States, as on the ground that they cannot sue in the name of the United States.

This conclusion does not touch the merits of the case as set

Opinion of the Court.

up in the bill, considered as a bill filed by the United States on their own behalf and for their own use; but the bill itself shows that it was filed for the benefit of the sureties, although they may not have paid their recognizance when it was filed. Without deciding, therefore, whether, on demurrer, the bill might or might not have been sustained, considered purely as a bill filed by the United States on their own behalf, we are satisfied that its dismissal by the court below was right, considered as a bill filed on behalf, and for the benefit of, the sureties. And as it is now admitted that the United States have been satisfied and paid, and as, for this reason, if for no other, the bill should be dismissed, our conclusion is that The decree of the court below be affirmed, but without costs— each party to pay their own costs on this appeal.

LEGGETT v. ALLEN, Assignee.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK.

Submitted March 3d, 1884.-Decided March 10th, 1884.

Bankruptcy.

This court has no jurisdiction to review a judgment of a Circuit Court rendered in a proceeding upon an appeal from an order of a District Court rejecting the claim of a supposed creditor against the estate of a bankrupt. Wiswall v. Campbell, 93 U. S. 347, affirmed.

Motion to dismiss.

Mr. A. J. Falls for appellee, moving.

Mr. Thorndike Saunders for appellant, opposing.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This motion is granted on the authority of Wiswail v. Campbell, 93 U. S. 347, in which it was decided that this court has no jurisdiction to review a judgment of the Circuit Court, rendered in a proceeding upon an appeal from an order of the

Statement of Facts.

District Court rejecting the claim of a supposed creditor against the estate of the bankrupt, and for the reason that a proceeding to prove a debt is part of the suit in bankruptcy, and not an independent suit at law or in equity. Such being the nature of the proceeding, it is a matter of no consequence whether the appeal from the District Court to the Circuit Court was taken by the creditor or the assignee, for it has always been held that this court has no control over judgments or orders made by the Circuit Courts in mere bankruptcy proceedings. It is unnecessary to repeat here what was said in Wiswall v. Campbell. This case and that are in all material respects alike. Dismissed.

THE MAMIE.

PARCHER & Another v. CUDDY, Administrator.

ORIGINAL MOTION, ENTITLED IN A CAUSE PENDING ON APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN.

Submitted March 4th, 1884.-Decided March 10th, 1884.

Injunction-Limited Liability.

This court will refuse an application for injunction to stay proceedings begun in a State court before the filing of a libel to obtain the benefit of the limited liability act, Rev. St. § 4283-4-5, when it appears that both courts below decided against the petitioner's right to the benefit of the act, and that no cause for granting the petition is shown except the expense consequent upon trials in the State court pending the appeal.

The steam yacht Mamie, engaged in carrying passengers on the Detroit River, came into collision with another steamer and sank, by reason of which several passengers were drowned. Their administrator commenced suits in the State court to recover damages from the owners of the yacht. The owners then commenced proceedings in admiralty in the District Court for the Eastern District of Michigan, to obtain the benefit of the limited liability act. The District Court dismissed the libel