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not voluntarily appearing to answer; and the non-joinder of parties who are not so inhabitants, or found within the district, shall constitute no matter of abatement or other objection to said suit." 5 Stat. at Large, 321.

Construction of the act of 1839.-In the construction of this act it was held that when four persons made a contract with a citizen of Ohio, and three of the four were citizens of Indiana, and suit was brought against the three in the circuit court of the United States for the district of Indiana, the other party not being a resident of that State, non-joinder of the latter was just:fied by the act. Clearwater v. Mcridith, 21 How., 489. See, also, Taylor v. Cook, 2 McLean, 66, 516.

So, it was held, that the joinder of a defendant not served, and who did not appear, but who was a citizen of the same State as the plaintiff, did not defeat the jurisdiction of the court, under the provisions of the act. Doremas r. Bennett, 4 McLean, 224. But that the joinder of such defendant, who was served, if he was not a mere nominal defendant, would oust the jurisdiction. Ketchum v. Farmers, etc., Co., 4 Id., 1; Coal Co. v. Blatchford, 11 Wall., 172; Sewing Machine Co. v. Case, 18 Wall., 553.

In case of co-plaintiffs and co-defendants generally.- Previous to the act of 1875 it was held that in case of controversies between citizens of different States, where the jurisdiction of the court depended upon the citizenship of the parties, if there were several co-plaintiffs, each plaintiff must be competent to sue, and if there were several co-defendants each defendant must be liable to be sued in the circuit court, or the jurisdiction could not be entertained. And where the proper citizenship of the parties was averred in a bill of complaint, and it thas appeared that some of the plaintiffs were disqualified by their citizenship from maintaining the suit, the defect could be taken advantage of by demurrer, or on motion, at any stage of the proceedings. A plea in abatement was required, only, when the citizenship averred was such as to support the jurisdiction of the court, and the defendant desired to controvert the averment. Coal Company v. Blatchford, 11 Wall., 172. How far this construction of the law, as it then existed, is applicable to the act of 1875, will be seen hereafter.

Again, it was held that where the parties to the suit are not indispensable, and the court had no jurisdiction over them for want of proper citizenship, and a decree could be made without prejudice to their rights, they could be dismissed, and the court retain jurisdiction of the case. Horn v. Lockhart, 17 Wall., 570.

And if the defendants had distinct interests, but substantial justice could be done by decreeing for or against one or more of them, over whom the court had jurisdiction, without affecting the interests of the others, its jurisdiction could be exercised as to them. The incapacity of the court to exercise jurisdiction over one defendant could not affect their jurisdiction over others whose interests were not connected with his, and from whom he could be separated by dismissing the bill as to him. Vattier v. Hinde, 7 Pet., 252. See, also, Nolan v. Torrence, 9 Wh., 537; Cameron v. McRoberts, 3 Id., 591; Connolly v. Taylor, 2 Pet., 556.

110

FEDERAL PRACTICE.

Jurisdiction not inferior must be shown by the record.The circuit courts are not inferior, in the technical sense, but they are subordinate to the Supreme Court. If the jurisdiction be not alleged in the proceedings, their judgments and decrees are erroneous and may, upon a writ of error or appeal, be reversed for that cause. McCormick v. Sullivant, 10 Wh., 192 (1825). See, also, Livingstone v. Van Ness, 1 Paine, C. C., 45 (1811); Wood v. Mann, 1 Sum., C. C., 578 (1834); Kempe v. Kenedy, 5 Cr., 173.

Suits in equity by the U.S.-Second. Of all suits in equity where the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, and the United States are petitioners.

24 Sept., 1789, c. 20, s. 11, v. 1, p. 78.

Powers in general.—The circuit court, has power, in a proper case, to prohibit a non-resident plaintiff from prosecuting an action against a defendant residing within the State; and will proceed, where it has jurisdiction, conformably to the general principles of the law, and the usage and practice of the court. They have power to control and stay actions pending before them, either by order on the common law side of the court, or by injunction on the equity side; but they will not exercise such authority over actions pending in a state court, nor will a State court interfere with actions pending in a federal court. City Bank v. Skelton, 2 Blatch., C. C., 26.

Consent cannot give jurisdiction.-Consent of the parties to a suit cannot give jurisdiction to federal courts, but the parties may admit the existence of facts whicb show jurisdiction, and the courts may act judicially thereon, in the absence of proof to the contrary. Railway Co. v. Ramsey, 22 Wall., 322. See The Lucy, 8 Id., 307; The Nonsuch, 9 Id., 504; Pennsylvania v. Quicksilver Co., 10 Id., 553; The Alice, 7 Id., 572. Nor can parties, by consent, waive objections to the jurisdiction of the circuit court. , Scott v. Sanford, 19 How., 393; Jackson v. Ashton, 8 Pet., 148.

