course of judicial proceedings pertain to any of said suits, causes, unfinished business as fully as the said circuit court in and for the districts of Missouri might have done if said circuit court had not ceased to exist.

SEC. 654. Process issued out of former circuit court for Missouri.-The service of process, mesne or final, issued out of said circuit court of the United States in and for the districts of Missouri, which service was had after the eighth day of June, eighteen hundred and seventy-two, and all levies, seizures, and sales made thereunder, also all service, seizures levies, and sales made under any process which issued as out of said court after the said eighth day of June, eighteen hundred and seventy-two, are made valid, and all said processes are to be deemed returnable to said circuit court of the United States in and for the eastern district of Missouri as of the return day thereof.

25 Feb., 1873, c. 200, s. 2, v. 17, p. 476.

SEC. 655. Transfer of cases between eastern and western districts.-Either of the circuit courts for the eastern and for the western district of Missouri may order any suit, cause, or other matter pending therein, and commenced prior to the creation of said new court, to be transferred for trial or determination to the other of said circuit courts when, in the opinion of the court, said transfer ought to be made; and the court to which said transfer is made shall have as full authority and jurisdiction over the same from the date the certified transcript of the record thereof is filed as if the same had been originally pending therein.

25 Feb., 1873, c. 200, s. 3, v. 17, p. 476.

SEC. 656. Custody of books, papers, etc., of circuit court of Missouri.-That the clerk of the circuit court for the eastern district of Missouri, and his successors in office, shall have the custody of all records, books, papers, and property belonging or in any wise appertaining to said circuit

court of the United States in and for the district of Missouri, and, as such custodians and the successors of the clerk of said last-named court, they are hereby invested with the same powers and authority with respect thereto as the clerk thereof had during the existence of said last-named circuit court. Said circuit court for the eastern district of Missouri is hereby made the successor of said circuit court of the United States in and for the districts of Missouri as to all suits, causes, and unfinished business therein or in any wise pertaining thereto, except as hereinbefore provided.

25 Feb., 1873, c. 200, s. 4, v. 17, p. 476.

SEC. 657. Circuit court for southern district of New York, how limited.--The original jurisdiction of the circuit court for the southern district of New York shall not be construed to extend to causes of action arising within the northern district of said State.

3. April, 1818, c. 32, s. 6, v. 3, p. 415.

Under the act of April 3, 1818, section 6, reproduced by this section, it was held that the provision did not exclude from the jurisdiction of the circuit court for the southern district of New York, causes of action arising out of the State of New York. Wheeler v. McCormick, 8 Blatch., 267 (1871).

ACT OF MARCH 3, 1875.-AN ACT to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes.

SEC. 1. Original, concurrent and appellate jurisdiction. Be it enacted by the Senate and House of Repre sentatives of the United States in Congress assembled: That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States, or a controversy be

tween citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens, or subjects; and shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the district courts of the crimes and offenses cognizable therein. But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceedings, except as hereinafter provided; nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant and bills of exchange. And the circuit courts shall also have appellate jurisdiction from the district courts under the regulations and restrictions prescribed by law.

The Constitution, and sections one and two of this act, are correlated. It is manifest from the similar phraseology of the first and second sections of the act of 1875, in reference to jurisdiction of the circuit courts, that many of the authorities construing either of these sections, in this respect, would be equally applicable to the other. These sections follow the language of the Constitution, and their provisions are correlated. If, by reason of citizenship, the circuit court may take original cognizance of a case, for the same reason may a cause be removed from the State to the circuit court. In one case, only, the jurisdiction of the circuit court in appeal cases seems to be enlarged, namely, in case of suit founded on contract, brought in the State Court by the assignee of such contract. Such a suit may be there brought without regard to the citizenship of the parties, and removed to the circuit court if it be made to appear that the real parties in interest are citizens of different States, and the circuit court would have jurisdiction of such a suit so far as citizenship is concerned. But, if the suit had been brought originally in a circuit court of the United States, it would be necessary further to show the proper citizenship of the assignor of the contract. The exception in section one, relating to assigned contracts is, "nor shall any circuit or district court have cognizance of any suit founded on contract in

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favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made." It would have made these sections more consistent and harmonious if this provision had also been incorporated into the second section.

Construction of the first section by the Supreme Court.-In construing the first section of this act, Mr. Chief Justice WAITE, in The Pacific Railroad v. Ketchum, 101 U. S., 298, observes: "The same general language is used in the second section of the same act in respect to the removal of suits from the State courts, and in Removal Cases (100 U. S., 457), we held it to mean that when the controversey about which the suit was brought was between citizens of different States, the courts of the United States might take jurisdiction without regard to the position the parties occupied in the pleadings as plaintiffs or defendants. For the purposes of jurisdiction, the court had power to ascertain the real matter in dispute, and arrange the parties on one side or the other of that dispute. If in such arrangement it appeared that those on one side were all citizens of different States from those on the other, jurisdiction might be entertained and the cause proceeded with. That ruling, we think, applies as well to the first section as to the second."

