5 Barney v. Globe Bank, 5 Blatchf. 107.

6 Deshler v. Dodge, 16 How. 622.

7 Deshler v. Dodge, 16 How. 622.

8 Chappedelaine v. Dechenaux, 4 Cranch, 306; Childress v. Emory, 8 Wheat. 642; Mayer v. Foulkrod, 4 Wash C. C. 349.

9 Sere v. Pitot, 6 Cranch, 332.

10 Bradford v. Jenks, 2 McLean, 130.

11 Gregg v. Weston, 7 Biss. 360.

12 Briggs v. French, 2 Sum. 251.

13 Chamberlain v. Eckert, 2 Biss. 126; but see Thaxter v. Hatch, 6 McLean, 68.

14 Bobyshall v. Oppenheimer, 4 Wash C. C. 482.

15 Buckner v. Finley, 2 Peters, 586.

16 Wood v. Dummer, 3 Mason, 308.

17 Bullard v. Bell, 1 Mason, 243.

18 Bank v. Wistar, 2 Peters, 318; Smith v. Clapp, 15 Peters, 125; Bonnafee v. Williams, 3 How. 574; Halstead v. Lyon, 2 McLean, 226; Sackett v. Davis, 3 McLean, 101; Bullard v. Bell, 1 Mason, 243; Towne v. Smith, 1 Wood & M. 115. As to holder of an accommodation note, see Noell v. Mitchell, 4 Biss. 346; of a non-negotiable note, see Shuford v. Cain, 1 Abb. U. S. 302.

19 Varner v. West, 1 Wood, 493.

20 White v. Leary, 3 Dill. 378; Kirkham v. Hamilton, 6 Peters, 20.

21 Keary v. Bank, 16 Peters, 89; Gibson v. Chew, 16 Peters, 313; Dromgoole v. Bank, 2 How. 241; Coffee v. Planters' Bank, 13 How 185; Willes v. Newberry, 4 McLean, 226; Shuford v. Cain, 1 Abb U. S. 302; Small v. King, 4 McLean, 147.

22 Mollan v. Torrance, 9 Wheat. 537.

23 Young v. Bryan, 6 Wheat. 146; Evans v. Gee, 11 Peters, 80; Coffee v. Planters' Bank, 13 How. 183; Campbell v. Jordan, Hemp. 534; Dennison v. Larned, 6 McLean, 496; Codwise v. Gleason, 3 Day, 3.

24 Wilson v. Fisher, Bald. 133; Milledollar v. Bell, 2 Wall, Jr. 334.

25 Gregg v. Weston, 7 B'ss. 360.

26 Seckel v. Backhaus, 7 Biss. 354.

27 Mersman v. Werger, 3 Fed. Rep. 378.

28 Sheldon v. Sill, 8 How. 441; Hill v. Winne, 1 Biss. 275. Contra, Dundas v. Bowler, 3 McLean, 204.

29 Porter v. Janesville,

Rep. 364.

Fed. Rep. 617; Halsey v. Township, 3 Fed.