Suits at common law.-Third. Of all suits at common law where the United States, or any officer thereof suing under the authority of any act of Congress, are plaintiffs,

24 Sept., 1789, c. 20, ss. 9, 11, v. 1, pp. 76, 78; 3 Mar., 1815, c. 101, s. 4, v. 3, p. 245.

Suit on an indorsed note or bill.--A bill of exchange was indorsed to T. T. Tucker, treasurer of the United States, who received it for the United States, and the bill had been purchased by the secretary of the treasury, with the money of the United States; it was afterwards indorsed by said treasurer to W. & S., and having been protested for non-acceptance and non-payment was returned to said Tucker. In a suit on said note, it was held, that the United States had such an interest in it, as enabled them to maintain the action. Dugan v. United States, 3 Wh., 173 (1818).

An act of congress is not necessary to enable the United States to sue; they can, like individuals, sue in their own name, unless a different mode is prescribed by law. And where a bill of exchange is duly indorsed to the treasurer of the United States, it may be declared on in the name of the United States; and an averment, that it was indorsed immediately to them, will be good. United States v. Barker, 1 Paine, 156 (1820). See, also, United States v. Baker, 12 Wh., 559.

For an exposition of the term “Common Law," see Parsons v. Bedford, 3 Pet., 433; Lorman v. Clarke, 2 McLean, 568 (1841).

If the United States sues on commercial paper, they have all the rights, and are subject to all the responsibilities, of individuals who are parties to such instruments. United States v. Bank of The Metropolis, 15 Pet., 377; United States v. Dunn, 6 Id., 51; The Floyd Acceptances, 7 Wall., 666.

Suits in relation to real or personal property, and on official bonds.— The United States have, in relation to the proprietorship of real or personal property, the same rights and remedies, and are subject to the same liabilities, in dealing with it in their public capacity, through legal agencies, as natural persons, except, perhaps, in respect to the law of limitations. Neilson v. Lagow, 12 How., 98 (1851); United States v. Tingey, 5 Pet., 115; United States v. Bradley, 10 Id., 343; Same v. Hodge, 6 How., 279, relating to a mortgage of real and personal property to secure the postoffice department. S. C., 13 How., 478.

The circuit courts of the United States have jurisdiction, in case of suits on the bonds of her agents and officers, given in accordance with the provisions of the statutes of the United States. See causes above cited. Also, Smith v. United States, 5 Pct., 293; Farrar & Brown v. United States, 5 Id., 373.

And where a bond was given to the Post Master General of the United States, by a post-master, conditioned for the faithful performance of his duty, it was held that the Post Master General was authorized to bring suit on the bond in the circuit court, in his own name at least, under the act of April 30, 1810. Post Master General of the U.S. v. Earley, 12 Wh., 136.

Suits under import, internal revenue and postal laws. -Fourth. Of all suits at law or in equity, arising under any act providing for revenue from imports or tonnage, except civil causes of admiralty and maritime jurisdiction, and seizures on land or waters not within admiralty and maritime jurisdiction, and except suits for penalties and forfeitures; of all causes arising under any law providing internal revenue, and of all causes arising under the postal laws.

Imports, 2 Mar., 1833, c. 57, s. 2, v. 4, p. 632; 24 Sept., 1789, c. 20, s. 9, v.1, p. 76; Internal Revenue, 13 July, 1866, c. 184, ss. 9, 19, v. 14, pp. 111, 145, 152; 2 Mar., 1867, c. 169, ss. 10, 25, v. 14, pp. 475, 483; 20 July, 1868, c. 186, s. 106, v. 15, p. 167; 30 June, 1864, c. 173, ss. 41, 179, v. 13, pp. 239, 240, 305; 3 Mar., 1865, c. 78, s. 1, v. 13, p. 483; Postal laws, 3 Mar., 1845, c. 43, s. 20, v. 5, p. 739.

