by persons who act in a representative capacity, as executors, or administrators, or guardians, or trustees. It is settled that evidence that they act in a representative capacity, and that those whom they represent would not be competent of themselves to sue, does not affect the jurisdiction of the court. If an executor is a citizen of the State of Massachusetts, although every person whom he represents is a citizen of some other State, he may sue as a citizen of Massachusetts. That was held quite recently. It had been held before, but I will give you the last decision on the subject: 11 Wallace, 172.1 On the other hand, if a person is not acting strictly in a representative capacity, as an executor, administrator, guardian, or trustee, but is what is called a mere conduit, through which the money or property sued for is to pass to a third person, that third person may bring the suit, and, if he is competent as a citizen to bring it, it is of no consequence if this other person, to whom the promise was in form made, would not be competent to sue. As, for instance, there are a great number of cases in which public officers are required to take bonds for the use of a particular party in interest; sometimes a sheriff, sometimes judges of probate, &c., in various States. There are

1 [Coal Company v. Blatchford. See 13 Wallace, 66, where it was held that an administrator, being at the time of his appointment a citizen of the same State as his decedent and the defendant, and afterwards removing into another State, may sue as administrator in a federal court.]

a great many instances of that kind, where bonds are taken by a public officer, but where the public officer has no interest whatever in the matter, but the private party for whose benefit the bond is taken is incapable, under the local law, of bringing a suit. Now, wherever a private party is capable of bringing a suit by force of the local law, it is treated as his right, and the other party to whom the promise is made is a mere conduit, through whom this right passes to the beneficiary.1

I would mention also, in this connection, that, when the jurisdiction has once attached, it is not defeated by any change, either in the domicile of the party who has brought the suit, or by his decease and the coming in of an executor or administrator who would not have been capable of suing. As, for instance, a citizen of Massachusetts brings a suit in the Circuit Court of Massachusetts against a citizen of Rhode Island, and after the suit is brought, while it is pending in court, the citizen of Massachusetts moves to Rhode Island; that does not defeat the jurisdiction. A court having competent jurisdiction over the suit does not lose it by a change in the citizenship of the party. Instead of

1 [The Circuit Court has jurisdiction, under the eleventh section of the Judiciary Act, of a suit in the name of the Governor of a State, on a sheriff's bond to the Governor, if the parties beneficially interested in the suit be citizens of another State, and competent to sue the defendant. McNutt v. Bland, 2 Howard, 9. See also Browne v. Strode, 5 Cranch, 303.]

that, suppose the citizen of Massachusetts who brings the suit dies, and a citizen of Rhode Island is his executor or administrator; still, it is held that the suit is prosecuted by him under the jurisdiction which the court originally obtained, and which is not defeated by this change which has taken place by the death of the party. These two points have been settled by the case of Morgan v. Morgan, 2 Wheaton, 290, and the case of Clarke v. Mathewson, 12 Peters, 164; and these principles are just as applicable to any other change of parties as to that which occurs in the case of removal or death. It is applicable where, owing to a change of interest or from other circumstances, parties have come in to succeed to the property which was brought under the jurisdiction of the court by a proper proceeding originally, and no change will defeat the jurisdiction. This was decided in the case of Dunn v. Clarke, 8 Peters, 1.

There are two other cases which show that other changes than those which I have mentioned will not defeat the jurisdiction when once it is possessed; the cases of Freeman v. Howe, 24 Howard, 450, and Huff v. Hutchinson, 14 Howard, 586. The case of Freeman v. Howe is one which pushes the jurisdiction, perhaps not too far, but to a great extent, where the court held that, when a marshal had attached property under a process from the Circuit Court, an action of replevin would not lie to

take the property out of the hands of the marshal, because it was in the custody of the law under that court. The difficulty which was suggested was, "There can be no litigation between a marshal who is a citizen of Massachusetts, and the claimant of this property, the plaintiff in replevin, who is also a citizen of Massachusetts "; to which the court responded: "Yes, there can be. A court having jurisdiction, and having extended its jurisdiction over this property, these parties may try the title as the court shall direct, under a petition, or by any other proper form of proceeding." And therefore the jurisdiction of the State court by replevin was denied. They have, however, since held, - and I may mention it in this connection,that although the property cannot be taken out of the hands of the marshal by a writ of replevin, an action of trespass or trover will lie against him for the tort.

V.

Jurisdiction of the Circuit Courts.

Amount in Controversy.

Averment of Citizenship. — How Citizenship must be traversed. — Citizenship of Corporations. "Fictio" of the Roman Law.

- Corresponding Fictions in the English Law. - Legal Presumption of the Citizenship of Members of a Corporation. — How to aver the Habitat of a Corporation. - Corporations acting in different States. Corporations chartered by different States. - Assignee of a Chose in Action. Foreign Bills of Exchange. Necessary and Unnecessary Parties. - Voluntary Appearance.

- Removal of Suits from State Courts. properly removed.

-

Remanding Cases im

I FIND, gentlemen, in looking over my notes, that I accidentally omitted to notice two points which are of some importance. I will ask you to go back with me, and attend for a few moments to these points.

This eleventh section of the Judiciary Act, which confers jurisdiction on the Circuit Courts by reason of the character of the parties, contains this clause:

“That the Circuit Courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundre 1 dollars."