ROLI:.INS:",. OHAFFEE COUNTY· . ROLLINS
CHAFFEE COUNTY·. CuSTER COUr;TY. March 26,1888.)
(Oi'1'lJuit (JOU'1't, D. (Jolo'1'ado.
COURTS-FEriERAL JURISDICTION-AcTIONS ON COUNTY WARRANTS.
Under actCong. 1887. (24 St. 553.) § 1, providing that the federal courts shall not have jurisdiction of any action on any promissory note or chose in action. except on negotiable securities payable to bearer. and made bya corp()l·atjon. by an assignee. or a subsequent holder. if the instrument be payable to bearer. unless such suit might have been brought in such court if no assignment or transfer had been made. the circuit court has no jurisdiction of an action by an assignee ,on a county wa!.'rant payable to the order of a person nam,E!d therein. and passing only by indorsement. in the absence of averment that the assignor wasqualitied to sue in this court, but has jurisdiction of an action by the holder on one payable to bearer, Buch being a negotiable security made by a corporation. ,, ,
At Law. On demurrer to complaint. Teller & Orahood, for plaintiffs. G. H. Hartinstim, for' Chaffee county. , Hugh Butler, for Custer county. , , HALLl1:TT. J. A questio!l of jurisdiction under the act of 1887 arises on demurrer to the complaint in each of these actions. The warrants on which plaintiffs seek to recover are in the usual form of such instruments, signed by the chairman of the board of commissioners, attested by the clerk, and directed to the treasurer of the county. In the Chaffee County they are payable to a person named therein or to his order, and in the other case they are payable to a person named or to bearer. The names of the payees are not given, nor is anything alleged as to their citizenship; and the question is whether the action can be maintained without showing that they, as well as the plaintiffs, w:e,re qualified to sUe ia this court. The meaning of that clause of the first section of the act of 1887, (24 St. 553,) which relates to suits by assignees of promissory notes and other chases in action, is not very clear, but it seems to be well stated in Newgass v. Oity of New Orleans, 33 Fed. Rep. 196. . When it came from the house of representatives the clause referred to was as follows: ."Nor shall any circuit or district court have cognizance of any suit founded ,on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assig!lment had been made, except in cases of bills of exchange." 18 Congo H.ec. 646. The senate amendment was probably intended to retain jurisdiction over n large dass of securities made by corporations, railroad companies, . and the li.:re, which are sold in open market and negotiable by delivery. Certl\iinly it was not intended to give jurisdiction in all actions by assignees on promissory notes and otber contracts excepting those last mentioned, and that seems to be the alternative if we reject the proposed construction. Accordingly, I am constrained to follow the interpreta-
tion of the act in the New Orleans Ca.se cited above, and hold jurisdiction of actions by assignees, when the.liLssignor was not competent to sue in this court only in cases of foreign bills of exchange and negotiable securities payable to bearer, and mat,ie by a corporation. In Jerome v. Commissioners, 18 Fed. Rep. 873, county Wl.'lrrants payable to a person named, or bearer, were regarded'asof this class of'Securities. That case was decided under the act of but the opinion is of equal force under the act of1887; and it isa full answer to the remarks of counsel and the authorities cited in support of the demurrer in the Custer County Case, except oh the point, not beforerai;led in this court, that an action cannot be maintained on a county warrant until after such, reasonable time from its date, as may be evidence of a refusal to pay on the part of the county. In supp()rt:qf that positioh it recent decision of the supreme court in Manufacturing 00. v. County of Otoe, ,8 Sup. Ct. Rep. 582, is cited, from which it appears that some rule of that kind isestabJished in Nebraska. If any such rule obtains in this state, the demurrer in the Custer County Case does not call for its appliclltion. Some of the warrants are of long standing, and the demurrer is direc1ed against them as well as those of more recent date. In the Chaffee County Case the warrants being payable to the order of a person named therein, and passing only by indorsement, in the absence of averment that the assignors were qualified to sue in this court weare without jurisdiction, and the demurrer be sustained and the suit dismissed at plaintiff's cost. In the OtUJter Oounty Case the warrants being payable to bearer, and made by a corporation, 'appear to be within the exception of the statute. In that case the demurrer'will be overruled, and the defendant will be required to answer.
TEXAS & P. Ry. Co.
(Oircuit Oourt, R.
February 25, 1888.)
CARRIERS-OF PASSENGERS-CONTRIBUTORY NEGLIGENCE.'
.Where.in an action for damages by one alleging that he had been jolted off a railroad train on which he was a passenger so as to strike a moving freight train and be thrown with his feet under the wheels of the freight train and thus recefvedthe injuries complained of, the evidence shows that claimant was injured· in attempting without right to ·mount the freight train while in motion. he is not en titled to recover.
On Exceptions to Master's Report. The intervenor sought to recover damages for injuries received by being run overby a freight train operated by the receivers of the defendant railroad. ,The master reportedadvel'sely on the claim and intervenor excepted. E. D. Craig and B. K. Mille1., for intervenor. Hawe &: Prentiss, for receivers.