THIRD NAT. BANK Oll' BALTIMOnE V. TEAL.
()ther car, if, because of the smoking orba:a vEmtilation or .other cause's, it was disagreeable to her; there being room for her in the ladies' car. 'Verdict for'plaintiff for $3,000.
See Brown v. Memphi8 tJJ O. R. 00. 4 FED. REP. 37.
THIRD NAT. BANK OF BALTIMORE V. TEAL.
(Oircuit Oourt, D. MaryZand.
January 28, 1881.)
l.' DEcLARATION-JURIsDICTIONAL FACTS-DEMURRER,
The declaration described the plaintiff as .. The Third National Bank of Baltimore." HeZd, on demurrer, that this was not equivalent to an IIoverment that the plaintiff was a banking association established in the district of Maryland, nor that it wascstablishcd under the. law of the United States providing banking associations.; Held, also, that the declaration was demurrabie for want of an averment that the plaintiff was a corporatiolJ..
2. ATTACHMENT UNDER STATE LAW ADoPTED BY THE UNITED STATIj:S. COURTS.
The plaintiff having obtained an attachment on original process,'as provided by the Maryland state law, adopted by as authorized by section 915 of the U. B. Revised Statutes, held, that ,the circuit court must ap'ply the remedy agreeably to the construction put' upon the law by the highest appellate court of the state. Held, that; the appellate court having decided that, by the terms of the statute giving the remedy, the attachment was void if. the declaration was demurrable, the attachment in this case must be quashed.
Demurrer to declaration and motion to quash attachment. T. M. Lanahan and A. Sterling, Jr., for plaintiff.. Robert D. Morrison and George O. Ma,und, for d'efendant. MORRIS, D. J. This court having by its'rules (as author· ized by 'seCtion 915 ofthe U. S. Revised Statutes;) adopted the Maryland 'law of 1864,c. 306, giving to plaintiffs a remedy by attachment 'on original process, the plaintiff ih this case, lIpan giving bond and filing an affidavit alleging that it had good reason to believe that the defendant had disposed of Bome portion of his property with intent to defraud hiscred'· itors, 0btained which was levied on certain' of the defendant's real estate. ' '
The Maryland statute, prescribing the practice and proceedings in attachment cases, provides that "there shall be issued with every attachment a writ of summons against the defendant; and a declaratipn or short· note expressing the plaintiff's cause of action shall be filed, and a copy thereof shall be sent with the writ to be set up at the court-house door." In the present case the affidavit described the plaintiff as "The Third National Bank of Baltimore." The short note or declaration used the same words and no others. The bond described the obligors as "The Third National Bank of Baltimore, a duly incorporated body under the statutes of the United States of America, and Thomas Y. Canby, of the city of Baltimore, in the State of Maryland." The defendant was returned "summoned," and has appeared and demurred to the short note or declaration, and a trustee, to whom the defendant executed a deed of trust for creditors after the attachment was levied, claims the property and moves to quash the attachment. The causes of the demurrer are that the declaration does not set out facts sufficient to show that the federal court has jurisdiction of the case, and also that the plaintiff is not alleged in the declaration to be a corporation. The claimant of the property attached moves the court to quash the attachment for the reason that the jurisdictional facts and other necessary allegation do not appear, contending that if the declaration is demurrable the attachment is void. We will first consider the alleged defects in the statement of the facts on which the jurisdiction of the federal court depends. By section 629, subsection 10, of the U. S. Revised courts Statutes, it is provided that the United States shall have jurisdiction "of all suits by or against any banking association established in the district for which the court is held, under any law providing for national banking associations." The title of the plaintiff, "The National Bank of Baltimore," is not in itself an averment either that the plaintiff is a. bank-
THIRD NA.T. BA.Nk O:r BALTIlIIOnE V. TBAL.
