not be comprehended within the exception in the first section, "of promissory notes negotiable by the law merchant and bills of exchange."

The holder of a note payable to bearer.-The delivery of a note payable to bearer, without a written indorsement or assignment of the same, does not constitute the holder and owner of the same an assignee within the meaning of the judiciary acts, and consequently he, if a citizen of another State, may maintain an action on the note in the circuit court of the State where the maker resides. Smith v. Clapp, 15 Pet., 125; Bank of Kentucky v. Wistar, 2 Id., 315; Bonnaface v. Williams, 3 How., 574; White v. The Vt. & Mass. R. Co., 21 Id., 575; Halsted v. Lyon, 2 McLean, C. C., 226; Sackett v. Davis, 3 Id., 101 (1842).

Where the court will take cognizance without regard to citizenship. And in cases where the court has acquired original jurisdiction solely by reason of the citizenship of the parties it will sometimes retain it, as to third parties, without regard to their citizenship; as, where their interest has become complicated by the litigation, either as to the origal judgment, or as to any property in the custody of the court, or any abuse or misapplication of its process. In such cases it will, to prevent a failure of justice, give such parties a hearing without regard to their citizenship. Cornwell v. White Water etc. Co., 4 Biss., C. C., 195; Barth v. McKeever, 4 Id., 206; Freeman v. Howe, 24 How., 450; Minnesota R. Co. v. St. Paul R. Co., 2 Wall., 609. But see Duncan v. Clark, 8 Pet., 1.

Nominal parties and those having only equitable interests.— The circuit court has jurisdiction of a suit on the bond of an executor, where the plaintiff is an alien, and the defendant a resident of the State where the suit is brought; it being a suit to recover a debt due from the testator in his lifetime to a British subject. Browne v. Strode, 5 Cr., 303; Wood v. Davis, 18 How., 467; Wormley v. Wormley, 8 Wh., 421; McNutt v. Bland, 2 How., 10.

Executors and administrators are nominal parties and, if they are personally qualified by their citizenship to bring suits in the federal courts, the jurisdiction will not be defeated by the fact that the parties whom they represent may be disqualified. Coal Co. v. Blatchford, 11 Wall, 172; where the above cases, Wood v. Davis, and McNutt v. Bland, are explained and distinguished.

So, the court has jurisdiction in the case of a receiver, who is a non-resident plaintiff, against a resident defendant, where the proceeding is auxiliary to the original proceeding. Davis v. Gray, 16 Wall., 203. See, also, Weed Sewing Machine Co. v. Wicks, 3 Dill., 261.

Formal parties cannot divest jurisdiction.-Where certain parties had only a nominal interest as defendants, and resided beyond the jurisdiction of the court, it was held error in the circuit court, under the act of 1839, to dismiss the bill because they were not made parties. The court, in such a case, should go on to a decree against the actual defendants, where all who have a beneficial interest are in court. Union Bank v. Stafford, 12 How., 327 (1851); Wood v. Davis, 18 Id., 467; Ward v. Arredondo, 1 Paine,

If the parties are not indispensable, and the court has no jurisdiction over them for want of proper citizenship, they may be dismissed, if a decree can be made without prejudice to their rights, and the court retain jurisdiction of the case as to the other parties. Horn v. Lockhart, 17 Wall., 570. See, also, Vattier v. Hinde, 7 Pet., 252; Mollan v. Torrence, 9 Wh., 537; Cameron v. McRoberts, 3 Id., 591; Connolley v. Taylor, 2 Pet., 556.

The jurisdiction of the circuit court cannot be defeated by the fact that with the principal defendant are joined, as nominal parties, the executors of a deceased trustee, citizens of the same State as the complainant, to perform the ministerial act of conveying title. in case the power to do so is vested in them by the laws of the State. Walden v. Skinner, 101 U. S., 577. Where the citizenship of the parties gives jurisdiction and the legal right to sue is in the plaintiff, the court will not inquire into the residence of those who may have an equitable interest in the claim. A person having a legal right, may sue at law in the federal courts, without reference to the citizenship of those who may have the equitable interest. Boniface v. Williams, 3 How., 574 (1845). See, also, in Smith v. Kernochen, 7 How., 198, where it was decided, that when a mortgagor and mortgagee are citizens of the same State, and the mortgagee assigns the mortgage to a citizen of another State for the purpose of bringing the suit for a foreclosure in the circuit court, it was necessary, in order to divest the court of jurisdiction, to bring home to the assignee a knowledge of this motive and purpose; that if the assignment was only fictitious, then the suit in fact would be between citizens of the same State; but that the question of jurisdiction in such a case should have been raised by a plea in abatement, and not upon a trial of the merits. If a conveyance is made merely for the purpose of enabling a party to sue it will not give jurisdiction. Barney v. Mayor, 1 Hugh., 118. See, also, Barney v. Baltimore City, 6 Wall., 280, where it was held, that a citizen of the District of Columbia, cannot be a party to a suit in a federal court, where the jurisdiction depends upon the citizenship of the parties; and that the fact that a transfer had been made of the subject of controversy for the purpose, vesting an interest in parties competent to litigate in the federal courts, does not defeat jurisdiction, if the transaction vests the real interest in the grantee or assignee.

