and to pay the taxes with them. The banks thereupon sold those very notes to a citizen of New York. The latter, in the Circuit Court of the United States for the Northern District of Ohio, brought an action of replevin against the tax collector, who, of course, was an Ohio citizen. The Supreme Court, five judges against four, said: "We are of opinion that this clause of the statute has no application to the case of a suit by the assignee of a chose in action to recover possession of the thing in specie, or damages for its wrongful caption or detention; and that it applies only to cases in which the suit is brought to recover the contents, or to enforce the contract contained in the instrument assigned. In the case of a tortious taking, or wrongful detention of a chose in action against the right or title of the assignee, the injury is one to the right of property in the thing, and it is therefore unimportant as it respects the derivation of the title; it is sufficient if it belongs to the party bringing the suit at the time of the injury. The distinction, as it respects the application of the 11th section of the Judiciary Act to a suit concerning a chose in action in this --where the suit is brought to enforce the contract, the assignee is disabled unless it might have been brought in the Court, if no assignment had been made; but if brought for a tortious taking or a wrongful detention of the chattel, then the remedy accrues to the person who has the right of property or of possession at the time, the same as in case of like wrong in respect to any other sort of personal chattel."1 275. Do. The Assigned Chose in Action Must Be the Cause of Action.-In order that this proviso of the statute shall apply, there must have been something assigned, and that something must constitute the cause of action. Citizens of New York sued citizens of Oregon as makers of a promissory note. On its face, it was payable to another citizen of Oregon and was endorsed by him. The plaintiffs in their declaration alleged that the transaction was a loan by them to the endorser; that the defendants executed the note. for the accommodation of the endorser to enable him to pro 1 Deshler vs. Dodge, 16 How. 630. cure the loan, and that he was in fact the maker of the notes and never himself had any cause of action thereon against the defendants. The Supreme Court affirmed a judgment in favor of the plaintiffs. It said: "The plaintiffs below were the first and only holders of the note for value." *** "It is quite plain that the plaintiffs' action did not offend the spirit and purpose of this section of the Act. The purpose of the restriction as to suits by assignees was to prevent the making of assignments of choses in action for the purpose of giving jurisdiction to the Federal Court."***"The true meaning of the restriction in question was not disturbed by permitting the plaintiffs to show that, notwithstanding the terms of the note, the payee was really a maker or original promissor, and did not, by his endorsement. assign or transfer any right of action held by him against the accommodation makers."1 276. Do. Suits by Drawers Against Acceptors Are Not.-A municipal corporation of Nebraska contracted with citizens of that State for the construction of waterworks. The contractors gave certain citizens of Missouri an order upon the city for $5,750. The municipality accepted the order and undertook to withhold its amount from the final payment that might become due the contractors. The city was sued by the holders of the order. The Supreme Court said: "This acceptance was a contract directly between the city and the plaintiffs below, upon which the city was immediately chargeable as promissor to the plaintiffs. Nothing is better settled in the law of commercial paper than that the acceptance of a draft or order in favor of a certain payee, constitutes a new contract between the acceptor and such payee, and that the latter may bring suit upon it without tracing title from the drawer. From the moment of acceptance, the acceptor becomes the primary debtor, and the drawer is only contingently liable, in case of non-payment by the acceptor."***"It has been the settled law of this Court that the Circuit Court 1 Holmes vs. Goldsmith, 147 U. S. 150. has jurisdiction of a suit, brought by the endorsee of a promissory note against his immediate endorser, whether a suit would lie against the maker or not, upon the ground, as stated by CHIEF JUSTICE MARSHALL, 'that the endorsee does not claim through an assignment. It is a new contract entered into by the endorser and endorsee.'"'1 277. Do.-Suits by Endorsees Against Endorsers Are Not. The case referred to in the opinion of the Supreme Court last cited was a case in which citizens of Pennsylvania in the United States Circuit Court for the District of Tennessee sued a citizen of Tennessee as the endorser of a promissory note drawn by another citizen of Tennessee and endorsed to the plaintiffs.1 278. Do. Suits by Those Claiming Under Subrogation Are Not.