ing- association, established ill the district of Maryland, or that it is established under'the law of the United States providing for national banking associations. There are other Baltimores than the one in Maryland, and there does not appear to be in the national bank act anything to prohibit an association formed in any other state from having been the first to take the title of the plaintiff, if they had seen fit, and if the comptroller of the currency had approved. The name of the bank is subject only to the approval of the comptroller of the currency, and we find nothing in the act itself which would prevent an association from adopting any name which he approves of. It is argued that as section 5243 imposes a. fine upon any firm or corporation, not organized under the national bank act, which shall use the word "national" as part of the name of such corporation or partnership, it follows that the title "National Bank of Baltimore" necessarily implies th_at it is lawfully established under that act. This we do not think is a necessary inference, or that it is equivalent to the positive averment required. It is quite supposable that the name might be used unlawfully, notwithstanding the fine imposed by the statute. The supreme court has never relaxed the rule that the facts to jurisdiction must be affirmatively shown by the record, and cannot be argumentatively deduced from other averments. In Robertson v. Case, 97 U. S. 646, the case had been instituted in the United States circuit court for the district of Texas, and the pleadings stated that the plaintiff resided in "the county of Macon, in the state of Illinois." It was strongly argued that, as the fourteenth amendment to the federal constitution declares that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state where they reside, the plaintiff was prima facie either an alien or a, citizen of the state of Illinois, in which he resided, and in either capacity entitled to sue in the circuit court for the district of Texas; but the supreme court, while acknowledging that there was force in this suggestion, declared it to be unwise to modify the long-established rule on the subject of
jurisdiction. They say: "As.· the jurisdiction of the circuit court is iimitedin the sense that. it has none except that conferred by the constitutidnand laws of the United Btates, the presumption now, as well as before the fourteenth amendmF\nt, is that a cause is without its jurisdiction unless the contrary affirm!1tively appears. In cases where jurisdiction upon th-e citizeu!lhip of the parties, such citizenship, or the facts which in legal intendment constitute it, should be :distinctly and positively averred in the pleadings, or they shouldapp·ear affirmatively and with equal distinctness in other parts of the record. In Brou-n v. Keene, 8 Pet. 115, Mr. Ohief Justice Marshal1.said: "The decisions of this court require that the averment of jurisdiction shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments. " It iato be noticed that in Robertson v. Oase the particular objection to the jurisdiction relied upon was made after verdict, by a motion in arrest of judgment, when ordinarily the presumption would be that the necessary facts had been proved and every fair intendme:nt allowed to uphold the verdict. The present case, arising upon a demurrer, is one in which much greater strictness might well be insisted upon. If we look to the bond which the plaintiff in this case filed as 8 condition precedent to obtaining the attachment, and consider it, as we are urged to do, as part of the record, and examine it f01: an averment of the jurisdictional facts, we find that it relieves the plaintiff in one particular, but as we think in one only. It describes the plaintiff as "The Third National Bank of Baltimore, a duly incorporated body under the statutes of the United States of America," and describes the other obligor as "Thomas Y. Canby, of the city of Baltimore, in the state of Maryland." This may amount to an averment that the plaintiff is a banking association, established under the providing for national banking associations, but it is not equivalent in our judgment, for reasons before suggested, to the equally necessary averment that the association is estab· lishe.d within the district of Maryland. We must, there-
THIRD NAT; BANK OF BALTIMORE V. TEAL.
fore, sustain the demurrer to the declaration for want of proper averments showing the plaintiff's right to sue in this 'court. Objection is also made that the declaration does not allege that the plaintiff is a corporation. On this point 0f plead.. ing we are not at liberty to look at the bond, but must con· sider the declaration itself. The fact of the incorporation of the plaintiff is certainly a fact essential to the plaintiff's case;' and necessary to be proved, and one which the defendant is entitled to deny and put in issue; and we think that a declaration which omits this averment, while it would be cured by verdict, must be held bad on demurrer. These defects in the declaration can, of course, be amended, and it only remains for us to consider the motion to quash, and how the amendment affects the attachment. The attachment is a remedy given to the plaintiff by the laws of the state of Maryland. This court was authorized, by the United States Revised Statutes, to! adopt the state law providing this remedy, but we must adopt the law as we find it,and as its scope, meaning, and application, and the practice under it, has been settled by the Maryland court of appeals. This is a local law, and if we find that the Maryla:nd court has 'determined the effect of such an amendment on a. proceeding based on that law, we are iobe governed by that decision, especially as the right to amend in all ordinary actions' iEf 'quite as liberal under· the Maryland laws and practioe as under theUnitediStates1 Revised! Statutes. ' We find that the Maryland court of appeals has repea;tedly -held that this statutory remedy by atta:cbment is in allrespects and that for any defect apparent in the prooeedings the attachment mjJry be quashed!upon suggestion to an interest. in the the court of-slich defeotby any one property attached. To tl,lis doctrine the state courts has constantly. 'conformed. Hinckley & Mayer.:c ,on Attachments, § 305; WeaVe,. v. Baltzell,6G.l ,& .J" 339· .,.; This question of the effect on an· attachment of -a necessary amendment to' the'declaration, oeen,iwe think, passed