But an omission to aver sufficiently that the defendant is a citizen of a different State from that of the plaintiff, is amendable. Kelsey v. Pennsylva

nia R. Co., 14 Blatch., 89.

Under this section of the act it has been held that the circuit courts have jurisdiction of a bill to foreclose a mortgage given to secure certain notes of the mortgagor, which notes and mortgage were sold and transferred by the payees and mortgagees named therein, and by written assignment and delivery came to the hands of the complainant, complainant being a non-resident, and the maker a citizen of the State, although the assignor could not, by reason of his citizenship, have brought the suit. Seckel v. Backhaus, 7 Biss., 354. In this case no question seems to have been raised in relation to the negotiability of the notes, although the decision involved a construction of the act of 1875.

But the statutes of a State may enter into and become a part of a note. Thus, the statutes of Indiana make all promissory notes negotiable so far as to vest the property in each indorsee, successively; but unless the note is made payable to order or bearer at a particular bank, whatever equity the maker was entitled to against the payee, he may assert it against the indorsee. Under such a statute it was held that the United States courts in the State had no jurisdiction of an action by a non-resident assignee of a note, not made payable at a bank, against the resident maker and assignee of the same, under the act of 1875. Gregg v. Weston, 7 Biss., 360.

Where both parties were aliens.-It was frequently decided, that, under the Constitution of the United States, when both plaintiff and defendant were aliens, a suit in the federal courts could not be maintained. And these decisions rested upon the constitutional limitation. Montalet v. Murray, 4 Cr.; 46; Mossman v. Higginson, 4 Dal., 12; Piquignot v. The Pennsylvania R. Co., 16 How., 104; Hinckley v. Byrne, 1 Deady, 224. And the law in this respect is not changed by the act of 1875.

Where the State is plaintiff against its citizens.-The circuit courts of the United States have not jurisdiction of a case, either at law or in equity, in which a State is a plaintiff against its own citizens, as the Constitution of the United States does not confer jurisdiction in such a case, nor any act of Congress. State of North Carolina v. Dewey, 1 Hughes, 133; Gale v. Babcock, 4 Wash., C. C., 1199; Osborne v. The United States Bank, 9 Wh., 738. See, also, Cohen v. Virginia, 6 Wh., 392; Martin v. Hunter, 1 Wh., 237.

But where the case affects the property of the State in the hands of its officers or agents as trustees, if the property or agent is within the jurisdiction of the court, it will take cognizance of the case without requiring the State to be a party. Swazey v. North Carolina R. Co., 1 Hughes, 17; Osborne v. The United States Bank, supra.

Nominal and formal parties.-" Where the real and only controversey is between citizens of different States, or an alien and a citizen, and the plaintiff is by some positive rule of law compelled to use the name of another to perform merely a ministerial act, who has not, nor ever had any interest in or control over it, the courts of the United States will not consider any others as parties to the suit than the persons between whom the litigation before them exists." Mr. Justice CLIFFORD in Walden v. Skinner, 101 U. S., 577, citing, McNutt v. Bland, 2 How., 9, 15; Browne v. Strode, 5 Cr., 303; Coal Company v. Blatchford, 11 Wall., 172, 177; Wormley v. Wormley, 8 Wh., 451.

Formal parties do not oust the jurisdiction of the court, even if they are without the requisite citizenship, where it appears that the real controversey is between citizens of different States. Mr. Justice Miller, in Arapahoe County v. Kansas Pacific R. Co., 4 Dill., 277; Hervey v. The Illinois Mid. R. Co., 7 Biss., 103.

Who are citizens.-Where an individual has resided in a State for a considerable time, being engaged in the prosecution of business, he may well be presumed to be a citizen of such State, unless the contrary appears. On a removal of a person from one State to another citizenship may depend upon the intention of a person. The exercise of a right of suffrage would ordinarily be conclusive upon the subject; but acquiring a right of suffrage accompanied by acts which show a permanent location, may be sufficient. Shelton v. Tiffin, 6 How., 163. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, was held not to be a citizen. Dred Scott v. Sanford, 19 How., 393 (1856).

Citizenship of corporations.-It was formerly held that a citizen of one State could not sue a corporation in the circuit court of the United States in another State unless all the members of the corporation were citizens of the State in which the suit was brought, as a corporation was not a citizen. Bank of United States v. Deveaux, 5 Cr., 84 (1809); Commercial Bank v. Slocomb, 14 Pet., 60 (1840); Ward v. Arredondo, 1 Paine, 410. But this doctrine has been overthrown and the above authorities overruled by numerous recent decisions, holding that a corporation is a citizen within the meaning of the Constitution and the judiciary acts, so far as jurisdiction of the federal