Jurisdiction depending upon the subject-matter of the controversy.-The judiciary act of 1789 limited the jurisdiction of the circuit courts, so far as citizenship was concerned, to “suits between a citizen of a State in which the suit is brought and a citizen of another State." An act of 1833 extended the jurisdiction of the court to "all cases in law or equity arising under the revenue laws of the United States," for which other provisions had not been made. (4 Stat. at Large, 632.) Thus, it will be seen, that the right of action under the latter statute was not made to depend upon the citizenship of the parties, but upon the character of the controversy. Under this act citizens of the same State might sue each other for causes arising under the revenue laws; and a citizen might sue a revenue collector, for an injury sustained by an act done by virtue of his office, though a citizen of the same State. Another section of the act of 1833 provided: “That in any case where suit or prosecution shall be commenced in any court of any State, against any officer of the United States, or other person, for or on account of any act done under the revenue laws of the United States, or under color thereof, or for or on account of any right, authority, or title set up or claimed by such officer, or other person, under any such law of the United States," he might remove the same into the circuit court of the United States, in the district where the defendant was served with process. Under this act, many suits brought in the State courts were removed. See Ellioit v. Swartwout, 10 Pet., 137, and Bend v. Hoyt, 13 Id., 263. This provision of the act of 1833 was, by the express provisions of the act of 1864, extended to all cases arising under the then existing laws for the collection of internal revenue. (13 Stat. at Large, 241.) And while this provision of the act of 1846 was in force, a suit was instituted, under the revenue laws, against the assessor and collector of revenue of a district in Massachusetts, in the circuit court of that State, but before the case was disposed of in the Supreme Court, to which it was removed, the provision of the act of 1844, above referred to, was repealed by the act of 1866 (14 Stat at Large, 172); and it was also expressly provided in said act, that the act of 1833 should not be so construed as to apply to cases arising under the act of 1864, or any amendatory acts, nor to any cases in which the validity or interpretation of such act or acts should be in issue. The case was dismissed for want of jurisdiction, the court deciding, that where the jurisdiction of a cause depends upon a statute a repeal of the statute takes away the jurisdiction. Insurance Co. v. Ritchie, 5 Wall., 541; Philadelphia v. The Collector, 5 Id., 720; Hornthall v. The Collector, 9 Id., 561; The Assessors v. Osbornes, 9 d., 567.

The law as it existed at the time these cases were decided, and relating to the question under consideration, was evidently repealed by the fourth paragraph of Sec. 629 of the Revised Statutes, which provides, that the circuit courts, without regard to citizenship, shall have jurisdiction of all causes arising under any law providing internal revenue”; and the act of March 3, 1875 (see succeeding chapter), does not repeal this provision. The existing law would appear to secure the same rights, to parties in the circuit courts, based upon the subject-matter of the suit, which were formerly secured by the judiciary act of 1789, the act of 1833, and the act of 1864. Hence, if we are correct in our conclusions, the circuit courts have jurisdiction, without regard to the residence of the parties, “ of all causes arising under any law providing internal revenue."

Where a deputy coilector of internal revenue failed to pay cver taxes collected by him, under the provisions of section 67 of the act of July 13, 1866, it was held that the circuit court had jurisdiction of an action by the collector on the deputy's bond. Crawford v. Johnson, 1 Deady, 457.

As to the duty of circuit courts in admiralty cases on the instance side of the court, see act of February 16, 1875, § 1. - See, post, p. 236.

Suits for the enforcement of penalties.-Fifth. Of all suits and proceedings for the enforcement of any penalties provided by laws regulating the carriage of passengers in merchant vessels. [See ở 4270.)

3 Mar., 1855, c. 213, s. 15, v. 10, p. 720.

Condemnation of property-Sixth. Of all proceedings for the condemnation of property taken as prize, in pursuance of section fifty three hundred and eight, Title, “ INSURRECTION.” [See 28 5308,5309.)

6 Aug., 1861, c. 60, s. 2, v. 12, p. 319.

The section 5308 embraces real and personal property.-Under the provisions of the act of August 6, 1861, substantially section 5308, of the revision, Title, “INSURRECTION," which provides for the confiscation of property used for insurrectionary purposes, wherever found, it was held; that the act covered all descriptions of property, both real and personal, on land or on water; that the circuit court had jurisdiction under it of proceedings for the condemnation of real estate or other property on land; that such proceedings may be shaped in general conformity to the practice in admiralty, and that issues of fact in such cases should, on the demand of either party, be tried by a jury, such cases differing in this respect from seizure on navigable waters, where the course of admiralty practice may be strictly followed. Union Ins. Co. v. United States, 6 Wall., 759. See, also, The Sarah, 8 Wh., 394; The Vengeance, 3 Dall., 297. But see in case of pardon, Armstrong's Foundry, 6 Wall., 766; Ex parte, Garland, 4 Id., 380; Morris Cotton, 8 Id., 507.

Suits under slave-trade laws.-Seventh. Of all suits arising under any law relating to the slave trade.

22 Mar., 1794, c. 11, s. 1, v. 1, p. 347; 2 Mar., 1807, c. 22, s. 7, v. 2, p. 28; 20 April, 1818, c. 91, ss. 1, 2, 3, 4, v. 3, pp. 450, 451, 452; 3 Mar., 1819, c. 101, s. 1, v. 3, p. 532; 10 May, 1880, c. 51, ss. 1, 5, v. 2, pp. 70, 71.

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