upon by the appellate court. In Browning v. Pasqu((!J, 35 Md. 294, on a motion to quash an attachment issued by virtue of the same law under which the plaintiff proceeded in this case, it was shown that the affidavit described the cause of action as a promissor.y note, dated June 1, 1864. The declaration described it as dated June 1, 1867. The court say: "In the case of Pearee v. Boarman, decided at October term, 1870, and not reported, it was held by this court that the short note is a substitute for and performs the office of a declaration, and, like a declaration, it must substantially set forth the cause of action against the defendant, and any defect in this respect that would be fatal ou demurrer will be fatal to the short note on motion. In Dean v. Oppenheimer, 25 Md. 868, it was also held that au attachment would be quashed for defect in the short note. *' lit lit As the variance in this case appears on the face of the proceedings, the attachment cannot be sustained." As the case then before the court was one in which ordinarily the declaration could have been amended as of course, we think the decision was equivalent to deciding that the necessity for the amendment was ground for vacating the attachment. This, we think, the court has in terms declared in Hirsh Bros. v. Dobbie, decided at October term, 1880. In that case the court say: "The Revised Code, art. 67, § 10, requires that with any attachment a writ of summons against the defendant shall issue, and a declaration or· short note expressing the plaintiff's cause o£action shall be filed, and a copy set up at the court-house door by the sheriff or other officer. The short note is a substitute for the declaration, and any defect
in it which would be fatal on demurrer is good ground for quashing the attachment. In treating of the 'general requisites' of
the declaration, all the works upon pleading state that the names of the parties to the suit must be stated. This rule has not been changed or relaxed by the Revised Code. The short note must be complete in itself, and reference cannot be had to the account or affidavit in the attachment case for the purpose of curing defects in it. If a reference could be had to the account and affidavit for the purpose of supplying
BALTIMORE V. TEAL
any defect in the statement in the short note of the names of the parties to the suit, 'sueh reference might also be had for the of supplying any omillsion or correctiIlg any misstatement of the cause of action, which this court has said, in the case of Deariv. Oppenheimer; cannot be done." ,., , : ' These the. court of appeals' of MarylaI).d we to.be conclusive as to the effect of an amendment to the declaration in an attachment case under'the Maryland':statute, and binding upon U8 in applying that st'attite to proceedings in this court. Our has been called to Neptune Ins. Co. v. Mantell, 8 Gill. 228, and Norris v. Graham; 33 Md. 56, two cases in which it is claimed'that the court did not . the the declarations were aIIlended. In the latter case'no motion to quash the attachtnent appears to have been made; the defendant appeared and pleaded to the declaration. The controversy appears to have been entirely whether he was liable at all to the plaintiffs, and not as to the validity .of the attachment; and, a'S it appeared that by amending .his declaration the might obtain a personal judgment against the defendant, a :pew trial was awarded, but. the fate of the attachment does· :pot appear. In Uhe case of Neptune Ins. Co. v. ManteU, decided in it would seem that by sending the case backfo;r anew against the garnishee, after amendment to.the declaration, the court did sustain the attachment; .but the precise point does not appear to have been either· argued by counselor passed upon by the court of appeals, and in the two very recent decisions of that court; to which we have above re, ferred, it does appear that the precise point was expressly rule,d to the contrary. It follows that the demurrer must be sustained, with leave to the plaintiff to amend the declaration, and the attachment must be quashed. BOND, C. J., concurred.
(District Oourt, D. Nellada.
December 11, 1880.)
739, REv. ST. . While an assignee who has been appointed. by a court of bankruptcyof another district may sue in this court to recover assets from a itranger, such action must be by a plenary suit, and there is nothing in the bankrupt act which takes such a suit out of the provisions of section 739 of the Revised Statutes, although the defendant may have property in this district which is claimed to be assets; and the defendant must be an inhabitant of, or be found in, this district at the time of serving the writ, to give this court jurisdiction. J. SECTION 738, REv. ST., CONSTRUED. This section does not refer to a suit Uke the present, In which the plaintiff saeks, through a receiver, to apply the general property of a defendant to the payment of his debts, but to suits in equity, to enforce some pre-existing lien or claim upon a specific piece of property.
Jame8·L. Crittenden, for plaintiff. Robert M.Clarke, for reeeiver. Philip G. Galpin, for defenaant. HILLYER, D. J. This is amotion to vacate a former order of this court,appointing Ralph L. Shainwald receiver of the property of the defendant, Lewis, in the district(jf· Nevada. The plaintiff is the assignee in bankruptcy of the firm of Sohoenfeld, Cohen & Co., and of Louis S. Sohoenfeld, Isaao Newman, a.nd Simon Cohen, who have been adjudicated bankrupts by the· district court of California. After his appointment as assigueethe plaintiff filed a bill in equity in the districtcourt of the United States for California, against the defendant, Harris Lewis, by whioh he sought to have a certain judgmen.t ootained by:Lewis against the bankrupts set aside on the ground that the judgment was fraudulent. In that suit.the plaintiff obtained a decree setting the said judgment aside, declaring the evidence upon which it was based fraudulent, and the defendant, Lewis, a trustee of all the property acquired by him under said judgment for the"benefit of the creditors of the bankrupt firm and of the assignee. He was also decreed to pay a large amount of money, nearly $100,000, by way of damages, interest, and costs. Upon this