courts is concerned; and that a suit brought by a citizen of one State against a corporation in its corporate name in the State of its locality, and by which it was created, is a suit between citizens of different States. Louisville R. Co. v. Letson, 1 How., 497 (1844); Marshal v. Baltimore, etc., R. Co., 16 Id., 314; Covington, etc., Co. v. Shepherd, 20 Id., 232; Railroad Co. v. Harris, 12 Wall., 65; Railroad Co. v. Whitton, 13 Wall., 270.

The burden of proof of citizenship.--Where a suit against a corporation was removed from a State court to the circuit court of the United States, on the ground that it was a controversy between citizens of different States, the plaintiff being a citizen of the State where the suit was brought, and a motion was made to remand the cause, it was held that the burden of proof was on the corporation, to show that it was not a citizen of the same State with the plaintiff; and that it is incumbent upon suitors who invoke the jurisdiction of the courts of the United States to bring themselves clearly within their jurisdiction. Copeland v. The Memphis Charleston R. Co., 3 Woods, C. C., 651 (1878).

A corporation that has appeared and answered generally in an action cannot afterward insist that the court never acquired jurisdiction over it, because process was not served upon it in the district of which it was a citizen at the time of service. Kelsey v. Pennsylvania R. Co., 14 Blatch., 89.

The circuit court cannot be ousted of jurisdiction by a stipulation of a foreign insurance company, that process issued in any suit brought in any court of the State, may be served on its agent, with like effect as service actually made on the company within the State. Ex parte Schollenbarger, 96 U. S., 369.

Who are not citizens.-A citizen of the District of Columbia is not a citizen of a State, within the meaning of the law of the United States relating to the jurisdiction of the courts of the United States, and cannot maintain an action against a citizen of a State in a circuit court of a State, where jurisdiction depends upon citizenship. Hepburn v. Ellzey, 2 Cr., 445; Barney v. Baltimore City, 6 Wall., 280. But see Sere v. Pitot, 6 Cr., 332; Railroad Co. v. Harris, 12 Wall., 85.

Nor can a citizen of a Territory, under like circumstances, sue a citizen of a State in the federal courts. Corporation of N. O. v. Winter, 1 Pet., 91. See, also, Wescott v. Fairfield, 1 Pet., C. C., 45.

And where the plaintiff was a native of New York, but had resided in Canada, and had been in business there thirty years before bringing his suit, and resided there when he brought suit, and had taken an oath of allegiance to the Queen of Great Britain, and the defendant was a citizen of Canada and a subject of the queen of Great Britain, it was held that a circuit court in New York had no jurisdiction of the case, as the plaintiff was not a citizen of the State. Prentiss v. Brennan, 2 Blatch., C. C., 162.

In case of the alienage of one party, the other must be a citizen. Under the judiciary act of 1789, construed in connection with the Constitution of the United States, it has been held that it was not sufficient to give jurisdiction of a suit to a circuit court, that one of the parties to it was an alien; that in order to give jurisdiction in such a case, one party

must be a citizen of the State; record. It must be averred. Brennan, 2 Blatch., C. C., 162; Twentyman, 2 Pet., 136.

and that this fact should appear upon the Montalet v. Murray, 4 Cr., 46; Prentiss v. Rateau v. Bernard, 3 Id., 244; Daniel v.

But it is not sufficient to give jurisdiction to allege that one party is an alien, but there must be a further allegation that he is a subject or citizen of some one foreign State. Wilson v. The City Bank, 3 Sum., 422; Picquet v. Swan, 5 Mason, 54; Birtheput v. Bank of Georgia, 1 Peters, 234.

And where the plaintiffs were aliens, but residents of the State of Louisiana at the time of the execution of the note sued on, and at the time of the commencement of the suit having a commercial house there, and the defendants were citizens of the same State, the residence of the plaintiffs within the State was held to constitute no objection to the jurisdiction of the federal Court. Breedlove v. Nicolet, 7 Pet., 413; Jones v. McMasters, 20 How., 8. A process of foreign attachment cannot be properly issued by the circuit courts of the United States, when the defendant is domiciled abroad, or, not found within the district where the process issues. Toland v. Sprague, 12 Pet., 300. But it was held in Grace v. Palmer, 8 Wh., 699, that it was not necessary to aver on the record that the defendant was an inhabitant of the district or found therein. Nor is it necessary that a citizen removing from a Territory or State into another, should acquire all the rights of a citizen of the State into which he removes; it is sufficient if he acquire a domicil there. Catlett v. Pacific Ins. Co., 1 Paine, 594.

The residence of the alien within the State constitutes no objection to the Jurisdiction, and he may sue or be sued where the other is a resident of the State. Breedlove v. Nicolet, 7 Pet., 413; Weems v. George, 13 How., 190; Bonaparte v. The Camden & Amboy R. Co., 1 Bald., C. C., 205. And an alien legatee or administrator may sue an executor who is a citizen of the State where suit is brought, although the testators were both citizens of the same State. Chappedelaine v. Dechenaux, 4 Cr., 306.