30 White v. Vermont & M. R. R Co., 21 How. 575; Lexington v. Butler, 14 Wall. 282; Bradley v. Williams, 3 Hughes, 26.

31 Pettit v. Hope, 2 Fed. Rep. 623.

32 Thomson v. Lee Co., 3 Wall. 327; McCoy v. Washington, 3 Phila. 290; Pettit v. Hope, 2 Fed Rep. 623.

33 Cooper v. Thompson, 13 Blatchf. 434. See Clark v. Janesville, 1 Biss. 98

34 Wilkinson v. Wilkinson, 2 Curt. 582

35 Dexter v. Smith, 2 Mason, 203.

36 Bean v Smith, 2 Mason, 252.

37 Ober v. Gallagher, 93 U. S. 199.

38 Van Bokkelin v. Cook, 5 Sawy. 587.

39 Barney v. Globe Bank, 5 Blatchf. 107.

40 Turner v. Bank, 4 Dall. 8; Bradley v. Rhines, 8 Wall. 393. 41 Van Bokkelin v. Cook, 5 Sawy. 587.

§ 89 d. Suits by assignee of choses in action; latest decisions.-The court has no jurisdiction over cases where an assignee is plaintiff unless the court would have had jurisdiction had the action been brought by the assignor. But where the transfer of choses in action may be made by delivery, and the obligation is made to bearer and by a corporation, the court has jurisdiction, although had the suit been brought by a former holder the court would have had no jurisdiction." This rule is applied to an action by an assignee on a county warrant payable to bearer. 3 An assignee of county warrants payable to a third person or his order, and not indorsed by him in blank or to the order of the assignee, cannot sue thereon in the circuit court unless such third person could have done so. The Judiciary Act of March 3, 1887, was intended to prohibit suits in the Federal court by assignees of choses in action unless the original assignor was entitled to maintain the suit, in all cases except suits on foreign bills of exchange, and except suits on promissory notes made payable to bearer and executed by a corporation.5 Where the record does not show of what State the assignor is a corporation the prohibition of the statute applies." The assignee of a contract cannot sue for its enforcement in the circuit court if the assignor could not have done so." So of the assignee of a written contract of lease.8 So of the assignee of a contract of reinsurance. So of the assignee of a guardian's bond. 10 So the restriction applies to the assignee of a mortgage given as security for a promissory note. Although the maker and payee of a negotiable note secured by a mortgage are citizens of the same State, an indorsee of the note living in another State may, since the Act of 1875, foreclose the mortgage in the United States circuit court. 12 So it applies to the assignee of a claim for damages for refusal to pay for goods purchased under an oral contract. 13 Under U. S. Rev. Stats. sec. 629, a suit to enforce performance of a contract is one to recover the contents of a chose in action. 14 The

9

circuit court of the United States has no jurisdiction of a suit founded on contract in favor of an assignee, where it does not appear that the plaintiff's assignor could have brought suit on the contract if no assignment had been made. 15 An action to recover the amount of a mortgage bond is not within the jurisdiction of the circuit court when brought by an assignee thereof, in a case in which the assignor conld not have sued. 16

1 Newgass v. New Orleans, 38 Fed. Rep. 193.

2 Newgass v. New Orleans, 33 Fed. Rep. 193.

3 Rollins v. Chaffee County, 34 Fed. Rep. 91.

4 King Iron Bridge & Mfg. Co. v. Otoe County, 120 U. S. 225.

5 Wilson v. Knox County, 43 Fed. Rep. 481; Hudson v. Bishop, 38 Fed. Rep. €80.

6 Brock v. Northwestern Fuel Co., 130 U. S. 341.

7 Shoecraft v. Bloxham, 124 U. S. 730.

8 Republic Iron Min. Co. v. Jones, 37 Fed. Rep. 721.

9 Laird v. Indemnity Mut. M. Assur. Co., 44 Fed. Rep. 712.

10 Hudson v. Bishop, supra.

11 Sheldon v. Sill, 49 U. S. 8 How. 441. But see Act of March 3, 1875, chap. 147.

12 Tredway v. Sanger, 107 U. S. 323; Mersman v. Werges, 112 U. S. 139. 13 Simons v. Ypsilanti Paper Co., 33 Fed. Rep. 193.

14 Shoecraft v. Bloxham, 124 U. S. 730.

15 Brock v. Northwestern Fuel Co., 130 U. S. 341; Shoecraft v. Bloxham, supra.

16 Blacklock v. Small, 127 U. S. 96.

§ 89 e. Motive for assignment will not affect . right to sue. The motive with which a person purchases property or a claim has nothing to do with his right to maintain an action thereon in the national courts. 1 When the owners of a mortgage sold it to a citizen of another State for the express purpose of giving jurisdiction if the purchaser took it in good faith without knowledge of such purpose, the mortgage passed the legal_title.2 The transfer of interest by one party to a suit in a Federal court, to a citizen of the same State with the other party, will not oust jurisdiction of the court. Even where a statute of a State provided that in the case of fraudulent assignment a court of competent jurisdiction is authorized to declare the assignment void, although the assignee is not shown to have notice of the fraud, the equity courts of the United States having jurisdiction can enforce rights under such statute.+

