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there exists the requisite difference of citizenship between himself and the defendant, irrespective of that of his original assignor.44 And it has been held that the citizenship of the assignor is immaterial in a suit by his assignee, to vacate the satisfaction of a judgment,45 or to set aside a decree for fraud, although payment of the claim is incidentally requisite.

46

It seems that the holder of a municipal warrant, who seeks to recover municipal assets without a previous judgment at law, brings a suit to recover upon a chose in action within the meaning of the statute.47

An endorsee, who is a citizen of the same State as the maker of the note, may sue his immediate endorser in a District Court of the United States, if the latter be a citizen of a different State from that of the plaintiff; 48 but when, in a suit by an endorser against the maker 49 or a prior endorser,50 the plaintiff derives his title through a citizen of the same State as the defendant, such as in the former case, the original payee, there is no jurisdiction on account of a difference of citizenship between the defendant and the plaintiff. There is an exception in the case of accommodation paper, where a person who has advanced money upon the same can sue the maker if there is a diversity of citizenship between them, irrespective of the citizenship of the endorser; 51 and under similar circumstances the payee of a bill of exchange is allowed to sue the acceptor

44 Ober v. Gallagher, 93 U. S. 199, 206, 23 L. ed. 829, 831; Bean v. Smith, 2 Mason, 252, 269; Hultberg v. Anderson, 170 Fed. 657.

45 Hay v. Alexandria & W. R. Co., 20 Fed. 15. But see Blacklock v. Small, 127 U. S. 96, 32 L. ed. 70.

46 Bertha Z. & M. Co. v. Vaughn, 88 Fed. 566.

47 New Orleans v. Benjamin, 153 U. S. 411, 38 L. ed. 764.

48 Young v. Bryan, 6 Wheat. 146, 5 L. ed. 228; Manufacturing Co. v. Bradley, 105 U. S. 175, 26 L. ed. 1034; Parker v. Ormsby, 141 U. S. 81, 35 L. ed. 654; Kolze v. Hoadley, 200 U. S. 76, 50 L. ed. 377.

49 State Nat. Bank of Denison v. Eureka Springs Water Co., 174 Fed. 827.

50 Turner v. Bank of N. A., 4 Dall. 8, 1 L. ed. 718; Mollan v. Torrance, 9 Wheat. 537, 538, 6 L. ed. 154. But see Portage C. R. Co. v. Portage, 102 Fed. 769.

51 Blair v. Chicago, 201 U. S. 400, 50 L. ed. 801; Goldsmith v. Holmes, 36 Fed. 484; s. c., Holmes v. Goldsmith, 147 U. S. 150, 37 L. ed. 118; Wachusett Nat. Bank v. Sioux C. S. Works, 56 Fed. 321; Hoadley v. Day, 128 Fed. 302. When the notes had been pledged as collateral.

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although he could not have sued the drawer in the Federal court.52

Trustees in bankruptcy,58 assignees in insolvency 54 and buyers at a judicial sale 55 are included within this restriction; but receivers 56 and executors and administrators 57 are not; not even when they are administrators of the assignee.58

A party who claims the benefit of a contract as an incident to another contract is to be considered as the assignee of the former when he sues to enforce it, although it has never been formally assigned to him.59 The acceptance by a city of an order by a contractor directing the payment to a third person of part of the contract price was held to constitute a new contract between the city and the payee, and not to be the assignment of the original contract.60 A party who claims by subrogation 61 or by novation 62 is not within this restriction, neither is the assignee of an executory contract when he sues to recover for work done after the assignment.63 A suit to enforce specific performance of a contract to convey land which has been assigned is within the limitation.64 Where plaintiff al

52 Superior v. Ripley, 138 U. S. 93, 34 L. ed. 914.

53 Guaranty Trust Co. v. McCabe, C. C. A., 217 Fed. 699. See infra, § 610.

54 Sere v. Pitot, 6 Cranch, 332, 336, 3 L. ed. 240, 241.

55 Glass v. Concordia Parish Police Jury, 176 U. S. 207, 44 L. ed. 436.

56 Davies v. Lathrop, 12 Fed. 353. Nor the successor of a receiver. Paige v. Rochester, 137 Fed. 663. But see U. S. Nat. Bank v. McNair, 56 Fed. 323; Thompson v. Pool, 70 Fed. 725.

57 Sere v. Pitot, 6 Cranch, 332, 336, 3 L. ed. 240, 241; Chappedelaine v. Dechenaux, 4 Cranch, 306, 2 L. ed. 629; Childress v. Emory, 8 Wheat. 642, 5 L. ed. 705.