[The law in respect to aliens has not been materially changed by the act of 1875, which provides, as will be observed, that the circuit courts shall have jurisdiction of all controversies "between citizens of a State and foreign States, citizens or subjects." The clause of this subdivision of section 1, relating to arrest, and the place of bringing suit, and the provisions of subdivision 8 of said section are substantially the provisions of § § 738 and 739 of the Revised Statutes, and the latter may, perhaps, be treated as repealed by implication. See post, § § 738 and 739.]

Where there are several parties to an agreement, part of whom are made parties.-Where four parties to a compromise agreement resided in Louisana, and two parties to said agreement resided in Mississippi, and a suit in equity was brought in the circuit court of the former State against the two citizens of the latter, to set aside said agreement, the court held the residents of the State of Louisiana necessary parties; that the contracts could not be rescinded as to the two parties; that they could not be compelled, by cross bill, to make the Louisiana parties, said parties defendant; and that parties in Louisiana could not be forced into court in this way.

Shields v. Barrow, 17 How., 130; Morgan's Heirs v. Morgan, 2 Wh., 290, Mallow v. Hinde, 12 Id., 198.

Where a party defendant appears without objection.-Where the defendant appears without objection, it is an admission of the regularity of service; and it is not necessary to aver on the record that the defendant in the circuit or district court was an inhabitant of the district or found therein. Gracie v. Palmer, 8 Wh., 605; Pollard v. Pickett, 4 Cr., 421.

Jurisdiction to stay proceedings at law.-The circuit court has jurisdiction of a suit in equity to stay proceedings upon a judgment at law between the same parties obtained in the same court, although the subpoena was served upon defendant out of the district in which the suit was brought. Logan v. Patrick, 5 Cr., 288 (1809).

Citizenship of a defendant-inhabitancy.-Where the defendant is a citizen of the United States, but a resident of a foreign country, and not having any inhabitancy in any State of the Union, the circuit courts of the United States have no jurisdiction over him, in a suit brought by an alien against him, although he has property within the district which may be attached. Picquet v. Swan, 5 Mason, 35.

In case of foreign attachment.-Foreign attachment will not confer jurisdiction where the defendant is not an inhabitant of, or served with original process within the district. Hollingsworth v. Adams, 2 Dall., 396; Pallard v. Dwight, 4 Cr., 421; Fisher v. Cousequa, 2 Wash., C. C., 382.

66

Service must be personal unless waived.-The clause of the section prohibiting the bringing of suits against any person in the circuit or district courts in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of service of such process," etc., means that no judgment can be rendered by these courts against any defendant who has not been served with process issued against his person in the manner pointed out, unless he waives the necessity of such service by entering an appearance to the suit. Levy v. Fitzpatrick, 15 Pet., 167; Loland v. Sprague, 12 Id., 300; Harrison v. Rowan, 1 Pet., C. C., 489.

Exception in case of assignees.-The provision of the judiciary act (1789), that the circuit court shall not “have cognizance of any suit [the act of 1875 reads, "founded on contract in favor of an assignee," etc.] to recover the contents of any promissory note or other chose in action in favor of an assignee, unless the suit might have been prosecuted in such court to recover the said contents if no assignment had been made [the act of 1875 reads: "except in cases of promissory notes negotiable by the law merchant, and bills of exchange"] except in cases of foreign bills of exchange," applies only to rights of action (that is choses in action) • founded on contracts which contain within themselves some promise to be fulfilled or duty to be performed, and not to mere naked rights of action founded on some wrongful act, or some neglect of duty to which the law attaches damages, and the provision cannot be considered as applying to cases transferred from the State to the circuit courts. Bushnell v. Kennedy, 9 Wall., 387. See also, City of Lexington v. Butler, 14 Id., 282, where it

was also held, that the exception in the statute has no application to municipal bonds nor the coupons attached, where they are payable to bearer or are indorsed to bearer as they pass from one holder to another by delivery and without formal assignment.

Where a note is payable to a particular individual or to bearer the holder may maintain a sait on it in the circuit court without any allegation of the citizenship of the original payees if it is averred that the holder is a citizen of another State and the maker is a resident of the State where suit is brought. Ballard v. Bell, 1 Mason, 259; Bank of Kentucky v. Wister, 2 Pet., 321 (1829). So in case of an assignment by will the representative of the decedent need not aver the citizenship of the original payee or maker. Chappedelaine v. Dechenaux, 4 Cr., 306.

Under the act of 1875, circuit courts have jurisdiction of a bill to foreclose a mortgage in behalf of a non-resident plaintiff and assignee, although the assignor could not, by reason of citizenship, have filed the bill. Seckel v. Backhaus, 7 Biss., 354.

