was introduced for the purpose of nullifying a series of decisions under the act of 1789, which held that promissory notes and other written instruments payable to a person named "or bearer" were not within the exceptions of the statute, because the promise was in law made directly to the bearer, and he did not take by assignment from the person named. We are clear in our opinion that it was not intended to qualify or limit in any way the words "other chose in action." A right of action upon an oral contract is as much a chose in action as if the contract were in writing. The motion to set aside the nonsuit, and for a new trial, must be denied.
CITY OF NEW ORLEANS. STEWART t7. SAME. NEW ORLEANS PACKING & CANNING Co.
(Ofrcuit Oourt; E. D. Louisiana.
COURTS-FEDERAL JURISDICTION-AcT OF MARCH
Held, that where the transfer of choses in action requires an assignment, the court has no jurisdiction over cases where an assignee is plaintiff. unless the court would have had jurisdiction llad the action been brought by the assignor.
Hela" that where the transfer of choses in action may be made by delivery. and the obligation is made to bearer, and by a corporation, and the parties to the suit are citizens of different states, the court has jurisdiction, although had the suit been brought by a former holder the court would ha.ve had no jurisdiction.
(SyUabu8 by th8, Oourt.)
At Law. On plea to the jurisdiction. Herman Newgass, a German citizen, sued the city of New Orleans on certain claims assigned to him by citizens of New Orleans; John Garrity, a citizen of Kentucky, sued the New Orleans Packing & Canning Company, a corporation of the state of Louisiana, on certain claims asto him by citizens of Louisiana; and C. H. Stewart, a citizen of Alabama, sued the city of New Orleans on certain certificates of indebtedness issued by the city, and payable to bearer. Charles Louque, for plaintiffs Newgass, Stewart, and Garrity. W. H. Rogers,' for defendant city of New Orleans. Nicholls & Carroll, for defendant New Orleans Packing and Canning Company.
BILLINGS, J. These cases are submitted .upon the same exceptions; i. e., upon the same plea to the jurisdiction. In each case is presented for construction that part of the act of 1887 which restricts the jurisdie-
NEWGASS V. CITY OF NEW ORLEANS.
tion when the suit is upon a chose in action, and there has been an assignment or transfer. In each case the chose in action was made by defendant, who is a corporation, and the suit is between citizens of different states. In the first and second cases, the plaintiff claims title to a chose in action which could be transferred only by assignment, and the assignor could not have maintained suit, being a citizen of the same state as the defendant. In the third case, the plaintiff sues, as a subsequent holder, upon an instrument, payable in its terms to bearer, which could of course be transferred by delivery without any other assignment, and the first holder could not have maintained suit in this court, being a citizen of the same state as the defendant. Section 1 of the act of 1887, after granting to the circuit jurisdiction in cases "in which there shall be a controversy between citizens of different states," contains the following restriction: "But, where the jurisdiction is founded only on the fact that the action is betl\veenccitizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant; nor shall any circuit or district court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder of such instrument be payable t<:> bearer and be not made by any corporation, unless such suit might have been prosecnted in such court to recover the said contents, if no assignment or transfer had been made; and the circuit courts shall also have appellate jurisdiction from the district courts, under the regulations and restrictions prescribed by law."
It is manifest that there is some error in the sentence as printed in the statute, "or of any subsequent holder of such instrument be payable to bearer and be not made by any corporation." If we turn to the Congressional Record, vol. 18, No. 65, at page 2721, we find that this section of this bill, which had come from the house of representatives, was . amended in the senate by inserting the folldwing:
"Except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder. if such instrument be payable to bearer, and. be not made by any corporation. unless such suit might have been prosecuted in such court to recover the said contents, if no assignment or transfer had been made." So as to make the clause read: "That the first section of an act entitled ·An act to determine the jurisdiction of circuit courts of the United States. and to regulate the removal of causes from state courts, and for otber purposes,' approved March 3. 1875, be and thp, same is hereby amended so as to read as follows: ·That the circuit courts of the United States 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 interest and costs, the sum or value of $2,000, and arising under the constitution or laws of the United States, or treaties made or which shall be made under their authority; or in which controversy the United States are plaintiffs or petitioners; or in which there shall be a controversy between citizens of different states. in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value
