again confirmed in Abercrombie v. Dupuis, (a) with some symptoms of reluctance; and it would seem that the court was not entirely satisfied with the precise limits in which their jurisdiction had been circumscribed and embarrassed by their predecessors. But in Strawbridge v. Curtiss, (b) the limitation of the federal jurisdiction was considered as being still more close and precise. The Supreme Court declared, that where the interest was joint, and two or more persons were concerned in that interest, as joint plaintiffs, or joint defendants, each of them must be competent to sue, or liable to be sued, in the federal courts; and the suit was dismissed in that case, because some of the plaintiffs and defendants were citizens of the same state. (c) The next case that arose on this subject was, whether a corporation was a citizen within the meaning of the constitution, and could sue in the federal courts in consequence of its legal character; and it was decided, in the cases of The Hope Insurance Company v. Boardman, and of The Bank of the United States v. Deveaux, (d) that a corporation aggregate was not, in its corporate capacity, a citizen, and that its right to litigate in * 347 the federal courts depended upon the character of the individuals who compose the body politic, and which

(a) 1 Cranch, 343.

(b) 3 Ibid. 267.

樓

(c) But the Circuit Court of the United States is not deprived of its jurisdiction arising from the character of the party, by joining with an alien or citizen of another state, a mere nominal party, who does not possess the requisite character. 5 Cranch, 303. 8 Wheaton, 451. 1 Paine's Rep. 410. It has likewise been adjudged, that as the courts of Louisiana do not proceed according to the rules of the common law, but of the civil law, a suit may be brought in the federal courts by a resident alien against one or two obligors, bound severally as well as jointly, who reside in Louisiana, though the other obligor resides in another state. The rule in chancery and in the civil law is, that if the court can make a decree according to justice and equity between the parties before them, that decree shall not be withheld because a party out of its jurisdiction is not made a defendant, although he must have been united in the suit had he been within the reach of the process of the court. This was the principle of that decision. Breedlove v. Nicolet, 7 Peters's U. S. Rep. 413. See, also, Harrison v. Urann, 1 Story's R. 64. And now, by Act of Congress of February 28th, 1839, c. 36, if there be several defendants, and any one or more of them is not an inhabitant of, or not found in the district where the suit is brought, and does not voluntarily appear, the court may entertain jurisdiction, and proceed against the parties properly before it.

(d) 5 Cranch, 57, 61. Bank of Augusta v. Earle, 13 Peters's R. 519. Wood v. Hartford Fire Insurance Co. 13 Conn. R. 202, S. P.

character must appear by proper averments upon the record. (a) But a corporation aggregate, composed of citizens of one state, may sue a citizen of another state in the Circuit Court of the United States. If any of the stockholders are citizens of the same state, with the defendant, the federal courts have no jurisdiction. And the rule relative to suits originally instituted in the courts of the United States, requiring all the individuals composing the respective parties to possess the requisite character to give the court jurisdiction, applies equally to suits removed from the state courts. (b)

With respect to the question on the peculiar right of the Bank of the United States to sue in the federal courts, it was decided, in reference to the first bank of the United States, that no right was conferred on that bank by its act of incorporation to sue in those courts. It had only the ordinary corporate capacity to sue and be sued; and being an invisible, artificial being, a mere legal entity, and not a citizen, its right to sue must depend upon the character of the individuals of which it is composed. The constitution of the United States supposed apprehensions might exist, that the tribunals of the states would

(a) In Breithaupt v. The Bank of Georgia, 1 Peters's U. S. Rep. 238, it was there held, that a bill, to give jurisdiction, must state that the stockholders were citizens of Georgia.

(b) Ward v. Arredondo, 1 Paine's Rep. 410. Bank of Cumberland v. Willis, 3 Sumner, 472. But the very inconvenient and narrow doctrine contained in the cases of Strawbridge v. Curtiss, 3 Cranch, 267, Bank of the United States v. Deveaux, 5 Cranch, 84, and Comm. and R. R. Bank of Vicksburg v. Slocomb, 14 Peters's R. 60, was reviewed and overruled in The Louisville Railroad Comp. v. Letson, in 2 How. U. S. 497. It was there held, that a corporation created and doing business in a state, was an inhabitant of the state, capable of being treated as a citizen, for all purposes of suing and being sued, although some of the members of the corporation were not citizens of the state in which the suit was brought, and although the state itself might be a member of the corporation. This was a very important and salutary decision, and reinstated the federal courts in their essential jurisdiction in cases of suits between citizens of different states. The Act of Congress of the 28th February, 1839, gave aid to this decision, it being considered in its language and construction, as an enlargement of jurisdiction in respect to the character of the parties.