Jurisdiction as dependent upon the amount in controversy. -Where a bill was filed for an injunction to restrain the collection of a railroad tax on the property of several complainants, on the question of jurisdiction depending on the amount in controversy the court held, that while it might be true, that several tax payers could join in such a bill, yet as to each so entitled to join there must be in dispute an amount exceeding the sum or value of $500; in other words, that where the interest of each is in its nature several, and the whole amount of tax demanded or demandable of each is less than that sum, so that neither one would have a right to bring the bill alone, the requisite amount to confer jurisdiction cannot be had by aggregating the several amounts of tax each is liable to pay. Ring v. Wilson, 1 Dill., C. C., 555; Adams v. Board of Commissioners, 1 McCahon, 235. See, also, Bank of the United States v. Moss, 6 How., 37.

So it was held, that, although to give the circuit court jurisdiction, the

matter in dispute must exceed $500, exclusive of costs, yet the amount of all that is claimed in all the counts of the declaration, upon causes of action which are properly joined, may be considered in determining this question. Judson v. Macon County, 2 Dill., C. C., 213. In passing upon the question of jurisdiction the court will look to the amount claimed in the body of the complaint, and not be governed by the amount in the prayer for judgment. 4 Id., 239; Lee v. Watson, 1 Wall., 337; where it is said that "the matter in dispute in an action upon a money demand is the debt claimed and its amount as stated in the body of the declaration, and not merely the damages alleged in the statement, or the prayer for judgment at its conclusion."

If the damages claimed exceed $500, and the plaintiff recovers less, it cannot affect the jurisdiction of the court, but the plaintiff does not recover costs. Gordon v. Longest, 16 Pet., 97 (1842). See, also, Lessee of Lanning v. Dolph, 4 Wash., C. C., 624.

Jurisdictional facts must be pleaded-citizenship.—Where citizenship of the parties to a suit is the foundation of jurisdiction by the federal courts it must be distinctly averred so as to show not only that they are citizens of different States, if that is required, but also (under the law previous to March 3, 1875), that one of them was a citizen of the State where the suit was brought; and an express allegation of the material facts necessary to give jurisdiction is necessary, because such courts are courts of special and not general jurisdiction, and consequently there is no presumption in favor of their jurisdiction. Hornthall v. The Collector, 9 Wall., 560; Bingham v. Cabot, 3 Dall., 382; Gassies v. Ballon, 6 Pet., 761; Turner v. Bank of America, 4 Dall., 8; Sullivan v. Steamboat Company, 6 Wh., 450; Eberly v. Moore, 24 How., 157; Shelton v. Tiffin, 6 Id., 185; McDonald v. Smalley, 1 Pet., 623; Jackson v. Twentyman, 2 Id., 136; Emery v. Grenough, 3 Dall., 363; Mossman v. Higginson, 4 Id., 14; Mason v. Rollins, 13 Wall., 602; Christmas v. Russell, 5 Wall., 290. These decisions were based upon the acts of congress previous to the act of March 3, 1875.

And where it appeared from the record that the plaintiff's ancestors were imported from Africa and sold as slaves, it was held that he could not be a citizen of a State according to the constitution of the United States, and was not entitled to sue in that character in the circuit courts of the United States. Dred Scott v. Sanford, 19 How., 393. See, also, Wickliffe v. Owings, 17 How., 47; Sheppard v. Graves, 14 Id., 27.

No presumption in favor of jurisdiction-it must be averred. -There are no presumptions in favor of the jurisdiction of the courts of the United States, but the facts upon which it rests must, in some form, appear in the record of all suits prosecuted before them. Ex parte Smith, 94 U. S., 455; McCormick v. Sulivant, supra; De Wolf v. Raband, 1 Pet., 476.

If the jurisdiction rests upon a controversy between citizens of different States, the plaintiff must distinctly aver that they are citizens of different States. Bingham v. Cabot, 3 Dall., 382; Capron v. Nan Noorden, 2 Cr., 126; Montalet v. Murray, 6 Id., 46; Dred Scott v. Sanford, 19 How., 393.

As to sufficiency of averment by a partnership plaintiff see Express Co. v. Kountze Brothers, 8 Wall., 342, where it was held that an averment that

plaintiffs were a firm organized to carry on a banking business at Omaha, Nebraska Territory, and had been for eighteen months in said business at that place, was a sufficient averment of citizenship.

But an averment in a declaration that the defendant is a corporation created by an act of the legislature of the State of New York, located and doing business at Aberdeen, in the State of Mississippi, and doing business there under the laws of the State, was held not to be a sufficient averment that the corporation was a citizen of Mississippi where the suit was brought. In Insurance Co. v. Francis, 11 Wall., 210, the court further held that the averment was in legal effect an averment that the defendant was a citizen of New York, because a corporation can have no legal existence outside the sovereignty by which it was created. See, also, Covington, etc., Co. v. Shepherd, 20 How., 227; Manufacturing Co. v. Brack, 8 Blatch., C. C., 137; s. c., 2 Abb., U. S., 235.

