property, who in consideration of the purchase agrees to pay off the mortgage, cannot raise the question of usury, that being a personal right of the original debtor.

(196 U. S. 89)

M. H. COURTNEY, Appt.,

v.

LOUIS A. PRADT, Executor of Merrit B Atwater, Deceased, and William C. Atwater.

The court of appeals also held that the claim for usurious interest was one which survived the death of the person in whom Direct appeal from circuit court-when ju the right of action was vested, and under risdiction is in issue. the laws of Texas a part of his estate, and consequently one that could be sold and 1. The dismissal by a Federal circuit court of bought like any other chose in action. If so, that claim passed to the trustee in bankruptcy under § 70 of the bankrupt law [30 Stat. at L. 566, chap. 547, U. S. Comp. Stat. 1901, p. 3451], which, in describing the property passing to the trustee, names "property which prior to filing of the petition he could by any means have transferred."

3.

a suit against a foreign executor for the want of jurisdiction in the state court, from which it had been removed for diversity of citizenship, does not present a question of the jurisdiction of the circuit court as a Federal court, which will authorize a direct appeal under the act of March 3, 1891 (26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549), § 5, to the Federal Supreme Court.

which has been removed from the state court to a Federal circuit court does not so present the question of that court's jurisdiction as to sustain a direct appeal to the Federal Supreme Court under the act of March 3, 1891 (26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549), § 5, where such motion did not, in terms, put in issue the power of the circuit court as a court of the United States to hear and determine the

cause.

The objection that an attachment suit in aid of an action at law was not cognizable in a Federal circuit court, to which it had been removed from the state court for diversity of citizenship, because the proceeding was equitable in form, is not open to consideration by a direct appeal to the Federal Supreme Court, which is sought to be maintained under the act of March 3, 1891 (26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549), § 5, as a case in which the jurisdiction of the circuit court was in issue.

The question then presented is whether this right of action, having once passed to 2. The denial of a motion to remand a cause the trustee in bankruptcy, was retransferred to J. L. Lasater upon the termination of the bankruptcy proceedings, he having returned no assets to his trustee, and having failed to notify him or the creditors of this claim for usury, and beginning this action within less than two months after the final discharge of the trustee. We have held that trustees in bankruptcy are not bound to accept property of an onerous or unprofitable character, and that they have a reasonable time in which to elect whether they will accept or not. If they decline to take the property, the bankrupt can assert title thereto. American File Co. v. Garrett, 110 U. S. 288, 295, 28 L. ed. 149, 152, 4 Sup. Ct. Rep. 90; Sparhawk v. Yerkes, 142 U. S. 1, 35 L. ed. 915, 12 Sup. Ct. Rep. 104; Sessions v. Romadka, 145 U. S. 29, 36 L. ed. 609, 12 Sup. Ct. Rep. 799; Dushane v. Beall, 161 U. S. 513, 40 L. ed. 791, 16 Sup. Ct. Rep. 637. But that doctrine can have no application when the trustee is ignorant of the existence of the property, and has had Argued December 9, 1904. no opportunity to make an election. It cannot be that a bankrupt, by omitting to schedule and withholding from his trustee all knowledge of certain property, can, after his estate in bankruptcy has been finally closed up, immediately thereafter assert title to the property on the ground that the trustee had never taken any action in respect to it. If the claim was of value (as certainly this claim was, according to the judgment below), it was something to which the creditors were entitled, and this bankrupt could not, by withholding knowledge of its existence, obtain a release from his debts, and still assert title to the prop-Illinois, were partners, and in 1898 Merrit erty.

The judgment of the Court of Civil Appeals is reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion.

[No. 93.]

uary 3, 1905.

Decided Jan

A United States for the Eastern District of

PPEAL from the Circuit Court of the

Kentucky to review a judgment dismissing, for want of jurisdiction in the state court, a cause which had been removed to the Circuit Court from the Circuit Court of Powell County, in the state of Kentucky. Dismissed for want of jurisdiction.

Statement by Mr. Chief Justice Fullert Merrit B. Atwater, a citizen of Wisconsin, and William C. Atwater, a citizen of

B. died testate, having appointed Louis A. Pradt, likewise a citizen of Wisconsin, his executor. The will was duly admitted to probate in Wisconsin, and Pradt duly qualified as executor, and has been and is acting

1893.