Day v. Newark

1 Rundle v. Delaware and Raritan Canal Co. 14 How. U. S. 95, 96. Manuf. Co. 1 Blatchford, R. 628. North. Ind. R. R. Co. v. Mich. Centr. R. R. Co. 15 How. U. S. 233, 247. Vallette v. Whitewater Valley Canal Co. 4 McLean, 192. ette Ins. Co. 5 Id. 461.

French v. Lafay

*348

not administer justice as impartially as those of the nation, to parties of every description, and, therefore, it established national tribunals for the decision of controversies between aliens and citizens, and between citizens of different states. The persons whom a corporation represents may be aliens or citizens, and the controversy is between persons suing by their corporate name for a corporate right, and the individual defendant. Where the members of the corporation are aliens or citizens of a different state from the opposite party, they come *within the reason and terms of the jurisdiction of the federal courts. The court can look beyond the corporate name, and notice the character of these members, who are not considered, to every intent, as placed out of view, and merged in the corporation. Incorporated aliens may sue a citizen, or the incorporated citizens of one state may sue a citizen of another state, in the federal courts, by their corporate name, and the controversy is substantially between aliens and a citizen, or between the citizens of one state and those of another. In that case, the president, directors, and company, of the Bank of the United States averred, that they were citizens of Pennsylvania, and that the defendants were citizens of Georgia; and this averment, nor traversed or denied, was sufficient to sustain the suit in the Circuit Court. In suits by the Bank of the United States, of 1816, such an averment is not necessary, because the Act incorporating the bank (a) authorizes it to sue and be sued in the Circuit Court of the United States, as well as in the state courts. Without such an express provision, it would have been difficult for the Bank of the United States ever to have sued in the federal courts, if the fact of citizenship of all the members was to be scrutinized, for there were probably few or no states which had not some stockholder of the bank a resident citizen. (b) It was indispensable for Congress to provide specially for a jurisdiction over suits in which the bank was concerned, or no jurisdiction could well have been sustained. It was truly observed, by the Supreme Court,

(a) Act of Congress, April 10, 1816, sec. 7.

(b) Osborn v. United States Bank, 9 Wheaton, 738. United States Bank v. Planters' Bank, 9 Wheaton, 904.

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 sue in right of his own character as a citizen or *349 alien, as the case may be, in the federal courts, and without reference to the character or domicil 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) 1

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

(a) Chappedelaine v. Dechenaux, 4 Cranch, 306, 308. Browne 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. Browne v. Strode, sup. McNutt v. Bland, 2 How. U. S. 9. (b) Sere v. Pitot, 6 Cranch, 332. Mayer v. Foulkrod, 4 Wash. Cir. Rep. 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, payable 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, U. S. C. C. Mass. Law Reporter for May, 1846.2

1 The equitable assignee of a claim to an account is within the restriction, if his assignor was not competent to sue on the ground of citizenship. Wilkinson v. Wilkinson, 2 Curtis, C. C. 582.

2 See Coffee v. Planters' Bank of Tennessee, 13 How. U. S. 183.

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. (a) 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 domicil of one of the parties, and his removal into the same state with the adverse party, pendente lile. (b) The jurisdiction depends upon the state of things at the time the action is 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. (c)

Jurisdic

tion where a

terested, and

not a party

The case of Osborn v. The Bank of the United state is in- States, (d) brought into view important principles touching the constitutional jurisdiction of the federal on record. 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

(a) 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 States. Seton v. Hanham, R. M. Charlton's Geo. Rep. 374. Hepburn . Ellzey, 2 Cranch, 445. Corporation of New Orleans v. Winter, 1 Wheaton, 91.

(b) Morgan v. Morgan, 2 Wheaton, 290. Clarke v. Mathewson, 12 Peters, 164. (c) Young v. Bryan, 6 Wheaton, 146. Mollan v. Torrance, 9 Wheaton, 537. (d) 9 Wheaton, 738.

1 Therefore the appointment of a person as consul of a foreign power does not work an abatement of a suit already commenced. Koppel v. Heinrichs, 1 Barb. S. C. Rep. 449.