58 Sands v. James Carruthers & Co., Ltd., 243 Fed. 636.

59 Plant Inv. Co. v. Jacksonville,

T. & K. W. Ry. Co., 152 U. S. 71, 76, 38 L. ed. 358, 360. But see Portage C. W. Co. v. Portage, 102 Fed. 769.

60 City of Superior v. Ripley, 138 U. S. 93, 34 L. ed. 914.

61 New Orleans v. Caines' Adm'r, 138 U. S. 595, 606, 34 L. ed. 1102, 1106. Contra, Am. Waterworks & Guarantee Co. v. Home Water Co., 115 Fed. 171.

62 American Colortype Co. v. Continental Colortype Co., 188 U. S. 104, 47 L. ed. 404; J. I. Case Threshing Mach. Co. v. Road Improvement Dist., 210 Fed. 366.

63 County of Cullman V. Vincennes Bridge Co., C. C. A., 251 Fed. 473; Oak Grove Const. Co. v. Jefferson County, C. C. A., 219 Fed. 858.

64 State of Maine Lumber Co. v. Kingfield Co., 218 Fed. 902.

leged a cause of action for damages for a conspiracy charged to have been made by defendants against him after he became the assignee of a contract for the sale of real estate, it was held : that the citizenship of plaintiff's assignor of the contract was immaterial to the jurisdiction.65

It was held under the old Judiciary Act that the jurisdiction over a suit by the heirs of a grantor of land who had been obliged to pay debts of their ancestor secured by a lien upon such land, to compel the grantee to reimburse them under his covenant with the grantor, was not affected by the citizenship of the grantor.6 66

A Federal court is without jurisdiction of a suit on a cause of action existing in favor of a partnership, brought by one partner in his own right and as assignee of the interest of his copartner, unless the bill shows that the citizenship of the assignor is such that the suit might have been maintained in that court by the firm.67

It has been held that the restriction does not apply when the only reason why the assignor could not have sued was that his claim was less in value than the jurisdictional amount.68

If both the original promissor and the plaintiff have a citizenship different from that of the defendant, the citizenship of a mesne assignee is immaterial.69 If the requisite diversity of citizenship and the proper residence existed in the original parties to a note or contract, and a suit between them might have been maintained in the Federal Court; any subsequent assignee may maintain such action provided he has the requisite residence and citizenship and that all the other jurisdictional requirements also exist.7 The fact that an intermediate assignee was

70

65 Noyes v. Crawford, 133 Fed. 796.

66 Weems v. George, 13 How. 190, 14 L. ed. 108.

67 Ban v. Columbia Southern Ry. Co., 117 Fed. 21, 54 C. C. A. 407, reversing 109 Fed. 499.

68 Bernheim v. Birnbaum, 30 Fed. 885, 887; Bowden v. Burnham, C. C. A., 59 Fed. 752; Bergman v. Inman, 91 Fed. 293; Chase v. Sheldon R. M. Co., 56 Fed. 625; Hartford

Fire Ins. Co. v. Erie R. Co., 172
Fed. 899. See also Hammond v.
Cleaveland, 23 Fed. 1. But see
Woodside v. Vasey, 142 Fed. 617.

69 Emsheimer v. New Orleans, 116 Fed. 893.

70 Portage City Water Co. v. Portage, 192 Fed. 769; Bolles v. Lehigh Valley R. Co., 127 Fed. 884; Farr v. Hobe-Peters Land Co., C. C. A., 188 Fed. 10; Lipschitz v. Napa Fruit Co., C. C. A., 223 Fed. 698;

a resident and of the same State as the defendant has been held to be immaterial.71

73

It has been held: that where the requisite diversity of citizenship existed between the assignor and defendant, the residence of the assignor was immaterial; 72 that where at the time of the commencement of the suit the assignor might have sued in the Federal court, but at the time of the assignment he could not, if the citizenship of the assignee and the defendant are diverse, the court may take jurisdiction in a proper case; that where the original owner of a chose in action, who might have sued thereon in a Federal court, assigned the same, he was entitled to sue in such court on again becoming the owner by a reassignment from his assignee, without regard to the citizenship of the latter; 74 that where an assignee of a chose in action is entitled to sue thereon alone in the Federal courts, he and his assignee may sue there together as if no assignment had been made; 75 that where one of complainant's contracts is within the jurisdiction of a court, it draws to the court jurisdiction to determine the entire controversy, although others of the contracts, as to which the issues are the same, were acquired by complainant through assignments from persons who could not have sued therein.76 The fact that the assignor is a national bank does not give jurisdiction.77 The statute does not forbid one of the original contractors from suing in a Federal court

Wilson v. Fisher, Baldwin, 133, Fed. Cas. No. 17, 803; Milledollar v. Bell, 2 Wallace, Jr., 334, Fed. Cas. No. 9,549.

