Page images
PDF
EPUB

which the bank was concerned, or no jurisdiction could well have been sustained. It was truly observed, by the Supreme Court, that if the Bank of the United States could not sue a person who was a citizen of the same state with any one of its members, in the circuit courts, this disability would defeat the power.

A trustee who holds the legal interest is competent to *349 *sue in right of his own character as a citizen or alien, as the case may be, in the federal courts, and without reference to the character or domicile of his cestui que trust, unless he was created trustee for the fraudulent purpose of giving jurisdiction. (a) This rule equally applies to executors and administrators, who are considered as the real parties in interest; but it does not apply to the case of a general assignee of an insolvent debtor, and he cannot sue in the federal courts, if his assignor could not have sued there. The 11th section of the Judiciary Act will not permit jurisdiction to vest by the assignment of a chose in action (cases of foreign bills of exchange excepted), unless the original holder was entitled to sue; and whether the assignment was made by the act of the party, or by operations of law, makes no difference in the case. An executor or administrator is not an assignee, within the meaning of the 11th section of the Judiciary Act. (b) 1yl

(a) Chappedelaine v. Dechenaux, 4 Cranch, 306, 308; Brown v. Strode, 5 Cranch, 303. See also 5 Cranch, 91, and Childress v. Emory, 8 Wheaton, 642. If the nominal plaintiff and the real defendant be citizens of the state, yet if the party for whose use the suit was brought was a citizen of another state, the Circuit Court of the United States has jurisdiction. Brown v. Strode, supra; McNutt v. Bland, 2 How. 9. (b) Sere v. Pitot, 6 Cranch, 332; Mayer v. Foulkrod, 4 Wash. 349. But it is adjudged that a note payable to A, or bearer, may be sued in the federal courts, in his own name, and that the 11th section of the Judiciary Act does not apply. Bullard v. Bell, 1 Mason, 243; Halsted v. Lyon, 2 McLean, 226. So the holder of a negotiable note, payble to the maker's own order, and indorsed, may sue the maker in the federal courts, though the holder be a citizen of another state; for the right passes not by assignment, but to bearer by delivery. Towne v. Smith, 9 Law Rep. 12; [1 Woodb. & M. 115.]

1 What is a chose in action within the section ? The act speaks of " any suit to recover the contents of any promissory

yl By statute March 3, 1875, 18 St. at L. 470, the exception in the original act is made to apply to "promissory notes negotiable by the law merchant and bills of exchange." Since this statute, an

note or other chose in action in favor of an assignee." In Bushnell v. Kennedy, 9 Wall. 387, 393, it is said to be hard to

assignee may sue on a claim not founded in contract without regard to the citizenship of his assignor. Van Bokkelen v. Cook, 5 Saw. 587.

With respect to the District of Columbia, and to the territorial districts of the United States, they are not states, within the sense of the Constitution and of the Judiciary Act, so as to enable a citizen thereof to sue a citizen of one of the states in the federal courts. However extraordinary it might seem to be, that the courts of the United States, which were open to aliens, and to the citizens of every state, should be closed upon the inhabitants of those districts, on the construction that they were not citizens of a state, yet, as the court observed, this was a subject for legislative, and not for judicial, consideration. (c) 2

it is necessary to be one upon record, and it may be doubted whether the exception mentioned above in note (a) extends beyond the case of bonds given to an officer in his official capacity. The decided cases are of that nature. Hull v. Hutchinson, 14 How. 586.

(c) The term state, in the sense of the Constitution, applies only to the members of the American confederacy, and does not extend to a territory of the United reconcile Sere v. Pitot with later judg. ments, and the Chief Justice inclines to the view that the restriction of the 11th section applies only to rights of action founded on contracts which contain within themselves some promise or duty to be performed, and not to those arising out of some wrongful act or neglect of duty to which the law attaches damages (citing Barney v. Globe Bank, 2 Am. Law Reg. N. s. 229). He even intimates that the restriction might well have been limited to written promises to pay money, upon which an assignee could sue without using the name of the assignor. xl

A case not within this clause is replevin brought to recover bank-notes in specie, which lies, if the plaintiff has the requisite citizenship, although the assignor is of the same state with the defendant. Deshler v. Dodge, 16 How. 622. So a suit to recover possession of mortgaged premises; but not one to enforce the payment of the debt by sale or decree against the mortgagor. Ib. 631, citing Smith v. Kernochen, 7 How. 198; Sheldon v. Sill, 8 How. 441. See further, Weems v. George, 13 How. 190. As to parties, the general rule is that to be a party for the purpose of jurisdiction,

rl In Corbin v. County of Black Hawk, 105 U. S. 659, it was held that a suit to compel specific performance of a contract fell within the corresponding section of the Revised Statutes (§ 629).

An equitable assignee of a claim to an account is within the clause. Wilkinson v. Wilkinson, 2 Curt. 582; ante, 302.

In addition to the cases given in note (b) above, the restriction does not apply to bonds payable in blank or to bearer. White v. Vermont & Mass. R. R., 21 How. 575; Thomson v. Lee County, 3 Wall. 327. x2 And an indorsee may sue his immediate indorser, although he could not have maintained an action against the maker. Post, 350; Coffee v. Planters' Bank of Tennessee, 13 How. 183.

The assignee of a chose in action must show affirmatively that the action might have been maintained by the assignor if no assignment had been made. Bradley v. Rhines, 8 Wall. 393.

2 Barney v. Baltimore, 6 Wall. 280; ante, 345, n. 1. Compare Miners' Bank v. Iowa, 12 How. 1; Scott v. Jones, 5 How. 343, cited ante, 326, n. 1.

r2 Town of Thompson v. Perrine, 106 U. S. 589; Township of Chickaming v. Carpenter, ib. 663; City of Lexington v. Butler, 14 Wall. 282.

