WIGGINS V. BETHUNE;
legal title claimed by complainant; and as it &ppears from the bill that complainant holds the legal title, and is .seeking to obtain possession of the realty, relying solely upon such legal tHle, it follows that,'in SUbstance, the ,proceeding is in the nature of ejectment; and, the law affording a speedy and adequate remedy, the court, as a court of equity, has not jurisdiction. Demurrer must therefore be sustained.
(otherwise known a's "Blind Tom, ")by His Next etc., v. BETHUNE.
October 2, 1886.)
'OOtffi'l'S--'FEDERAL JuRJSDICTION""CITIZENSHIP-SUIT BY NEXT FRIEND.
Itn a,l!luit b11Oug1l.t by the next friend of one who is non compo8 mentis, federal jJlrisdiQtion cannot be based on the citizenshil? of the next friend, as he is only a nominal party. HUGHES, J., dissenting, In case the next friend is the real plaintiff.
. ,If a committee of one non comp08 changes his residence fiom the state where , h" was appointed. and where the non compllfI also resided, to another state, and takes the latter with him, the latter becomes a resident of the state towhich they remove, and retains such residence after the committee's death, notwithstanding he it! afterwards taken away to his original state, and elsewhere,and another committee is appointed for in such original state; and in alllit in brQught by him against said last-mentioned committee, a citizen of that state, the citizenship of the parties is such as to give' jurisdiction to a federal court.
InEquity. Bill for an accounting. Plea of want of jurisdiction. Charity Wiggins, who sues as next friend of Thomas Wiggins, e'Blind Tom,") is a citizen of New York; James N. Bethune, the defendant,QfVirginia. , A.J; Lerche and L. R.Page, for complainant. S. 'Ftrgu8Qn Beach, for defendant. .This is a bill filed by the complainant for an account, to which a: plea of want of jurisdiction has been interposed. The facts, as they appear from the affidavits filed by the parties, and as they have been stated at bar by the respeotive counsel, are these: John G. Bethune, who 8.t the time was a citizetlof Virginia, having Blind,Toroin bis keeping, was, on the twenty-fifth day of July, 1870, by a:probate court of state, appointed Tom's committee, he being found 'non compos mentis. As such committee, Bethune took Tom fI;om place to place, through the various states of the Union, givingmusicail enteft'ailln:ients, so that hawas seldom in Virginia. Finally J'ohn G.Bethllhe changed his place of residence from Viginia to the city of New York, taking Blind Tom with him, andbeca:me a.
resident of that state, where he died on the day of February, 1884. Blind Tom was continued on his travels under care of a brother of John G. Bethune, his former committee. While Blind Tom was thus journeying in the' state of North Carolina, James N. Bethune had himself appointed bya county court in Virginia as Tom's committee. Charity Wiggins, who sues as next friend, is the mother of Blind Tom, and is a citizen of New York. This heing the fact, she could not sue, (being a merely nominal party,) unless her son is a citizen of New York also. He is the real party in interest, and the jurisdiction of the court depends upon the fact whether or not Blind Tom, at the last appointment of a committee for him, was still 0: resident of New York, w4ere he had been a resident witb. JohnG. Bethune, his to and at the time of his death; There can be no doubt, we think, that the residence of his committee was the residence of Tom. He, non compos, had no ability to change it, and the fact that be was borne away by one who had no leglltl control over him to another state, away from his mother.in New York, who was his natural guardian, cannot be held to change his residence. ' The fact that he was temporarily in Virginia,. under the control of one who merely had physical domination of him, did not make him a resident of that state; and the appointment of a committee for him there, while he was absent in ;N'orth Carolina, added nothing to the effort to change his domicile.' The bill is framedllnder .the view that both. Charity Wiggins and her son, Tom, are citizens of New Yqrk, while the defendant is a citizen of Virginia, and we think the jurisdictional facts sufficiently' appear. The plea is therefore overruled. HUGHES, J. I concur on the ground that the controversy in this ease is really between the mother of Blind Tom, a resident of New York, suing as next friend, and a resident of Virginia, claiming to be Tom's committee. Blind Tom, though nominally a party, is really the subject of the controversy, andis not party to the suit in such.manner as, even if he were a citizen,ef Virginia, should defeat the jurisdiction of the court, where the substantial controversy is between citizens of different states; In many cases the prochein ami is merely a nominal party plaintiff; but in others, of which the present is an example, the real plaintiff is the prochein ami. Where this is the case, to treat the incompetent party to the record as the real plain. tiff would be to allow a technicality to obstruct the course of justice. Technicalities were devised for the promotion of justice between suit. ors. So long as they- serve that end, they should be respected; but when they operate to defeat justice, they should be discouraged by the courts. For these reasons, whatever may be true on the doubtful point, . where was Blind Tom's residence? I am of opinion that this couri has jurisdiction to entertain this suit.