There is some diversity of opinion as to the rights of joint stock companies not fully possessed of corporate powers. Liverpool Insurance Co. v. Massachusetts, 10 Wall., 566; Pennsylvania v. Quicksilver, etc., Co., 10 Id., 553; Maltz v. Am. Ex. Co., 3 Cent. L. J., 157.

In case where jurisdiction depends upon the citizenship or alienage of the parties, or the facts which in legal intendment constitute it, it should be averred, distinctly and positively in the pleadings, or they should appear in other parts of the record, and it is not sufficient that jurisdiction may be inferred argumentatively from its averments. Brown v. Keene, 8 Pet., 115. Citizenship and residence are distinct terms, and not synonymous. Parker v. Overman, 18 How., 137; Railway Co. v. Ramsey, 22 Wall., 322. But where the defendant makes no objection to the want of averment of this fact, and proceeds to trial, the Supreme Court will grant leave to amend on Robertson v. Cease, 97 U. S., 646. As to sufficiency of service of process, see Settlemier v. Sullivan, 97 U. S., 444.

error.

Jurisdiction limited to powers conferred.-The circuit courts of the United States have no jurisdiction but such as congress, by legislative acts, warranted by the constitution, has conferred upon them. United States v. Eckford, 6 Wall., 484; Hubbard v. Northern R. Co., 3 Blatch., 84; Harrison v. Hadley, 2 Dill., C. C., 229; Bank of the United States v. Deveaux, 5 Cr., 61; Seldon v. Still, 8 How., 441; Ex parte Cabrara, 1 Wash., C. C., 232; United States v. Bevans, 3 Wh., 336; United States v. Hudson, 7 Cr., 32; United States v. Clark, 8 Pet., 444; Briscoe v. Bank, 11 Id., 321.

No common law jurisdiction.-Courts of the United States derive their jurisdiction from the Constitution and acts of congress, and they generally possess no powers but such as are given them by such legislation. Certain implied powers, however, must necessarily result to the courts from the nature of their institution, such as the power to punish for contempt, imprison for contumacy and enforce the observance of order as these are powers that cannot be dispensed with in a court, and are necessary to the exercise of all others, but jurisdiction of crimes against the State are not among the implied powers. United States v. Hudson, 7 Cr., 32. See, also, United States v. Coolidge, 1 Wh., 415; and same case in court below, 1 Gal

lis, 488, where Judge Story conceded that the courts of the United States were courts of limited jurisdiction and cannot exercise any authorities which are not confided to them by the constitution and laws made in pursuance thereof, but maintained by an able argument that all offenses within the admiralty jurisdiction are cognizable by the circuit courts, and in the absence of positive law they may punish in such cases by fine and imprisonment.

Jurisdiction when not affected by a change of residence.—If the plaintiff avers citizenship in another State from that of the defendant, and the defendant disputes the allegation of citizenship he must so plead it in abatement, and any recent change of residence must appear to have been bona fide with the intention of becoming a citizen of the State to which the party removes, and this will not be satisfactorily shown by a short absence and residence in another State, where it appears that it was only colorable for the purpose of conferring jurisdiction on the court. Jones v. League, 18 How., 76.

Where a complainant had obtained a judgment at law in the circuit court in Michigan, he at the time being a resident of New York, and an execution issued thereon, having been returned nulla bona, and the plaintiff having afterward removed to and become a resident of Michigan where the defendant resided, filed a bill of discovery in aid of execution in the same court, to which there was a demurrer for want of jurisdiction, as the plaintiff was a resident of Michigan where the defendant resided, the court held that in such a case the change of residence of the complainant to the State of Michigan did not oust the court of jurisdiction. Hatch v. Dorr, 4 McLean, C. C., 112. See, also, Reilly v. Golding, 10 Wall., 56; Clark v. Mathewson, 12 Pet., 164.

But where the bill does not relate to some matter already litigated in the same court by the same persons, and which is not, either in addition to or a continuance of an original suit, it is an original bill, and not an ancillary one; and when such a bill is between citizens of the same State the circuit courts have no jurisdiction. Christmas v. Russell, 5 Wall., 290.

Where, however, the bill is not an original one, but merely incidental or auxiliary, or where it is a bill of revivor filed on the death of the original complainant the court has jurisdiction, if the court had original jurisdiction of the cause, even though the complainant in the subsequent proceedings may be a resident of the same State with the defendant. Dunn v. Clark, 8 Pet., 1; Morgan v. Morgan, 2 Wh., 290; Mollan v. Torrance, 9 Id., 537; Jones v. Andrews, 10 Wall., 331; Christmas v. Russell, supra; Logan v. Patrick, 5 Cr., 288; Simms v. Guthrie, 9 Id., 19; Clark v. Mathewson, 12 Pet., 170.

Constitutionality of State laws.-In the case of Bennett v. Boggs, 7 Pet., 160, it was held, that the Constitution of New Jersey confers general powers of legislation; that the legislature of that State has power to regulate fisheries in that State on the Delaware River, by prohibiting the exercise of a common law right; that the only prohibition or restraint upon the legislature, is, that they cannot by any law impair the obligation of contracts; and