3

1 Neal v. Foster, 13 Sawy. 233; Vermont v. Chicago & N. W. R. Co., 69 Iowa, 297.

2 Smith v. Kernochen, 48 U. S. 7 How. 198; Banigan v. Worcester, 30 Fed. Rep. 332.

3 Jarboe v. Templer, 38 Fed. Rep. 213.

4 Bernheim v. Birnbaum, 33 Fed. Rep. 885.

§ 89 f. To what restriction does not extend.— The United States circuit court has jurisdiction of an action for damages for wrongfully entering on lands and carrying away the timber thereon, brought by an assignee of the claim against a citizen of another State, although the assignor could not himself have sued in that court. The exception in the statute did not extend to a suit on a chose in action to recover a specific chattel, or for damages for its wrongful caption or detention." It does not apply to mere naked rights founded on some wrongful act or neglect of duty to which the law attaches damages. 3 The sale of an equitable interest in land is not a mere assignment of a right of action relating thereto; and in a suit in a national court it is not material what is the citizenship of his vendor, under whom he claims.* An order drawn on a city and accepted is not an assignment of the contractor's claim, within the meaning of the act of August 13, 1888, providing that an assignee cannot bring suit in the circuit court, unless the assignor might have done so had no assignment been made. The restriction does not extend to suits removed to such court from a State court. 6

1 Ambler v. Eppinger, 137 U. S. 480,
2 Ibid; Deshler v. Dodge, 57 U. S. 622.
3 Bushnell v. Kennedy, 76 U. S. 387.
4 Gest v. Packwood, 33 Fed. Rep. 525.
5 Ripley v. Superior, 41 Fed. Rep. 113.

6 Delaware County v. Diebold Safe & Lock Co., 33 U. S. 473.

§ 89 g. Holders of negotiable instruments.In the Act of 1887 the clause "or of any subsequent holder of such instrument be payable to bearer, and be not made by any corporation," the word "of," preceding the words "such instrument," should be held to be "if." The test of the negotiability of a note, in order to determine the right of an assignee to sue thereon in the circuit court of the United States, under the Act of Con

gress of 1875, is its negotiability according to the principles of the law merchant, and is not affected by State statutes. 2 The provision relating to suits by an assignee under the Act of 1888, does not forbid the Federal court to take jurisdiction of a suit by the holder of an order, a resident of a foreign State, against the drawee, a resident of the State of the drawer, the citizenship in such case being diverse. But one who buys a promissory note payable to order, and afterward fills the blank with his own name as payee, is an assignee within the act of 1875, as amended, and is not entitled to sue, the original holder and the maker both being citizens of the State in which suit is brought. Where the maker and payee of a note are both citizens of the same State, it may be proved in a suit by the indorsee, that the indorsee was in fact the real payee, and that there never had been any assignment of the note. Drain orders drawn by a county drain commissioner upon a county treasurer, and which are required to be paid by a tax assessed and collected from the owners of property benefited thereby, are so far negotiable that suit brought upon them by the holder is not outside of the jurisdiction of a Federal court.6 The circuit court has jurisdiction of a suit brought by the indorsee of a promissory note against his immediate indorser, whether a suit would lie against the maker or not. The creditors of the payee of the note may come into the United States court in equity, and ask to enjoin the holder of the note as a guilty indorsee, where he had voluntarily submitted to the jurisdiction. 8

1 Newgass v. New Orleans, 33 Fed. Rep, 196. The Act of August 13, 1888, corrects the error mentioned.

2 Windsor Sav. Bank v. McMahon, 38 Fed. Rep. 233.

3 Superior v. Ripley, 138 U. S. 93.

4 Steel v. Rathbun, 42 Fed. Rep. 390.

5 Goldsmith v. Holmes, 1 L. R. A. 816; 36 Fed. Rep. 484.

6 Aylesworth v. Gratiot County, 43 Fed. Rep. 350.

7 Young v. Bryan, 19 U. S. 6 Wheat. 146; Mollan v. Torrance, 22 U. S. 9 Wheat. 537; Evans v. Gee, 36 U. S. 11 Peters, 8); Coffee v. Planters Bank of Tennessee, 54 U. S. 13 How. 183. The acceptance creates a new contract, to which the drawer is not a party: Thompson v. Perrine, 106 U. S. 589; DeSobry v. Nicholson, 70 U. S. 3 Wall. 420; Superior v Ripley, 138 U. S. 93; City of Superior v. Ripley, 138 U. S. 93.

8 Hauf v. Wilson, 31 Fed. Rep. 384.