71 Ibid.

72 Stimson V. United Wrapping Mach. Co. et al., 156 Fed. 298. See Dulles v. H. D. Crippen Mfg. Co., 156 Fed. 706; Cincinnati H. & D. Ry. Co. v. Orr, 215 Fed. 261. Contra, Consolidated Rubber Tire Co. v. Ferguson, 169 Fed. 888, s. c., C. C. A., 183 Fed. 756; Waterman v. Chesapeake & Ohio Ry. Co., 199 Fed. 667; Guaranty Trust Co. v. McCabe, C. C. A., 217 Fed. 699.

73 Jones v. Shapero, C. C. A., 57 Fed. 457; Noyes v. Crawford, 133 Fed. 796.

74 Moore Bros. Glass Co. v. Drevet Mfg. Co., 154 Fed. 737.

75 Paige et al. v. Rochester, 137 Fed. 663; Independent School Dist. of Sioux City v. Rew, 111 Fed. 1, 49 C. C. A. 198, 55 L.R.A. 364.

76 Camp v. Peacock, Hunt & West Co., C. C. A., 129 Fed. 1005; Howe & Davidson Co. v. Haugan, 140 Fed. 182; affirming 128 Fed. 1005.

77 George v. Wallace, C. C. A., 135 Fed. 286.

the assignee of the other party, although the citizenship of the plaintiff is the same as that of the assignor.78

The assignee must aver in his pleading that his assignor might have sued in the Federal court.79

§ 64. Territorial jurisdiction of the District Courts of the United States. In general. There is a District Court in each judicial district of the United States.1 It has been said that "jurisdiction is the power to proceed by authorized service." 2 In actions of a local nature, no court has jurisdiction except that in the district where the property is situated,3 for usually the execution of the judgment will require acts in a district where the officers of the court in which the judgment is entered have no authority. Actions of a transitory nature can be

78 Brooks v. Laurent, 98 Fed. 647, 39 C. C. A. 201.

79 Parker v. Ormsby, 141 U. S. 81, 35 L. ed. 654; U. S. Nat. Bank v.. McNair, 56 Fed. 323; Kolze V. Hoadley, 200 U. S. 76, 50 L. ed. 377; J. J. McCaskill Co. v. Dickson, C. C. A., 159 Fed. 704; Bison State Bank v. Billington, C. C. A., 209 Fed. 610; Houck v. Bank of Brinkley, C. C. A., 242 Fed. 881. An allegation in a bill filed by an assignee of claims against a Louisiana corporation, that the assignors are and were citizens of States other than Louisiana, and competent as such to sue the defendant in the Circuit Court, if no assignment had been made, was held to be insufficient to confer jurisdiction on the Circuit Court because the State or States of which the assignors were citizens were not specifically designated.

C.

Benjamin v. New Orleans,

C. A., 74 Fed. 417. Where it appeared in the record that the assignor was domiciled and resided in a State other than that of which the defendant was a citizen and no question concerning his citizenship was raised in the court of first instance,

the court of review refused to dismiss the case for want of jurisdietion. First Nat. Bank of Canyon. Texas v. Crowley, C. C. A., 183 Fed. 578.

$ 64. 1 Infra, § 66.

2 Kentucky Coal Lands Co. V. Mineral Development Co., 219 Fed.

45.

3 Mississippi & M. R. R. Co. v. Ward, 2 Black, 485, 17 L. ed. 311; Coquitlam v. U. S., 163 U. S. 346, 16 Sup. Ct. 117, 41 L. ed. 184; Ladew v. Tennessee Copper Co., 218 U. S. 357, 54 L. ed 1069, affirming 179 Fed. 245; McGowan v. Columbia River Packers' Ass'n, 245 U. S. 352; Ferguson v. Babcock Lumber & Land Co., C. C. A., 252 Fed. 705; Matarazzo v. Hustis, 256 Fed. 882.

4 McGowan V. Columbia River Packers' Ass'n, 245 U. S. 352; Miller v. Dows, 94 U. S. 444, 449, 24 L. ed. 207, 209; Fall v. Eastin, 215 U. S. 1, 54 L. ed. 65, affirming Fall v. Fall, 75 Neb. 104, 120, 113 N. W. 175; MacGregor v. Macgregor, 9 Iowa, 65; Glen v. Gibson, 9 Barb. (N. Y.) 634; Story's Eq. Jur., § 1292; 2 Spence, 8, n. (d); Smith's Eq. 30; Bispham 's Eq. 87.

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