holder and the maker; whether they will have it when the plaintiff's immediate assignee is one not competent to sue the maker in the Federal Courts, although the original payee could have done so, is still an open question.

267. What is a Chose in Action in the Statutory Sense?-Mortgages. What do the words "chose in action" as here used mean? A citizen of Michigan owed money to a Michigan corporation. He gave his bond therefor and secured its payment by a mortgage on land. The mortgagee assigned the bond, the mortgage, the money secured, and the estate created to a citizen of New York. The latter subsequently filed a bill in the Circuit Court of the United States for the District of Michigan for the foreclosure of the mortgage. The Supreme Court said that the term

"chose in action' is one of comprehensive import. It includes the infinite variety of contracts, covenants and promises, which confer on one party a right to recover a personal chattel or a sum of money from another, by action. It is true, a deed or title for land does not come within this description. And it is true, also, that a mortgagee may avail himself of his legal title to recover in ejectment, in a court of law. Yet, even there, he is considered as having but a chattel interest, while the mortgagor is treated as the true owner."***"“In equity, the debt or bond is treated as the principal, and the mortgage as the incident. It passes by the assignment or transfer of the bond, and is discharged by its payment.' *** “The complainant in this case is the purchaser and assignee of a sum of money-a debt, a chose in actionnot of a tract of land. He seeks to recover by this action a debt assigned to him. He is therefore 'the assignee of a chose in action' within the letter and spirit of the Act of Congress under consideration, and cannot support this action in the Circuit Court of the United States, where his assigner could not."1

Later cases have qualified some of the language used. They have held that the statute does not apply to rights of action arising out of the ownership of an assigned chattel any more

1 Sheldon vs. Sill, 8 How. 449.

than it does to those incident to the ownership of granted land.2

268. Do.-Contracts for the Conveyance of Lands.-The School Fund Commissioners of Black Hawk County, Iowa, entered into contracts with a number of individuals, all citizens of Iowa, to convey to them some of the school lands of that county. Part of the purchase money was paid in cash and the balance was to be paid thereafter at times stipulated in the agreements. It was provided that if the subsequent payments were not forthcoming those previously made should be forfeited. Thereafter, the lands and all interests under these contracts were conveyed to the plaintiff, a citizen of New York. He filed a bill alleging a tender of the amount still due and praying that his title to the land might be cleared, and that all conveyances made in fraud of his rights might be cancelled. There was a very ingenious attempt so to frame the bill as to avoid all appearance of asking for the specific performance of the contract and to make it seem as if the real controversy was over the title to the land, but it was held that the Federal Court had no jurisdiction.1

269. Do.-Is a Judgment for Tort a Chose in Action Within the Meaning of the Statute?-It is probable that a judgment for a tort is not a chose in action within the meaning of the statute, although it is clear that a judgment for breach of contract is.1

In the last cited case the Supreme Court holds that where justice requires it, the Court will look back of the judgment to the cause for which it is given and be governed accordingly.

270. Right of Assignee to Sue as Affected by the Requirement of a Minimum Amount in Controversy.Suppose a plaintiff claims as the assignee of a number of

2 Deshler vs. Dodge, 16 How. 622.

1

1 Corbin vs. County of Black Hawk, 105 U. S. 659. 'Walker vs. Powers, 104 U. S. 248.

separate payees? The holder, at the time suit brought, is himself a citizen of another State than that of the maker, as is also each one of the payees to whose rights he has succeeded. The aggregate of his claim exceeds $3,000. No one of his assignees had a claim for so much. Would the Federal Court have jurisdiction? Although the suit could not have been brought had no assignment been made, the Supreme Court1 has held that the statute has no application to such a case.

The provision that the United States Courts shall not have jurisdiction unless the amount in controversy exceeds a certain sum, is intended merely to prevent cases in which the amount involved is not large being brought in Courts in which as a rule litigation is more expensive than it is in the State tribunals. If when the case gets into Court the required amount is in controversy, the purpose of Congress has been attained.

271. Does the Assignment Statute Have Any Relation to the Venue of Actions?-Suppose A, a citizen of Maryland, gives his promissory note to B, a citizen of Pennsylvania, and B endorses the note over to C, a citizen of the Southern District of New York. A does not pay the note at maturity, is in New York and is there sued by C. Can he object to the jurisdiction on the ground that, if no assignment had been made he could not have been sued in that particular Court, because, if the note had remained in the hands of B, B could have sued on it only in the Eastern District of Pennsylvania, in which he lived, or in the District of Maryland, in which A lived ?1

The decided cases differ on the question. The earlier say that such a suit can be maintained. The later that it can not.

1 Emsheimer vs. New Orleans, 186 U. S. 33.

1 Bolles vs. Lehigh Valley R. Co., 127 Fed. 884; Consolidated Rubber Tire Co. vs. Ferguson, 183 Fed. 756; Waterman vs. C. & O. R. Co., 199 Fed. 667.

-

272. Exceptions - Foreign Bills of Exchange. From this assignment provision foreign bills of exchange are expressly excepted. What is a foreign bill of exchange?

In 1819 Finley & Van Lear of this city drew a bill of exchange in favor of one Rosewell L. Colt, also of Baltimore, on Stephen Dever of New Orleans. The payee endorsed the bill for value to one Buckner, a citizen of New York. It was not paid at maturity and was properly protested. Suit was brought on it by Buckner as a citizen of New York against Finley & Van Lear as citizens of Maryland in the United States Circuit Court for the District of Maryland. It was contended on one side that the bill in question was not a foreign bill of exchange; that in order that it should be, it would necessarily have had to have been drawn by persons residing abroad, but the Supreme Court was of a different opinion. It held that bills of exchange drawn in one State of the Union on persons living in another, partake of the character of foreign bills and ought to be so treated in the Courts of the United States.1

The reason for this exception was discussed by the Supreme Court in that case. It was there suggested that the purpose of the assignment statute was

"to prevent frauds upon the jurisdiction of the" Federal Courts, "by pretended assignments of bonds, notes and bills of exchange, strictly inland; and as these evidences of debt generally concern the internal negotiation of the inhabitants of the same State, and would seldom find their way fairly into the hands of persons residing in another State, the prohibition as to them would impose a very trifling restriction, if any, upon the commercial intercourse of the different States with each other. It is quite otherwise as to the bills drawn in one State upon another. They answer all the purposes of remittances, and of commercial facilities, equally with bills drawn upon other countries, or vice versa; and if a choice of jurisdiction be important to the credit of bills of the latter class, which it undoubtedly is, it must be equally so, to that of the former. Nor does the reason for restraining the transfer of other choses in action, apply

1 Buckner vs. Finley & Van Lear, 2 Peters, 586.

to bills of exchange of this description; which, from their commercial character, might be expected to pass fairly into the hands of persons residing in the different States of the Union."

273. Do.-Instruments Payable to Bearer Made by a Corporation Also Excepted From Assignment Proviso. -The provision prohibiting suits by assignees unless the suit could have been brought had no assignment been made, is expressly made applicable to instruments payable to bearer, with the exception of such as are made by corporations.

The City of New Orleans issued a number of certificates of indebtedness payable to bearer. One Quinlan, a citizen of New York, brought suit in the United States Court for the Eastern District of Louisiana against the City of New Orleans. The declaration contained no averment that the suit could have been maintained by the assignors of the certificates sued upon. The Supreme Court said that was immaterial; that the certificates were payable to bearer, they were made by a corporation; "they were transferrable by delivery; they were not negotiable under the law merchant, but that was immaterial; they were payable to any person hold ing them in good faith, not by virtue of any assignment of the promisee, but by an original and direct promise, moving from maker to the bearer." It was, therefore, held that they were not subject to the assignment restrictions and that the Circuit Court had jurisdiction.1

274. When in the Sense of the Statute Does the Assignee Sue to Recover Upon a Chose in Action?The Suit Must Be Brought Upon the Chose in Action.— The recovery of the contents of the assigned chose in action. must be the object of the suit; otherwise the statute does not apply. The tax collector of Cuyahoga County, Ohio, distrained upon some of the banks of that county. He seized certain bank notes in their possession. He said the banks owed taxes and he took the notes because the taxes were due

1 New Orleans vs. Quinlan, 173 U. S. 191.