Mr. Chief Justice Fuller delivered the opinion of the court:

It appears from the opinions of the circuit court, to which we properly may refer (Loeb v. Columbia Twp. 179 U. S. 472, 45 L. ed. 280, 21 Sup. Ct. Rep. 174), that the court held that the state court had no jurisdiction so far as William C. Atwater was concerned unless it had jurisdiction as against the foreign executor of his deceased partner; that the suit must be treated as if against the foreign executor alone; and that it could not be maintained against the foreign executor in the state court, nor in the Federal court. And further, that the court was not bound to remand the case that tho

state court might determine that question. The appeal was taken directly to this

Courtney, a citizen of Kentucky, brought suit in the circuit court of Powell county, Kentucky, against Pradt, executor, and William C. Atwater, and procured a general order of attachment, under which the sheriff summoned the company to answer as garnishee by delivery of a copy of the attach-court, and cannot be maintained unless the ment to the person designated by the company as its agent upon whom process could be executed, as required by the statutes of Kentucky in that behalf. There was no personal service on Pradt, executor, or on William C. Atwater, but a warning order was entered pursuant to statute.

Pradt, as executor, and William C. Atwater, filed their petition and bond in the state court for the removal of the cause to the circuit court of the United States for the eastern district of Kentucky on the ground of diversity of citizenship, and it was removed accordingly. Pradt, executor, and William C. Atwater, entering their appearance in the circuit court for that purpose only, moved the court to dismiss the case "for want of jurisdiction to try same." On the same day, Pradt, executor, filed a special demurrer, assigning as causes, inter alia, that the court had no jurisdiction of the person or of the subject-matter. And on that day plaintiff moved to remand, no reasons being given. The circuit court overruled the motion to remand, sustained the motion to dismiss and the demurrer, and entered judgment dismissing the suit for want of jurisdiction. Two opinions were delivered, because further argument was permitted, and both are in the record. No certificate of the question of jurisdiction was applied for or granted; but an appeal was allowed to this court, which was argued in due course, together with a motion to dismiss.

Messrs. William Bullitt Dixon, Alexander Pope Humphrey, and Breckinridge & Shelby for appellant.

Messrs. Neal Brown, Louis A. Pradt, R. D. Hill, and Edwin C. Brandenburg for appellees.

25 S. C.-14.

case comes within the first of the classes

named in § 5 of the judiciary act of March 3, 1891, which gives an appeal or writ of error direct "in any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision." [26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549].

It is settled that the question of jurisdiction thus to be certified is the jurisdiction of the circuit court as a court of the United States, and not in respect of its general authority as a judicial tribunal. Blythe v. Hinckley, 173 U. S. 501, 43 L. ed. 783, 19 Sup. Ct. Rep. 497; Mexican C. R. Co. v. Eckman, 187 U. S. 429, 47 L. ed. 245, 23 Sup. Ct. Rep. 211; Louisville Trust Co. v. Knott, 191 U. S. 225, 48 L. ed. 159, 24 Sup. Ct. Rep. 119; Bache v. Hunt, 193 U. S. 523, 48 L. ed. 774, 24 Sup. Ct. Rep. 547.

And the general rule is that the certificate is an absolute prerequisite to the exercise of jurisdiction here. Maynard v. Hecht, 151 U. S. 324, 38 L. ed. 179, 14 Sup. Ct. Rep. 353. Although we have recognized exceptions to this rule when the explicit terms of the decree, or even of the order allowing the appeal, might properly bet considered as equivalent to the formal certificate. Huntington v. Laidley, 176 U. S. 668, 44 L. ed. 630, 20 Sup. Ct. Rep. 526; Arkansas v. Schlierholz, 179 U. S. 598, 45 L. ed. 335, 21 Sup. Ct. Rep. 229.

But, as said by Mr. Justice Gray in Huntington v. Laidley, "the record must distinctly and unequivocally show that the court below sends up for consideration a single and definite question of jurisdiction;" that is, of the jurisdiction of the court as a court of the United States.

No such state of case is exhibited by this record. There is no certificate nor any equivalent therefor. No single and definite issue as to the jurisdiction of the circuit court as a Federal court is presented.

Appeal

distinction between writ of error and appeal.

Writ of error, and not appeal, is the proper

method of obtaining a review in the Federal Supreme Court of a judgment of the supreme court of the territory of Oklahoma which affirmed a judgment of the court below sustaining a demurrer to, and dismissing with costs, the petition in an action to recover damages for false imprisonment.

