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who had appeared and answered to the merits without raising the objection that he was sued for foreign acts of infringement, was held to have made a waiver.35

The defendant, when sued in a district where the complainant does not reside, may set up a counter-claim for infringement of other patents elsewhere.36 The pendency of a suit in the district where the defendant is incorporated is no defense to another suit against it in another district; but, in such a case, the accounting in the latter suit will be limited to infringements within the district.87

§ 62a. Waiver of objections as to residence. The non-resident defendant alone can object, because the suit is not brought in the proper district.1

The objection is waived by the joinder of issue, or, it seems, by a general appearance, without raising the same; even when

35 Sandusky Foundry & Mach. Co. v. DeLavaud, 251 Fed. 631.

36 United States Expansion Bolt Co. v. H. G. Kroncke H. Co., 316 Fed. 186.

37 Warren Bros. v. Montgomery, 172 Fed. 474.

$ 62a. 1 Camp v. Gress, 250 U. S. 308; Jewett v. Bradford Sav. Bank & Tr. Co., 45 Fed. 801; Smith v. Atchison, T. & S. F. R. Co., 64 Fed. 1; Freeman v. Am. Surety Co., 116 Fed. 548; Schiffer v. Anderson, C. C. A., 146 Fed. 457; H. J. Decker, Jr. & Co. v. Southern Ry Co., 189 Fed. 224.

2 Western Loan & Savings Co. v. Butte & Boston Consol. Min. Co., 210 U. S. 368, 52 L. ed. 1101; Atchison, T. & S. F. Ry. Co. v. Gilliland, C. C. A., 193 Fed. 608; Texas Co. v. Central Fuel Oil Co., C. C. A., 194 Fed. 1.

3 St. Louis & S. F. Ry. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659; Texas & P. Ry. Co. v. Cox, 145 U. S. 593, 603, 36 L. ed. 829, 832; Interior Const. & I. Co. v. Gibney, 160 U. S. 217, 40 L. ed. 401; Central Trust Co. v. MeGeorge, 151 U.

S. 129, 38 L. ed. 98; Fosha v. W. U. Tel. Co., 114 Fed. 704; Occidental Consol. Min. Co. v. Comstock Tunnel Co., 120 Fed. 518; U. S. Consol. Seeded Raisin Co. v. Phoenix Raisin, S. & P. Co., 124 Fed. 234; Philadelphia & Boston Face Brick Co. v. Warford, 123 Fed. 843; Corwin Mfg. Co. v. Henrici Washer Co., 151 Fed. 938; Thomson-Houston El. Co. v. Electrose Mfg. Co., 155 Fed. 543; Dulles v. H. D. Crippen Mfg. Co. et al., 156 Fed. 706; Bogue v. Chicago, B. & Q. R. Co., 193 Fed. 728. But see Chesapeake & O. Coal Agency Co. v. Fire Creek Coal & Coke Co., 119 Fed. 942.

Where the plaintiff's pleading in an action brought in the Federal court did not refer to the Employers' Liability Act, but the court submitted the case to the jury upon the theory that it was based there upon; it was held that the failure of the defendant to specify the objection that it could not be sued under such statute in that distriet was a submission to the juris diction. Erie R. Co. v. Kennedy, C. C. A., 191 Fed. 332; Simpson

neither of the parties resides within the district and the case was removed from a State court. It has been said that the service of a notice for the taking of depositions, which is entitled in the Federal court, is not such a waiver.5 When the facts which establish a lack of jurisdiction because of residence were not known when the defendant appeared or answered, he may move to dismiss the case upon that ground as soon as he discovers it even upon the trial. In such a case, the plaintiff is entitled to a hearing upon the question whether the defendant, when he appeared or at any time before the trial, did have sufficient information to believe that the action. was brought in the wrong district.7

It has been held that the proper method of raising the objection after a general appearance is by a motion for leave to file a plea to the jurisdiction. If it appears by the proof, that the defendant had no knowledge nor information sufficient to form a belief, that the plaintiff's averments of citizenship and residence were untrue, until shortly before his motion was made, he has an absolute right to plead to the jurisdiction upon such discovery. The issue as to defendant's knowledge or information may be tried upon affidavits before as well as

v. Cory, 204 Fed. 507, see infra, $$ 169, 170.

4 Matter of Moore, 209 U. S. 490, 52 L. ed. 904; where it was held that the filing by the plaintiff of an amended answer and his stipulation for a continuance after the removal was an acceptance of the jurisdiction of the Circuit Court. In Kreigh V. Westinghouse, Church, Kerr & Co., 214 U. S. 249, 53 L. ed. 984; it was held that such a waiver was made by a joinder of issue on the merits without such an objection. To a similar effect are the rulings in Western Loan & Sav. Co. v. Butte & Boston Consol. Min. Co., 210 U. S. 368, 52 L. ed. 1101; Corwin Mfg. Co. v. Henrici Washer Co., 151 Fed. 938; Louisville & N. R. Co. v. Fisher, C. C. A., 11 L.R.A.