In Barney v. Globe Bank, 5 Blatch., C. C., 107, the suit was to recover damages from a corporation for its breach of an implied contract in neglecting to protest and give notice in regard to certain drafts forwarded to it by a correspondent bank, and the suit was brought by the assignee of the chose in action. The court decided that as the suit was to recover damages for the failure of the defendants to take proper steps to preserve the value of commercial paper, it was not a suit for the purpose of recovering “the contents of a promissory note or other chose in action," and therefore was not within the prohibition of the statute. See, also, Deshler v. Dodge, 16 How., 622.

It was also held that, under the eleventh section of the judiciary act, the assignee of a chose in action could sue in a federal court if the assignor might, at the time suit was brought, have there prosecuted the suit as if no assignment had been made; and this, although the assignor was, at the time of the assignment, a citizen of the same State with the maker. White v. Leahy, 3 Dill., C. C., 378.

A citizen of New York recovered a judgment against a citizen of Pennsylvania, in a court of that State, which the plaintiff assigned to a citizen of that State, whose executors assigned it to the complainant, who was an alien; it was held that he could sustain a bill in equity in the circuit court to enforce the judgment, notwithstanding the intermediate assignment to a citizen of Pennsylvania. Wilson v. Fisher's Executors, 1 Bald., C. C., 133 (1830). See, also, Irvine v. Lowry, 14 Pet., 293 (1840).

But where a suit was brought on a non-negotiable note by the assignee, where the maker, payee and indorsee were residents of the same State, it was held that the circuit court where the suit was brought had no jurisdiction. Shuford v. Cain, 1 Abb., U. S., C. C., 302.

The assignee of a mere chose in action must show affirmatively that the obligee of a note could have maintained suit. Bradley v. Rhines, 8 Wall., 393. The assignee of a promissory note (being otherwise competent) may maintain an action upon it if the assignor might have done so at the time of the commencement of the suit. And it is not necessary that it should appear

that the assignor could have brought suit upon it before the assignment. A payee, a resident of the same State with the maker at the time the note was given, but having since become a citizen of another State, may maintain an action on the note in the circuit court. Chamberlain v. Eckert, 2 Biss., 126; Thaxter v. Hatch, 6 McLean, 68 (1869). See, also, Kirkman v. Hamilton, 6 Pet., 20.

A circuit court has jurisdiction, so far as residence is concerned, of a suit brought by the indorsee of a promissory note, who is a citizen of one State, against the indorser, who is a citizen of another State, whether a suit could be brought against the maker or not. Young v. Bryan, 6 Wh., 146; Evans v. Gee, 11 Pet., 80; Coffee v. Planter's Bank, 13 How., 183; Mollan v. Torrence, 9 Wh., 537.

And the same doctrine is held in case of a suit by the indorsee of an inland bill of exchange against the indorser. Evans v. Gee, 11 Pet., 80 (1837).

The provisions of the act of March 3, 1875, it will be observed, contain the general provision of the Revision of 1874, against an assignee of a contract, but excepts "promissory notes negotiable by the law merchant and bills of exchange."

Assignees in bankruptcy or in case of insolvency.--The circuit court of the United States has jurisdiction of a common law or equity action brought by an assignee in bankruptcy, appointed in another district where such assignee is a citizen of another State, and the defendant is a citizen of the State where the action is brought, and the amount in dispute exceeds the sum of $500. Payston v. Dietz, 2 Dill., C. C., 504.

The circuit court has also jurisdiction, concurrent with the district court, of all actions by an assignee against persons claiming an adverse interest in the estate of the bankrupt. Hallack v. Tritch, 17 Bank, Reg., 293.

But in Sere v. Pitot, 6 Cranch, 332, it was held that a general assignee of the effects of an insolvent could not sue in the circuit court unless the insolvent might himself sue. A general assignee of an insolvent is an assignee within the meaning of the judiciary act of 1789, and he cannot sue if his assignor could not have sued in the circuit courts. Bradford v. Jenks, 2 McLean, 130; 1 Bald., 136.

Suits on railroad bonds and coupons.-A bond under seal, with coupons attached, executed by a city to a railroad company, both corporations being created by and located in the same State, which bond is transferred by indorsement to bearer, cannot be sued upon in the circuit court, for the recovery of their contents by the assignee, as the court would have no cognizance of a suit by the payee or original holder. Clark v. City of Janesville, 1 Biss., C. C., 98; Sheldon v. Sill, 8 How., 441; Deshler v. Dodge, 16 How., 622; Gibson v. Chew, 16 Pet., 315; Dromgoole v. Farmers' and Merchants' Bank, 2 How., 241; Thomson v. Lee County, 3 Wall., 327.

But jurisdiction attaches on the transfer of such a cause from a State court under the act of March 2, 1867, now § 639, subdivision 3 of the Revised Statutes. City of Lexington v. Butler, 14 Wall., 283. And the same ruling would undoubtedly be made under the act of March 3, 1875, as these would