[M'Micken v. Webb.]

If any thing can be gathered from this singular allegation, it is that a note intended to be drawn in favour of Charles M'Micken, and who alone was entitled to receive the contents, was by mistake and error drawn in favour of M'Micken & Ficklin, who, according to previous allegations of the petition, had been in partnership together. This allegation, if it amounts to any thing, amounts to an allegation that M'Micken is the equitable assignee of the note.

The claim of the plaintiff, according to the colour and tenor of his own petition, if on his own showing it can be maintained at all, either as to the jurisdiction, or the merits, ought to have been prosecuted on the equity side of the court; and it is obvious that the attorney for the plaintiff was at a loss how to state his case.

The con

He alleges error without showing why it was an error. sideration of the note moved from M'Micken & Ficklin to Ficklin, it being alleged that Ficklin, one of the partners, purchased the goods of M'Micken & Ficklin-unless, therefore, the goods all belong to M'Micken, or unless the note was given for M'Micken's one-half of the goods, neither of which allegations are made, the note was properly drawn in favour of M'Micken & Ficklin.

Legally speaking, the plaintiff's case cannot have the benefit of the supposition that he is an equitable assignee, for his suit is brought on the law side of the court. There is nothing in the shape, form, address, prayer or proceedings, which give it the character of a bill in equity; and from the decision against him, the plaintiff has taken a writ of error, not an appeal; although in relation to the distinctions of law and equity, proceedings in the courts of Louisiana are of an anomalous character, and are mixed up together without any line of distinction, a party who goes into the United States court in that state, must clearly announce his intention when he seeks to avail himself of the equity powers of the court, in contradistinction to its legal jurisdiction.

The case was decided by the district judge, on the mere question of jurisdiction on the third plea or exception to the jurisdiction, as contained in the printed record.

This plea proceeds on the principle that when a suit is brought in the United States courts on a promissory note payable to order, against the drawers, it must be brought either

1st. By the payees, and then there must be the usual allegations of citizenship to give jurisdiction; or

2d. By an assignee or endorsee of the payee, and in this case, be

[M Micken v. Webb.]

sides the usual allegations of citizenship, there must be an allegation that the payee, at the time of assignment, could have prosecuted the suit in the United States courts, if no assignment had been made.

3d. That the suit in the present case is not brought by the payees, and does not contain the allegations necessary to give jurisdiction. The second rule or principle is laid down in Sergeant, 117, in these words: "And if the plaintiff claim as assignee, it must appear by the record that the person under whom he claims by assignment, might have prosecuted his suit in the circuit court; otherwise the court has no jurisdiction." Sergeant cites Turner v. The Bank, 4 Dall. 8. Montalet v. Murray, 5 Cranch, 46.

The necessity of the allegation that the payees were non-citizens, or could have brought the suit at the time of the assignment, is recognised in Kirkman v. Hamilton, 6 Peters, 20; the principle is directly deduced from the doctrine of the limited jurisdiction of the United States courts: "The decisions of this court require that the averment of jurisdiction shall be positive, that the declaration shall state expressly the fact on which the jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments;" Brown v. Keene, 8 Peters, 112.

The right to the jurisdiction must rest on clear, plain and simple averments, on which a single and simple issue can be joined. If it be allowed to rest on error in the form of taking the note, it would require a chancery suit and a full investigation of the merits of the case, before it could be settled whether the court had or had not jurisdiction. This Court has decided that the question of jurisdiction, when contested, must be settled by a preliminary trial, and before going into the merits of the case.

In this petition there is no substantive allegation of an assignment of the note sued upon, or if the matters alleged amount to such an allegation, there is no allegation when the assignment was made, or that at the time the assignment was made the payces could have brought suit on this note in the United States court.

M'Micken is not the payee of the note-He brings the suit for his own exclusive benefit; the payees are M'Micken & Ficklin-if, therefore, M'Micken individually can bring suit on the note for his own benefit, it must be in virtue of some legal or equitable assignment from the payees.

None such is alleged, and if the matter alleged be considered as amounting to an allegation that in equity, M'Micken is entitled to an

[M'Micken v. Webb.]

assignment of this note from M'Micken & Ficklin; and that is the most favourable aspect of the case: still there is no allegation that at the time that assignment ought to have taken place, M'Micken & Ficklin could have prosecuted this suit in the United States courts. Equitable as well as legal assignments are included in the act. Serg. 116, cites Sere et al. v. Pitot, 6 Cranch, 332.

The Court will disregard the vain attempt to combine an action at law on a promissory note, with a suit in equity to reform a written contract for alleged error. When practitioners come into the United States courts in Louisiana, they are bound to recognise the clear and manifest distinctions between legal and equitable rights and remedies.

The Court can only consider this suit to be what in its form, &c. it purports to be, viz: an action at law on a promissory note payable to order, against the drawers, brought by a plaintiff claiming in other rights and interests than as payee of the note.