(N.S.) 926, 155 Fed. 68; Proctor Coal Co. v. United States Fidelity & Guaranty Co., 158 Fed. 211.

5 Hubbard v. Chicago, M. & St. P. Ry. Co., 176 Fed. 994.

6 Lehigh Valley Coal Co. v. Washko, C. C. A., 231 Fed. 43.

7 Lehigh Valley Coal Co. v. Yensavage, C. C. A., 218 Fed. 547; Lenigh Valley Coal Co. v. Washko, C. C. A.. 231 Fed. 42.

8 Lehigh Valley Coal Co. v. Yensavage, C. C. A., 218 Fed. 547; Kever v. Phila. & Reading Coal & Iron Co., 234 Fed. 814, s. c., 241 Fed. 883; s. c., C. C. A., 260 Fed. 534.

9 Lehigh Valley Coal Co. v. Washko, C. C. A., 231 Fed. 42, 46, modifying Lehigh Valley Coal Co. v. Yensavage, C. C. A., 218 Fed. 547.

upon the trial,10 unless the judge directs that the issue be decided by a jury.

Where the facts concerning residence were known by the defendant but he claimed ignorance that there was a Federal question in the case, such a motion will be denied if the plaintiff's pleadings suggested this although plaintiff did not rest his cause of action squarely upon the Federal statute.11 The plea to the jurisdiction should not be joined with a plea to the merits.12 Should these be joined or a motion made to dismiss upon the jurisdiction and upon the merits the defendant will be deemed to have waived this jurisdictional objection.13 The court may allow the plaintiff to withdraw a juror or suspend the trial so that plaintiff may obtain witnesses to show the defendant's knowledge or information.14 When a plea to the jurisdiction was overruled, defendant was permitted to remstate its answer and have a trial upon the merits provided the plea was filed in good faith although its counsel was misled by inaccurate statements by defendant's agents.15

§ 63. Suits by assignees. "No district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made." The provisions of this limitation

10 Ibid. Kever v. Phila. & Reading Coal & Min. Co., 234 Fed. 814, S. C., 241 Fed. 883.

11 See $24, supra.

12 Lehigh Valley Coal Co. v. Yensavage, C. C. A., 218 Fed. 547; Kever v. Phila. & Reading Coal & Iron Co., 234 Fed. 814, s. c., 241 Fed. 883, s. c., C. C. A., 260 Fed. 334.

13 Lehigh Valley Coal Co. v. Yensavage, C. C. A., 218 Fed. 547; Kever v. Phila. & Reading Coal & Iron Co., 234 Fed. 814, s. c. 241 Fed. 883; Lehigh Valley Coal Co. v. Washko, C. C. A., 231 Fed. 42,

14 Lehigh Valley Coal Co. V. Washko, C. C. A., 231 Fed. 42, 47. 15 Philadelphia & Reading Coal & Iron Co. v. Kever, C. C. A., 260 Fed. 534, s. c., 241 Fed. 883.

§ 63. 1 Judicial Code, § 24, subd. 1, 36 St. at L. 1087. The former statute extended this limitation upon the jurisdiction to suits "to recover the contents of any promissory note or other chose in action It in favor of an assignee," &c. may be that the omission of the phrase will induce the courts to disregard some of the earlier decisions.

apply to all assignments of choses in action of the character

It seems, however, that it will be useful for the practitioner here to collect them. "The terms used, 'the contents of any promissory note or other chose in action,' were designed to embrace the rights the instrument conferred which were capable of enforcement by suit. They were not happily chosen to convey this meaning, but they have received a construction substantially to that purport in repeated decisions." Shoecraft v. Bloxham, 124 U. S. 730, 735, 31 L. ed. 574, 576; affirmed in Plant Inv. Co. v. Jacksonville, T. & K. W. Ry. Co., 152 U. S. 71, 76, 38 L. ed. 358, 360. The phrase "suit to recover the contents of a chose in action" includes suits to recover debts, Utah-Nevada Co. v. De Lamar, 113 Fed. 113, 66 C. C. A. 179; or any claims for damages for breach of contract, an oral contract as well as one in writing, or for torts connected with contract, Bushnell v. Kennedy, 9 Wall. 387, 390, 19 L. ed. 736; Sere v. Pitot, 6 Cranch, 332, 335, 336, 3 L. ed. 240, 241; Sheldon v. Gill, 8 How. 441, 449, 450, 12 L. ed. 1147, 1151; Tredway v. Sanger, 107 U. S. 323, 325, 27 L. ed. 582, 583; Mersman v. Werges, 112 U. S. 139, 143, 28 L. ed. 641, 643; Corbin v. County of Black Hawk, 105 U. S. 659, 665, 666, 26 L. ed. 1136, 1138, 1139. But not the right of a corporation to set aside a contract made by its promoters which it had assumed, Commonwealth S. S. Co. v. Am. Shipbuilding Co., 197 Fed. 780; nor a suit by the assignee of a note to recover damages against a public officer for the illegal execution of the same, Indiana v. Glover, 155 U. Fed. Prac. Vol. I-17

