FEDERAL REPORTER.
appear by affirmative allegations it is necessary that the foundation of the suit be a bill of exchange or a promissory note negotiable by the law-merchant. Its form at once precludes the idea that it is a. bill of exchange, but it is claimed that it is a promissory note. It is not sufficient that it be a promissory note as between the parties, or even under certain circumstances and with certain oondWons, but it must be negotiable by the law-merchant. It must be ai!positivepromise and agreement to pay the holder a sum oertain at a given date, without detraction: or conditions; an amount that is easily determinable from its own faoe without further search or inquiry. The character of the note must determine the question of jurisdiction, and the fact that the pady suing is willing to waive cedaiIl; of his rig4ts under it, and sue on such a portion of the oontract as might constitute a negotiable instrument, cannot give it. It is apparent that the last clause in the note in suit oontains conditional provisions, which might be still undetermined at its maturity, so that it could never bear upon its face a. fully settled amount due, which fact is conclusive against its negotiability under the lawmerchant, and consequently the jurisdiction in a suit upon it. The fact that the instrument is under seal has also been urged, which objection, in the light of Cae v. Cayuga Lake R. Co. 8 FED. REP. 535, would, seem to be fatal; but the form and substance of the note so fully determines all questions that a consideration of anything further is unnecessary. Motion to dismiss is granted.
PALMER
V. SORIVEN
and another, Receivers, eto.!
(Oircuit Oourt, S. D. Georgia. April 26,1884.) AOTION AGAmST REOEIVERS.
When based upon consent to sue, on petition to equity court, can only be entertained by that court.
Common-law Action for Personal Injury. Motion to dismiss for want of jurisdiction. Denmark ct Adams, for plaintiffs. Chisholm ct Erwin, for defendants. PARDEE, J., (orally.) Permission to sue must be given by the equity court. Such permission cannot confer jurisdiction upon any other court, ratione materice or ratione personce. In this case, the permission 'being obtained from the <lOurt of equity, this suit was permitted only to be brought in that court. There is no permission to sue 1 Reported
by W. B. Hill, Esq., of the Macon bar.
HAUSHEISTER V. PORTER.
in this court on the law side. This court, as So court of law, is without jurisdiction, so far as the record shows, by reason of the citizenship of the parties, and consequently has no jurisdiction in the case. Motion granted. LOCKE,
J., concurs.
HAUSHEISTER
v.
.PORTER,
Treasurer, etc. S1'. f
(Otrcuit Court, D. Oalifornia. August 25, 1884.) EQUITY JURISDIOTION-ADEQUATE REMEDY AT LAw-REv. OF COUPONs ON MUNICIPAL BONDS-MANDAMUS. 723-PAYMENT
Where a writ of mandamus will lie to compel a city treasurer to paycoupons due on bonds of the city out of the fund provided by statute, or to compel the proper officers to set apart taxes collected all a sinking fund for the payment thereof, the bondholder has an adequate remedy at law, and cannot proceed by bill in equity, not ancillary to any pending proceeding at law, toelljoi.ll the application of the funds to other purposes.
Rosenbaum ft Scheetine and S. O. Denson, for complainant. W. A. Anderson and .J. H. McKune, for defendant. SAWYER, J. This is a bill in equity, filed against the treasurer of Sacramento city by a bolder of $10,000 'of the bonds, and $600 over· due coupons thereon, of the city of Sacramento, issued in pursuance of the laws, and under the circumstances fully set forth in Kennedy v. Oity of Sacramento, 19 FED. REp. 580. The bill alleges the facts relating to issue of the bonds and the amount hel{1 by complainant; that there is a large amount of money-$174,000 and upwards -in the interest and sinking fund in the city treasury, applicable to. the payment of said coupons, and something over $170,000 of taxes and water rents, collected for the year 1883-84, in the city treasury, and that "it is the duty of said treasury to apportion and set apart to said 'interest and sinking fund' fifty-five per cent. of the whole of said revenues, and to hold and payout the said fifty-five per cent. of said sums for the purposes of said fund and no other purpose; II that the complainant has demanded payment of said coupons held by him, and that said treasurer should set apart said 55 per cent. to said interest and sinking fund, and only apply it for the proper uses oJ said fund; that said treasurer refuses to co mply witil said demand, and is unlawfully diverting said fund to orner objects of city expenditure, and, if not restrained from so doing, will appropriate the whole of said fund to such other objects, and leave nothing applicable to the payment of said bonds and coupons. He therefore asks, as relief, that defendant be perpetually enjoined from paying out said money for any other purpose than the liquidation of said lJonds and coupons;
'10 Equity.