It is believed that if this case had been put in the form of a suit by M'Micken & Ficklin as plaintiffs, for the use of Charles M'Micken, a form used in some of the states, this form of action would have been considered as substantially an allegation of an assignment by M Micken & Ficklin to Charles M'Micken; and the suit could not be maintained without the required averments. Or if M'Micken & Ficklin were alleged to be trustees for Charles M'Micken, it must have been alleged that both of them were citizens of other states than Louisiana.

It may be asserted, without fear of contradiction, as a judicial question, that there are no such distinct and substantive averments of facts necessary to give jurisdiction upon which any issue can be joined. The Court will perceive the difficulty the attorney of the defendant was under in drawing a plea to the jurisdiction. The petition is an hermaphrodite, neither properly a proceeding at law or in equity; and cannot scientifically be encountered by any known shape or form of defence. It is substantially met by the objection that it does not contain averments and allegations of facts to give jurisdiction to the United States court in a suit on a promissory

note.

It is respectfully urged that the course of reasoning and construction of the law on subjects connected with the jurisdiction of the Court, has heretofore been rigorous, and that this course ought not to be relaxed.

VOL. XI.-E

[M'Micken v. Webb.]

If suggestions like the one in the present case are admitted as the basis of jurisdiction, and the maxim, est boni judicis ampliare jurisdictionem, be acted upon, there is danger that fictions similar to the ac etiam and quo minus clauses, which gave universal jurisdiction to the king's bench, and exchequer courts, will be resorted to: and the United States courts will cover the whole field of litigation, without any real limits to their jurisdiction, and that the whole distinction of federal and state governments and jurisdiction will disappear; a result which is not considered desirable.

It is to be observed that this subject and case are governed by a special and positive act of congress, from which the inferences of the allegations necessary to give jurisdiction are clear and precise; and the Court will not be disposed to get round them for the benefit of this very singular case. It is called singular, and so it appears on the statement of the plaintiff himself.

According to that statement, (by protestation as to its being the whole truth) Charles M'Micken and James H. Ficklin were in partnership as merchants-they dissolved, and Ficklin takes the goods at a stipulated price-for the price Ficklin gives the promissory note, the subject of the suit, with Smith and Webb as sureties, obgors in solido-that promissory note is drawn in favour of M'Micken & Ficklin; and M'Micken now says that this was done in error, and that the note ought to have been drawn in his favour individually. He does not attempt to show why it was an error-on the contrary, if, as is alleged, the goods belonged to M'Micken & Ficklin, the representative or price was properly made payable to the partnership; for each partner owned one-half of the goods, and was entitled to one-half of the price.

Had it been alleged that this note was given for the one-half of the goods which belonged to M'Micken, and was by error made payable to M'Micken & Ficklin, instead of M'Micken, a reason could have been given why it was an error to make it payable as it was drawn-there would have been a prima facie case of equity to entitle M'Micken to the jurisdiction of the equity side of the court— though it is believed that even with such allegations the right to the jurisdiction should be maintained, for it involves too complicated a preliminary investigation-and as to Webb and Smith, naked sureties, there are no equities.

But no such allegation is made. The allegations go to show that the goods belonged to the partnership, and of course the note for

[M'Micken v. Webb.]

their price did also belong to the partnership. This transaction, it is alleged, took place on the dissolution, and as a part of the dissolution; and it is strange to allege error without showing in what respect, and for what reason it was an error.

Smith and Webb are mere sureties, as is shown by the following considerations. 1st. This contract is a promissory note, a simple contract, and not a sealed one. 2d. The suit is between original

parties to the note. Therefore, the considerations of the note may be inquired into.

Again, the plaintiff himself alleges that the consideration of the note was the sale of goods by M'Micken & Ficklin to James H. Ficklin. This affirmative is pregnant with another affirmative; for it follows as a necessary consequence from this allegation that Ficklin was principal in the note, and Smith and Webb were mere sureties.

The Court may think this controversy involved in a cloud, and feel disposed to favour a further development of it, or consider the objection to the jurisdiction as captious, and might feel more at ease in deciding, if any supposable explanation of the transaction were given.

We will then suppose M'Micken and Ficklin to be in partnership -they agree to dissolve-Ficklin buys the stock of goods, of which, as partner, he is one-half owner, and which is estimated at 9,733 dollars 871⁄2 cents, viz: twice the amount of the note; for M'Micken's one-half, Ficklin pays cash. Ficklin is himself the owner of the other half; M'Micken is the liquidating partner, and undertakes to collect the debts due to, and pay the debts due by the late firm; but M'Micken suggests that the debts due to the firm might not be sufficient to pay the debts due by the firm. In such case Ficklin would have to bring back what he took out. To meet this possible contingency, Ficklin makes his note, with sureties, for the amount of his own one-half of the goods, in favour of the partnership, payable at an interval within which it was supposed the partnership affairs would be liquidated and settled, and places it in the hands of the liquidating partner.

Such a solution explains the whole transaction, without supposing any error in any party; and the decease of Ficklin, immediately afterwards, would explain the attempt and perseverance of M⭑Micken in desiring to extract this money from the sureties, without showing any settlement of the partnership affairs.