S. 513, 39 L. ed. 243. The phrase also includes suits to foreclose mortgages, Kolze v. Hoadley, 200 U. S. 76, 50 L. ed. 377; Hoadley v. Day, 128 Fed. 302; Ban v. Columbia Southern Ry. Co., 109 Fed. 499 (a lien); although the bill also prays a cancellation of a fraudulent satisfaction thereof, Kolze v. Hoadley, 200 U. S. 76, 50 L. ed. 377. It includes suits to enforce the specific performance of contracts for the delivery of real or personal property, Corbin v. County of Black Hawk, 105 U. S. 659, 665, 26 L. ed. 1136, 1138; Shoecraft v. Bloxham, 124 U. S. 730, 31 L. ed. 574; Plant Inv. Co. v. Jacksonville, T. & K. W. Ry. Co., 152 U. S. 71, 76, 38 L. ed. 358, 360; Jackson & S. Co. v. Pearson, 60 Fed. 113. A suit to quiet title and to cancel tax deeds, where complainant sues as assignee of a mortgage and of a certificate of purchase, in foreclosure proceedings, without having acquired the legal title, Farr v. Hobeley, 173 U. S. 243, 43 L. ed. 684; Peters Land Co., C. C. A., 188 Fed. 10, reversing 170 Fed. 644; and to recover upon a contract of insurance with a reformation of the policy, Laird v. Indemnity Mut. M. Co., 44 Fed. 712. To enforce a partner's or agent's right to an accounting, Brown v. Beacom, C. C. A., 174 Fed. 812. The phrase does not include an action of replevin, Deshler v. Dodge, 16 How. 622, 631, 14 L. ed. 1085, 1088; Buckingham v. Dake, 112 Fed. 258, 50 C. C. A. 492. Or ejectment, Smith v. Kernochen, 7 How. 198, 12 L. ed. 666; Willitt v. Baker, 133 Fed. 937. Or otherwise brought to recover property taken

therein described whether they are made in good faith or collusive.

The words "if such instrument be payable to bearer and be not made by any corporation" do not limit the comprehensiveness of the phrase "chose in action." The effect of this clause is to deprive the District Courts of all jurisdiction for the recovery of promissory notes or other choses in action, except (1) suits upon foreign bills of exchange; (2) suits which might have been brought there had no assignment or transfer been made; and (3) suits upon choses in action made by corporations and payable to bearer. The restriction applies to the removal of cases.5

A draft drawn in one State and payable in another of the

by the defendant before the assignment of the title to the plaintiff, Gest v. Packwood, 39 Fed. 525. Even it has been held where the assignor was a partnership which conveyed its property to a corporation, all the stock of which was divided between the members of the firm. Slaughter v. Mallet Land & Cattle Co., C. C. A., 141 Fed. 282. But see §§ 46, 47, supra. Nor a suit to recover damages for the conversion of personal property, Ambler v. Eppinger, 137 U. S. 480, 34 L. ed. 765. Nor a claim against a railroad company to recover excessive overcharges for freight, Conn v. Chicago, B. & Q. R. Co., 48 Fed. 177. Nor a suit in equity to compel the transfer of stock on the books of a corporation, Jewett v. Bradford S. B. Tr. Co., 45 Fed. 801. Nor, it has been held a suit by the assignee of a corporate debt to enforce the individual liability of a stockholder, Ballard v. Bell, 1 Mason, 243. But the court refused to entertain a bill for the appointment of the receiver of a corporation filed by a pledgee of its stock whose pledgor was a citizen of the cor

poration's State, Gorman-Wright
Co. v. Wright, 134 Fed. 363, 67
C. C. A. 345. But see Cole v. Phila.
& E. Ry. Co., 140 Fed. 944. It has
been suggested that the restriction
applies only to contracts "which
may be properly said to have con-
tents," not to "mere naked rights
of action founded on some wrongful
act,'-some neglect of duty to
which the law attaches damages,
such as failure to protest a note;
but to rights of action founded on
contracts which contain within them-
selves some promise or duty to be
performed,'' Barney v. Globe Bank,
5 Blatch. 107. See, however, Bush-
nell v.
Kennedy, 9 Wall. 387, 391,
19 L. ed. 736, 738; Ambler v. Ep-
pinger, 137 U. S. 480, 483, 34 L.
ed. 765, 766.

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2 Consolidated Rubber Tire Co. v. Ferguson, C. C. A., 183 Fed. 756. 3 Mexican Nat. R. Co. v. Davison, 157 U. S. 201, 206, 207, 39 L. ed. 672, 674, 675.

4 Newgass v. New Orleans, 33 Fed. 196; New Orleans v. Quinlan, 173 U. S. 191, 43 L. ed. 664.

5 Guaranty Tr. Co. v. McCabe, C. C. A., 217 Fed. 699.

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