PHELPS V. ELUOTT.
(Oircuit Oourt, 8. D.
York. November 15,1886.)
SUIT TO RECOVEB
EQUITABLE OWNER OF BONDS -
A suit by an equitable owner of bonds to recover the bonds, or their value, is properly brought in equity. ,
In a suit in equity by the equitable owner ofbonds to recover them, or,their proceeds, from the surviving members of a copartnership, ,all the members of which acquired the bonds with knowledge of his rights, itis not necessary to join the personal representatives of a deceased partn.er as parties defendant, . althoJlgh they would be proper parties, at the option of the defendants. 8.' A.CTION OR SUIT -JOINDER OF PARTIES - REPRESENTATIVE1S OF DECEASED A receiver, who had bean appointed in a suit between the equitableo'Wner .of the bonds and a third person to hold them pending, the determination the suit', surrendered them to the other party before the termination of the suit, , who sold them to the defendants. HeZd, that in a suit to recover their value the ..:eceiver, or, incase, of his· death, his personal not be made a party. , 4. BAmmUPTcy-LIMITATIONS-AcTION BY ASSIGNEE-BONDS f:lOLD BY BANK· RUPT-REV, ST. U. S. SEeTtoN 5057, In a s.uit in eqJlity bY' an assignee in bankruptcy to recover certain bonds, vested in him- by partIes to whom they had been sold by the bankrupt, an averment in the bill that the assignee "had no knowledge, or means of knowl·' edge, of· the, sale of said bonds until about the month of April, 1884," is insufficient to prevent the bar of the statute of limitations, requiring such suits to be brought within two years from the time the cause of action accrued. 5057, Rev. St. U. S.
, RECEIVER-SUIT IN EQUITY AGAmST SURVIVING MEMBERS.
SAME-Pt.EADmG-JoINDER OF PARTIES-PERSONAL REPRESENTATIVES OF CEASED P ARTNEll.
Deuel d Wilson, for plaintiff. Stanley, Clarke, et Smith, for defendants.
WALLAOE, J. Upon the allegations of the bill, for the purposes of this demurrer, it must be taken as true that the plaintiff, as the as,signee in bankruptcy of one McDonald, was the equitable owner of the award made to 'M;cDonald, and assigned by the latter to White, and that this was so adjudged by the supreme court of the United States in a suit brought by the plaintiff against McDonald and White in the supreme court of the District of Columbia upon an appeal from a decree in that suit to the supreme court of the United States. As the supreme court of the United States must have determined that, by the proper construction of the statutes regulating its appellate jurisdiction, it had power to make such a decree as is alleged in the bill, the question as to the power of the court, or the scope or effect .of the decree, is not open to discussion in this court. The bill also alleges tbat one Riggs, during the pendency of that :suit, was appointed a receiver by the supremA court of the District of -Columbia,: and bad in his possession, as such receiver, certain bonds representing part of the avails of the award which he undertook to hold pending the determination of the suit "subject to plaintiff's claim