-Subrogation is not assignment. The subrogated creditor, by operation of law represents the persons to whose rights he is subrogated. The administrator of that famous litigant, Mrs. Gaines, brought suit in the United States Court against the City of New Orleans. He claimed to be subrogated to the rights of certain citizens of Louisiana. It was held that the United States Court had jurisdiction on the ground of diverse citizenship, the administrator being a citizen of another State than Louisiana, although the persons to whose rights he was subrogated were citizens of Louisiana. The Court said: "We have repeatedly held that representatives may stand upon their own citizenship in the Federal Courts, irrespectively of the citizenship of the persons whom they represent, such as executors, administrators, guardians, trustees, receivers, etc. The evil which the law was intended to obviate was the voluntary creation. of Federal jurisdiction by simulated assignments. But assignments by operation of law, creating legal representatives, are not within the mischief or reason of the law. Persons subrogated to the rights of others by the rules of equity are within this principle. When, how ever, the State or the Governor of a State, is a mere 279. Do.-Suits Upon Novations Are Not.-Citizens of Illinois entered into a contract of employment with an Illinois corporation and assumed certain obligations in connection therewith. The Illinois corporation sold all its property, including such contracts, to a New Jersey corporation. The defendants, with knowledge of the sale, remained in the service of the purchaser in the same capacities and with the same salaries. Subsequently it sued them for breach of the contract of employment. The Supreme Court held that the rights of the New Jersey corporation and of the defendants depended not upon the original contract, but upon its adoption by the New Jersey corporation and the defendants as the contract between them; and that therefore the New Jersey corporation was not assignee of the rights of the Illinois corporation under the contract, but was an original contracting party with the Illinois defendants.1 The Federal Court had jurisdiction. 280. Do. Suits by Lessors Against Assignees of Lessees Are Not.-A citizen of one State brought suit against a citizen of another on the covenants contained in a lease made by the plaintiff to an assignor of the defendant. In the declaration the plaintiff did not allege the citizenship of the original lessee. The Court held that his citizenship was immaterial; that the statute only applied to the assignee of the right of action, and had no reference to interests in specific things acquired by the defendant by assignment; such interests and the rights resulting from them were within neither the purpose nor the letter of the statute.1 1 New Orleans vs. Gaines, Admr., 138 U. S. 606; affirmed in Mexican Central Railway Co. vs. Eckman, 187 U. S. 429. 1 1 American Colortype Co. vs. Continental Co., 188 U. S. 104. Adams vs. Shirk, 105 Fed. 659. 281. Do.-Suits by Party to Contract Against Assignee of Other Are Not.-A contract was made between two citizens of Florida. One of them assigned his rights under the contract to citizens of France. The other subsequently brought suit against those citizens of France in the United States Court. It was held that independently of the question whether there had not been necessarily a novation upon which the plaintiff was suing, the assignment statute had no application to an assignment made by an assignee of the defendant and not by an assignee of the plaintiff.1 282. Do. Suits for Trespass to Property Are Not.The statute relates solely to such suits as grow out of the contracts of the original parties. It has no reference to actions brought to recover damages for trespass to property. A plaintiff, a citizen of New York, brought an action in his own right and as assignee of another, whose citizenship was not stated, against citizens of Florida, to recover as damages $6,000, the alleged value of 3,000 trees and pine logs cut by the defendants upon the lands in Florida of the plaintiff and one Russell, and carried away and converted to the use of the defendants. Russell had assigned all his interests in the logs and in the claim to the plaintiff. The Supreme Court held that the suit could be maintained and that the statute did not apply to claims of that character.1 283. Duty of Court to Dismiss Suits Not Involving a Controversy Within Its Jurisdiction.-Congress and the Courts are zealous to prevent the bringing in the United States Courts of suits of which those Courts would not have had jurisdiction had the real facts been set forth by the plaintiff. The Judicial Code provides: "If in any suit commenced in a District Court, or removed from a State Court to a District Court of the United States, it shall appear to the satisfaction of the said District Court, at any time after such suit has been brought or removed thereto, that such suit does not really 'Brooks vs. Laurent, 98 Fed. 647. Ambler vs. Eppinger, 137 U. S. 480. |