350

*If the jurisdiction of the Circuit Court between citizens of different states has once vested, it is not devested by a subsequent change of domicile of one of the parties, and his removal into the same state with the adverse party, pendente lite. (a) The jurisdiction depends upon the state of things at the time the action was brought. So, an indorsee of a note, who resides in one state, may sue his immediate indorser, who resides in another state, though that immediate indorser and the maker be residents of the same state. The indorsement is a new contract between the parties to the record, quite distinct from the original note. (b)

5. Jurisdiction when a State is interested. The case of Osborn v. The Bank of the United States (c) brought into view important principles touching the constitutional jurisdiction of the federal courts, where a state claimed to be essentially a party. The court decided, that the circuit courts had lawful jurisdiction, under the act of Congress incorporating the national bank, of a bill in equity brought by the bank for the purpose of protecting it in the exercise of its franchises, which were threatened to be invaded under a law of the State of Ohio; and that as the state itself could not be made a party defendant, the suit might be maintained against the officers and agents of the state who were intrusted with the execution of such laws.

As the amendment to the Constitution prohibited a state to be made a party defendant by individuals of other states, the court felt the pressure and difficulty of the objection, that the state of Ohio was substantially a party defendant, inasmuch as the process of the court in the suit acted directly upon the state, by restraining its officers from executing the law of the state. The direct interest of the state in the suit was admitted, but the objection,

if it were valid, would go, in its consequences, completely * 351 to destroy the powers of the Union. If the federal courts had no jurisdiction, then the agents of a state, under an unconstitutional law of the state, might arrest the

States. Seton v. Hanham, R. M. Charlton (Ga.) 374; Hepburn v. Ellzey, 2 Cranch, 445; Corporation of New Orleans v. Winter, 1 Wheaton, 91; [ante, 326, n. 1.]

(a) Morgan v. Morgan, 2 Wheaton, 290; Clarke v. Matthewson, 12 Peters, 164. (b) Young v. Bryan, 6 Wheaton, 146; Mollan v. Torrance, 9 Wheaton, 537; [Coffee v. Planters' Bank of Tennessee, 13 How. 183.]

(c) 9 Wheaton, 738.

execution of any law of the United States. A state might impose a fine or penalty on any person employed in the execution of any law of the Union, and levy it, by a ministerial officer, without the sanction even of its own courts. All the various public officers of the United States, such as the carrier of the mail, the collector of the revenue, and the marshal of the district, might be inhibited, under ruinous penalties, from the performance of their respective duties. And if the courts of the United States cannot rightfully protect the agents who execute every law authorized by the Constitution, from the direct action of state agents in the collection of penalties, they could not rightfully protect those who execute any law. The court insisted, that there was no such deplorable failure of jurisdiction, and that the federal judiciary might rightfully protect those employed in carrying into execution the laws of the Union from the attempts of a particular state, by its agents, to resist the execution of those laws. It may use preventive proceedings, by injunction or otherwise, against the agents or officers of the state, and authorize proceedings against the very property seized by the agent; and the court concluded, that a suit brought against individuals, for any cause whatever, was not a suit against a state, in the sense of the Constitution. The Constitution contemplated a distinction between cases in which a state was interested, and those in which it was a party; and to be a party for the purpose of jurisdiction, it is necessary to be one upon record. The Constitution only intended a party on record, and to be shown in the first instance by the simple inspection of the record, and that is what is intended in all cases where jurisdiction depends upon the party. (a) 1

The question of jurisdiction depending upon the character and residence of parties, came again into discussion in the case of The

(a) In the case of McNutt v. Bland, 2 How. 9, it was decided that a citizen of another state might sue a citizen of Mississippi, in the Circuit Court of the United States, though he sued in the name of the nominal plaintiff or trustee, who was also a citizen of Mississippi, provided he was the party in interest. Mr. Justice Daniel dissented, and contended, on the authority of prior decisions, that the jurisdiction depended, not on the situation of the parties concerned in interest, but on the character of the parties appearing on the record.

1 The opinion of Mr. Justice Daniel mentioned in note (a) seems to state the general rule, and the exception is in the

case of bonds given to an officer in his official capacity, ante, 349, n. 1.

* 352 Bank of the United States v. The Planters' Bank of Georgia; (a) and it was decided that the circuit courts had jurisdiction of suits brought by the Bank of the United States against a state bank, notwithstanding the state itself was a stockholder, together with private individuals who were citizens of the same state with some of the stockholders of the Bank of the United States. It was declared that the state of Georgia was not, as a state, to be deemed a party defendant, though interested as a stockholder in the defence. The state, so far as concerned that transaction, was divested of its sovereign character, and took that of a private citizen; and this principle applies to every case in which the government becomes a partner in any trading company. (b)

We have seen how far the courts of the United States have a common-law jurisdiction; and it appears to have been wholly disclaimed in criminal cases; and the true distinction would seem to be, that all federal jurisdiction in civil and criminal cases must be derived from the Constitution and the laws made in pursuance of it; and that when the jurisdiction is vested, the principles of the common law are necessary to the due exercise of that jurisdiction. We have seen likewise, with what caution, and within what precise limits, the federal courts have exercised jurisdiction, in controversies between citizens and aliens, and between citizens of different states. In the next lecture we shall enter upon a particular examination of the powers and claims of the federal courts, relative to admiralty and maritime jurisdiction.

(a) 9 Wheaton, 904; Bank of Kentucky v. Wister, 2 Peters, 318, s. p. In this last case it was decided that an incorporated bank was suable, though the whole property and control of the bank belonged to the state incorporating it.

(b) Story, J., 11 Peters, 349.

[410]

« PreviousContinue »