LAIRD V. INDEMNITY MUT. MARINE ASBUR. (Oircuit Court, S. D. New York.
December 29, 1890.)
F.BDERAL COURTS-JURISDI.CTION-SUITS BY ASSIGNEE.
An action to recover on an insurance policy, and to reform the same, \s an action "to recover the contents of a chose in acttOn," within the meaning of Act Congo March 3, 1887, providing that the federal courts shall not take cognizance of such actions when brought by an assignee, unless such suit could have been prosecuted in such courts if no assignment had been made; and, where both plaintiff's assignor and defendant are aliens, and no federal question is involved, the circuit court will decline jurisdiction.
On Motion to Remand to State Court. Act Congo March 3, 1887, provides, inter alia, that the circuit and district courts shall not take cognizance of actions "to recover the contents * * of any chose in action :in favor of any assignee," unless such t;lOllrts would have had jurisdiction of such actions belore the assignment was made. Carpenter « Mosher, for plaintiff. Butler, StiUman & Hubbard, for defendant.
LACOMBE, Circuit Judge. This is an action to recover upon a contract of reinsurance, and for reformation of the policy, if necessary. It is therefore an action "to recover the contents of a chose in action." Shoecraft v. Bloxham, 124 U. S. 730,8 Sup. Ct. Rep. 686. The plaintiff is an assignee of the chose in action, and as, under the authorities, he is Dot within the exception of the first section of the act of 1887, this court can have no cognizance of his suit thereon, unless such suit might have lJeen prosecuted here if no assignment had been made. Simons v. Papet' Cb., 33 Fed. Rep. 193; Newgass V. New Orleans, 33 Fed. Rep. 196; RoUins v. OhatJee Co., 34 Fed. Rep. 91; Wilson v. Knox Co., 43 Fed. Rep. 481. His assignor is an alien corporation, and so is the defendant. No federal question is involved, and the suit couId not have been prosecuted inthis court between the original parties to the contract upon any theory of diverse citizenship, as neither of them is a citizen of any state of the federal Union. Hepburn V. Ellzey, 2 Cranch, 446; Rateau v. Bernard, 3 Blatchf. 244. Under the act of 1875 it was held that the restriction applicable' to original suits by assignees was not applicable in cases brought originally in the state courts, and removed thence to 11 fedeml court. Claflin V. Insurance Co., 110 U. S. 81, 3 Sup. Ct. Rep: 507; lWsenbaum V. Insurance CV., 37 Fed. Rep. 724. This was upon the ground that "the exception out of the jurisdiction, as to suits begun in the circuit courts, contained in the [first section,] did not by its terms, Qor by the immediate contex.t, apply to suits begun in the state court'l, and afterwards removed to the circuit courts." Under the aCt of 1887, (1888,) however, the second section of which providesf6r removal of causes when a federal question is not involved, and when no prejudice or local influence appear, is specially restricted to suits "of which the circuit courts of the United States are given jurisdiction by the preced-
CARR V. FU'E.
ing section," and by the preceding section, (section 1,) such courts are not given jurisdiction of a suit to recover the contents of a chose in action in such a case as this. There must be a remand to the state court.
CARR ". FIFE
(Oircuit Oourt, D. WaBhington, W. D. January 7,189L)
JURISDICTION OF FEDERAL COURT-ACTIONS ARISING UNDBR STATES.
OF TBJI UNITBD
A suit in which the plaintiff claims to have acquired a vested right to land by full compliance with the United States homestead law, and seeks to obtain a conveyance of the title from defendants, claiming' the land under a patent issued to another, is a case arising undel' the laws of the United States, and within the jurisdiction of a United States circuit court.
SAIIB-MOTION TO REMAND.
Such a case, commenced in a district COUl't' of the territory of Washington, and which was pending at the time of the admission of the state of Washington, was transferred to the United States cirouit court after the papers and record in the case had passed into the custody of the clerk of a state court. and after a stipulation had been signed and filed1n said state court, whereby the parties agreed to submit the case to s.aid. court for its decision. and after the defendants had tiled in said court a written request to have the case so tl'ansferred, but before the court had acted upon said stipulation, or do.e any act amountinK to an assumption of jurisdict.ion of the case', HeW,that the request was filed in the proper court. and was in time, and that· a IDotion to remand for want of jurisdiction must be denied.
PUIl:LIC LANDS-CANCELLATION OF 1I0MESTEAD ENTRY.
The decision of the:supreme court in Lee v. JohnBon, (116 U. S. 48,6 Sup. VI;. Rep. 249,) heUL to be conclusive upon a circuit court in a case involving identical legal propositions; and, without presuming to discuss the questions, heW. in accordance with that decision, that in a contested case before the land department, the question at issue between the parties being as to the abandonment of a homeBtead, where the secretary of the interior found from the evidence that the contestee was not a bona fide homeste.ad claimant, he did not exceed his jurisdiction in directing a cancellation of the. entry, although the particular objection to the claim was not raised, by the allegations of the contestant.
·· EQUITY PRACTICE-RIGHTS INVOLVBD.
In a suit by a private individual against the holder of a title to land by patent from the government only the plaintiff's right can be tried j and questions as to noncompliance on the part of the patentee' with the reqUirements of the law under which the patent was issued cannot be relevant.
REs ADJIJDICATA-DBCISION OF $EORETARY OF INTERIOR,
In the absence of fraud, and where no error is shown in deciding a distinct question of law, a decision of the of the interior, holding a homestead claim to be i.nvalid, and directing the cancellation ofathe entry, is final, and not subjeot to reVIew in the courts. .
Ii. WITNIISS-ADMISSIONS OF DECEDENTS.
'.l'he plaintiff is incompetent to testify as to admissions of a deceased person, through whom the defendants deraign title to the llroperty in controversy, made after having parted with his title, in a case wherem some of the defendants are sued in a representative capacity, a.. executors of a deceased party, who is accused of fraud and conspiracy; such testimony being offered with the object of prol"mg such accusations.
7.· FRAUD-PLEADING. Relief on the ground of fraud cannot be granted upon mere inferenoea and SUII pioions. . (ByUabm by the Oourt.)