,or a'controvl'lrsy between citizens of the same state, lands of different states; or .aQQntroversy pf a state and or subjects, illwhich the matterin dispute exceeds, exclusiVe of interest and'costs, the sum or value aforesaid;' and'shall have exclusive cogIiizance of all crimes and offenses cognizable uhder the authority of the United: States, except as otherwise proVided by law; and concurrent jurisdiction with the district court of the crimes and offenses,cognizableby them. But no person shall be arrested in oneqilltrict for trialin l;ll)other in any civil action circuit Or dis.trict court; and no civil suit shall, be brought before eitherofsaid courtsaglj.inst any person, by any original process or proceeding, in any other district than that whereof he is aninflabitant; but where the juri'Bdlotion is founded only on the, fact that theaction'is between citizens of different states, suit shall be brought only in the district of the residence of ¢ither the plaintiff Or the defendant; nor shall any circuit or district court foreign bills of eXllhange, to recover . have cognizance of the contents of any pJ;omissofY note or other chose in, action in favor of any assignee, or of any subsequent holder, if such instrument be payable to bearer, and be not made by any corporation, unless such suit might have,been cuted.in such court to recQverthe said .COntents, if no assignment or transfer had !;Jeen. made; and the cil;cuit COllrts shall also have appellate jurisdiction from the district courts under the regulations alldrestrictions prescribed by law.'" It is to be observed that the word "of" in the phrase" or of any subsequent holder of such instrument," was in the law as amended and passed by' the senate "if." . The grammatical or intelligible construction of the sbltute requiring that the word should be "if," cotirtElwill construe it as if it had read "if." If we construe the word "of" to be "if," the meaning of congress in the restriction is manifest. The restriction, after excluding its operation "foreign bills of exchange," deals with all other choses in action. Thoserights of action whichreq\lired an assignment were excluded from the jurisdiction, unless the assignor could have prosecuted the action to recover thereon before the assignment. Thosechoses in action which did not require any express assignment, because they were payable to bearer, and thus passed by delivery, were also excluded from the jurisdiction, unless made by some corporation, if the transferee not have maintained suit thereon before transfer. The ,construction of the restriction may also be stated ,·thus: The circuit court shall have no jurisdiction over suits for the recovery of tbecontents of promissory notes or other choses in action brought in favor of assignees or transferees except over-,-F'irst, suits upon foreign bills of exchange; second, suits that might };lave been prosecuted in such court to recover the said contE'nts, if no assignment or transfer . had been inade; third, suits upon chases in action payable to bearer, and made by a COrl;)()ratiQn. It follows t):Jat in the first and second cases, since the obligations were of such a nature as to require assignment, and the assignor could not have maintained an action in this court before assignment" the plaintiff, the assignee,cannot. It also follows that in the the third case-the court has for, while the obligation sued on is payable to bearer, it is made by a corporation, and therefore falls within the exception to the general restriction as to obligations payable to 1?earer.
BAl'\KERS' & l\1ERCHANTS' TEL. CO.
The exception is therefore sustained, and the suit dismissed, hi the first two cases. In the last case, the jurisdiction is maintained, and the exception is overruled. The. circuit judge concurs in this construction of the statute.
Co. et al.
(Circuit 001J,f't, 8. D. NfllD York. 1887.)
1. REOEIVER-PENDING MORTGAGE FORECLOSURE-AUTHORITY TO BRING SUIT.
Although the order appointing a receiver pendente lite in mortgage foreclosureauthQrized him to 'bring such suits as he might be advised; he cannot maintain a suit in equity to obtain an adjudication that certain real property is subject to the lien of the mortgage, and that aU liens claimed thereon by parties in possession and parties out of possession are invalid against him, and to obtain possession thereof, against one claiming adversely. So far as. the suit is in the nature of an equitable ejectment suit, it is not known to equity jurisdiction. So far as it relates to the other matters of the bill, 'thll'complainant has no interest, and as to him these matters present merely abstract ouestions.
8. :EQl1ITY-J'P'R:SDICTION-PROPERTY IN AnVERSEPOSSESBION,.....BILI, TO
Equity will not entertain Ii bl1l.to tr,r title to, and obtain possession of, property in t:lte of one claimmg adversely, although at the same time compllLinant seeks relief in the nature of removillg clouds upon title.
In Equity. Bill by :Edward Harland, receiver pendente lite of the .American Rapid Telegraph Company, for the possession and control of certain property in the hands of tlie receivers of the Bankers' & Merchants'Telegraph Company, to estjl.blish a lien upon certain stock pledged or mortgaged to the Farmers' .Loan & Trust Company, and for other relief. This bill, at a former hearing. was dismissed without prejudice to the complainant to bring such other suit as he might be advised. For former opinionrendered by.WAI,LACE, .1., and facts therein stated, see 32 Rep. 305. William G. Wilson and Hamilton Wallis, for complainant. RobertG. Ingersoll, for Bankers' & Merchants' Tel. Co.
WALLACE, J. The case of Davis v. Gray, 16 Wall..203, is authority to the effect that a court of equity, in the course of its, ordinary j nrisdiction, such as is exercised in a suit for the foreclosure of -a mortgage, can confer upon a receiver all the powers and rights usually vested in statu" tory receivers ofirisolvent corporations; and that a receiver so appointed can maintaiu an action in his own name, and can enforce any right of property, legal which is within the authority conferred upon him by the terms of the decree or order by which he was appointed. The order appointing the receiver in that case authorized him to sell and convejT the IJ1.ongaged property, an authority which Hean hardly be sup-