The case was dismissed for want of jurisdiction over it, as a suit against a foreign executor, in the courts of Kentucky. The court had power to so adjudicate. When a case has been removed into the circuit court on the ground of diversity of citizenship, that court is entitled to pass on all questions arising, including the question of jurisdiction over the subject-matter in the state courts; or the sufficiency of the service of mesne process to authorize the recovery of personal judgment. Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517, Submitted 15 Sup. Ct. Rep. 559; Wabash Western R. Co. v. Brow, 164 U. S. 271, 41 L. ed. 431, 17 Sup. Ct. Rep. 126; De Lima v. Bidwell, 182

U. S. 1, 45 L. ed. 1041, 21 Sup. Ct. Rep. 743; Conley v. Mathieson Alkali Works, 190 U. S. 406, 47 L. ed. 1113, 23 Sup. Ct. Rep. 728. It is true that in this case a motion to remand was made, but there was nothing to indicate that it rested on the contention that there was a lack of jurisdiction in the Federal courts as contradistinguished from the state courts. It did not in terms put in issue the power of the circuit court as a court of the United States to hear and determine the case, and we cannot be called on to say that there may not have been other grounds for the motion, or to attempt to eliminate every other ground for the purpose of bringing the case within the first clause of § 5.

We do not regard the objection now urged, that the suit was in equity, and, as such, not cognizable by the circuit court, as open to consideration on this record by direct appeal, but, if it were, it is unavailing on the question of power.

PPEAL from the Supreme Court of the

A Territory of Oklahoma to review a judg ment which affirmed a judgment of the District Court of Pawnee County, in that Territory, sustaining a demurrer to, and dismissing, a petition in an action to recover damages for false imprisonment. Dismissed for want of jurisdiction.

See same case below, 11 Okla. 487, 69 Pac. 955.

The facts are stated in the opinion. Messrs. Andrew Wilson, Noel W. Barksdale, C. J. Wrightsman, and E. L. Fulton for appellant.

No counsel opposed.

THE CHIEF JUSTICE: This was an action brought by Comstock against Eagleton in the district court of Pawnee county, Oklahoma, to recover damages for false imprisonment in the sum of $5,317.50.

The petition was demurred to on the ground that it did not state facts sufficient to constitute a cause of action, the demurrer sustained, and the petition dismissed with costs. The case was then carried to the supreme court of Oklahoma on error, and the judgment affirmed. 11 Okla. 487, 69 Pac. 955.

From the judgment of affirmance this appeal was allowed and prosecuted to this court.

The principal action was an action at law. If, under existing statutes of Kentucky, the process of attachment or garnishment against nonresidents was equitable in form, as is contended, this could not cut off the right of removal where diversity of citizenship existed. The right to remove given by a constitutional act of Congress cannot be taken away or abridged by state statutes, By 9 of the "Act to Provide a Tempoand the case being removed, the circuit court rary Government for the Territory of Oklahad power to so deal with the controversy homa," approved May 2, 1890 (26 Stat. at that the party could lose nothing by his L. 81, chap. 182), it was provided that choice of tribunals. Cowley v. Northern P. "where the value of the property or the R. Co. 159 U. S. 569, 40 L. ed. 263, 16 Sup. amount in controversy" exceeded $5,000, Ct. Rep. 127. In our opinion the appeal "writs of error and appeals from the final was improvidently prosecuted directly to this decisions of said supreme court shall be alcourt, and it must, therefore, be dismissed.lowed and may be taken to the Supreme

Court of the United States in the same man- | cations of the same mining ground. The ner and under the same regulations as from defendant's location was adjudged invalid the circuit courts of the United States."

BUTTE CITY WATER COMPANY, Plff. in veyed, are hereby declared to be free and

Mining claims-location of-validity of tention to become such, under regulations state regulations-delegation of power-prescribed by law, and according to the loconflict with congressional legislation.

Argued and submitted December 16, 1904. laws of the state or territory in which the

I State of Montana to review outgitt subject to the following requirements: The

Mr. Justice Brewer delivered the opinion tain purposes to mining claims under the of the court:

necessary legislation by Congress, the local | United States do not prescribe any time in legislature of any state or territory may which the excavations necessary to enable provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent."

Section 2339 (U. S. Comp. Stat. 1901, p. ery, and thirty days afterwards for the prep1437) contains this clause: