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 The jurisdiction of federal courts, as I 
 
 3 1924 020 096 842 
 
Cornell University 
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THE 
 
 JURISDICTION OF FEDERAL COUETS, 
 
 AS LIMITED BY 
 
 THE CITIZENSHIP AND RESIDENCE OF 
 THE PARTIES. 
 
THE JURISDICTION 
 
 OF 
 
 FEDERAL COURTS, 
 
 AS LIMITED BY 
 
 THE CITIZENSHIP AND RESIDENCE OF 
 THE PARTIES. 
 
 BY 
 
 HOWARD M. f CARTER, 
 
 OF THE CHICAGO BAR. 
 
 BOSTON: 
 LITTLE, BROWN, AND COMPANY. 
 
 1899. 
 
Copyright, 1899, 
 By Little, Brown, and Company. 
 
 All rights reserved. 
 
 John Wilson and Son, Cambridge, U. S. A. 
 
PREFACE. 
 
 This is an effort to present in concise form the 
 judicial construction of the various constitutional and 
 statutory enactments relative to the jurisdiction of 
 the Federal courts, so far as relates to the citizenship 
 and residence of the parties to controversies before 
 them. The jurisdiction of these courts in this par- 
 ticular being of a special and limited nature, it is of 
 importance to know the exact limits of their powers. 
 In the various treatises upon the federal judicial sys- 
 tem, too little attention would seem to have been 
 given to this subject; at any rate, it is believed to 
 be worthy of treatment by itself. 
 
 In preparing this work we have followed the lines 
 of a brief rather than those of a text-book, and this 
 has permitted the quoting of judicial opinion at length 
 in cases where it seemed desirable. At the same time 
 an effort has been made to keep within the limits of 
 the subject, and not to more than touch upon the gen- 
 eral powers and jurisdiction of the Federal Courts. 
 
 The removal of causes from the State to the Federal 
 courts has not been included, having already been 
 treated by others. 
 
 H. M. C. 
 
 Chicago, March 1, 1899. 
 
TABLE OF CONTENTS. 
 
 PAGE 
 
 Table of Cases xi 
 
 CHAPTER I. 
 
 The Judicial Power. — Constitutional and Statutory Provisions for 
 Federal Courts. — The Supreme Court. — Inferior Courts. — 
 Meaning of " Inferior " as used in the Constitution. — Presump- 
 tion against the Jurisdiction of Federal Courts. — Statutes 
 relating to the Circuit Courts 
 
 CHAPTER II. 
 
 Meaning of the Term " Citizens of a State " as used in the Constitu- 
 tion. — Who are Citizens. — Domicile, Elements of. — Change 
 of Citizenship. — The Cases Reviewed. — Aliens 14 
 
 CHAPTER III. 
 
 Corporations as Citizens. — Former Views of the Supreme Court. — 
 Cases Reviewed. — Modern Doctrine. — Corporations created 
 under the Laws of the United States. — Foreign Corporations. 
 — Joint Stock Companies. — National Banks 27 
 
 CHAPTER IV. 
 
 Corporate Citizenship, continued. — Corporations Receiving Char- 
 ters from More than One State. — Consolidation of Corpora- 
 tions. — Cases Reviewed 61 
 
VU1 CONTENTS. 
 
 CHAPTER V. 
 
 PAGE 
 
 Change of Citizenship in order to Confer Jurisdiction upon a Fed- 
 eral Court. — Transfers of Property with a like Object. — Effect 
 of Motive Actuating Parties in such Cases. — The Cases Re- 
 viewed. — Change after Suit Brought 86 
 
 CHAPTER VI. 
 
 Jurisdiction not Dependent upon Citizenship. — Ancillary Juris- 
 diction in General. — Limits of this Jurisdiction. — Bills to 
 Restrain Enforcement of Judgments. — Bills to Impeach De- 
 crees for Fraud. — Cross-Bills. — Creditors' Bills. — Inter- 
 veners. — Other Cases 103 
 
 CHAPTER VII. 
 
 Plurality of Parties Plaintiff or Defendant. — The Requisite Diver- 
 sity of Citizenship must exist between each Plaintiff and each 
 Defendant. — Dismissal of Parties as to whom the Court can- 
 not exercise Jurisdiction. — Non-Joinder of such Parties. — 
 Equity Rule 120 
 
 CHAPTER VIII. 
 
 Whose Citizenship Governs. — Nominal Parties. — Suits by Next 
 Friend. — Trustees. — Receivers. — Receivers of National Banks. 
 — Executors and Administrators. — Guardians. — Parties hav- 
 ing Legal Right. — Formal, Necessary, and Indispensable 
 Parties. — Re-arranging Parties for Jurisdictional Purposes . 130 
 
 CHAPTER IX. 
 
 Statutory Restrictions as to District of Suit. — Such Restrictions 
 Confer a Personal Privilege which may be Waived. — Appli- 
 cation of Statute where there is a Plurality of Parties. — Ap- 
 plication of Statute to Corporations. — In Suits by or against 
 Aliens 145 
 
CONTENTS. ix 
 
 CHAPTER X. 
 
 PAGE 
 
 Statutory Restrictions as to District of Suit, continued. — Appli- 
 cation of Statute in Patent Causes. — Suits for Infringement of 
 Trademarks and Copyrights. — Meaning of " Inhabitant " and 
 " Resident " as used in the Statute. — Waiver of Benefit of 
 Statute. — Attachments. — Constructive Service. — Suits to 
 Enforce Liens. — Application of Statute where State Contains 
 more than one Federal District 161 
 
 CHAPTER XI. 
 
 Statutory Restrictions as to Suits by Assignees of Choses in Action. 
 — Object of the Statute. — Pleading. — Restriction refers to 
 Citizenship. — What Statute Embraces 179 
 
 CHAPTER XII. 
 
 Pleading. — Showing Jurisdictional Facts. — Pleadings must be Ex- 
 plicit in this Particular. — Proper Averments of Diverse Citi- 
 zenship. — Examples of Insufficient Averments. — Averments 
 as to Corporations. — Averments of Alienage 188 
 
 CHAPTER XIII. 
 
 Pleading. — Objections to Jurisdiction, how Taken. — Matters Ap- 
 parent on Face of Pleadings. — Matters not so Apparent. — 
 Statutory Provisions. — Cases Reviewed. — Practice in Code 
 States. — Time of Objecting to Jurisdiction. — Effect of Delay. 
 — Matters of Privilege. — Waiver 204 
 
 CHAPTER XIV. 
 
 Appellate Review of Questions Involving the Jurisdiction of Circuit 
 Courts. — Review in Supreme Court. — Election to take Case 
 to Supreme Court or Circuit Court of Appeals. — Certifying 
 Jurisdictional Questions. — What Certificate must Show. — 
 When Certificate Unnecessary. — Practice as to Granting Cer- 
 tificate. — Certificate from Circuit Courts of Appeal to Su- 
 preme Court. — Review of Jurisdictional Questions by Circuit 
 Court of Appeals 223 
 
CONTENTS. 
 
 CHAPTER XV. 
 
 PAGE 
 
 Practice in Appellate Courts. — Record must Show Jurisdiction. — 
 Rule Stated by Justice Matthews. — Court will Inspect Record 
 and Act of its Own Motion. — What is the Record. — No 
 Amendment in Appellate Court. — Practice. — Costs .... 239 
 
 Appendix 249 
 
 Index 267 
 
TABLE OF CASES. 
 
 A. 
 
 PAOE 
 
 Abercrombie v. Dupuis, 1 Cr. 343 190, 191 
 
 Abraham v. North German Fire Ins. Co., 37 Fed. Rep. 731 118 
 
 Adams Express Co. v. Denver & Rio G. Ry. Co., 16 Fed. Rep. 712 . . . 118 
 Adelbert College v. Toledo, Wabash & Western R. R. Co., 47 Fed. Rep. 836 143 
 
 Allen v. Southern California Ry. Co., 70 Fed. Rep. 370 25 
 
 Alliance, The, 70 Fed. Rep. 273, 44 TJ. S. App. 52, 17 C. C. A. 124 .. . 238 
 
 AUnut v. Lancaster, 76 Fed. Rep. 131 127 
 
 Ambler v. Eppinger, 137 U. S. 480 185, 186 
 
 American Bible Society v. Price, 110 U. S. 61 137 
 
 American F. L. M. Co. v. Benson et ah, 33 Fed. Rep. 456 174 
 
 American Nat. Bank v. Nat. Benefit Co., 70 Fed. Rep. 420 137 
 
 American Sugar-Refining Co. v. Johnson, 60 Fed. Rep. 503, 13 U. S. App. 
 
 681, 9 C. C. A. 110 199, 237 
 
 v. Tatum, 60 Fed. Rep. 514, 13 U. S. App. 700, 9 C. C. A. 121 . 199,237 
 
 Ames v. Holderbaum, 42 Fed. Rep. 341 154, 174, 175, 176 
 
 Amory v. Amory, 95 U. S. 186 137, 195 
 
 Anderson v. Bowers, 40 Fed. Rep. 708 143 
 
 v. Shaffer, 10 Fed. Rep. 266 171 
 
 v. Watt, 138 U. S. 694 25, 101, 122, 217, 240, 246 
 
 Anglo-Florida Phosphate Co. v. McKibben, 65 Fed. Rep. 529, 15 C. C. A. 36 118 
 Arapahoe County v. Kansas Pacific Ry. Co., 4 Dill. 277, Fed. Cas. No. 
 
 502 141, 143 
 
 Armstrong v. Ettlesohn, 36 Fed. Rep. 209 137 
 
 v. Trautman, 36 Fed. Rep. 275 115 
 
 Assessors v. Osbornes, 9 Wall. 567 240 
 
 Atkins v. Disintegrating Co., 18 Wall. 272 218 
 
 Atlantic City R. Co., In re, 164 U. S. 633 . . • 219 
 
 B. 
 
 Baird v. Byrne, 3 Wall. Jr. 1, Fed. Cas. No. 757 26 
 
 Baltimore & Ohio R. R. Co. v. Adams Express Co., 22 Fed. Rep. 404 . . 56 
 
 v. Cary, 28 Ohio St. Rep. 208 70 
 
 v. McLaughlin, 73 Fed. Rep. 519, 43 U. S. App. 181, 19 CCA. 
 
 551 202, 220 
 
 v. Marshall County Supervisors, 131 U. S. Appendix, xcix .... 229 
 
 „. Meyers, 62 Fed. Rep. 367, 18 U. S. App. 569, 10 C. C. A. 485 . . 237 
 
XU TABLE OF CASES. 
 
 PAGE 
 
 Bangs v. Loveridge, 60 Fed. Rep. 963 137 
 
 Bank of Augusta v. Earle, 13 Pet. 519 50, 62, 201 
 
 Bank of British North America v. Barling etal, 46 Fed. Rep. 357 . . . 182 
 Bank of Cumberland v. Willis, 3 Sumn. 472, Fed. Cas. No. 885 ... . 35 
 
 Bank of Kentucky v. Wister, 2 Pet. 318 181 
 
 Bank of United States v. Deveaux, 5 Cr. 61 15, 27, 28, 29, 31, 32, 34, 35, 37, 41, 
 
 42, 44, 45, 46, 75 
 
 v. Moss, 6 How. 31 180 
 
 Barclay v. Levee Commissioners, 1 Woods 254, Fed. Cas. No. 977 ... 54 
 
 Barney v. Baltimore, 6 Wall. 280 16, 89, 125, 127, 128 
 
 v. Globe Bank, 5 Blatchf. 107, Fed. Cas. No. 1031 185 
 
 v. Latham, 103 U. S. 205 122 
 
 Barnum v. Caster Co., 34 Fed. Rep. 91 182 
 
 Barry v. Edmunds, 116 U. S. 550 215 
 
 v. Missouri, Kansas & Texas R. R. Co., 27 Fed. Rep. 1 ... 143, 144 
 
 Baughman v. Water Works Co., 46 Fed. Rep. 4 157 
 
 Bausman v, Denny, 73 Fed. Rep. 69 115 
 
 Beebe v. Louisville, New Orleans & Texas R. R. Co., 39 Fed. Rep. 481 . 144 
 
 Belding v. Gaines, 37 Fed. Rep. 817 216 
 
 Bell v. Donohoe, 17 Fed. Rep. 710 128 
 
 Belmont Nail Co. v. Columbia I. & S. Co., 46 Fed. Rep. 336 115 
 
 Benjamini). City of New Orleans, 71 Fed. Rep. 758 180 
 
 v. City of New Orleans, 74 Fed. Rep. 417, 41 U. S. App. 178, 20 C. C. 
 
 A. 591 i 189, 195 
 
 Bennett v. Bennett, 1 Deady, 299, Fed. Cas. No. 1318 25 
 
 Bensinger Self-Adding Cash Register Co. v. Nat. Cash Register Co., 42 
 
 Fed. Rep. 81 154, 157 
 
 Bernheim v. Birnbaum, 30 Fed. Rep. 885 181 
 
 Bicycle Stepladder Co. v. Gordon, 57 Fed. Rep. 529 162, 167, 218 
 
 Bingham v. Cabot, 3 Dall. 382 240 
 
 Bishop v. Averill et ux., 76 Fed. Rep. 386 26, 203 
 
 Black v. Scott, 9 Fed. Rep. 187 176 
 
 Blackburn v. Selma M. & M. R. R. Co., 2 Flip. 525, Fed. Cas. No. 1467 68, 100 
 
 Blacklock v. Small, 127 U. S. 96 142, 212 
 
 Blair v. Western Female Seminary, 1 Bond, 578, Fed. Cas. No. 1486 . . 25 
 
 Blake v. McKim, 103 U. S. 336 137 
 
 v. Pine Mountain Iron & Coal Co., 76 Fed. Rep. 624, 43 TJ. S. App. 
 
 490, 22 C. C. A. 430 119 
 
 Bland v. Fleeman, 29 Fed. Rep. 669 143, 144, 214 
 
 Blumenthal v. Craig, 81 Fed. Rep. 320 133 
 
 Bonafee v. Williams, 3 How. 574 139 
 
 Bonaparte v. Camden & A. R. R. Co., Baldw. 216, Fed. Cas. No. 1617 . . 26 
 Booth v. St. Louis Fire Engine Manufacturing Co., 40 Fed. Rep. 1 . . . 157 
 
 Bora v. Preston, 111 U. S. 252 8, 26, 95, 240 
 
 Bowden v. Burnham, 59 Fed. Rep. 752, 10 U. S. App. 448, 8 C. C. A. 
 
 248 181,221 
 
 Bowdoin College v. Merritt, 63 Fed. Rep. 213 216 
 
 Bradford v. Jenks, 2 McL. 130, Fed. Cas. No. 1769 187 
 
 Bradley v. Rhines' Admrs., 8 Wall. 393 180 
 
 Bradstreet v. Thomas, 12 Pet. 59 188, 244 
 
 Breedlove v. Nicollet, 7 Pet. 413 26 
 
 Breithaupt v. Bank of Georgia, 1 Pet. 238 32 
 
TABLE OP CASES. xiii 
 
 PAGE 
 
 Brigel v. Tug River Coal & Salt Co., 73 Fed. Eep. 13 101 
 
 Briges v. Sperry, 95 U. S. 401 242 
 
 Briggs v. French, 2 Sumn. 251, Fed. Cas. No. 1871 100 
 
 u. Stroud, 58 Fed. Rep. 717 218 
 
 Brigbam v. Luddington, 12 Blatchf. 237, Fed. Cas. No. 1874 . . . 122, 175 
 
 Brisenden v. Chamberlain, 53 Fed. Rep. 307 137 
 
 Broadis v.Broadis, 86 Fed. Rep. 951 110 
 
 Brock v. Northwestern Fuel Co., 130 U. S. 341 180, 202 
 
 Brooks v. Bailey, 9 Fed. Rep. 438 146 
 
 v. Dun, 51 Fed. Rep. 139 219 
 
 Browne v. Keene, 8 Pet. 112 189, 190, 191, 192 
 
 v. Strode, 5 Cr. 303 130, 133 
 
 Bryant v. Rich, 106 Mass. 180 14 
 
 Bullard v. Bell, 1 Mas. 243, Fed. Cas. No. 2121 182 
 
 Burger v. Grand Rapids & Indiana R. R. Co., 22 Fed. Rep. 561 ... . 85 
 
 Burke v. Flood, 1 Fed. Rep. 541 128, 142 
 
 Burnham v. First Nat. Bank, 53 Fed. Rep. 163, 10 U. S. App. 485, 3 
 
 C. C. A. 486 60, 241 
 
 v. Rangeley, 1 "Woodb. & M. 7, Fed. Cas. No. 2176 18, 19 
 
 Bushnell v. Kennedy, 9 Wall. 387 182, 185, 186 
 
 v. Park Bros. & Co., Limited, 46 Fed. Rep. 209 56 
 
 Butler v. Farnsworth, 4 Wash. C. C. 101, Fed. Cas. No. 2240 ... 17, 20, 99 
 Bybee v. Hawkett, 5 Fed. Rep. 1 142 
 
 C. 
 
 Cabot v. McMaster, 65 Fed. Rep. 533, 24 TJ. S. App. 57, 13 C. C. A. 39 . 238 
 
 Callahan v. Louisville & Nashville R. R. Co., 11 Fed. Rep. 536 69 
 
 Cameron v. Hodges, 127 U. S. 322 17, 191, 194, 240, 245 
 
 Campbell v. Duluth, South Shore & Atlantic R. R. Co., 50 Fed. Rep. 241 . 157 
 
 Carey v. Houston & Texas Central Ry. Co., 52 Fed. Rep. 671 110 
 
 Carneal v. Banks, 10 Wh. 181 123 
 
 Carnegie, Phipps & Co. v. Hulburt, 53 Fed. Rep. 10, 10 U. S. App. 454, 3 
 
 CCA. 391 57 
 
 v. Hulburt, 70 Fed. Rep. 209, 36 U. S. App. 81, 16 C C. A. 498 . . 221 
 
 Carpenter v. Northern Pacific R. R. Co., 75 Fed. Rep. 850 119 
 
 v. Talbot, 33 Fed. Rep. 537 174,176 
 
 Carter v. Treadwell, 3 Story, 25, Fed. Cas. No. 2480 137 
 
 Cary v. Curtiss, 3 How. 236 6 
 
 Case v. Clark, 5 Mas. 70, Fed. Cas. No. 2490 18, 21, 87 
 
 Cashman v. Amador & Sacramento Canal Co., 118 U. S. 58 216 
 
 Catlett v. Ins. Co., 1 Paine, 594, Fed. Cas. No. 2517 17, 100 
 
 Catlin v. Gladding, 4 Mas. 308, Fed. Cas. No. 2520 25 
 
 Central Trust Co. v. Bridges, 57 Fed. Rep. 753, 16 U. S. App. 115, 6 C C. 
 
 A. 539 Ill 
 
 v. Carter, 78 Fed. Rep. 225, 31 U. S. App. 496, 15 C. C A. 397 . . 119 
 
 v. Chattanooga, &c. R. R. Co., 68 Fed. Rep. 685 171, 172 
 
 v. McGeorge, 151 V. S. 129 148, 149, 168, 169 
 
 v. St. Louis, A. & T. R. R. Co., 41 Fed. Rep. 551 84 
 
 v. Virginia, Tenn. & Car. Steel and Iron Co., 52 Fed. Rep. 769 . . 149 
 
 Chamberlain v. Eckert, 2 Biss. 126, Fed. Cas. No. 2577 181 
 
 Chambers v. Prince, 75 Fed. Rep. 176 19 
 
XIV TABLE OF CASES. 
 
 PAGE 
 
 Chapman v. Alabama Gt. Southern R. R. Co., 59 Fed. Eep. 370 ... . 70 
 
 v. Barney, 129 U. S. 677 57, 240 
 
 v. Chapman, 28 Fed. Rep. 1 17 
 
 Chappedelaine v. Dechenaux, 4 Cr. 306 137, 187, 240 
 
 Chappell v. United States, 160 U. S. 499 235 
 
 v. Wadsworth, 155 U. S. 102 247 
 
 Chase v. Sheldon Roller Mills Co., 56 Fed. Rep. 625 179,181 
 
 Chicago, I. & N. P. R. R. Co. o. Minnesota & Northwestern R. R. Co., 29 
 
 Fed. Rep. 337 69 
 
 Chicago Lumber Co. v. Comstock, 71 Fed. Rep. 477, 21 U. S. App. 682, 14 
 
 C. C. A. 190 199, 220 
 
 Chicago, Milwaukee & St. Paul R. R. Co. v. Becker, 32 Fed. Rep. 849 . . 70 
 Chicago & Northwestern R. R. Co. o. Auditor General, 53 Mich. 79 . . 80 
 
 v. Chicago & Pacific R. R. Co., 6 Biss. 219, Fed. Cas. No. 2665 ... 70 
 
 v. Ohle, 117 IT. S. 123 21 
 
 Chicago & W. I. R. R. Co. v. Lake Shore & M. S. R. R. Co., 5 Fed. Rep. 19 84 
 
 Childress v. Emory, 8 Wh. 642 137, 187 
 
 Chittenden v. Darden, 2 Woods, 437, Fed. Cas. No. 2688 172 
 
 CiUey v. Patten, 62 Fed. Rep. 498 143 
 
 Cincinnati, Hamilton &c. R. R. Co. v. McKeen, 149 U. S. 259 .. . 230, 236 
 
 Cissell v. McDonald, 16 Blatchf. 150, Fed. Cas. No. 2729 16 
 
 City of Lexington v. Butler, 14 Wall. 282 181 
 
 City of Minneapolis v. Ileum, 56 Fed. Rep. 576, 12 U. S. App. 446, 6 C. C. 
 
 A. 31 16,26 
 
 City of Ysleta v. Canda. 67 Fed. Rep. 6 54 
 
 Claiborne v. Waddell, 50 Fed. Kep. 368 . ' 123, 129, 143, 217 
 
 Clark v. Barnard, 108 U. S. 436 66 
 
 Clarke v. Matthewson, 12 Pet. 164 101 
 
 Clearwater v. Meredith, 21 How. 489 126 
 
 Clews v. Woodstock Iron Co., 44 Fed. Rep. 31 219 
 
 Coal Company v. Blatchford, 11 Wall. 172 120, 133, 135, 205, 217 
 
 Coann v. Atlanta Cotton Factory Co., 14 Fed. Rep. 4 129 
 
 Coffee v. Planter's Bank of Tennessee, 13 How. 183 180 
 
 Coffin v. Haggin, 11 Fed. Rep. 219 90 
 
 Cohn v. Louisville, New Orleans & Texas R. R. Co., 39 Fed. Rep. 227 . . 85 
 
 Coironv. Millaudon, 19 How. 113 128 
 
 Coler v. Grainger Co., 74 Fed. Rep. 16, 20 C. C. A. 267 237 
 
 Collins Manufacturing Co. v. Ferguson & Hutters Trustee, 54 Fed. Rep. 721 128 
 
 Colorado Central Mining Co. v. Turck, 150 U. S. 138 241 
 
 Columbus Watch Co. v. Bobbins, 148 U. S. 266 230, 236 
 
 Colvin v. City of Jacksonville, 158 U. S. 456 236 
 
 Comitis v. Parkerson, 56 Fed. Rep. 556 25 
 
 Commercial & Railroad Bank v. Slocomb, 14 Pet. 60 . . . 33, 35, 37, 42, 44 
 
 Commonwealth v. Milton, 12 B. Mon. (Ky.) 212 52 
 
 Compton v. Jessup, 68 Fed. Rep. 263, 31 U. S. App. 496, 15 C. C. A. 397 . 110 
 
 Coney v. Winshell, 116 U. S. 227 141 
 
 Conn v. Chicago, Burlington & Quincy R. R. Co., 48 Fed. Rep. 177 . 70, 186 
 
 Connolly v. Taylor, 2 Pet. 556 101 
 
 v. Wells, 33 Fed. Rep. 205 141 
 
 Connor v. Vicksburg & M. Ry. Co., 36 Fed. Rep. 273 218 
 
 Consolidated Water Co. v. Babcock, 76 Fed. Rep. 243 143 
 
 Construction Co. v. Cane Creek Township, 155 U. S. 283 ". 141 
 
TABLE OF CASES. XV 
 
 PAOB 
 
 Continental Ins. Co. v. Rhoads, 119 TJ. S. 237 . . . . 137, 189, 191, 240, 244 
 Conwell v. White Water Valley Canal Co., 4 Biss. 195, Fed. Cas. No. 
 
 3H8 104,111 
 
 Cooper v. Galbraith, 3 Wash. C. C. 646, Fed. Cas. No. 3193 . . 17, 18, 21, 87 
 
 v. Gordon, 4 McL. 6, Fed. Cas. No. 3195 127 
 
 v. Thompson, 13 Blatchf. 434, Fed. Cas. No. 3202 181 
 
 Copeland v. Memphis & Charleston R. R. Co., 3 Woods, 615, Fed. Cas. 
 
 No. 6209 68 
 
 Corbin v. County of Black Hawk, 105 U. S. 659 183 
 
 County Court v. Baltimore & Ohio R. R. Co., 35 Fed. Rep. 161 ... . 70 
 
 County of Yuba v. Mining Co., 32 Fed. Rep. 183 151 
 
 Course v. Stead, 4 Dall. 22 240 
 
 Covell v. Heyman, 111 U. S. 176 118 
 
 Covert v. Waldron, 33 Fed. Rep. 311 143, 217 
 
 Covington Drawbridge Co. v. Shepherd, 20 How. 227 .... 53, 75, 202 
 
 Cowles v. Mercer Co., 7 Wall. 118 63, 54 
 
 Crabtree v. Byrne, 54 Fed. Rep. 432, 12 U. S. App. 169, 4 C. C. A. 414 . 238 
 
 v. Madden, 54 Fed. Rep. 426, 12 U. S. App. 159, 4 C. C. A. 408 . . 238 
 
 Craig v. Cummins, Pet. C. C. 431, Fed. Cas. No. 3331 146 
 
 Cramer v. Singer Manufacturing Co., 59 Fed. Rep. 74 162 
 
 Crasswell v. Belanger, 56 Fed. Rep. 529, 15 U. S. App. 104, 6 C. C. A. 3 . 191 
 
 Crawfordu. Neal, 144 U. S. 585 87 
 
 Cross v. Allen, 141 TJ. S. 528 87 
 
 v. Evans, 86 Fed. Rep. 1 102 
 
 Crown Cotton Mills v. Turner, 82 Fed. Rep. 337 219 
 
 Cuddy, Ex parte, 131 IT. S. 280 6 
 
 Culm v. Morrisson, 75 Fed. Rep. 81 175 
 
 Culveru. Woodruff Co., 5 Dill. 392, Fed. Cas. No. 3469 102 
 
 Cuthbert v. Galloway, 34 Fed. Rep. 466 214 
 
 D. 
 
 Danahy v. Nat. Bank of Denison, 64 Fed. Rep. 148, 24 TJ. S. App. 351, 12 
 
 C. C. A. 75 60, 191, 242 
 
 Daniel v. Railroad Co., 3 WalL 250 3 
 
 Darst v. City of Peoria, 13 Fed. Rep. 561 16 
 
 Davenport v. Dows, 18 Wall. 626 128 
 
 Davies v. Lathrop, 12 Fed. Rep. 353 137 
 
 Davis & Rankin Building & Manufacturing Co. v. Barber, 60 Fed. Rep. 
 
 465, 18 U. S. App. 476, 9 C. C. A. 79 238 
 
 Day v. Newark Manufacturing Co., 1 Blatchf. 628, Fed. Cas. No. 3685 . 172 
 
 De La Veaga v. Williams, 5 Sawy. 573, Fed. Cas. No. 3759 100 
 
 Denny v. Pironi, 141 TJ. S. 121 219, 243 
 
 Denton v. International Co., 36 Fed. Rep. 1 218 
 
 Deputron v. Young, 134 TJ. S. 241 215, 217 
 
 Deshler v. Dodge, 16 How. 622 182, 185 
 
 DesMoinesu. M. Ry. Co., Ex parte, 103 U. S. 794 172 
 
 De Sobry v. Nicholson, 3 Wall. 420 205 
 
 Detroit v. Dean, 106 U. S. 537 216 
 
 Dewey v. West Fairmount Gas Coal Co., 123 TJ. S. 329 115 
 
 De Wolff v. Rabaud, 1 Pet. 476 205 
 
 Dick v. Foraker, 155 U. S. 404 175 
 
XVI TABLE OF CASES. 
 
 PAGE 
 
 Dinsmore v. Philadelphia & Beading R. R. Co., 3 Legal Int. 388, Fed. Cas. 
 
 No. 3921 56 
 
 Dinzy v. Illinois Central B. B. Co., 61 Fed. Bep. 49 167 
 
 Dodd v. Ghiselin, 27 Fed. Bep. 405 139 
 
 Dodge v. Perkins, 4 Mas. 543, Fed. Cas. No. 3954 137 
 
 v. Tulleys, 144 U. S. 451 134 
 
 Donnelly v. United States Cordage Co., 66 Fed. Bep. 613 .... 157, 164 
 
 Doremas v. Bennet, 4 McL. 224, Fed. Cas. No. 4001 127 
 
 Dormitzer v. Illinois & St. Louis Bridge Co., 6 Fed. Bep. 217 .. . 122, 176 
 
 Doyle v. Clark, 1 Flip. 536, Fed. Cas. No. 4053 19, 20 
 
 Drake v. Goodridge, 6 Blatchf. 151 127 
 
 Dred Scott v. Sanford, 19 How. 393 240 
 
 Dresser v. Edison Illuminating Co., 49 Fed. Bep. 257 25 
 
 Dublin Township v. Mitford Savings Institution, 128 U. S. 510 .... 229 
 
 Duehesse d'Auxy v. Porter, 41 Fed. Bep. 68 127, 137 
 
 Dun v. Clarke, 8 Pet. 1 101, 105, 106, 107 
 
 Dunlap r. Stetson, 4 Mas. 349, Fed. Cas. No. 4164 105 
 
 Durousseau v. United States, 6 Cr. 307 3 
 
 E. 
 
 Earl v. Southern Pacific Ry. Co., 75 Fed. Bep. 609 164 
 
 East Tenn. Va. & Ga. R. B. Co., v. Atlantic & Florida B. B. Co., 49 Fed. 
 
 Bep. 608 155, 176, 178 
 
 Eddy v. Lafayette, 49 Fed. Bep. 807 219 
 
 Ellis v. Beynolds, 35 Fed. Bep. 394 176 
 
 Erstein v. Bothschild, 22 Fed. Bep. 61 171 
 
 Estate of McClean, Jr., In re, 26 Fed. Rep. 49 139 
 
 Evans v. Davenport, 4 McL. 674, Fed. Cas. No. 4558 21 
 
 v. Gee, 11 Pet. 80 205 
 
 Everhart v. Huntsville College, 120 U. S. 223 191, 240 
 
 Evers v. Watson, 156 U. S. 627 142 
 
 Ewing v. Blight, 3 Wall. Jr., 134, Fed. Cas. No. 4589 25 
 
 Excelsior Pebble Phosphate Co. v. Brown, 74 Fed. Rep. 321, 42 U. S. App. 
 
 55, 20 C. C. A. 428 122, 164 
 
 Express Company v. Kountze, 8 Wall. 342 201, 244 
 
 F. 
 
 Fairbank v. Cincinnati, New Orleans & Texas Pacific By. Co., 54 Fed. 
 
 Rep. 420 153 
 
 Fales v. Chicago, Milwaukee & St. Paul R. R. Co., 32 Fed. Bep. 673 151, 167 
 
 Fargo v. Louisville, &c. B. E. Co., 6 Fed. Bep. 787 66 
 
 Farmington v. Pillsbury, 114 U. S. 138 100, 208, 209 
 
 Farm v. Tesson, 1 Black, 309 127 
 
 Farnum v. Blackstone Canal Co., 1 Sumn. 46 82 
 
 Ferguson v. Boss, 38 Fed. Rep. 161 26 
 
 Filli ii. Delaware, L. & W. R. R. Co., 37 Fed. Rep. 65 218 
 
 Fire Ins. Assn. v. Wickham, 128 U. S. 426 229 
 
 First Nat. Bank v. Cunningham, 48 Fed. Rep. 517 219 
 
 v. Forest, 40 Fed. Rep. 705 60 
 
 v. Morgan, 132 U. S. 141 149 
 
TABLE OF CASES. XV11 
 
 PAGE 
 
 First Nat. Bank o. Radford Trust Co., 80 Fed. Rep. 569, 47 U. S. App. 692, 
 
 26 C. C. A. 1 136 
 
 v. Salem Capital Flour Mills Co., 31 Fed. Rep. 580 110 
 
 Fish v. Ogdensburgh & L. C. R. R. Co., 79 Fed. Kep. 131 Ill 
 
 Fisk v. Henarie, 142 U. S. 459 152 
 
 Fitchburg R. R. Co. v. Nichols, 85 Fed. Rep. 869 246 
 
 Fitzgerald Construction Co. v. Fitzgerald, 137 U. S. 98 148 
 
 Fitzgerald v. Missouri Pacific Ry. Co., 45 Fed. Rep. 812 82 
 
 Flanders o. Aetna Ins. Co., 3 Mas. 158, Fed. Cas. No. 4852 . ... 32 
 
 Foote v. Hancock, 15 Blatclif. 343, Fed. Cas. No. 4911 100 
 
 v. Massachusetts Benefit Assn., 39 Fed. Rep. 23 218 
 
 Foss v. First Nat. Bank, 3 Fed. Rep. 185 . 133, 137 
 
 Foster v. Cleveland, C. C. & St. L. R. R., 56 Fed. Rep. 434 .. . 215, 217 
 
 i\ Mansfield, Coldwater & Lake Michigan R. R. Co., 36 Fed. Rep. 627 109 
 
 Freeman v. Howe, 24 How. 450 106, 118 
 
 Frisbie v. Chesapeake & Ohio Ry. Co., 57 Fed. Rep. 1 198 
 
 G. 
 
 Gaines v. Fuentes, 92 U. S. 10 5, 15 
 
 Gaily v. Colt's Patent Manufacturing Co., 30 Fed. Rep. 118 129 
 
 Galveston, &c. Ry. Co. v. Gonzales, 151 U. S. 496 . . 53, 158, 159 
 
 Gardner v. Brown, 21 Wall. 36 133, 135 
 
 v. Sharp, 4 Wash. C. C. 609, Fed. Cas. No. 5236 21 
 
 Garland, The, 16 Fed. Rep. 283 100 
 
 Gassies v. Ballou, 6 Pet. 761 .. . 51 
 
 Gavin v. Vance, 33 Fed. Rep. 84 . . .151 
 
 Gibson v. Chew, 16 Pet. 315 180 
 
 v. Peters, 150 U. S. 342 137 
 
 Gilbert v. New Zealand Ins. Co., 49 Fed. Rep. 884 . . . . . 155 
 
 Glover v. Shepperd, 21 Fed. Rep. 481 .... 102 
 
 Goddard v. Mailler, 80 Fed. Rep. 422 154, 178 
 
 GofTV Norfolk & Western R. R. Co., 36 Fed. Rep. 299 . . 138 
 
 Goldsmith v. Gilliland, 24 Fed. Rep. 154 129 
 
 Goodlett v. Louisville & Nashville R. R. Co., 122 U. S. 391 . . . 68 
 
 Goodman v. Niblack, 102 U. S. 556 176 
 
 Goodnow v. Litchfield, 47 Fed. Rep. 753 133 
 
 Gordon v. Third Nat. Bank, 144 U. S. 97 201, 244 
 
 Gormully & Jeffrey Manufacturing Co. v. Pope Manufacturing Co., 34 
 
 Fed. Rep. 818 161, 218 
 
 Grace v. American Central Ins. Co., 109 U. S. 278 . . 8, 95, 191, 194, 212, 217, 
 
 240, 241 
 
 Gracie v. Palmer, 8 Wh. 699 147, 168 
 
 Graham v. Boston, Hartford & Erie R. R. Co., 118 U. S. 161 66 
 
 Grand Trunk Ry. Co. u. Tennant, 66 Fed. Rep. 922, 21 U. S. App. 682, 14 
 
 C. C. A. 190 199, 219 
 
 v. Twitchell, 59 Fed. Rep. 727, 21 U. S. App. 45, 8 C. C. A. 237 194, 217, 
 
 241 
 
 Greeley v. Lowe, 155 U. S. 58 174, 175, 176, 177 
 
 Green v. Mills, 69 Fed. Rep. 852, 25 U. S. App. 383, 16 C. C. A. 516 . . . 238 
 
 v. Rogers, 5G Fed. Rep. 220 217 
 
 Greenwalt v. Tucker, 10 Fed. Rep. 884 90 
 
 b 
 
XV111 TABLE OP CASES. 
 
 FAGS 
 
 Gregory v. Swift, 39 Fed. Rep. 708 128 
 
 Griswold v. Batcheller, 75 Fed. Rep. 470 133 
 
 Gumbel v. Pitkin, 124 U. S. 131 112 
 
 Gwin v. Breedlove, 2 How. 29 117 
 
 H. 
 
 Hagan v. Lucas, 10 Pet. 400 118 
 
 Halstead v. Manning, 34 Fed. Rep. 565 161 
 
 Halsted v. Buster, 119 U. S. 341 191, 240 
 
 Hammond v. Cleaveland, 23 Fed. Rep. 1 180 
 
 Hancock v. Holbrook, 112 U. S. 229 240, 247 
 
 Hardenburgh v. Ray, 151 U. S. 112 102 
 
 Harkness v. Hyde, 98 U. S. 476 219 
 
 Harland v. United Lines Telegraph Co., 40 Fed. Rep. 308 172 
 
 Harper v. Norfolk & Western R. R. Co., 36 Fed. Rep. 102 ... . 137, 138 
 
 Harris v. Firth, 4 Cr. C. C. 710, Fed. Cas. No. 6120 19 
 
 Harter v. Kernochan, 103 U. S. 562 142 
 
 Hartog v. Memory, 116 U. S. 588 209, 210, 212, 213 
 
 Harvey v. Richmond & M. Ry. Co., 64 Fed. Rep. 19 170, 218 
 
 Haskell v. Bailey, 63 Fed. Rep. 873, 25 U. S. App. 99, 11 C. C. A. 476 . . 191 
 
 Hatch!). Dorr, 4 McL. 112, Fed. Cas. No. 6206 102 
 
 Hatfield v. Bushnell, 1 Blatchf. 393, Fed. Cas. No. 6211 102 
 
 Hayden v. Manning, 106 U. S. 586 100, 216 
 
 Henderson v. Goode, 49 Fed. Rep. 887 110 
 
 Hepburn v. Ellzey, 2 Cr. 445 16, 17 
 
 Hewitt v. Story, 39 Fed. Rep. 158 214 
 
 Hicklin v. Marco, 56 Fed. Rep. 549, 15 U. S. App. 55, 6 C. C. A. 10 . 123, 141 
 
 Hickman v. City of Fort Scott, 141 U. S. 415 236 
 
 Hinckley v. Byrne, 1 Deady, 224, Fed. Cas. No. 6510 24 
 
 Hodgson v. Bowerbank, 5 Cr. 303 24, 25, 202 
 
 Hohorst, In re, 150 U. S. 653 .... 158, 160, 161, 162, 163, 164, 165, 166 
 
 v. Hamburg-American Packet Co., 38 Fed. Rep. 273 218 
 
 Holland v. Ryan, 17 Fed. Rep. 1 122 
 
 Hollingsworth v. Adams, 2 Dall. 396, Fed. Cas. No. 6611 172 
 
 Holmes v. GoldsmiU, 147 U. S. 150 186 
 
 Hooe v. Jamieson, 166 TJ. S. 395 17, 122, 124 
 
 Hoover & Allen Co. u. Columbia Straw Paper Co., 69 Fed. Rep. 545 . . 168 
 
 Hope Ins. Co. v. Boardman, 5 Cr. 57 32 
 
 Hoppenstedt v. Fuller, 71 Fed. Rep. 99, 36 U. S. App. 271, 17 C. C. A. 623 193 
 
 Horn v. Lockhart, 17 Wall. 570 122, 129 
 
 Home v. Boston & M. R. R. Co., 18 Fed. Rep. 50 84 
 
 v. George H. Hammond Co , 155 TJ. S. 393 247 
 
 Hornthal v. The Collector, 9 Wall. 560 240 
 
 Hotel Co. v. Wade, 97 U. S. 13 141 
 
 Hoyt v. Wright, 4 Fed. Rep. 168 100 
 
 Hubbard v. Northern R. R. Co., 3 Blatchf. 84, Fed. Cas. No. 6818 ... 122 
 
 Hudson v. Bishop, 38 Fed. Rep. 560 180 
 
 Huff v. Hutchinson, 14 How. 586 132 
 
 Hupfeld v. Automaton Piano Co., 66 Fed. Rep. 788 218 
 
 Hutton v. Joseph Bancroft & Sons Co., 77 Fed. Rep. 481 143 
 
TABLE OF CASES. XIX 
 
 I. 
 
 PAGE 
 
 Imperial Refining Co. v. Wyman, 38 Fed. Rep. 674 56, 215 
 
 Inbusch v. Farwell, 1 Black, 666 123, 127 
 
 Insurance Co. v. Bangs, 103 U. S. 435 176 
 
 v. Morse, 20 Wall. 445 64 
 
 Interior Construction & Improvement Co. v. Gibney, 160 U. S. 217 . 169, 235 
 
 J. 
 
 Jackson v. Allen, 132 U. S. 27 217 
 
 v. Ashton, 8 Pet. 148 240, 244 
 
 i\ Twentyman, 2 Pet. 136 24, 240 
 
 James v. St. Louis & San Francisco Ry. Co., 46 Fed. Rep. 47 70 
 
 Jarboe v. Templar, 38 Fed. Rep. 213 102 
 
 Jessup v. Illinois, &c. R. R. Co., 43 Fed. Rep. 487 110 
 
 Jewett v. Bradford Savings Bank & Trust Co., 45 Fed. Rep. 801 154, 169, 175, 
 
 185 
 
 Johnson v. Bunker Hill Co., 46 Fed. Rep. 417 17 
 
 v. Christian, 125 U. S. 642 107 
 
 v. Monell, 1 Woolw. 390, Fed. Cas. No. 7399 100 
 
 v. Philadelphia, Wilmington & Baltimore R. R. Co., 9 Fed. Rep. 6 . 84 
 
 Jones v. Andrews, 10 Wall. 327 107, 108, 168, 201, 218, 244 
 
 Ex parte, 164 U. S. 691 60 
 
 v. League, 18 How. 76 90, 205 
 
 v. Rowley, 73 Fed. Rep. 286 216 
 
 v. Shapera, 57 Fed. Rep. 457, 13 U. S. App. 481, 6 C. C. A. 423 101, 181 
 
 Justices v. Murray, 9 Wall. 274 14 
 
 K. 
 
 Keasbey & Mattison Co., In re, 160 U. S. 221 . . . . 157, 162, 163, 164, 165 
 
 Kelly v. Harding, 5 Blatchf. 502, Fed. Cas. No. 7670 146 
 
 Kelsey v. Pennsylvania R. R. Co., 14 Blatchf. 89, Fed. Cas. No. 7679 . . 218 
 
 Kemna v. Brockhaus, 5 Fed. Rep. 762 22 
 
 Kemp's Lessee v. Kennedy, 5 Cr. 173 240 
 
 Kendal v. United States, 12 Pet. 524 6 
 
 Kendig v. Dean, 97 U. S. 423 128, 141 
 
 Kennedy v. Solar Refining Co., 69 Fed. Rep. 715 202,214 
 
 Kildare Lumber Co. v. Nat. Bank of Commerce, 69 Fed. Rep. 2, 16 C. C. A. 
 
 107, 30 U. S. App. 762 143 
 
 King Bridge Co. v. Otoe Co., 120 U. S. 225 180, 212, 240, 246 
 
 King v. McLean Asylum, 64 Fed. Rep. 325, 21 U. S. App. 407, 12 C. C. A. 
 
 23g 238 
 
 Kingman v. Holthaus, 59 Fed. Rep. 305 24 
 
 Kirkpatrick v. White, 4 Wash. C. C. 595, Fed. Cas. No. 7850 35 
 
 Knapp v. Railroad Co., 20 Wall. 117 134, 136, 139 
 
 Knox v. Greenleaf, 4 Dall. 360, Fed. Cas. No. 7098 21 
 
 Krippendorf v. Hyde, 110 U. S. 276 107, 117, 118 
 
 L. 
 
 Lacassagne v. Chapius, 114 U. S. 119 . ,' na \An Im 
 
 Lafayette Ins. Co. v. French, 18 How. 404 196, 197, 201 
 
XX TABLE OF CASES. 
 
 PAGE 
 
 Laird v. Indemnity Mutual Marine Ins. Co., 44 Fed. Rep. 712 183 
 
 Lamar v. Micou, 112 U. S. 452 25, 139 
 
 Lamb v. Ewing, 54 Fed. Rep. 269, 12 U. S. App. 11, 4 C. C. A. 320 . . . 117 
 
 Land Company v. Elkins, 20 Fed. Rep. 545 17 
 
 Langdon v. Fogg, 18 Fed. Rep. 5 143 
 
 Lanier v. Nash, 121 U. S. 404 100 
 
 Lanning v. Lockett, 10 Fed. Rep. 451 100 
 
 v. Osborne, 79 Fed. Rep. 657 119 
 
 Lanz v. Randall, 4 Dill. 425, Fed. Cas. No. 8080 16, 18 
 
 Laskey v. Newtown Mining Co., 40 Fed. Rep. 634 170, 203 
 
 v. Newtown Mining Co., 56 Fed. Rep. 628 101 
 
 Leather Manufacturers Bank v. Cooper, 120 U. S. 778 59 
 
 Lehigh Mining & Manufacturing Co. v. Kelly, 160 U. S. 327 .... 87, 91 
 
 , Petitioner, In re, 156 U. S. 322 231, 234, 235 
 
 Lewis v. Cocks, 23 Wall. 466 217 
 
 Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566 52 
 
 Lonergan v. Illinois Central R. R. Co., 55 Fed. Rep. 551 53, 198 
 
 Loomis v. New York & Cleveland Gas Co., 33 Fed. Rep. 353 151 
 
 Louisville, Cincinnati & Charleston R. R. Co. v. Letson, 2 How. 497 32, 33, 36, 
 
 44, 45, 46, 47, 52, 75, 126 
 Louisville Trust Co. v. Louisville, &c. R. R. Co., 75 Fed. Rep. 493, 43 U. S. 
 
 App. 550, 22 C. C. A. 378 85 
 
 Louisville Underwriters, In re, 134 U. S. 488 158 
 
 Lovejoy v. Hartford Fire Ins. Co., 11 Fed. Rep. 63 172 
 
 v. Washburne, 1 Biss. 416, Fed. Cas. No. 8550 127 
 
 Lumley v. Wabash Ry. Co., 71 Fed. Rep. 21 203 
 
 Lyell v. Lapeer Co., 6 McL. 446, Fed. Cas. No. 8618 54 
 
 M. 
 
 Maddox v. Thorn, 60 Fed. Rep. 217, 23 U. S. App. 189, 8 C. C. A. 574 . 219 
 
 Maloy v. Duden, 25 Fed. Rep. 673 26 
 
 Malz v. American Express Co., 1 Flip. 611, Fed. Cas. No. 9002 .... 56 
 
 Mangels v. Donau Brewing Co., 53 Fed. Rep. 513 141, 217 
 
 Manhattan Life Ins. Co. v. Broughton, 109 TJ. S. 121 100, 215, 216 
 
 Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379 8, 200, 211, 217, 239, 
 
 240, 241, 247 
 
 Manufacturing Co. v. Bradley, 105 U. S. 175 189 
 
 Marbury v. Madison, 1 Cr. 137 3, 14 
 
 Marks v. Marks, 75 Fed. Rep. 321 19 
 
 Markwood v. Southern Ry. Co., 65 Fed. Rep. 817 70 
 
 Marshall v. Baltimore & Ohio R. R. Co., 16 How. 314 .... 46, 47, 52, 75 
 
 Martin v. Baltimore & Ohio R. R. Co., 151U. S. 673 70 
 
 v. Meyer, 45 Fed. Rep. 435 127 
 
 Marvin v. Ellis, 9 Fed. Rep. 367 100 
 
 Marye ». Baltimore & Ohio R. R. Co., 127 U. S. 117 70 
 
 Maryland v. Baldwin, 112 U. S. 490 131 
 
 Mason v. Blaireau, 2 Cr. 264 26 
 
 v. Dullaghan, 82 Fed. Rep. 689, 53 U. S. App. 539, 27 C. C. A. 296 123, 125 
 
 v. Rollins, 13 Wall. 602 240 
 
 Massachusetts Mutual Life Ins. Co. o. Chicago & Alton R. R. Co., 13 Fed. 
 Rep. 857 176 
 
TABLE OF CASES. xxi 
 
 PAGE 
 
 Mattocks v. Baker, 2 Fed. Rep. 455 100 
 
 Mauldin v. Carll, 3 Hughes, 249, Fed. Cas. No. 9307 171 
 
 Mayriard v. Hecht, 151 U. S. 324 227, 234, 237 
 
 McBee v. Marietta & North Georgia R. R. Co., 48 Fed. Eep. 243 111, 174, 176 
 
 McBride v. Graud de Tour Plow Co., 40 Fed. Rep. 162 148, 168 
 
 McCabe v. Illinois Central R. R. Co., 13 Fed. Rep. 827 53 
 
 McCormick v. Sullivant, 10 Wh. 192 6 
 
 McCormick Harvesting Machine Co. v. Walthers, 134 U. S. 41 . . 152, 157 
 McCoy v. Washington Co., 3 Wall. Jr., 381, Fed. Cas. No. 8731 .... 54 
 
 McDonald v. Smalley, 1 Pet. 620 88, 90 
 
 Mclntire v. Wood, 7 Cr. 606 6 
 
 McLean v. Clark, 31 Fed. Rep. 501 90, 216 
 
 McLish v. Roff, 141 U. S. 661 226, 237 
 
 McNutt v. Bland, 2 How. 9 130, 131, 133 
 
 McRae v. Bank, 19 How. 376 136 
 
 Mellin v. Moline Malleable Iron Works, 131 U. S. 352 176 
 
 Memphis & Charleston R. R. Co. o. Alabama, 107 U. S. 581 ... 63, 66, 75 
 
 Menard v. Goggan, 121 U. S. 253 191, 240, 246 
 
 Merchants Cotton Press & Storage Co. v. Insurance Co., 151 U. S. 368 125, 142 
 
 Metcalf v. Watertown, 128 U. S. 586 .' 180, 213, 241, 246 
 
 Metropolitan R. R. Co. v. District of Columbia, 132 U. S. 1 17 
 
 Mexican Central R. R. Co. v. Pinkney, 149 U. S. 194 214 
 
 Meyer v. Herrera, 41 Fed. Rep. 65 217 
 
 Miller v. Eastern Oregon Gold Mining Co., 45 Fed. Rep. 345 159 
 
 v. Rogers, 29 Fed. Rep. 401 117 
 
 v. Wheeler & Wilson Manufacturing Co., 46 Fed. Rep. 882 .... 157 
 
 Miller-Magee Co. v. Carpenter, 34 Fed. Rep. 433 161 
 
 Mining Co. v. V. & G. H. W. Co., 1 Sawy. 685, Fed. Cas. No. 2990 . . 128 
 
 Minnesota Co. v. St. Paul Co., 2 Wall. 609 104, 105, 107 
 
 Mississippi Mills v. Cohn, 150 U. S. 202 183, 184 
 
 Missouri Pacific Ry. Co. v. Meeh, 69 Fed. Rep. 753, 32 U. S. App. 691, 16 
 
 C. C. A. 510 80, 84 
 
 Mitchell v. United States, 21 Wall. 350 17, 19, 21 
 
 Moffat v. Soley, 2 Paine, 103, Fed. Cas. No. 9688 146 
 
 Mollan v. Torrance, 9 Wh. 537 102, 180, 181, 193, 217 
 
 Montalet v. Murray, 4 Cr. 46 24, 180, 240 
 
 Moran v. Hagerman, 151 U. S. 329 227 
 
 Morgan v. East Tenn. & Va. R. R. Co., 48 Fed. Rep. 705 70 
 
 Morgan's Co. v. Texas Central Ry. Co., 137 U. S. 171 110 
 
 Morgan's Exr. v. Gay, 19 Wall. 81 180 
 
 Morgan's Heirs v. Morgan, 2 Wh. 290 101 
 
 Morris v. Gilmer, 129 U. S. 315 . . . . 25, 87, 99, 100, 209, 210, 214, 217, 246 
 
 v. Lindauer, 54 Fed. Rep. 23, 4 C. C. A. 162 134 
 
 Morse v. Anderson, 150 U. S. 156 236 
 
 v. South, 80 Fed. Rep. 206 144 
 
 Mossman v. Higginson, 4 Dall. 12 24, 202, 240 
 
 Muller v. Dows, 94 IT. S. 444 53, 84, 196, 240 
 
 Myer v. Murray, 43 Fed. Rep. 695 53, 157 
 
 N. 
 Nashua & Lowell R. R. v. Boston & Lowell R. R., 136 U. S. 356 . . 76, 82, 84 
 Nat. Button Works v. Wade, 72 Fed. Rep. 298 164 
 
XXU TABLE OF CASES. 
 
 PAGE 
 
 Nat. Masonic Accident Assn. v. Sparks, 83 Fed. Eep. 225, 49 U. S. App. 
 
 681, 28 C. C. A. 399 216 
 
 Nat. Typewriter Co. v. Pope Manufacturing Co., 56 Fed. Eep. 849 ... 162 
 Nat. Typographic Co. v. New York Typographic Co., 44 Fed. Rep. 711 . 167 
 
 Nazro v. Cragin, 3 Dill. 474, Fed. Cas. No. 10,062 171 
 
 Neel v. Pennsylvania Co., 157 IT. S. 153 191, 193 
 
 New Chester Water Co. v. Holly Manufacturing Co., 53 Fed. Eep. 19, 13 
 
 U. S. App. 264, 3 C. C. A. 399 141 
 
 Newgass v. New Orleans, 33 Fed. Eep. 196 182 
 
 New Orleans v. Benjamin, 153 U. S. 411 183 
 
 v. Gaines, 131 U. S. 191 184 
 
 v. Gaines, 138 U. S. 595 133, 137, 187 
 
 v. Winter, 1 Wh. 91 16, 121, 122, 125, 240 
 
 New York & N. E. E. E. Co. e. Hyde, 56 Fed. Eep. 188, 6 U. S. App. 443, 
 
 7 C. C. A. 384 198 
 
 Norris v. Atlas Steamship Co., 37 Fed. Eep. 279 148, 218 
 
 North v. McDonald, 1 Biss. 57, Fed. Cas. No. 10,312 171 
 
 Northern Pacific E. E. Co. v. Glasspell, 49 Fed. Rep. 482, 4 U. S. App. 238, 
 
 1 C. C. A. 327, 144 U. S. 211 226 
 
 Northwestern Fuel Co. v. Brock, 139 U. S. 216 247 
 
 Norton v. European & N. A. E. E. Co., 32 Fed. Eep. 865 100, 216 
 
 Noyes v. Canada, 30 Fed. Eep. 665 172 
 
 O. 
 
 Ober v. Gallagher, 93 U. S. 199 127 
 
 O'Brien Co. v. Brown, 1 Dill. 588, Fed. Cas. 10,399 105 
 
 Oglesby v. Sillom, 9 Fed. Eep. 860 25 
 
 Ohio & Mississippi E. R. Co. v. Wheeler, 1 Black, 286 . 27, 53, 61, 75, 80, 81 
 
 Osborn v. Bank of United States, 9 Wh. 738 64, 55 
 
 Osborne v. Brooklyn City R. R. Co., 5 Blatchf. 366, Fed. Cas. No. 10,597 . 100 
 
 Osborne & Co. v. Barge, 30 Fed. Rep. 805 Ill 
 
 Oxley Stave Co. v. Coopers' International Union, 72 Fed. Rep. 695 ... 68 
 
 P. 
 
 Pacific Postal Telegraph Cable Co. v. Irvine, 49 Fed Rep. 113 .... 193 
 
 Pacific Railroad Removal Cases, 115 U. S. 1 64 
 
 Pacific Railroad v. Ketchum, 101 U. S. 289 142, 143 
 
 v. Missouri Pacific Ry. Co., 23 Fed. Rep. 565 53 
 
 v. Missouri Pacific Ry. Co., Ill U. S. 605 107,109,117 
 
 b. Missouri Pacific Ry. Co., 3 Fed. Rep. 772 175, 176 
 
 Parke v. New York, Lake Erie & Western R. R. Co., 70 Fed. Eep. 641 . Ill 
 
 Parker v. Ormsby, 141 U. S. 81 180, 241, 246 
 
 v. Overman, 18 How. 137 191 
 
 Patehin v. Hunter, 38 Fed. Eep. 51 127 
 
 Paterson v. Mater, 26 Fed. Rep. 31 132 
 
 Paul v. Baltimore & Ohio R. R. Co., 44 Fed. Rep. 513 84 
 
 v. Virginia, 8 Wall. 168 52, 53 
 
 Payne v. Hook, 7 Wall. 425 129, 141 
 
 Peck v. Elliott, 79 Fed. Rep. 10, 24 C. C. A. 425 115 
 
 Penfield v. Chesapeake, O. & S. W. E. E. Co., 29 Fed. Eep. 494 .. . 21, 24 
 
TABLE OF CASES. XX1U 
 
 PAGE 
 
 Peninsular Iron Company v. Stone, 121 U. S. 631 121, 125, 247 
 
 Pennington v. Smith, 78 Fed. Rep. 399, 46 U. S. App. 409, 24 C. C. A. 145 139 
 
 Pennsylvania v. Quicksilver Co., 10 Wall. 653 197 
 
 Pennsylvania Co. v. St. Louis, &c. R. R. Co., 118 U. S. 290 ... 68, 69, 76 
 
 Pennsylvania Co. In re, 137 U. S. 451 152 
 
 People's Bank v. Calhoun, 102 U. S. 256 118 
 
 People ex rel. v. Illinois Central R. R. Co., 16 Fed. Rep. 881 142 
 
 People's Savings Institution of Erie County v. Miles, 76 Fed. Rep. 253, 22 
 
 C. C. A. 152 113, 119 
 
 Peper v. Fordyce, 119 U. S. 469 136, 240, 247 
 
 Pequignot v. City of Detroit, 16 Fed. Rep. 211 21 
 
 Perkins v. Hendryx, 40 Fed. Rep. 657 172 
 
 Perrin's Admrs. v. M'Gibbens Admrs., 53 Fed. Rep. 86, 3 C. C. A. 443, 6 
 
 U.S. App. 348 143 
 
 Petrie a. Commercial Nat. Bank, 142 U. S. 644 58, 59, 60 
 
 Petterson v. Chapman, 13 Blatchf. 395, Fed. Cas. No. 11,042 122 
 
 Pettit v. Town of Hope, 2 Fed. Rep. 623 181 
 
 Phelps v. Oaks, 117 U. S. 236 102, 119 
 
 Picquet v. Swan, 5 Mas. 35, Fed. Cas. No. 11,134 203 
 
 Pierro v. St. Paul, &c. R. R., 37 Minn. 314 6 
 
 Piquignot v. Pennsylvania R. R. Co., 16 How. 104 24, 26, 203 
 
 Pitkin County Mining Co. v. Markell, 33 Fed. Rep. 386 151 
 
 Pittsburgh, C. & St. L. Ry. Co. v. Baltimore & Ohio R. R. Co., 61 Fed. 
 
 Rep. 705 135, 143 
 
 Plant Investment Co. v. Jacksonville, Tampa & Key West R. R. Co., 152 
 
 U. S. 71 183, 246 
 
 Pollitz v. Farmers Loan & Trust Co., 39 Fed. Rep. 707 176 
 
 Pollock v. Loucheim, 19 Fed. Rep. 465 143 
 
 Pond v. Vermont Valley R. R. Co., 12 Blatchf. 280, Fed. Cas. No. 11,265 88 
 
 Pooley v. Luco, 72 Fed. Rep. 561 24, 175 
 
 Poppenhauser v. India-Rubber Co., 14 Fed. Rep. 707 18 
 
 Postal Telegraph Cable Co. v. Alabama, 155 TJ. S. 482 26 
 
 Prentiss v. Brown, 2 Blatchf. 162, Fed. Cas. No. 11,385 17, 21, 24 
 
 Preston v. Fire Extinguisher Manufacturing Co., 36 Fed. Rep. 721 . . . 162 
 
 Price v. Abbott, 17 Fed. Rep. 506 115, 137 
 
 Pullman's Palace Car Co. v. Washburn, 66 Fed. Rep. 790 .... 117, 119 
 Purcell v. British Land & Mortgage Co., 42 Fed. Rep. 465 ... . 53, 148 
 
 Q. 
 
 Quincy Railroad Bridge Co. v. The County of Adams, 88 HI. 615 ... 80 
 
 R. 
 
 Rabaud v. D' Wolff, 1 Paine, 580, Fed. Cas. No. 11,519 19 
 
 Rae v. Grand Trunk Ry. Co., 14 Fed. Rep. 401 214 
 
 Railroad Company v. Chamberlin, 16 Wall. 748 109 
 
 v. Harris, 12 Wall. 65 17, 53, 63, 70, 79, 80 
 
 v. Koontz, 104 TJ. S. 5 70 
 
 v. Ramsey, 22 Wall. 322 242 
 
 v. Vance, 96 TJ. S. 450 66 
 
 v. Wliitton, 13 Wall. 270 15, 63, 67, 76 
 
XXIV TABLE OP CASES. 
 
 FAGB 
 
 Ralston v. Sharon, 51 Fed. Eep. 702 104 
 
 Rateau v. Barnard, 3 Blatchf . 244, Fed. Cas. No. 11,579 24 
 
 Read v. Bertrand, 4 Wash. C. C. 514, Fed. Cas. No. 11,601 21 
 
 Reilly v. Golding, 10 Wall. 56 117 
 
 Reinaoh v. Railroad Co., 58 Fed. Rep. 33 136 
 
 Reinstadler «. Reeves, 33 Fed. Rep. 303 162, 218 
 
 Removal Cases, 100 U. S. 457 122, 142 
 
 Republic Iron Mining Co. v. Jones, 37 Fed. Rep. 721 180 
 
 Ribon v. Railroad Co., 16 Wall. 446 128, 141 
 
 Rice v. Houston, 13 Wall. 66 136, 137, 138 
 
 Rich v. Bray, 37 Fed. Rep. 273 143, 144 
 
 Richmond v. Dreyfous, 1 Sumn. 181, Fed. Cas. No. 11,799 172 
 
 Rivers v. Bradley, 53 Fed. Rep. 305 25 
 
 Roberts v. Lewis, 144 U. S. 653 216 
 
 Robertson v. Carson, 86 U. S. 94 (19 Wall.) 87, 128 
 
 v. Cease, 97 U. S. 646 . 8, 189, 190, 191, 193, 200, 220, 221, 240, 241, 242 
 
 v. Scotland, &c. Ins. Co., 68 Fed. Rep. 173 53 
 
 Robinson v. Anderson, 121 TJ. S. 522 216,218 
 
 Rollins v. Chaffee County, 34 Fed. Rep. 91 180, 182 
 
 Romaine v. Union Ins. Co., 28 Fed. Rep. 625 218 
 
 Rondot v. Township of Rogers, 79 Fed. Rep. 676, 47 U. S. App. 290, 25 
 
 C. C. A. 145 203 
 
 Root v. Woolworth, 150 U. S. 401 118 
 
 Rouse v. Letcher, 156 U. S. 47 118 
 
 Rowbottom v. Steele Iron Co., 71 Fed. Rep. 758 169 
 
 Rucker v. Bolles, 80 Fed. Rep. 504 20 
 
 Ruckman v. Palisade Land Co., 1 Fed. Rep. 367 133 
 
 Rundle v. Delaware & Raritan Canal Co., 14 How. 80 ....;.. 47, 48 
 Rust v. Brittle Silver Mining Co., 58 Fed. Rep. 611, 19 U. S. App. 237, 7 
 
 C. C. A. 389 141, 247 
 
 v. United Waterworks Co., 70 Fed. Rep. 129, 17 C. C. A. 16, 36 U. S. 
 
 App. 167 157, 237 
 
 S. 
 
 Sackett v. Rumbaugh, 45 Fed. Rep. 23 172 
 
 Saddler v. Hudson, 2 Curtis, 6, Fed. Cas. No. 12,206 172 
 
 Saginaw Gas Light Co. v. City of Saginaw, 28 Fed. Rep. 529 143 
 
 St. Louis v. Ferry Co., 11 Wall. 423 201 
 
 St. Louis, I. M. & S. R. R. Co. v. Newcom, 56 Fed. Rep. 951, 12 U. S. App. 
 
 503, 6 C. C. A. 172 190, 245 
 
 St. Louis Ry. Co. v. Pacific Ry. Co., 52 Fed. Rep. 770 149, 157 
 
 St. Louis, Tandalia & Terre Haute R. R. Co. v. Terre Haute & Indian- 
 apolis R. R. Co., 33 Fed. Rep. 385 151 
 
 St Louis & San Francisco Ry. Co. v. James, 161 U. S. 545 . . 28, 53, 61, 70 
 
 v. McBride, 141 U. S. 127 148,153,168" 
 
 St. Luke's Hospital v. Barclay, 3 Blatchf. 259, Fed Cas. No. 12,241 . . 105 
 Sawyer v. Switzerland Marine Ins. Co., 14 Blatchf. 451, Fed. Cas. No. 12,408 122 
 Sayer v. La Salle & Peru Gas Light & Coke Co., 14 Fed. Rep. 69 .... 142 
 
 Schollenberger, Ex parte, 96 U. S. 369 148 
 
 Scott v. Jones, 5 How. 343 16 
 
 Security Co. v. Pratt, 64 Fed. Rep. 405 137 
 
TABLE OF CASES. X XV 
 
 PAGE 
 
 Seligman v. City of Santa Rosa, 81 Fed. Rep. 524 112 
 
 Semmes v. Whitney, 50 Fed. Rep. 666 .' ' 139 
 
 Sere v. Pitot, 6 Cr. 332 16 187 
 
 Sewing Mac] line Companies, 18 Wall. 553 3 6 53 
 
 Shainwald v. Davids, 69 Fed. Rep. 704 '.'.'. 157 
 
 v. Lewis, 5 Fed. Rep. 510 I73 ^q 
 
 Sharon v. Hill, 23 Fed. Rep. 353 '..'.'.'. '. . . ' 244 
 
 v. HiU, 26 Fed. Rep. 337 25 
 
 Shattuck v. North British Mercantile Ins. Co., 58 Fed. Rep. 609 19 U S 
 
 App. 215, 7 C. C. A. 386 '. . . ' 169 
 
 Shaw, Ex parte, 145 U. S. 444 '.'.'. 53 
 
 v. Quincy Mining Co., 145 U. S. 444 53, 149, 152, 153, 154, 155, 167 201 
 
 SJjeldon v. Sill, 8 How. 441 ' 5 8 
 
 Shelton v. Tiffin, 6 How. 163 '. '.'.'.'. 21 
 
 Sheppard v. Graves, 14 How. 505 217 
 
 Sherwood v. Newport News & Mississippi Valley Co., 55 Fed. Rep. 1 . . 159 
 
 Shields v. Barrow, 17 How. 130 127 128 141 
 
 v. Coleman, 157 TJ. S. 168 23L 233' 235 
 
 Shipp v. Williams, 62 Fed. Rep. 4, 22 TJ. S. App. 359, 10 C. C. A. 247 134^ 143 
 
 Shirk v. City of Lafayette, 52 Fed. Rep. 857 I34' 136 
 
 Shoecraft v. Bloxham, 124 TJ. S. 730 .' 182^ 183 
 
 Simon v. House, 46 Fed. Rep. 317 217 
 
 Simons v. Ypsilanti Paper Co., 33 Fed. Rep. 193 185 
 
 Sims v. Hundley, 6 How. 1 205 
 
 Single v. Scott Paper Manufacturing Co., 55 Fed. Rep. 553 175 
 
 Sioux City Terminal R. & W. Co. v. Trust Co. of North America, 82 Fed 
 
 Rep. 124, 49 U. S. App. 523, 27 C. C. A. 73 123 
 
 Skillern's Exrs. v. May's Exrs., 6 Cr. 267 222 
 
 Slaughter House Cases, 16 Wall. 36 ' 15 
 
 Smith v. Consumers Cotton-Oil Co., 86 Fed. Rep. 359 123 
 
 , Ex parte, 94 TJ. S. 455 8, 241 
 
 v. Kernochen, 7 How. 198 90, 205, 207 
 
 v. Lyon, 38 Fed. Rep. 53 153 
 
 v. Lyon, 133 U. S. 315 122, 125, 151, 154 
 
 v. McKay, 161 U. S. 355 234 
 
 v. Sargent Manufacturing Co., 67 Fed. Rep. 801 164 
 
 v. Sun Pub. Co., 55 Fed. Rep. 240 25 
 
 Smy the v. Henry, 41 Fed.. Rep. 705 107 
 
 Snead v. Sellers, 66 Fed. Rep. 371, 13 C. C. A. 518, 30 TJ. S. App. 8 . . . 17 
 
 Snow v. Texas Trunk R. R. Co., 16 Fed. Rep. 1 142 
 
 Southern Express Co. v. Todd, 56 Fed. Rep. 104, 12 TJ. S. App. 351, 5 C. 
 
 C. A. 432 168 
 
 Southern Pacific Co. v. Denton, 146 TJ. S. 202 . 148, 157, 168, 218, 219 
 
 Southwestern Telegraph & Telephone Co. v. Robinson, 48 Fed. Rep. 767, 
 
 2 TJ. S. App. 148, 1 C. C. A. 91 193 
 
 Speigle v. Meredith, 4 Biss. 120, Fed. Cas. No. 13,227 195 
 
 Spencer v. Kansas City Stock Yards Co., 56 Fed. Rep. 741 175 
 
 Stanley v. Board of Supervisors Albany County, 15 Fed. Rep. 483 . . . 181 
 
 State of Alabama v. Wolffe, 18 Fed. Rep. 836 26 
 
 State of Indiana v. Stanton, 155 U. S. 513 131 
 
 v. Tolleston Club, 53 Fed. Rep. 18 26 
 
 State of Minnesota v. Guaranty Trust & Safe Deposit Co., 73 Fed. Rep. 914 26 
 
XXVI TABLE OF CASES. 
 
 PAGE 
 
 States Savings Assn. a. Howard, 31 Fed. Rep. 433 23 
 
 Stayton Mining Co. v. Woody, 60 Fed. Rep. 633 217 
 
 Steamship Co. v. Tugman, 10b' U. S. 118 8, 63 
 
 Steele v. Rathbun, 42 Fed. Rep. 390 182 
 
 Stephens v. Bernays, 41 Fed. Rep. 401 137 
 
 Stevens v. Nichols, 130 U. S. 230 180 
 
 Stewart v. Dunham, 115 U. S. 61 113, 115 
 
 Stone v. Bishop, 4 Clifford, 593, Fed. Cas. No. 13,482 105 
 
 o. Farmers Co., 116 U. S. 307 66 
 
 v. South Carolina, 117 U. S. 430 26 
 
 Stoughton v. Hill, 3 Woods, 404, Fed. Cas. No. 13,501 21 
 
 Stout ». Sioux City & Pacific R. R. Co., 3 McCrary, 1, 8 Fed. Rep. 794 . 68 
 Strawbridge v. Curtiss, 3 Cr. 267 32, 33, 34, 35, 37, 41, 42, 120, 121, 124, 125, 126 
 
 Stuart v. Easton, 156 U. S. 46 202, 203 
 
 Superior City v. Ripley, 138 IT. S. 93 186 
 
 Swayne v. Boylston Ins. Co., 35 Fed. Rep. 1 151 
 
 Symmes v. Union Trust Co., 60 Fed. Rep. 330 109 
 
 T. 
 
 Taylor v. Holmes, 14 Fed. Rep. 498 128 
 
 Teal v. Walker, 5 Rep'r, 202, Fed. Cas. No. 13,012 122 
 
 Texas v. White, 7 Wall. 700 17 
 
 Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593 148, 168 
 
 v. Rogers, 57 Fed. Rep. 378, 13 U. S. App. 5-17, 6 C. C. A. 403 .. . 191 
 
 v. Saunders, 151 U. S. 105 148 
 
 Thaxter v. Hatch, 6 McL. 68, Fed. Cas. No. 13,866 101, 181 
 
 Thayer *. Life Association, 112 U. S. 717 134, 136, 240 
 
 Third Nat. Bank of Baltimore v. Teal, 5 Fed. Rep. 503 191 
 
 Thompson v. McReynolds, 29 Fed. Rep. 657 107, 117 
 
 Timmons v. Elyton Land Co., 139 U. S. 378 240 
 
 Tinsley v. Hoot, 53 Fed. Rep. 682, 2 U. S. App. 548, 3 C. C. A. 612 .. . 191 
 
 Tobin v. Walkinshaw, 1 McAll. 186, Fed. Cas. No. 14,070 19 
 
 Toland v. Sprague, 12 Pet. 300 148, 168, 170 
 
 Towle v. American Building Loan & Investment Society, 60 Fed. Rep. 131 216 
 
 Treadwell v. Seymour, 41 Fed. Rep. 679 172 
 
 Trigg v. Conway, Hempst. 711, Fed. Cas. No. 14,173 102 
 
 Trustees of Oberlin College v. Blair, 70 Fed. Rep. 414 143 
 
 Tug River Coal & Salt Co. v. Brigel, 67 Fed. Rep. 625, 31 U. S. App. 665, 
 
 14 C. C. A. 577 175, 191, 195, 247 
 
 v. Brigel, 86 Fed. Rep. 818 123 
 
 Turner v. Bank of North America, 4 Dall. 8 6, 7, 180, 188, 240 
 
 Tyler, Petitioner, In re, 149 U. S. 164 118 
 
 U. 
 
 Union Pacific Railway Co. v. Myers, 115 U. S. 1 54 
 
 Union Switch & Signal Co. v. Hall Signal Co., 65 Fed. Rep. 625 ... . 164 
 
 Union Trust Co. v. Rochester & Pittsburgh R. R. Co. 29 Fed. Rep. 609 . 85 
 United Electric Securities Co. v. Louisiana Electric Light Co., 68 Fed. 
 
 Rep. 673 112 
 
 United States v. American Lumber Co., 80 Fed. Rep. 309 175 
 
TABLE OP CASES. XXVli 
 
 PAGE 
 
 United States v. Backus, 6 McL. 443, Fed. Cas. No. 14,491 127 
 
 v. Crawford, 47 Fed. Rep. 661 217 
 
 v. Cruikshank, 92 U. S. 542 15 
 
 v. Davidson, 1 Biss. 433 117 
 
 v. Hall, 131 U. S. 50 229 
 
 v. Hudson, 7 Cr. 32 3, 5 
 
 v. Jahn, 155 U. S. 109 226, 232, 234 
 
 v. Meyers, 2 Brock. 516, Fed. Cas. No. 15,844 102 
 
 v. Mooney, 116 U. S. 104 10 
 
 v. Perrin, 131 U. S. 55 229 
 
 v. Severns, 71 Fed. Rep. 768, 37 U. S. App. 622, 18 C. C. A. 314 . . 238 
 
 v. Southern Pacific R. B. Co., 49 Fed. Rep. 297 8, 155 
 
 v. Thorpe, 2 Bond, 340, Fed. Cas. No. 10,494 21 
 
 v. Yates, 6 How. 605 218 
 
 United States Nat. Bank v. McNair, 56 Fed. Rep. 323 180, 187 
 
 Uphoff v. Chicago, &c. R. R. Co., 5 Fed. Rep. 545 68, 84 
 
 V. 
 
 Van Bokkelen v. Cook, 5 Sawy. 587, Fed. Cas. No. 16,831 185 
 
 Vannerson v. Leverett, 31 Fed. Rep. 376 118, 214, 217 
 
 Van Patten v. Chicago, M. & St. P. R. R. Co., 74 Fed. Rep. 981 . . 146, 164 
 
 Vasse v. Mifflin, 4 Wash. C. C. 519, Fed. Cas. No. 16,895 17 
 
 Voss v. Neineber, 68 Fed. Rep. 947 133 
 
 W. 
 
 Wachuset Nat. Bank v. Sioux City Stove Works, 56 Fed. Rep. 321 . . 186 
 
 Wade, Marshal, v. Wortsman, 29 Fed. Rep. 754 141 
 
 Walden v. Skinner, 101 U. S. 577 141 
 
 Walker v. Powers, 104 U. S. 245 183, 184 
 
 v. Windsor Nat. Bank, 56 Fed. Rep. 76, 5 U. S. App. 423, 5 C. C. A. 
 
 421 123,168 
 
 Ward v. Blake Manufacturing Co., 56 Fed. Rep. 437, 12 U. S. App. 295, 
 
 5 C. C. A. 538 201 
 
 Wardens, etc. of St. Luke's Hospital v. Sowles, 51 Fed. Rep. 609 . . . . 217 
 Watson v. Brooks, 13 Fed. Rep. 540 ... . ... 17 
 
 Westcott v. Fairfield, Pet. C. C. 45 .... 17 
 
 Wetherbee v. Johnson, 14 Mass. 412 14 
 
 Wetherby v. Stinson, 62 Fed. Rep. 173, 18 U. S. App. 714, 10 C. C. A. 243 
 
 126, 241, 247 
 
 Wetmore v. Rice, 1 Biss. 237 117 
 
 Wheelright v. St. Louis, N. O. & O. Canal Co., 50 Fed. Rep. 709 174, 175, 176 
 
 White v. Brown, 11 Wall. Jr. 217, Fed. Cas. No. 17,538 19 
 
 v. Ewing, 159 U. S. 36 115 
 
 v. Fenner, 1 Mas. 520, Fed. Cas. No. 17,547 146 
 
 v. Leahy, 3 Dill. 378, Fed. Cas. No. 17,551 101, 181 
 
 Whittemore v. Amoskeag Nat. Bank, 134 U. S. 527 59, 246 
 
 Wichita Nat. Bank v. Smith, 72 Fed. Rep. 568, 36 U. S. App. 530, 19 C. 
 
 C. A. 42 60 
 
 Wiggins v. Bethune, 29 Fed. Rep. 51 133 
 
 Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co., 60 Fed. Rep. 929 ... . 157 
 
XXV111 TABLE OF CASES. 
 
 PASS 
 
 "Wildes v. Parker, 3 Sumn. 593, Fed. Cas. No. 17,652 25 
 
 Wilkinson v. Delaware, &c. R. R. Co., 22 Fed. Rep. 353 70 
 
 v. Wilkinson, 2 Curt. 582, Fed. Cas. No. 17,677 185 
 
 Williams v. Bankhead, 19 Wall. 563 128, 141 
 
 v. Missouri, Kansas & Texas Ry. Co., 3 Dill. 267, Fed. Cas. No. 17,728 69 
 
 v. Morgan, 111 U. S. 684 118 
 
 v. Nottawa, 104 U. S. 209 99, 100, 206, 209 
 
 v. Richey, 3 Dill. 406, Fed. Cas. No. 17,734 133 
 
 Williamson v. Krohn, 66 Fed. Rep. 555, 31 U. S. App. 325, 13 C. C. A. 668 85 
 
 Wilson v. City Bank, 3 Sumn. 422 203 
 
 v. Knox Co., 43 Fed. Rep. 481 182 
 
 v. Oswego Township, 151 U. S. 56 141 
 
 v. Western Union Telegraph Co., 34 Fed. Rep. 561 151 
 
 Winchester v. Jackson, 3 Cr. 514 240 
 
 Wisconsin v. Pelican Ins. Co., 127 U. S. 265 • . . . . 53 
 
 Wolcott v. Sprague, 55 Fed. Rep. 545 143 
 
 Wolffe v. Hartford Life & Annuity Co., 148 U. S. 389 193, 240 
 
 Wood v. Mann, 1 Sumn. 578, Fed. Cas. No. 17,952 25 
 
 v. Wagnon, 2 Cr. 9 194, 240 
 
 Woolridge v. M'Kenna, 8 Fed. Rep. 650 133 
 
 Wormley v. Wormley, 8 Cr. 421 141 
 
 Wright v. Hollingsworth, 1 Pet. 165 194 
 
 v. Schneider, 32 Fed. Rep. 705 24 
 
 Y. 
 
 York v. Texas, 137 U. S. 15 219 
 
 Young v. Bryan, 6 Wh. 146 181 
 
 Youngtown Coke Co. v. Andrews Bros. Co., 79 Fed. Rep. 669 ... . 57, 58 
 
THE JURISDICTION 
 
 OP 
 
 FEDERAL COURTS. 
 
 CHAPTER I. 
 
 The Judicial Power. — Constitutional and Statutory Provisions for Fed- 
 eral Courts. — The Supreme Court. — Inferior Courts. — Meaning of 
 " Inferior " as used in the Constitution. — Presumption against the 
 Jurisdiction of Federal Courts. — Statutes relating to the Circuit 
 Courts. 
 
 An extended review of the Federal judiciary system would 
 be beyond the proper limits of this work. In this chapter 
 it is sought to give merely the bare outlines of the consti- 
 tutional and statutory enactments relating to the courts 
 of the United States, limiting the inquiry to such matters 
 as are necessary for a proper consideration of the subjects 
 treated in subsequent chapters. In addition to giving the 
 text of such constitutional and statutory provisions as are 
 of value in considering the matters to be discussed, a few 
 of the general principles governing the jurisdiction of 
 the Federal courts have been noted, but only to a brief 
 extent. 
 
 Constitutional Provisions. The " judicial power " of the 
 United States is by the Federal Constitution vested in one 
 Supreme Court and "in such inferior courts as the Congress 
 may from time to time ordain and establish." The article 
 
 1 
 
2 JURISDICTION OF FEDERAL COURTS. 
 
 of the Federal Constitution containing this provision is as 
 follows : 
 
 " The judicial power of the United States shall be vested 
 in one Supreme Court, and in such inferior courts as the 
 Congress may from time to time ordain and establish. 
 The judges, both of the Supreme and inferior courts, 
 shall hold their offices during good behavior, and shall, at 
 stated times, receive for their services a compensation, 
 which shall not be diminished during their continuance in 
 office." 1 
 
 Extent of Judicial Power. The extent of this judicial 
 power is defined by the same instrument as follows: 
 
 " The judicial power shall extend to all. cases, in law and 
 equity, 
 
 (1) "Arising under this Constitution, the laws of the 
 United States, and treaties made, or which shall be made, 
 under their authority; 
 
 (2) " To all cases affecting ambassadors, other public min- 
 isters and consuls; 
 
 (3) " To all cases of admiralty and maritime jurisdiction ; 
 
 (4) " To controversies to which the United States shall be 
 a party; 
 
 (5) " To controversies between two or more States ; 
 
 (6) "Between a State and citizens of another State; 
 
 (7) " Between citizens of different States ; 
 
 (8) "Between citizens of the same State claiming lands 
 under grants of different States; 
 
 (9) " And between a State, or the citizens thereof, and for- 
 eign States, citizens, or subjects. 2 
 
 " In all cases affecting ambassadors, other public ministers 
 and consuls, and those in which a State shall be a party, the 
 Supreme Court shall have original jurisdiction. In all the 
 other cases before mentioned, the Supreme Court shall have 
 appellate jurisdiction, both as to law and fact, with such ex- 
 
 1 U. S. Const. Art. III., Sec. 1. 2 Ibid., Art. III., Sec. 2, CI. 1. 
 
THE SUPREME AND INFERIOR COURTS. 3 
 
 ceptions, and under such regulations, as the Congress shall 
 make." 1 
 
 With these constitutional provisions must be read the 
 eleventh amendment, as follows: 
 
 " The judicial power of the United States shall not be con- 
 strued to extend to any suit in law or equity, commenced or 
 prosecuted against one of the United States by citizens of 
 another State, or by citizens or subjects of any foreign State." 2 
 
 The Supreme Court. The Constitution itself provides spe- 
 cifically for but one Federal court — the Supreme Court. 
 The original jurisdiction of this court is derived directly from 
 the Constitution, and its limits are determined by that in- 
 strument. 3 "The original jurisdiction of this court, and its 
 power to receive appellate jurisdiction, are created and de- 
 fined by the Constitution ; and the legislative department of 
 the government can enlarge neither one nor the other." 4 
 But in respect to its appellate jurisdiction the Supreme Court 
 is subject to the legislation of Congress. " It is for Congress 
 to determine how far, within the limits of the capacity of this 
 court to take, appellate jurisdiction shall be given, and when 
 conferred, it can be exercised only to the extent and in the 
 manner prescribed by law. In these respects it is wholly the 
 creature of legislation." 6 
 
 Inferior Courts. But with regard to the other courts con- 
 templated by the Constitution, a different rule prevails. 
 These courts may exercise only such jurisdiction as Congress 
 may see fit to give. Within the limits of the constitutional 
 grant of judicial power, the will of Congress is the supreme 
 law. The rule is explained and definitely stated in the 
 familiar case of The Sewing Machine Companies, 6 where it 
 was said: 
 
 i U. S. Const. Art. in., See. 2, 4 Per Swayne, J., in Daniel w. 
 CL 2. R- R- Co., 3 Wall. 250. 
 
 2 Ibid., Amendment XI. 6 Daniel v. K. R. Co., supra ; see 
 
 a U. S. v. Hudson, 7 Cr. 32; Durousseau v. U. S., 6 Cr. 307. 
 Marbury v. Madison, 1 Cr. 137. • 18 Wall. 553. 
 
4 JURISDICTION OF FEDERAL COURTS. 
 
 " Circuit Courts do not derive their judicial power, imme- 
 diately, from the Constitution, as appears with sufficient ex- 
 plicitness from the Constitution itself, as the first section of 
 the third article provides that 'the judicial power of the 
 United States shall be vested in one Supreme Court and in 
 such inferior courts as the Congress may from time to time 
 ordain and establish. ' Consequently the jurisdiction of the 
 Circuit Court in every case must depend upon, some act of 
 Congress, as it is clear that Congress, inasmuch as it pos- 
 sesses the power to ordain and establish all courts inferior 
 to the Supreme Court, may also define their jurisdiction. 
 Courts created by statute can have no jurisdiction in con- 
 troversies between party and party but such as the statute 
 confers. Congress, it may be conceded, may confer such 
 jurisdiction upon the Circuit Courts as it may see fit, within 
 the scope of the judicial power of the Constitution, not vested 
 in the Supreme Court, but as such tribunals are neither cre- 
 ated by the Constitution nor is their jurisdiction denned by 
 that instrument, it follows that inasmuch as they are created 
 by an Act of Congress it is necessary, in every attempt to 
 define their power, to look to that source as the means of 
 accomplishing that end. Federal judicial power, beyond all 
 doubt, has its origin in the Constitution, but the organiza- 
 tion of the system and the distribution of the subjects of 
 jurisdiction among such inferior courts as Congress may from 
 time to time ordain and establish, within the scope of the 
 judicial power, always have been, and of right must be the 
 work of the Congress." 
 
 This has always been the construction placed upon the 
 constitutional provision. 1 
 
 1 " Of all the courts which the the Constitution, and of which the 
 United States may, under their gen- legislative power cannot deprive it. 
 eral powers, constitute, one only, All other courts created by the gen- 
 the Supreme Court, possesses juris- eral government possess no juris- 
 diction derived immediately from diction but what is given them by 
 
INFERIOR COURTS. 5 
 
 In view of the peculiar nature of these inferior courts, 
 therefore, not only may Congress exercise supreme discretion 
 as to what courts of such a class it will create, but it may add 
 to, or take from, their power and jurisdiction at will. "It 
 must be admitted," says the Supreme Court, in Sheldon v. 
 Sill, 1 "that if the Constitution had ordained and established 
 the inferior courts, and distributed to them their respective 
 powers, they could not be restricted or divested by Congress. 
 But as it has made no such distribution, one of two conse- 
 quences must result, ■ — ■ either that each inferior court created 
 by Congress must exercise all the judicial powers not given 
 to the Supreme Court, or that Congress, having the power to 
 establish the courts, must define their respective jurisdictions. 
 The first of these inferences has never been asserted, and 
 could not be defended with any show of reason, and if not, 
 the latter would seem to follow as a necessary consequence. 
 And it would seem to follow, also, that, having a right to 
 prescribe, Congress may withhold from any court of its crea- 
 tion jurisdiction of any of the enumerated controversies. 
 Courts created by statute can have no jurisdiction but such 
 as the statute confers. No one of them can assert a just 
 claim to jurisdiction exclusively conferred on another, or 
 withheld from all. 
 
 "The Constitution has defined the limits of the judicial 
 power of the United States, but has not prescribed how much 
 of it shall be exercised by the Circuit Court; consequently, 
 the statute which does prescribe the limits of their jurisdic- 
 tion cannot be in conflict with the Constitution, unless it 
 confers powers not enumerated therein. 
 
 " Such has been the doctrine held by this court since its 
 first establishment. To enumerate all the cases in which it 
 
 the power that creates them, and confer." U. S. v. Hudson, 7 Cr. 
 
 can be vested -with none but what 32. See Gaines v. Fuentes, 92 
 
 the power ceded to the general U. S. 10. 
 government will authorize them to l 8 How. 441. 
 
6 JURISDICTION OF FEDERAL COURTS. 
 
 has been either directly advanced or tacitly assumed, would 
 be tedious and unnecessary. 
 
 "In the case of Turner v. Bank of North America, 1 it was 
 contended, as in this case, that, as it was a controversy be- 
 tween citizens of different States, the Constitution gave the 
 plaintiff a right to sue in the Circuit Court, notwithstanding 
 he was an assignee within the restriction of the eleventh sec- 
 tion of the Judiciary Act. But the court said : ' The political 
 truth is, that the disposal of the judicial power, except in a 
 few specified instances, belongs to Congress; and Congress 
 is not bound to enlarge the jurisdiction of the Federal courts 
 to every subject, in every form which the Constitution might 
 warrant. ' This decision was made in 1799 ; since that time 
 the same doctrine has been frequently asserted by this 
 court." 2 
 
 Meaning of " Inferior " as Applied to the Federal Courts. 
 But although the Federal courts, other than the Supreme 
 Court, fall within the term "inferior courts," as used in the 
 Constitution, this does not mean that they are inferior courts 
 within the meaning of that term as used at common law. 
 
 "They are all of limited jurisdiction," it is said, in McCor- 
 miclc v. Sullivant, 3 " but they are not, on that account, inferior 
 courts, in the technical sense of those words, whose judg- 
 ments, taken alone, are to be disregarded. If the jurisdiction 
 be not alleged in the proceedings, their judgments and de- 
 crees are erroneous, and may, upon a writ of error, or appeal, 
 be reversed for that cause. But they are not absolute 
 nullities." 
 
 i 4 Dall. 8. St. Paul, &c. R. R, 37 Minn. 
 
 2 See Mclntire v. "Wood, 7 Cr. 314, holding that the general rule 
 
 506; Kendall u. U. S., 12 Pet. 524; that unless the contrary appears 
 
 Cary v. Curtis, 3 How. 236. " The from the record, a cause is deemed 
 
 Sewing Machine Cases," 18 Wall, to be without the jurisdiction of 
 
 553. these courts, has no application 
 
 s 10 Wheat. 192. See Ex Parte where their judgments are attacked 
 
 Cuddy, 131 U. S. 280; Pierro v. collaterally. 
 
PRESUMPTION AGAINST JURISDICTION. 7 
 
 " Nor are its proceedings subject to the scrutiny of those 
 narrow rules which the caution or jealousy of the courts at 
 Westminster long applied to courts of that denomination," 
 says Chief Justice Ellsworth, author of the Judiciary Act, in 
 Turner v. Bank of North America, 1 "but are entitled to as 
 liberal intendments, or presumptions, in favor of their regu- 
 larity, as those of any Supreme Court." 
 
 The theory of the jurisdiction of these courts is well ex- 
 pressed by Judge Curtis 2 as follows : " Although this (refer- 
 ring to the Circuit Court) is a court of limited jurisdiction, 
 the limits of the jurisdiction are limits which affect the per- 
 sons who may come there or the subject which may be 
 brought there ; but when a person has a right to come there, 
 or the subject is one which can be brought there under the 
 Constitution and laws of the United States, the court has 
 entire power, as a court of equity or of law, to do justice 
 between the parties." 
 
 Presumption against Jurisdiction. Within their proper lim- 
 its, therefore, the inferior courts of the United States are 
 courts of general powers. But the peculiar construction of 
 the Federal judiciary system renders it necessary that the 
 jurisdiction of the court should affirmatively appear. So 
 that, until the contrary is shown, the presumption is that a 
 cause is without their jurisdiction. 
 
 This rule, first laid down by Chief Justice Ellsworth in 
 Turner v. Bank of North America, 3 has received the approval 
 of the Supreme Court in a long line of decisions. " A Cir- 
 cuit Court is of limited jurisdiction, and has cognizance, not 
 of cases generally, but only of a few specially circumstanced, 
 amounting to a small proportion of the cases which an unlim- 
 ited jurisdiction would embrace. And the fair presumption 
 is (not as with regard to a court of general jurisdiction, that 
 a cause is within its jurisdiction unless the contrary appears, 
 
 1 4 Dall. 8. 8 4 Dall. 8. 
 
 2 Jurisdiction of U. S. Cts. 129. 
 
8 JURISDICTION OF FEDERAL COURTS. 
 
 but rather) that, a cause is without its jurisdiction till the 
 contrary appears." And in Mansfield, &c. B. B. Co. v. Swan, 1 
 Mr. Justice Harlan, speaking for the court, again recognizes 
 the principle in this language: "The rule, springing from 
 the nature and limits of the judicial power of the United 
 States, is inflexible and without exception, which requires 
 this court, of its own motion, to deny its own jurisdiction, 
 and, in the exercise of its appellate power, that of all other 
 courts of the United States, in all cases where such jurisdic- 
 tion does not affirmatively appear in the record on which, in 
 the exercise of that power, it is called to act. On every writ 
 of error or appeal, the first and fundamental question is that 
 of jurisdiction, first, of this court, and then of the court from 
 which the record comes. This question the court is bound to 
 ask and answer for itself, even when not otherwise suggested, 
 and without respect to the relation of the parties to it." 
 
 And this presumption continues at every stage of the 
 proceedings. 2 
 
 The Circuit Courts. For the purposes of this work it will 
 not be necessary to refer in detail to the statutes creating or 
 regulating the jurisdiction of the inferior courts of the United 
 States, other than those relating especially to the Circuit 
 Courts. Sufficient of these are here quoted for reference in 
 connection with the succeeding chapters. 
 
 Jurisdiction of the Circuit Courts. The original Judiciary 
 Act of September 24, 1789, 3 remained in force, with scarcely 
 any modification, until the Act of March 3, 1875. 4 This lat^ 
 
 1 111 U. S. 379. " As the juris- 8 How. 441 ; Ex parte Smith, 94 
 diction of the Circuit Court is lim- U. S. 455 ; Robertson v. Cease, 97 
 ited, in the sense that it has no U. S. 646; Steamship Co. v. Tug- 
 other jurisdiction than that con- man, 106 U. S. 118; Bb'rs v. Pres- 
 ferred by the Constitution and laws ton, 111 U. S. 252; United States 
 of the United States, the presump- v. Southern Pacific R. R. Co., 49 
 tion is that a cause is without its Fed. Rep. 297. 
 jurisdiction unless the contrary af- 2 Bbrs v. Preston, supra. 
 firmatively appears." Grace v. 8 1 Stat. 72, 78, ch. 20. 
 American Central Ins. Co. , 109 * 18 Stat. 470. 
 U. S. 278. See Sheldon v. Sill, 
 
JURISDICTION OP THE CIRCUIT COURTS. 9 
 
 ter statute greatly enlarged the jurisdiction of the Circuit 
 Courts, both original and by removal, and, as amended by 
 the Act of March 3, 1887 J (corrected by the Act of August 
 13, 1888, 2 passed to cure defects in the enrolment of the 
 Act of March 3, 1887), constitutes the principal statutory 
 regulation governing these courts. Among its provisions 
 are the following: 
 
 [Circuit Courts. J 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, exclu- 
 sive of interest and costs, the sum or value of two thousand 
 dollars, and 
 
 [Federal Question.] Arising under the Constitution or 
 laws of the United States, or treaties made, or which shall 
 be made, under their authority, or 
 
 [ United States Plaintiff. ] In which controversy the United 
 States are plaintiffs or petitioners, or 
 
 [Citizens of Different States.] 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 aforesaid, or 
 
 [Zand Grants.] A controversy between citizens of the 
 same State claiming lands under grants of different States, or 
 
 [Aliens.] A controversy between citizens of a State and 
 foreign States, citizens, or subjects, in which the matter in 
 dispute exceeds, exclusive of interest and costs, the sum or 
 value aforesaid, 
 
 [Crimes.] And shall have exclusive cognizance of all 
 crimes and offences cognizable under the authority of the 
 United States, except as otherwise provided by law, and con- 
 current jurisdiction with the District Courts of the crimes 
 and offences cognizable by them. 3 
 
 i 24 Stat. 552. 8 Act Aug. 13, 1888, 25 Stat- 
 
 ' 25 Stat. 433. 433. 
 
10 JURISDICTION OP FEDERAL COURTS. 
 
 Jurisdiction of Special Subjects. In addition to the fore- 
 going, the Circuit Courts have a further jurisdiction under 
 various Acts of Congress. These need not be referred to 
 here other than generally. They include : suits at law and 
 equity over all cases arising under the patent and copyright 
 laws of the United States ; * suits to recover penalties and for- 
 feitures imposed by the laws of the United States, in certain 
 cases ; 2 suits to protect civil rights ; 3 and reviews of decisions 
 of Boards of General Appraisers. 4 And (in cases limited in 
 amount) the Circuit Courts have concurrent jurisdiction with 
 the Court of Claims. 5 
 
 Assignees. 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 
 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. 6 
 
 District of Suit. But no person shall be arrested in one 
 district for trial in another in any civil action before a Cir- 
 cuit or District Court; and no civil suit shall be brought 
 before either of said courts against any person by any original 
 process or proceeding in any other district than that whereof 
 he is an inhabitant, but where the jurisdiction is founded only 
 on the fact that the action is between citizens of different 
 
 1 16 Stat. 206, 215, Sees. 55 and Rev. Stat. p. 611, note ; see TJ. S. v. 
 106, ch. 230. Mooney, 116 U. S. 104. 
 
 2 Among others, suits for viola- s Sees. 1786, 1977, 1979, 1981, 
 tions of copyright laws (Sec. 4963 2010, Rev. Stat. See 18 Stat. 336, 
 Rev. Stat.); for violation of laws ch. 114. 
 
 regulating the carrying of passen- 4 26 Stat. 131, ch. 407. 
 gers in merchant vessels (Sees. 6 Act Mar. 3, 1887, 24 Stat. 552; 
 
 4269-70 Rev. Stat.); for penalties Act August 13, 1888, 25 Stat. 433. 
 for violation of Alien Contract 6 Act Mar. 3, 1875 (18 Stat. 470, 
 
 Labor Law (23 Stat. 332 Ch. 164), ch. 137) as amended by Acts of 
 
 etc. For other cases see 1 Supp. Mar. 3, 1887, and Aug. 13, 1888 (24 
 
 Stat. 552 ; 25 Stat. 433). 
 
STATES CONTAINING MOKE THAN ONE DISTRICT. 11 
 
 States, suit shall be brought only in the district of the resi- 
 dence of either the plaintiff or the defendant. 1 
 
 Other Statutes. — Defendants not Inhabitants of District of 
 Suit. When there are several defendants in any suit at law 
 or in equity, and one or more of them are neither inhabi- 
 tants of nor found within the district in which the suit is 
 brought, and do not voluntarily appear, the court may enter- 
 tain jurisdiction, and proceed to the trial and adjudication of 
 the suit between the parties who are properly before it; but 
 the judgment or decree rendered therein shall not conclude 
 or prejudice other parties not regularly served with process 
 nor voluntarily appearing to answer; and non-joinder of par- 
 ties who are not inhabitants of nor found within the district, 
 as aforesaid, shall not constitute matter of abatement or ob- 
 jection to the suit. 2 
 
 States Containing More than One District. When a State 
 contains more than one district, every suit not of a local 
 nature, in the Circuit or District Courts thereof, against a 
 single defendant, inhabitant of such State, must be brought 
 in the district where he resides ; but if there are two or more 
 defendants, residing in different districts of the State, it may 
 be brought in either district, and a duplicate writ may be 
 issued against the defendants, directed to the marshal of any 
 other district in which any defendant resides. The clerk 
 issuing the duplicate writ shall indorse thereon that it is a 
 true copy of a writ sued out of the court of the proper dis- 
 trict; and such original and duplicate writs, when executed 
 and returned into the office from which they issue, shall con- 
 stitute and be proceeded on as one suit; and upon any judg- 
 ment or decree rendered therein, execution may be issued, 
 directed to the marshal of any district in the same State. 3 
 
 1 Act Mar. 3, 1875 (18 Stat. 470, 2 Rev. Stat. 737. 
 ch. 137), as amended by Acts of 8 Rev. Stat. 740. 
 March 3, 1887, and Aug. 13, 1888 
 (24 Stat. 552; 25 Stat. 433). 
 
12 JURISDICTION OF FEDERAL COURTS. 
 
 Process to Run to All Districts within a State. In Suits 
 of a local nature, where the defendant resides in a different 
 district, in the' same State, from that in which the suit is 
 brought, the plaintiff may have original and final process 
 against him, directed to the marshal of the district in which 
 he resides. 1 
 
 Subject Matter of Suit Located in More than One District. 
 Any suit of a local nature, at law or in equity, where the land 
 or other subject matter of a fixed character lies partly in one 
 district and partly in another, within the same State, may be 
 brought in the Circuit or District Court of either district ; and 
 the court in which it is brought shall have jurisdiction to hear 
 and decide it, and to cause mesne or final process to be issued 
 and executed, as fully as if the said subject matter were wholly 
 within the district for which such court is constituted. 2 
 
 Suits to Enforce Liens. — Service by Publication. 3 That 
 when in any suit commenced in any Circuit Court of the 
 United States, to enforce any legal or equitable lien upon, or 
 claim to, or to remove any incumbrance or lien or cloud upon 
 the title to real or personal property within the district where 
 such suit is brought, one or more of the defendants therein 
 shall not be an inhabitant of, or found within, the said dis- 
 trict, or shall not voluntarily appear thereto, it shall be law- 
 ful for the court to make an order directing such absent 
 defendant or defendants to appear, plead, answer, or demur, 
 by a day certain to be designated, which order shall be served 
 on such absent defendant or defendants, if practicable, wher- 
 ever found, and also upon the person or persons in possession 
 or charge of said property, if any there be; or where such 
 personal service upon such absent defendant or defendants is 
 not practicable, such order shall be published in such manner 
 as the court may direct, not less than once a week for six 
 consecutive weeks ; and in case such absent defendant shall 
 
 3 Rev. Stat. Sec. 741. 8 Act Mar. 3, 1875, Sec. 8; 18 
 
 2 Rev. Stat. See. 742. Stat. 470. 
 
SUITS TO ENFORCE LIENS. 13 
 
 not appear, plead, answer, or demur within the time so lim- 
 ited, or within some further time, to be allowed by the court, 
 in its discretion, and upon proof of the service or publication 
 of said order, and of the performance of the directions con- 
 tained in the same, it shall be lawful for the court to enter- 
 tain jurisdiction, and proceed to the hearing and adjudication 
 of such suit in the same manner as if such absent defendant 
 had been served with process within the said district; but 
 said adjudication shall, as regards said absent defendant or 
 defendants without appearance, affect only the property 
 which shall have been the subject of the suit and under the 
 jurisdiction of the court therein, within such district. And 
 when a part of the said real or personal property against 
 which such proceeding shall be taken shall be within an- 
 other district, but within the same State, said suit may be 
 brought in either district in said State; Provided, however, 
 That any defendant or defendants not actually personally noti- 
 fied as' above provided may, at any time within one year after 
 final judgment in any suit mentioned in this section, enter his 
 appearance in said suit in said Circuit Court, and thereupon 
 the said court shall make an order setting aside the judgment 
 therein, and permitting said defendant or defendants to plead 
 therein on payment by him or them of such costs as the court 
 shall deem just; and thereupon said suit shall be proceeded 
 with to final judgment according to law." 
 
14 JURISDICTION OP FEDERAL COURTS. 
 
 CHAPTER II. 
 
 Meaning of the Term " Citizens of a State " as used in the Constitution. 
 — Who are Citizens. — Domicile, Elements of. — Change of Citizen- 
 ship. — The Cases Reviewed. — Aliens. 
 
 Generally. It is stated in the preceding chapter that Con- 
 gress has no authority to extend the jurisdiction of the courts 
 of the United States beyond the limits of the constitutional 
 grant of judicial power. 1 It is now proposed to consider in 
 detail the clause of the Constitution which extends the judi- 
 cial power of the United States to controversies between citi- 
 zens of different States, with a view of ascertaining what is 
 embraced by the term " citizen." The importance of this limi- 
 tation has made it the subject of much judicial investigation, 
 and it is proposed to take up the questions in their order as 
 near as may be. 
 
 There is no doubt but that in framing the clause granting 
 judicial power to Federal courts in controversies between citi- 
 zens of different States, the makers of the Constitution had 
 in mind merely the citizenship arising from domicile in a 
 State, as distinguished from citizenship in its various political 
 aspects. It was to equalize the differences growing out of 
 the place of residence of the parties, — meaning by this, the 
 diversity of manners, customs, and modes of dealing and liv- 
 ing, — that made it advisable to find some neutral ground 
 upon which each might stand as a suitor, without a fear of 
 local prejudice or influence. This is explained by Chief Jus- 
 
 1 Ante -p. 3; see Marbury i>. Madi- son, 14 Mass. 412; Bryant v. Rich, 
 son, 1 Cr. 137 ; Justices v. Murray, 106 Mass. 180. 
 9 Wall. 274. See Wetherbee v. John- 
 
MEANING OF "CITIZENS OP A STATE." 15 
 
 tice Marshall in the opinion in Bank of U. S. v. Deveaux, 1 
 where he says : " However true the fact may be, that the tri- 
 bunals of the States will administer justice as impartially as 
 those of the nation, to parties of every description, it is not 
 less true that the Constitution itself either entertains appre- 
 hensions on this subject, or views with such indulgence the 
 possible fears and apprehensions of suitors, that it has estab- 
 lished national tribunals for the decision of controversies be- 
 tween aliens and a citizen, or between citizens of different 
 States." Local influences, prejudices, and customs, it was 
 thought, would, or at least might, render partial the justice 
 dispensed by State courts. To remedy this the Federal 
 courts were suggested, as being least liable to be affected by 
 local influence. 2 
 
 Meaning of "Citizens of a State." Thus the term "citi- 
 zens of a State," as used in that part of the Constitution 
 extending judicial power, has a broad significance. It is 
 evident that it is used with reference first to citizenship in 
 the United States, as a sovereign nation, and also as embrac- 
 ing what may be called the minor citizenship in a State. The 
 opinion of the Supreme Court, per Miller, J., in the Slaugh- 
 ter House Cases, 3 may be referred to, as stating the theory of 
 State and national citizenship. It is there said : " The dis- 
 tinction between citizenship of the United States and citizen- 
 ship of a State is clearly recognized and established. Not 
 only may a man be a citizen of the United States without 
 being a citizen of a State, but an important element is neces- 
 sary to convert the former into the latter. He must reside 
 within the State to make him a citizen of it, but it is only 
 necessary that he should be born or naturalized in the United 
 States to be a citizen of the Union." These remarks were 
 
 1 5 Cr. 61. Kailway Co. v. Whitton, 13 WalL 
 
 2 Bank v. Deveaux, supra. See 270. 
 
 Gaines v. Fuentes, 92 U. S. 10; s 16 "Wall, 36. See also U. S. 
 
 v. Cruikshank, 92 U. S. 542. 
 
16 JURISDICTION OP FEDERAL COURTS. 
 
 made in construing the effect of the fourteenth amendment 
 to the Constitution, but they are equally applicable to the 
 question under discussion. 
 
 It is to this dual citizenship, State and national, that the 
 language of the Constitution must be taken as referring, when 
 speaking of the jurisdiction of Federal courts. It is plain 
 from the other provisions of that instrument that in order to 
 permit a party to invoke the jurisdiction of a Federal court, 
 it was intended that the citizenship in a State should have for 
 its foundation citizenship in the nation. The separate provi- 
 sion as to suits by aliens may be cited as establishing this. 
 No act of a State, for instance, could confer the privileges 
 of Federal courts upon an alien, even if such alien were 
 admitted to every right which was peculiar to the citizens of 
 that State. 1 On the other hand, without State citizenship, a 
 citizen of the United States, speaking of it as a nation, has 
 not the right of a suitor in a Federal court. A resident of 
 the District of Columbia, for example, may be a citizen of the 
 United States, in the fullest sense of the word, but he can- 
 not maintain a suit in a Federal court, because, although a citi- 
 zen of the United States, he is not also a citizen of any State. 2 
 
 1 See decision by Miller, J. , in visions of that State which allowed 
 
 Lanz v. Randall, 4 Dill. 425, Fed. unnaturalized residents to vote. 
 Cas. No. 8080, and see City of Min- 2 Although the Territories and 
 
 neapolis v. Reum, 56 Fed. Rep. 576, the District of Columbia are all 
 
 6 C. C. A. 31, 12 U. S. App. 446. States — political societies — in the 
 
 In the former case it was held that large and primary sense of the 
 
 a State could not make a subject of word, yet neither of them is a 
 
 a foreign government a citizen of State in the sense in which that 
 
 the United States, and that there- term is used in this part of the 
 
 fore a resident of Minnesota who Constitution. Hepburn v. Ellzey, 
 
 was born a subject of a foreign 2 Cr. 445 ; see Sere v. Pitot, 6 Cr. 
 
 prince might maintain a suit in a 332; New Orleans v. Winter, 1 
 
 Federal court as an alien, although Wheat. 91 ; Barney v. Baltimore, 
 
 he had resided iu Minnesota for 6 Wall. 280; Scott v. Jones, 5 
 
 fifteen years, and had voted at How. 343; Cissell v. McDonald, 
 
 several elections in that State, by 16 Blatchf. 150, Fed. Cas. No. 
 
 virtue of the constitutional pro- 2729; Darst v. City of Peoria, 13- 
 
CITIZENS OF A STATE — "WHO ARE. 
 
 17 
 
 The same is true of citizens of a territory. 1 It must, then, 
 be taken as established, that both national and State citi- 
 zenship must exist to bring the individual within the terms 
 of the Constitution as to his rights as a litigant in a Federal 
 court. 2 
 
 Citizens of a State — Who Are. It is, of course, not diffi- 
 cult to define who are citizens of the United States, and 
 therefore an inquiry need only be directed to ascertaining 
 what is meant by the term, citizen of a State, as used in the 
 
 Fed. Rep. 561; Land Co. a. El- 
 kins, 20 Fed. Rep. 545; Met. R. 
 R. Co. v. District of Columbia, 
 132 U. S. 1. See Judge Deady's 
 criticism of Hepburn v. Ellzey in 
 Watson et al. v. Brooks, 13 Fed. 
 Rep. 540; and Judge Thompson's 
 remarks in 6 Thompson on Cor- 
 porations, Sec. 7474, where he says: 
 " A court that could make the dis- 
 covery that a corporation aggregate 
 is a citizen within the language of 
 this grant of jurisdiction, could not 
 go so far as to hold that either a 
 Territory of the United States or 
 the District of Columbia is a 
 1 State ' for the purpose of giving 
 jurisdiction under this clause of 
 the Constitution." See also Texas 
 v. White, 7 W T all. 700; Railroad 
 Co. v. Harris, 12 Wall. 65; West- 
 cott v. Fairfield, Pet. C. C. 45; 
 Vasse v. Mifflin, 4 Wash. C. C. 
 519, Fed. Cas. 16,895; Chapman v. 
 Chapman, 28 Fed. Rep. 1 ; Johnson 
 v. Bunker Hill Co., 46 Fed. Rep. 
 417 ; Snead v. Sellers, 66 Fed. Rep. 
 371, 13 C. C. A. 518, 30 U. S. App. 8 ; 
 Cameron v. Hodges, 127 U. S. 322; 
 Hooe v. Jamieson, 166 U. S. 395. 
 
 1 Land Co. v. Elkins, supra, and 
 cases cited in note 2, p. 16. 
 
 2 By State citizenship, as used 
 
 above, is meant domicile in a State 
 — not the political aspects of citi- 
 zenship. It is not necessary that 
 a citizen removing from one State 
 to another should acquire all the 
 rights of a citizen of the State into 
 which he removes, by the law of that 
 State in order to be able to sue in a 
 Federal court as a citizen of that 
 State ; it is sufficient if he acquire 
 a domicile there. See Cooper v. 
 Galbraith, 3 Wash. C. C. 546, Fed. 
 Cas. No. 3193; Catlett v. Ins. Co., 
 1 Paine, 594, Fed. Cas. No. 2517; 
 Butler v. Farnsworth, 4 Wash. C. 
 C. 101, Fed. Cases No. 2240 ; Mitch- 
 ell v. U. S., 21 Wall. 350; "A 
 person may be a citizen of the 
 United States and not a citizen of 
 any particular State. This is the 
 condition of citizens residing in 
 the District of Columbia, and in 
 the Territories of the United States, 
 or who have taken up a residence 
 abroad, and others that might be 
 mentioned. A fixed and perma- 
 nent residence or domicile in a 
 State is essential to the character 
 of citizenship that will bring the 
 case within the jurisdiction of the 
 Federal courts." Nelson, J., in 
 Prentiss v. Brennan, 2 Blatchf. 162, 
 Fed. Cas. No. 11,385. 
 
18 JURISDICTION OF FEDERAL COURTS. 
 
 clause of the Constitution conferring judicial power. This 
 presents some difficulty owing to the fundamental distinctions 
 between State and national citizenship. An alien can, for in- 
 stance, become a citizen of the United States, by following 
 certain prescribed conditions, chief of which is an official 
 declaration of an intent or wish to become a citizen. Imme- 
 diately upon becoming naturalized, however, the alien may 
 depart for a foreign country and remain there, without 
 losing his citizenship in the United States. But in con- 
 sidering who are citizens of a State, for the purposes of 
 jurisdiction of Federal courts, the only question is as to 
 intent to have a home or fixed residence there. State citi- 
 zenship follows domicile, as an operation of law, and what- 
 ever wishes or intentions a party may have as to claiming 
 citizenship in a given State, it is determined by law and 
 follows his domicile irrespective of his wishes. There can 
 be no domicile in one State and citizenship in another, how- 
 ever much the party may desire it or intend it. If his domi- 
 cile be established, citizenship in the State of such domicile 
 follows as a legal consequence. 1 
 
 Test of Citizenship. It may therefore be laid down that 
 for the purpose of jurisdiction of Federal courts a citizen of 
 the United States residing permanently — i. e., with the 
 present intention of remaining — in any State is a citizen of 
 that State. 
 
 Domicile — Elements of. The word " domicile " in the pre- 
 vious paragraphs is used to distinguish the status of the party 
 from mere residence. "Domicile," it is said, "implies more 
 
 1 "For the purpose of jurisdic- 707; Case v. Clark, 5 Mason, 70, 
 tion of the courts of the United Fed. Cas. No. 2490 ; Cooper v. Gal- 
 States, domicile is the test of citi- braith, 3 Wash. C. C. 546, Fed. Cas. 
 zenship. A person may be a resi- No. 3193; Lanz v. Randall, 4 Dill, 
 dent alien, but cannot be a citizen 425, Fed. Cas. No. 8080; Burnham 
 of the State when he has abandoned v. Rangeley, 1 Woodb. & M. 7, Fed. 
 his domicile there." Poppenhauser Cas. No. 2176. 
 v . India-Rubber Co., 14 Fed. Rep. 
 
ELEMENTS OF DOMICILE. 19 
 
 than mere residence. Primarily, a person's domicile is his 
 legal home, or the place "where the law will presume he 
 intends to permanently reside, although he may be absent 
 from it at the time." 1 Mr. Wharton says: "Domicile is 
 residence acquired as a final abode. To constitute it there 
 must be: 1, residence, actual or inchoate; 2, the non-exist- 
 ence of any intention to make a domicile elsewhere." 2 
 
 The mere residence does not alone constitute the domicile 
 of a party; it is the fact of residence, accompanied by the 
 intention of remaining, which constitutes domicile. 3 The 
 distinction between domicile and mere residence may be 
 shortly put as that between residence animo manendi and 
 residence animo revertendi. Mere residence may be for a 
 transient purpose, as for business, for a fixed period, or lim- 
 ited by an expected future event, upon the happening of 
 which there is a purpose to return or remove. 4 
 
 Same Subject. This intention is to be collected from the 
 acts and from the declarations 5 of the party, although, if 
 these do not agree, the former must control. 6 If the removal 
 be for the purpose of committing a fraud upon the law, and 
 to enable the party to avail himself of the jurisdiction of the 
 
 1 Rapalje and Lawrence Law v. Clark, supra; see Rabaud v. 
 Dictionary; Domicile: "That place D'Wolff, 1 Paine, 580, Fed. Cas. 
 where a man has his true, fixed, No. 11,519, where it is held that to 
 and permanent home and principal deprive an American citizen of the 
 establishment, and to which, when- right of suing in a Federal court, 
 ever he is absent he has the inten- on the ground that he is not a citi- 
 tion of returning." zen of any particular State, there 
 
 2 Wharton's Conflict of Laws should be very strong evidence of 
 (2d ed.), sec. 21. See Mitchell his being a mere wanderer -with- 
 v. U. S., 21 Wall. 350, and cases out a home. 
 
 there cited. s Burnham v. Rangely, 1 Woodb. 
 
 3 Marks v. Marks, 75 Fed. Rep. & M. Rep. 7, Fed. Cas. No. 2176; 
 321. See White v. Brown, 11 Wall. Doyle v. Clark, 1 Flip. 536, Fed. 
 Jr. 217, Fed. Cas. 17,538; Doyle v. Cas. No. 4053; Tobin v. Walkin- 
 Clark, 1 Flip. 536, Fed. Cas. 4053 ; shaw, 1 McAll. 186, Fed. Cas. No. 
 Harris v. Firth, 4 Cr. C. C. 710, Fed. 14,070. 
 
 Cas. No. 6120. 8 Chambers v. Prince, 75 Fed. 
 
 4 Marks v. Marks, supra; Doyle Rep. 176. 
 
20 JURISDICTION OP FEDERAL COURTS. 
 
 Federal courts, and that fact be made out by his acts, the 
 court must pronounce that his removal was not with the "bona 
 fide intention of changing his domicile, however frequent and 
 public his declarations to the contrary may have been. If, 
 on the other hand, the sincerity of the removal for the pur- 
 pose of permanently residing in the State which the person 
 has selected be not questioned, and his acts correspond with 
 such purpose, the change of domicile is completed, and the 
 law forces upon him the character of a citizen of the State 
 where he has chosen his domicile, although he may have uni- 
 formly declared himself as still a citizen of the State from 
 whence he removed. It is a conclusion of law upon certain 
 facts which constitutes him a citizen of the State where he 
 permanently resides, which neither his private intentions nor 
 public declarations can alter. 1 
 
 Declarations as Evidence. The general rule is well under- 
 stood that the declarations which are part of the res gestce are 
 admissible in evidence to show intention, and the instances 
 are numerous where the declarations of a person made in 
 changing a residence have been received as evidence of an 
 intention to make the change permanent, and to rebut any 
 presumption that it was made for temporary purposes. At 
 the same time the admissibility of such declarations is some- 
 what in the discretion of the court, and is subject to another 
 general rule that a person will not be allowed by his declara- 
 tions to make a case for himself. 2 And such evidence is con- 
 fined to declarations made before the controversy as to change 
 of residence. 3 Proof that the party in executing legal instru- 
 ments described himself as a citizen of a particular State is 
 admissible.* 
 
 Other Evidence. Other evidence as to the intent of the 
 party as to domicile is the exercise of political rights, the 
 
 1 Butler v. Farnsworth, 4 Wash. s Idem. 
 
 C. C. 103, Fed. Cas. No. 2240. 4 Rucker v. Bolles, 80 Fed. Rep. 
 
 2 Doyle v. Clark, 1 Flip. 536, Fed. 504. 
 Cas. No. 4053. 
 
CHANGE OP CITIZENSHIP. 21 
 
 payment of personal taxes, a house of residence, a place of 
 business, etc. 1 
 
 And where there has been no change of residence, citi- 
 zenship in the State is ordinarily shown by proof of resi- 
 dence, which, it is held, is prima facie evidence of citi- 
 zenship. 2 It may easily be rebutted, 3 for a person may be a 
 citizen of one State, and reside, for the time being, in 
 another. 4 
 
 Change of Citizenship. The remarks hitherto made show 
 that citizenship in a State may be readily changed at the will 
 of the party. It has been held that an intention to remove 
 permanently from one State to another will never be pre- 
 sumed, 5 and that a domicile, once acquired, will be presumed 
 to continue until it is shown to have been changed. 6 So 
 much depends upon the circumstances of each case that it is 
 not possible to more than give the general principles, leaving 
 their application to be made to the particular case. A num- 
 ber of cases are collected in the note below. 7 
 
 1 Mitchell v. IT. S. 21 Wall. 350 ; 6 Mitchell v. U. S., 21 Wall. 350 ; 
 and see generally, Gardner v. Sharp, Stoughton v. Hill, 3 Woods, 404, 
 4 Wash. C. C. 609, Fed. Cas. No. Fed. Cas. No. 13,501; and the burden 
 5236 ; Read v. Bertrand, 4 Wash, of proof is upon the party alleging 
 C. C. 514, Fed. Cas. No. 11,601 ; change of domicile. Idem. Mere 
 Prentiss v. Brennan, 2 Blatchf. 162, intention to change one's residence 
 Fed. Cas. No. 11,385 ; Knox v. does not effect that change. Coupled 
 Greenleaf, 4 Dall. 360, Fed. Cas. with such intention there must be 
 No. 7098 ; Evans v. Davenport, 4 acts done, and one act must be that 
 McL. 574, Fed. Cas. No. 4558 ; of living for some period of time in 
 Case v. Clark, 5 Mas. 70, Fed. Cas. the place of intended residence. 
 No. 2490 ; U. S. v. Thorpe, 2 Bond, Residence involves personal pres- 
 340, Fed. Cas. No. 16,494; Shelton ence. Penfield v. Chesapeake, O. 
 p. Tiffin, 6 How. 163. & S. W. R. R. 29 Fed. Rep. 494. 
 
 2 Pequignot v. City of Detroit, 1 In Chicago & Northwestern 
 16 Fed. Rep. 211. Ry- Co. v. Ohle, 117 U. S. 123, de- 
 
 8 Idem. fendant in error brought suit in 
 
 4 Cooper v. Galbraith, 3 Wash, a State court of Iowa in November, 
 
 C. C. 546, Fed. Cas. No. 3193. 1893, against plaintiff in error, to 
 
 6 Read v. Bertrand, 4 Wash. C. C. recover for personal injury. The 
 
 514, Fed. Cas. No. 11,601. railroad company removed the cause 
 
22 JURISDICTION OF FEDERAL COURTS. 
 
 Aliens. In order to confer jurisdiction upon a Federal 
 court in suits to which an alien is a party, it must appear 
 
 to the Federal court for the district, admitted that his purpose in so 
 upon the ground that it was an doing was to prevent any subse- 
 Illinois corporation, and that the quent suit which he might bring 
 defendant in error was a citizen in Iowa from being removed by 
 of Iowa. The latter moved to re- the railroad company to the Fed- 
 maud, and filed a plea in abate- eral court. He testified further 
 ment setting forth that he was not that on arriving in Chicago he 
 a citizen of Iowa, but was a citizen took a room and remained there 
 of the same State as the plaintiff in about three weeks, and that before 
 error. A trial upon this plea was this had expired, the manager of 
 had before a jury, upon which it the Janesville school had engaged 
 appeared that while Ohle was a employment for him in Chicago, 
 minor living at home with his which he was to enter upon as 
 parents, citizens of Iowa, he had soon as he had finished his educa- 
 brought suit by his next friend in tion, and that after the suit at bar 
 a State court of Iowa to recover was brought he went from Chicago 
 damages for the same injury, and to Janesville, with the intention 
 this suit had been removed by the of returning to Chicago, which he 
 railroad company to the Federal did in March, 1884, and took up the 
 court for the district. Before trial, work for which he had been en- 
 and in April, 1883, Ohle went to gaged, and remained there all the 
 Janesville, Wisconsin, to attend a time doing that work until the 
 school of telegraphy, which he left trial (Oct. 1884) of the issue on 
 in October, 1883, to attend the the plea in abatement. The jury 
 trial, which resulted in a disagree- found that the defendant in error 
 ment of the jury. After the trial was a citizen of Illinois, and the 
 he discontinued his suit, and after Circuit Court remanded the case. 
 visiting his parents for about a Held, not error to refuse to charge 
 week he went to Chicago about the the jury that upon the facts stated 
 6th of November, remaining there they should find that defendant in 
 until about the 27th of November, error had not in fact changed his 
 While he was in Chicago at this citizenship from Iowa to Illinois, 
 time the present suit was begun. In Kemna v. Brockhaus, 5 Fed. 
 Defendant in error was the only Rep. 762, it appeared that plaintiff, 
 witness sworn on the trial of the a married woman, had always lived 
 issue in abatement, and he testi- in the city of Milwaukee and until 
 fied that he went to Chicago for August 5, 1880. Her husband was 
 the purpose of making it his home ; a travelling salesman for Chicago 
 that he had become of age and and Milwaukee firms. On August 
 that he intended to change his 5, plaintiff and her husband, to- 
 citizenship to Illinois, although he gether with their .child and a nurse, 
 
ALIENS. 
 
 23 
 
 that the opposing parties are citizens of some State. Juris- 
 
 left Milwaukee and went to Minne- 
 sota. Before departure they broke 
 up housekeeping and put their 
 household furniture in storage and 
 obtained a loan upon the same. 
 Plaintiff testified that arrangements 
 had been made to go to Glencoe, 
 Minn., where her husband was to 
 engage in mercantile business, and 
 that they first went to St. Paul, 
 she remaining there, while he pro- 
 ceeded to Glencoe; that the ar- 
 rangements at Glencoe fell through, 
 and her husband returned to St. 
 Paul, where they rented furnished 
 rooms and kept house, the child 
 and nurse being with them. Plain- 
 tiff's husband, it appeared, did not 
 become established in any perma- 
 nent business. They were living 
 thus when the suit at bar was com- 
 menced, in Milwaukee, about Sep- 
 tember 17. In December, plaintiff's 
 husband obtained work for a Chi- 
 cago house, as travelling salesman 
 in Minnesota and Dakota. In the 
 latter part of December, they came 
 to Milwaukee, and from that time 
 to the date of the hearing (January, 
 1881) plaintiff remained at a hotel 
 in that city, her husband being with 
 her a large part of the time. It 
 was not shown that they had given 
 up their rooms in St. Paul, and 
 plaintiff testified that they came 
 to Milwaukee to attend the trial 
 of the suit, and with the intention 
 of returning there as soon as it was 
 over, and it appeared that her hus- 
 band had returned to Minnesota 
 even before the hearing. Plain- 
 tiff further testified that when 
 the family went to Minnesota «in 
 
 August it was with the intent to 
 permanently reside there. Nor did 
 it appear that the removal was made 
 for the purpose of bringing the suit, 
 or that counsel had been consulted 
 in reference to the suit prior to the 
 removal to Minnesota. Held, that 
 plaintiff had become a citizen of 
 Minnesota. 
 
 In States Savings Ass'n v. How- 
 ard, 31 Fed. Rep. 433, plaintiff 
 sued in the United States Circuit 
 Court for the Eastern District of 
 Missouri, alleging that defendant 
 was a citizen of Texas. Defendant 
 pleaded in abatement that at the 
 time the suit was brought he was 
 a citizen of Missouri. The proofs 
 showed that defendant was a citi- 
 zen of Texas, engaged in the hotel 
 business there, and residing there 
 with his family. In the spring of 
 1884, he made one or two trips to 
 St. Louis, with a view of purchas- 
 ing a hotel in that city, and finally 
 did so, becoming president of the 
 hotel company. From April 15, 
 to May 15, 1884, defendant was in 
 St. Louis installing a new man- 
 ager in the hotel, etc., and about 
 May 15 returned to Texas where 
 he had since remained, and subse- 
 quently disposed of his interests in 
 St. Louis. It appeared that he 
 had made declarations to the effect 
 that he would move to St. Louis 
 with his family later in the season 
 and take up his abode there. Upon 
 this state of facts, it was held that 
 defendant had not given up his citi- 
 zenship in Texas, and that the 
 court had jurisdiction. 
 
 Complainant filed a bill in the 
 
24 
 
 JURISDICTION OP FEDERAL COURTS. 
 
 diction cannot be entertained of a suit where all the parties 
 are aliens. 1 
 
 1 Montalet v. Murray, 4 Cr. 46 ; No. 11,579 ; Hinckley v. Byrne, 1 
 
 Hodgson v. Bowerbank, 5 Cr. 304 ; Deady, 224, Fed. Cas. No. 6510 ; 
 
 Prentiss v. Brennan, 2 Blatcbi. 162, Pooley v. Lucco, 72 Fed. Rep. 561; 
 
 Fed. Cas. No. 11,385; Jackson v. See Mossman v. Higginson, 4 Dallas, 
 
 Twentyman, 2 Pet. 136; Rateau v. 12; Piquignotw. Penn. R. R. Co., 16 
 
 Barnard, 3 Blatchf. 244; Fed. Cas. How. 104. 
 
 United States Circuit Court for the 
 Eastern District of Missouri (alleg- 
 ing that he was a citizen of New 
 Jersey) against his partner, a citi- 
 zen of Missouri, for an accounting. 
 Defendant pleaded that complain- 
 ant was in fact a citizen of Mis- 
 souri, and upon hearing, it appeared 
 that complainant had lived in New 
 Jersey from 1868 to 1880, when his 
 wife died, and complainant took his 
 children to Scotland, leaving them 
 in the care of relatives there. Re- 
 turning to this country he again 
 took up his residence in New Jer- 
 sey, remaining there until January, 
 1885, when he went to St. Louis, 
 taking a number of contracts for 
 street paving, the execution of 
 which would take considerable time. 
 He also entered into partnership 
 with the defendant for the purpose 
 of working a large granite quarry 
 in Missouri, to supply granite for 
 building and paving purposes. 
 After forming the partnership, 
 which, as stated in complainant's 
 bill itself, indicated an intention 
 on his part to remain permanently 
 in Missouri, complainant closed 
 up his business in New Jersey, 
 sold what he could of his plant 
 there, and removed the balance to 
 Missouri. Complainant while in 
 
 Missouri had lived with relatives 
 part of the time and taken his 
 meals at a hotel. Upon these facts 
 the Circuit Court (Thayer, J.) held 
 that a secret intention testified to 
 by complainant to the effect that 
 his residence in Missouri was only 
 temporary, and that he intended 
 to return to New Jersey when 
 his Missouri enterprises were com- 
 pleted, could not prevail, and that 
 the bill must be dismissed. Wright 
 v. Schneider, 32 Fed. Rep. 705. 
 
 In August, 1893, plaintiff, a resi- 
 dent of St. Louis, formed the in- 
 tention of taking up his residence 
 in Brooklyn, N. Y. In pursu- 
 ance of that intention he sent his 
 wife and children to Brooklyn in 
 August, and his wife, upon arriv- 
 ing there, hired a house, in which 
 she and her children thereafter 
 lived. Plaintiff himself came to 
 Brooklyn in January of the next 
 year. Held, that on Nov. 30, 1883, 
 he had not acquired a residence in 
 New York. Penfield v. Chesapeake, 
 O. & S. W. R. R. Co. 29 Fed. Rep. 494. 
 
 For an extreme case of attempt 
 to confer jurisdiction by alleged 
 change of citizenship, see Kingman 
 v. Holthaus, 59 Fed. Rep. 305. 
 There plaintiff, who had lived in St. 
 Louis, Mo., for nineteen or twenty 
 
ALIENS. 
 
 25 
 
 The Act of 1887-1888 follows more closely the consti- 
 tutional provision for this branch of jurisdiction than any 
 previous statute. The language of the Constitution is, 1 
 "Between a State, or the citizens thereof, and foreign States, 
 citizens, or subjects." 
 
 Under the Judiciary Act of 1789, the provision was, " where 
 an alien was a party." As will be seen, the effect of this 
 was to extend the jurisdiction of the court beyond the limits 
 of the constitutional grant, and in the early case of Hodgson 
 v. BowerlanJc 2 (1809), where the averments were that the 
 plaintiffs were aliens, but nothing was said as to the citizen- 
 ship of the defendants, it was held that the statute, being 
 
 1 Art. III., Sec. 2, CI. 1. 
 
 2 5 Cr. 303. 
 
 years prior to 1893, rented a room 
 in East St. Louis, an Illinois city 
 opposite St. Louis, in which, as 
 a rule, he slept nights, although 
 scarcely able to tell the number of 
 it. He took his meals in St. 
 Louis, and transacted all his busi- 
 ness there at the same office as 
 before, and acquired no property 
 in Illinois. It also appeared from 
 his testimony that he moved to 
 Illinois for the purpose of being 
 able to bring suit in the United 
 States court. Upon this state of 
 facts it held that residence in Illi- 
 nois was not established. 
 
 And see for other cases of this 
 nature, Catlin v. Gladding, 4 Mas. 
 308, Fed. Cas. No. 2520; Blair v. 
 "Western Female Seminary, 1 Bond, 
 578, Fed. Case No. 1486; Bennett v. 
 Bennett, 1 Deady, 299, Fed. Cas. 
 No. 1318 ; Wood v. Mann, 1 Sumn. 
 578, Fed. Cas. No. 17,952; Wildes v. 
 Parker, 3 Sumn. 593, Fed. Cas. No. 
 17,652; Ewing v. Blight, 3 Wall. Jr. 
 134, Fed. Cas. No. 4589 ; Sharon ». 
 
 Hill, 26 Fed. Kep. 337; Rivers v. 
 Bradley, 53 Fed. Kep. 305; Allen 
 v. So. Cal. Ry. Co., 70 Fed. Rep. 
 370; Morris ». Gilmer, 129 U. S. 
 315 (a leading case) ; Anderson v. 
 Watt, 138 U. S. 694. 
 
 A widow marrying again ac- 
 quires the domicile of her hus- 
 band, but she does not, by taking 
 her children by the first husband 
 to live with her there, make the 
 domicile which she derives from 
 her second husband their domicile. 
 They retain the domicile which 
 they had before her second mar- 
 riage acquired from her or from 
 their father. Lamar v. Micou, 112 
 U. S. 452. A wife's domicile is 
 that of her husband. Smith v. 
 Sun Pub. Co., 55 Fed. Rep. 240, 
 and see Comitis v. Parkerson, 56 
 Fed. Rep. 556; Oglesby v. Sillom, 
 9 Fed. Rep. 860. So a minor's 
 citizenship is determined by that 
 of the parents. Dresser v. Edison 
 Illuminating Co., 49 Fed. Rep. 257. 
 
26 JURISDICTION OF FEDERAL COURTS. 
 
 broader than the constitutional grant of judicial power, could 
 not have the effect of dispensing with the requirement of the 
 constitution. 
 
 In Piquignot v. Pennsylvania R. B. Co., 1 there is a dictum 
 to the effect that the Supreme court had decided in the case 
 of Mason v. Blaireau,' 2 that the Federal courts could enter- 
 tain jurisdiction when all of the parties were aliens, if no one 
 objected ; but this is plainly an error, as the latter case was a 
 suit in admiralty, and not dependent upon the character of 
 the parties. 
 
 But the residence of an alien plaintiff in the same State as 
 the defendants is no objection to the jurisdiction of the Fed- 
 eral courts. It is not required that an alien should live 
 abroad in order to entitle him to maintain a suit in a United 
 States court. 3 Nor is the fact that the defendant is the con- 
 sul in this country for a foreign nation sufficient ground for 
 presuming that he is an alien. 4 And for the purpose of juris- 
 diction of the Federal courts an alien 'is still such although 
 he has taken out preliminary papers of naturalization. 5 For 
 the same reason a citizen of the United States who removes 
 to Canada cannot maintain a suit in a Federal court as an 
 alien unless he has actually become a citizen of that country, 
 as distinguished from a mere resident there. 6 
 
 A State not a Citizen. It is obvious that a State is not 
 embraced within the term citizen of a State as used in the 
 Constitution. 7 
 
 1 16 How. 104. « Bishop v. Averill et we., 76 Fed. 
 
 2 2 Cr. 264. Rep. 386. 
 
 s Breedlove v. Nicollet, 7 Pet. 7 Stone v. South Carolina, 117 U. 
 
 413 ; Bonaparte v. Camden & A. R. S. 430 ; Postal Telegraph Cable Co. 
 
 R., Baldw. 216, Fed. Cas. No. 1617. v. Alabama, 155 U. S. 482 ; State of 
 
 4 Bbrs v. Preston, 111 U. S. 252. Alabama v. Wolffe, 18 Fed. Rep. 
 
 6 Baird v. Byrne, 3 Wall. Jr. 1, 836 ; Ferguson v. Ross, 38 Fed. 
 
 Fed. Cas. No. 757. See Maloy o. Rep. 161; State of Indiana v. Tol- 
 
 Duden, 25 Fed. Rep. 673 ; City of leston Club, 53 Fed. Rep. 18; State 
 
 Minneapolis v. Reum, 56 Fed. Rep. of Minnesota v. Guaranty Trust & 
 
 576, 12 U. S. App. 446, 6 C. C. A. 31. Safe Deposit Co., 73 Fed. Rep. 914. 
 
COBPOEATIONS AS CITIZENS. 27 
 
 CHAPTER III. 
 
 Corporations as Citizens. — Former Views of the Supreme Court. — 
 Cases Reviewed. — Modern Doctrine. — Corporations created under 
 the Laws of the United States. — Foreign Corporations. — Joint 
 Stock Companies. — National Banks. 
 
 The history of the gradual change in the attitude of the 
 Supreme Court of the United States toward corporations as 
 parties to suits in the Federal courts presents an interesting 
 study. Whether or not the words of the Constitution, ex- 
 tending the judicial power to controversies between citizens 
 of different States, admitted corporations to rights as parties 
 litigant in the Federal courts, presented a question not 
 finally settled for half a century. In its discussion the Su- 
 preme Court was forced to practically reverse itself upon 
 more than one occasion, and the dissenting opinions sub- 
 mitted by a minority of the court are vigorous in argument, 
 and are repeatedly insisted upon at length. 1 
 
 In point of time, ranging from Batik v. Deveaux, 2 decided 
 at the February Term, 1809, down to Ohio & M. B. B. Co. v. 
 Wheeler, 3 decided at the December Term, 1861, upon the 
 
 1 They are well worth reading, ministration, — the habitual greed 
 
 especially those of Mr. Justice of jurisdiction exhibited by courts 
 
 Daniel, which exhibit the literary and judges, and the insincerity 
 
 skill for which that jurist was manifested by them in interpret- 
 
 noted. ing constitutional provisions and 
 
 Note. — See 6 Thompson on statutes relating to their own juris- 
 
 Corporations, sec. 7448, where the diction." And see address of Alfred 
 
 learned author characterizes the Russell, XIV. Proceedings of Ameri- 
 
 assumption of jurisdiction over cor- can Bar Association (1891), p. 217. 
 porations by the Federal courts as 2 5 Cr. 61. 
 
 " illustrating one of the most piti- s 1 Black, 286. 
 
 able characteristics of judicial ad- 
 
28 JURISDICTION OE FEDERAL COURTS. 
 
 main question, and to the present day upon numerous collat- 
 eral issues, all more or less involving these earlier decisions, * 
 the growth of the doctrines now conceded to be settled is 
 almost parallel with the growth in number and magnitude of 
 corporations themselves. If, as is hardly probable, the mak- 
 ers of the Constitution had any idea that the question would 
 ever arise, they could certainly have had no conception of the 
 important part that corporations would take in the litigation 
 of future years. 2 It may fairly be conceded that, in taking 
 the position it finally reached, the Supreme Court acted, not 
 upon tardy realization of any great principle of law, — till 
 then overlooked, — but solely in deference to the growing 
 importance of a new factor in litigation, which by the very 
 force of its own magnitude asserted and created for itself a 
 standing as a suitor in the courts of the nation. 
 
 It is believed that the importance of the subject demands 
 its treatment at some length. 
 
 Bank of United States v. Deveanx* Up to the time of this 
 case (February Term, 1809) it had not been intimated that 
 there might be a question of the courts of the United States 
 
 1 St. Louis, & S. F. Ry. Co. v. that between the time when the 
 James, 161 U. S. 545. Constitution of Massachusetts was 
 
 2 "I suppose it may fairly be formed, and the time when the 
 said, that neither the framers of the Constitution of the United States 
 Constitution nor the framers of the was adopted and this Judiciary Act 
 Judiciary Act had corporations in passed, the State of Massachusetts 
 view. They were so few. at that created but one private corporation, 
 time, so entirely unimportant, that and that was the Marine Society of 
 it is probable they were passed over the Town of Salem. There was no 
 ■without any notice or consideration, bank, no insurance company, of 
 I had the curiosity to-day to look into course no railroad corporation or 
 the first volume of the Special Laws corporation owning steamers, or 
 of Massachusetts, which, at the time any of those things which at 
 of the formation of the Constitution, this day are of such magnitude." 
 was perhaps as wealthy a State, in (Judge Curtis, Jurisdiction of U. S. 
 proportion to its population, and as Courts, 145.) 
 
 likely to have created business cor- 8 5 Cr. 61. 
 porations, as any other; and I find 
 
BANK OF UNITED STATES V. DEVEAUX. 29 
 
 entertaining jurisdiction of a cause of action to which a cor- 
 poration was a party, that is, provided the citizenship of the 
 individuals composing the corporation was different from 
 that of the opposing party. By common consent the juris- 
 diction of the Federal courts over corporations seems to have 
 been implied. "Eepeatedly," says Marshall, Chief Justice, 
 in delivering the opinion of the court, "has this court de- 
 cided causes between a corporation and an individual, with- 
 out feeling a doubt respecting its jurisdiction." 
 
 No one seems to have suggested the question until the 
 case of Bank v. Deveaux. But once raised, it immediately en- 
 gaged the attention of the court, and was ably argued at 
 length. In this case "The President, Directors, and Com- 
 pany of the Bank of the United States, which bank was 
 established under an Act of Congress, etc.," brought an 
 action in the Circuit Court of the United States for the Dis- 
 trict of Georgia, against Deveaux and Bobinson, alleging that 
 the plaintiffs were citizens of the State of Pennsylvania, and 
 that the defendants were citizens of the State of Georgia. 
 The defendants pleaded to the jurisdiction of the court that 
 a corporation was not a citizen, and hence could not sue in 
 the courts of the United States. The lower court decided 
 that it had no jurisdiction and dismissed the case. Upon 
 error the plaintiff claimed that jurisdiction existed upon two 
 grounds, the first of which, that it was a corporation created 
 by Congress, and hence that the cause of action was one aris- 
 ing under the laws of the United States, we need not con- 
 sider. 1 The second ground was the one which received the 
 most attention from the court. The first sentences of the 
 opinion upon this main question are as follows: "That in- 
 visible, intangible, and artificial being, that mere legal entity, 
 a corporation aggregate, is certainly not a citizen ; and, conse- 
 quently, cannot sue or be sued in the courts of the United 
 States, unless the rights of the members, in this respect, can 
 
 1 This was, under the wording of its charter, decided in the negative. 
 
30 JURISDICTION OF FEDERAL COURTS. 
 
 be exercised in their corporate name. If the corporation be 
 considered as a mere faculty, and not as a company of indi- 
 viduals, who, in transacting their joint concerns, may use a 
 legal name, they must be excluded from the courts of the 
 Union." 
 
 Conceding this to be true, the court next proceeds to 
 consider whether a suit by a corporation might not, for 
 jurisdictional purposes, be considered a suit by those repre- 
 sented by its corporate character, so as to permit of the suit 
 being maintained if the citizenship of its members would 
 otherwise justify it. This view is sustained in this language: 
 "However true the fact may be, that the tribunals of the 
 States will administer justice as impartially as those of the 
 nation, to parties of every description, it is not less true that 
 the Constitution itself either entertains apprehensions on this 
 subject, or views with such indulgence the possible fears and 
 apprehensions of suitors, that it has established national tri- 
 bunals for the decision of controversies between aliens and a 
 citizen, or between citizens of different States. Aliens, or 
 citizens of different States, are not less susceptible of these 
 apprehensions, nor can they be supposed to be less the objects 
 of constitutional provisions because they are allowed to sue 
 by a corporate name. That name, indeed, cannot be an alien 
 or a citizen; but the persons whom it represents may be the 
 one or the other ; and the controversy is, in fact and in law, 
 between those persons suing in their corporate character, by 
 their corporate name, for a corporate right, and the individual 
 against whom the suit may be instituted. Substantially and 
 essentially, the parties in such a case, where the members of the 
 corporation are aliens, or citizens of a different State from the 
 opposite party, come within the spirit and terms of the jurisdic- 
 tion conferred by the Constitution on the national tribunals. . . . 
 
 " The court feels itself authorized to look to the character 
 of the individuals who compose the corporation, and they 
 think that the precedents of this court, though they were not 
 
EFFECT OF THE DECISION IN BANK V. DEVEAUX. 31 
 
 decisions on argument, ought not to be absolutely disre- 
 garded. If a corporation may sue in the courts of the Union, 
 the court is of opinion that the averment in this case is suffi- 
 cient. Being authorized to sue in their corporate name, they 
 could make the averment, and it must apply to the plaintiffs 
 as individuals, because it could not be true as applied to the 
 corporation." 
 
 Effect of the Decision in Bank v. Deveaux. The effect of 
 this decision was, primarily, that a corporation could not be 
 a citizen within the meaning of the constitutional provision 
 granting judicial power. And to that extent its ruling is the 
 law to-day. For, upon principle, the doctrine of constructive 
 corporate citizenship, so-called, is founded, not upon the 
 theory that the corporate entity can itself be a citizen, but 
 upon a conclusive presumption as to the citizenship of its 
 members, which Federal courts will indulge in for certain 
 purposes. Secondly, the court held that in cases of this 
 kind, it would look beyond the corporate entity, and if the 
 citizenship of its members would sustain the jurisdiction of 
 the court, the Federal courts would take jurisdiction. Its 
 legal effect, practically, was to make the individual corpora- 
 tors parties to the suit. A suit, therefore, pending in a Fed- 
 eral court between a citizen of one State and a corporation 
 chartered by another State could only be maintained by a sort 
 of judicial scrutiny of the members of the corporation, treat- 
 ing them rather as members of a copartnership than as the 
 constituent parts of one corporate body. If it was averred 
 that the necessary diverse citizenship existed between the 
 adverse party and each member or stockholder in the corpo- 
 ration, the court, passing over the corporate being itself, and 
 looking through it to the individual corporators beyond, 
 would treat the case as a controversy between citizens of dif- 
 ferent States. 1 """ 
 
 1 It should be noted that in this statute, and not under any State 
 case the plaintiff was a corporation law. 
 organized under a United States 
 
32 JURISDICTION OF FEDERAL COURTS. 
 
 In the case at the same term of Hope Insurance Com- 
 pany v. Boardman, 1 it not appearing of what State the stock- 
 holders of the corporation were citizens, the Supreme Court 
 decided the suit not maintainable in a Federal court. In 
 Breithaupt v. Bank of Georgia 2 the doctrine was reiterated. 
 
 Strawbridge v. Curtiss. The complete understanding of the 
 effect of the decision in Bank of United States v. Deveaux, 
 above referred to, requires a digression from the immediate 
 subject in hand to a consideration of the early case of Straw- 
 bridge v. Curtiss, 5 decided at the February Term, 1806. We 
 have seen that in effect the decision in Bank of United States 
 v. Deveaux,* made the individual corporators the real parties 
 to the suit, and practically either joint plaintiffs or defend- 
 ants, as the case might be. This being so, as in a corpora- 
 tion aggregate there would always be more than one member 
 of the body corporate, it is necessary to consider the construc- 
 tion given the Judiciary Act in a case where there was a plu- 
 rality of parties plaintiff or defendant. In Strawbridge v. 
 Curtiss (a case from the United States Circuit Court, Dis- 
 trict of Massachusetts) this question had received the atten- 
 tion of the Supreme Court. The plaintiff Strawbridge was 
 alleged to be a citizen of Massachusetts, and one of the de- 
 
 1 5 Cr. 57. See Flanders v. iEtna repeatedly expressed regret that 
 Ins. Co., 3 Mas. 158, Fed. Cas. No. those decisions had been made, 
 4852. adding, whenever the subject was 
 
 2 1 Peters, 238. mentioned, that if the point of 
 8 3 Cr. 267. jurisdiction was an original one, the 
 4 In Louisville &c. R. R. Co. v. conclusion would be different. We 
 
 Letson, 2 How. 497, Wayne, J, think we may safely assert that a 
 
 says that the opinion in this case majority of the members of this 
 
 (with that of Strawbridge v. Curtiss, court have at all times partaken of 
 
 supra) was not entirely satisfactory the same regret, and that whenever 
 
 to the court. " They have been fol- a case has occurred on the circuit, 
 
 lowed always most reluctantly and involving the application of the case 
 
 with dissatisfaction. By no one was of the Bank and Deveaux, it was 
 
 the correctness of them more ques- yielded to because the decision had 
 
 tioned than by the late chief justice been made, and not because it was 
 
 who gave them. It is within the thought to be right." 
 knowledge of several of us that he 
 
33 
 
 fendants, Curtiss, was alleged to be a citizen of Vermont. 
 The remaining defendants were averred to be citizens of Mas- 
 sachusetts. The lower court dismissed the case for want of 
 jurisdiction. The opinion of the Supreme Court, by Chief 
 Justice Marshall, says: 
 
 " The court has considered this case, and is of opinion that 
 the jurisdiction cannot be supported. . . . The court under- 
 stands these expressions (quoting Judiciary Act), to mean, 
 that each distinct interest should be represented by persons, 
 all of whom are entitled to sue, or may be sued, in the Federal 
 courts. That is, that where the interest is joint, each of the 
 persons concerned in that interest must be competent to sue, 
 or liable to be sued, in those courts." 
 
 Commercial, etc. Bank v. Slocomb. The application of this 
 principle of Strawbridge v. Curtiss to the doctrine of looking 
 at the individual members of corporations came before the 
 Supreme Court in the case of the Commercial and Railroad 
 Bank of VicJcsburg v. Slocomb et al. 1 at the January Term, 
 1840. The decision in this case followed logically from what 
 had previously been held by the Supreme Court in the two 
 cases previously commented on, and there was no escape from 
 the conclusions reached ; yet it appears that the decision was 
 "most reluctantly given," and "upon mere authority." 2 
 The case arose as follows : the plaintiffs, as co-partners, alleg- 
 ing themselves to be citizens of the State of Louisiana, 
 brought assumpsit in the Circuit Court of the United States 
 for the Southern District of Mississippi against the Presi- 
 dent, Directors, and Company of the Commercial and Railroad 
 Bank of Vicksburg, alleged to be citizens of Mississippi, and 
 alleging the bank to be a corporation of the same State. 
 The defendants appeared, and pleaded in abatement that 
 they "were a corporation aggregate; and that the cor- 
 porators, stockholders, or company, are composed of citizens 
 
 i 14 Peters, 60. 2 Per Wayne, J., in Louisville 
 
 &c. R. R. v. Letson, 2 How. 497. 
 3 
 
34 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 of other and different states, to wit, that William Lambeth 
 and William E. Thompson, citizens of the State of Louisiana, 
 were stockholders and corporators therein." The plaintiffs 
 demurred to the plea, the demurrer was sustained, and judg- 
 ment rendered for plaintiffs, and the bank thereupon sued out 
 a writ of error from the Supreme Court. 
 
 The full text of the material part of the opinion of the 
 court is given below, 1 andjt is only here necessary to give 
 the conclusion of the court, which was to the effect that the 
 case of Strawbridge v. Curtiss, as applied to Bank of United 
 States v. Deveaux, was conclusive, and that as the court would 
 
 1 "In the case of Strawbridge 
 and others v. Curtiss and others, 3 
 Cranch, 267, they decided that 
 where there are two or more joint 
 plaintiffs, and two or more joint 
 defendants, each of the plaintiffs 
 must be capable of suing each of 
 the defendants in the courts of the 
 United States, in order to support 
 the jurisdiction. And what is more 
 particularly applicable to this ease, 
 in the case of The Bank of the 
 United States v. Deveaux and others, 
 5 Cranch, 61, this court decided 
 that a corporation aggregate, com- 
 posed of citizens of one State, might 
 sue a citizen of another State in 
 the Circuit Courts of the United 
 States ; that is, they in effect decided 
 that, although the artificial being, a 
 corporation aggregate, was not a 
 citizen as such, and therefore could 
 not sue in the courts of the United 
 States, as such, yet the court would 
 look beyond the mere corporate 
 character, to the individuals of 
 whom it was composed ; and if they 
 were citizens of a different State 
 from the party sued, they were 
 competent to sue in the courts of 
 the United States. But still, upon 
 
 the principle of Strawbridge v. 
 Curtiss, all the corporators must be 
 citizens of a different State from 
 the party sued. And the doctrine 
 of both these cases has ever since 
 been held to be the law of this 
 court. It is perfectly clear that the 
 same principle applies to the indi- 
 viduals composing a corporation 
 aggregate, when standing in the 
 attitude of defendants, which does 
 when they are in that of plaintiffs. 
 " The application of these doc- 
 trines to this case would seem to 
 be decisive of its fate ; unless there 
 is something in other points which 
 were argued at the bar to obviate 
 their force. For it has already 
 been stated that the plaintiffs in 
 the court below were citizens of the 
 State of Louisiana, and two of the 
 members of the corporation sued 
 were also citizens of Louisiana ; so 
 that some of the defendants being 
 citizens of the same State with the 
 plaintiffs, it follows, that although 
 each of the plaintiffs was capable of 
 su i»g. yet each of the defendants 
 was not capable of being sued in the 
 Circuit Court of Mississippi." 
 
COMMERCIAL, ETC. BANK V. SLOCOMB. 35 
 
 look beyond the mere corporate entity when considering its 
 jurisdiction, and ascertain that the necessary diverse citizen- 
 ship existed, it would be guided in so doing by its decision 
 in Straw/bridge v. Gurtiss, and, treating each stockholder as a 
 real party plaintiff or defendant to the suit, require that the 
 necessary diverse citizenship exist between each plaintiff and 
 each defendant. 
 
 Before proceeding to discuss the change in the attitude of 
 the Supreme Court upon the main issue, it may be of value 
 to pause briefly and consider how firmly the Federal judi- 
 ciary were committed to the question at bar. The case of 
 Bank of United States v. Deveaux was decided at the Febru- 
 ary Term, 1809, and it is stated in the opinion in that case 
 that " repeatedly has this court decided causes between a cor- 
 poration and an individual without feeling a doubt respecting 
 its jurisdiction." It may therefore be fairly assumed that 
 the doctrine of that case merely affirmed the previous views 
 of the court, as, indeed, the opinion states to be the fact. 
 The decision in that case was deemed to be settled law, and 
 was followed both by the Supreme Court and by the Circuit 
 Courts. 1 So that, from the earliest period of the Supreme 
 Court down to the case next to be discussed — 1844 — the 
 decision in Bank of United States v. Deveaux was uniformly 
 followed and adopted, — a period of nearly half a century. 
 
 And although the case of Commercial, etc. Bank v. Slocomb 
 did not arise until 1840, yet its doctrines had previously been 
 laid down upon the Circuit, 2 and that decision, too, was 
 
 1 Thus, in The President, &c. of ment that one of the stockholders 
 
 the Bank of Cumberland v. Willis, was citizen of the State of Massa- 
 
 3 Sumn. 472, Fed. Cas. No. 885, chusetts was held good by Justice 
 
 the action was assumpsit, and the Story. And see Kirkpatriek v. 
 
 declaration alleged that all the White, 4 Washington's C. C. 595, 
 
 members of the corporation were Fed. Cas. No. 7850. 
 citizens of the State of Maine, and 2 Kirkpatriek v. White, supra ; 
 
 that the defendant was a citizen of Bank of Cumberland v. Willis, 
 
 the State of Mass. A plea in abate- supra. 
 
36 JURISDICTION OP FEDERAL COURTS. 
 
 established and recognized as settled beyond all controversy. 
 It was, therefore, the result, not of a few years but of nearly 
 half a century of judicial thought which was overturned and 
 set aside by the case next to be considered, and those follow- 
 ing it. 
 
 Louisville, etc. R. R. v. Letson. 1 In this case Letson, the 
 plaintiff below, a citizen of the State of New York, brought 
 an action of covenant in the Circuit Court for the District of 
 South Carolina, against the Louisville, Cincinnati and Charles- 
 ton Railroad Company, a corporation chartered by the State 
 of South Carolina. 
 
 The Railroad Company appeared and filed a plea to the 
 jurisdiction of the court, upon the ground that the Circuit 
 Court had no jurisdiction because " the Louisville, Cincinnati 
 and Charleston Railroad Company is not a corporation whose 
 members are citizens of South Carolina, but that some of the 
 members of the said corporation are citizens of South Caro- 
 lina, and some of them, namely, John Rutherford and Charles 
 Baring, are, and were at the time of commencing the said 
 action, citizens of North Carolina." 
 
 The force of this plea will be readily appreciated by recall- 
 ing the provisions of the Judiciary Act of 1789. It will be 
 remembered that in that act there was an additional limita- 
 tion upon the jurisdiction of the Circuit Court beyond the 
 terms of the Constitutional grant of judicial power. The 
 Constitution provided that the judicial power should extend 
 to controversies "between citizens of different States;" the 
 original Judiciary Act, however, gave to the Circuit Courts 
 jurisdiction in controversies between a citizen of a State where 
 the action was drought and citizens of other States. If, there- 
 fore, there were a plurality of plaintiffs or defendants, the 
 action had to be brought in a State of which all of the plain- 
 tiffs, or all of the defendants were citizens ; and applying this 
 principle to the case at bar, it was equivalent to the proposition 
 
 i 2 How. 497. 
 
LOUISVILLE, ETC. R. K. V. LETSON. 37 
 
 that a corporation could not be sued in the Circuit Court of 
 the United States for the State of its incorporation, by a citi- 
 zen of another State, unless all the members of the corpora- 
 tion were citizens of the State in which the suit was brought. 
 
 Thus the Supreme Court found itself requested to take 
 another step naturally resulting from its doctrine of going 
 behind the corporate entity to ascertain the character of its 
 members. In Bank v. Deveaux it had decided that Federal 
 courts would entertain jurisdiction of a suit by or against a 
 corporation if the individuals composing the corporation were 
 citizens of a different State from the opposing party. In 
 Commercial, etc. Bank v. Slocomb, it had held that the rule in 
 Strawbridge v. Curtiss was applicable in suits by or against 
 corporations, thus ousting the court of jurisdiction if any one 
 of the members of a corporation sued or suing in a Federal 
 court was a citizen of the same State as the opposing party, 
 and thereby greatly narrowing the field of jurisdiction over 
 corporations. And it was now sought to still further limit 
 the jurisdiction of the Federal courts over suits in which 
 corporations were parties, by denying jurisdiction in a suit 
 brought against a corporation in the district of the State 
 which chartered it, unless all of the corporate members were 
 citizens of the State in which the action was brought. 
 
 It will thus be seen that between the rule in Commercial, 
 etc. Bank v. Slocomb and that now sought to be applied, the 
 jurisdiction of Federal courts over suits by or against a cor- 
 poration would have been greatly curtailed, and the decision 
 in Bank of United States v. Deveaux rendered of little practi- 
 cal value. The material parts of the opinion of the court, 
 per Mr. Justice Wayne, are as follows: 
 
 " Jurisdiction is denied, because it is said it is only given 
 when 'the suit is between a citizen of the State where the 
 suit is brought, and a citizen of another State.' And it is 
 further said that the present is not such a suit, because two 
 of the corporators are citizens of a third State. The point in 
 
38 JURISDICTION OP FEDERAL COURTS. 
 
 this form has never before been under the consideration of 
 this court. We are not aware that it ever occurred in either 
 of the circuits until it was made in this case. It has not, 
 then, been directly ruled in any case. Our inquiry now is, 
 what is the law upon the proposition raised by the plea. 
 Our first remark is, that the jurisdiction is not necessarily 
 excluded by the terms, when ' the suit is between a citizen of 
 the State where the suit is brought and a citizen of another 
 State,' unless the word citizen is used in the Constitution 
 and the laws of the United States in a sense which necessarily 
 excludes a corporation. A corporation aggregate is an arti- 
 ficial body of men, composed of divers constituent members 
 ad instar corporis humani, the ligaments of which body politic, 
 or artificial body, are the franchises and liberties thereof, 
 which bind and unite all its members together, and in which 
 the whole frame and essence of the corporation consist. It 
 must of necessity have a name, for the name is, as it were, 
 the very being of the constitution, the heart of their combina- 
 tion, without which they could not perform their corporate 
 acts, for it is nobody to plead and be impleaded, to take and 
 give, until it hath gotten a name. 1 Composed of persons, 
 it may be that the members are citizens; and if they are, 
 though the corporation can only plead and be impleaded by 
 its name, or the name by which it may sue or be sued, if a 
 controversy arises between it and a plaintiff who is a citizen 
 of another State, and the residence of the corporation is in 
 the State in which the suit is brought, is not the suit sub- 
 stantially between citizens of different States, or, in the words 
 of the Act giving to the courts jurisdiction, ' a suit between a 
 citizen of the State where the suit is brought and a citizen 
 of another State?' 
 
 " Jurisdiction, in one sense, in cases of corporations, exists 
 in virtue of the character of members, and must be main- 
 tained in the courts of the United States, unless citizens can 
 
 1 Citing Bac. Abr. Tit. Corp. 
 
LOUISVILLE, ETC. K. E. V. LETSON. 39 
 
 exempt themselves from their constitutional liability to be 
 sued in those courts, by a citizen of another State, by the fact, 
 that the subject of controversy between them has arisen upon 
 a contract to which the former are parties in their corporate, 
 and not in their personal character. Constitutional rights 
 and liabilities cannot be so taken away, or be so avoided. If 
 they could be, the provision which we are here considering 
 could not comprehend citizens universally, in all the relations 
 of trade, but only those citizens in such relations of business 
 as may arise from their individual or partnership transactions. 
 Let it then be admitted, for the purposes of this branch of 
 the argument, that jurisdiction attaches in cases of corpora- 
 tions, in consequence of the citizenship of their members, and 
 that foreign corporations may sue when the members are 
 aliens; does it necessarily follow, because the citizenship and 
 residence of the members give jurisdiction in a suit at the 
 instance of a plaintiff of another State, that all of the cor- 
 porators must be citizens of the State in which the suit is 
 brought ? The argument in support of the affirmative of this 
 inquiry is, that in the case of a corporation in which juris- 
 diction depends upon the character of the parties, the court 
 looks beyond the corporation to the individuals of which it 
 is composed, for the purpose of ascertaining whether they 
 have the requisite character, and for no other purpose. The 
 object would certainly be to ascertain the character of the 
 parties, but not to the extent of excluding all inquiry as to 
 what the effect will be, when it has been ascertained that the 
 corporators are citizens of different States from that of the 
 locality of the corporation, where by its charter it can only 
 be sued. Then the question occurs, if the corporation be 
 only suable where its locality is, and those to whom its opera- 
 tions are confided are citizens of that State, and a suit is 
 brought against it by a citizen of another State, whether by a 
 proper interpretation of the terms giving to the Circuit Court 
 jurisdiction, it is not a suit between citizens of the State 
 
40 JURISDICTION OP FEDERAL COURTS. 
 
 where the suit is brought and a citizen of another State. 
 The fact that the corporators do live in different States does 
 not aid the solution of the question. The first, obvious, and 
 necessary interpretation of the terms by which jurisdiction is 
 given, is, that the suit need not be between citizen and citi- 
 zen, but may be between citizens. Then, do the words, * of 
 the State where the suit is brought, ' limit the jurisdiction to 
 a case in which all the defendants are citizens of the same 
 State? 
 
 " The constitutional grant of judicial power extends to con- 
 troversies ' between citizens of different States. ' The words 
 in the legislative grant of jurisdiction, ' of the State where the 
 suit is brought and a citizen of another State, ' are obviously 
 no more than equivalent terms to confine suits in the Circuit 
 Courts to those which ' are between citizens of different 
 States.' The words in the Constitution, then, are just as 
 operative to ascertain and limit jurisdiction as the words in the 
 statute. It is true, that under these words, 'between citizens 
 of different States, ' Congress may give the courts jurisdiction 
 between citizens in many other forms than that in which it 
 has been conferred. But in the way it is given, the object 
 of the legislature seems exclusively to have been to confer 
 jurisdiction upon the court, strictly in conformity to the lim- 
 itation as it is expressed in the Constitution, ' between citi- 
 zens of different States. ' A suit, then, brought by a citizen 
 of one State against a corporation by its corporate name, in 
 the State of its locality, by which it was created, and where 
 its business is done by any of the corporators who are chosen 
 to manage its affairs, is a suit, so far as jurisdiction is con- 
 cerned, between citizens of the State where the suit is brought 
 and a citizen of another State. The corporators, as individ- 
 uals, are not defendants in the suit, but they are parties hav- 
 ing an interest in the result, and some of them being citizens 
 of the State where the suit is brought, jurisdiction attaches 
 over the corporation ; nor can we see how it can be defeated 
 
41 
 
 by some of the members, who cannot be sued, residing in a 
 different State. It may be said that the suit is against the 
 corporation, and that nothing must be looked at but the legal 
 entity, and then that we cannot view the members except as 
 an artificial aggregate. This is so, in respect to the subject 
 matter of the suit and the judgment which may be rendered ; 
 but if it be right to look to the members to ascertain whether 
 there be jurisdiction or not, the want of appropriate citizen- 
 ship in some of them to sustain jurisdiction, cannot take it 
 away, when there are other members who are citizens, with 
 the necessary residence to maintain it. 
 
 " But we are now met and told that the cases of Strawhridge 
 and Curtiss, and that of The Bank of the United States and 
 Deveaux hold a different doctrine. We do not deny that the 
 language of those decisions do not justify in some degree 
 the inferences which have been made from them, or that the 
 effect of them has been to limit the jurisdiction of the Cir- 
 cuit Courts in practice to the cases contended for by the 
 counsel for the plaintiff in error. The practice has been, 
 since those cases were decided, that if there be two or more 
 plaintiffs and two or more joint defendants, each of the plain- 
 tiffs must be capable of suing each of the defendants in the 
 courts of the United States in order to support the jurisdic- 
 tion, and in cases of corporations to limit jurisdiction to cases 
 in which all the corporators were citizens of the State in 
 which the suit is brought. The case of Strawhridge and 
 Curtiss was decided without argument. That of the Bank and 
 Deveaux after argument of great ability. But never since 
 that case has the question been presented to this court, with 
 the really distinguished ability of the arguments of the counsel 
 in this, in no way surpassed by those in the former. And 
 now we are called upon in the most imposing way to give 
 our best judgments to the subject, yielding to decided cases 
 everything that can be claimed for them on the score of 
 authority, except the surrender of conscience. After mature 
 
42 JURISDICTION OF FEDERAL COURTS. 
 
 deliberation, we feel free to say, that the cases of Strawbridge 
 and Curtiss, and that of the Bank and Deveaux, were carried 
 too far, and that consequences and inferences have been argu- 
 mentatively drawn from the reasoning employed in the latter 
 which ought not to be followed. . . . The case of. The Com- 
 mercial Bank of Vicksburg and Slocomb was most reluctantly 
 decided upon the mere authority of those cases. We do not 
 think either of them maintainable upon the true principles of 
 interpretation of the Constitution and the laws of the United 
 States. A corporation, created by a State, to perform its 
 functions under the authority of that State, and only suable 
 there, though it may have members out of the State, seems 
 to us to be a person, though an artificial one, inhabiting and 
 belonging to that State, and therefore entitled, for the pur- 
 pose of suing and being sued, to be deemed a citizen of that 
 State. We remark, too, that the cases of Strawbridge and 
 Curtiss and the Bank and Deveaux have never been satisfac- 
 tory to the bar, and that they were not, especially the last, 
 entirely satisfactory to the court that made them. They have 
 been followed always most reluctantly and with dissatisfac- 
 tion. By no one was the correctness of them more ques- 
 tioned than by the late chief justice who gave them. It is 
 within the knowledge of several of us, that he repeatedly 
 expressed regret that those decisions had been made, adding, 
 whenever the subject was mentioned, that if the point of jur- 
 isdiction was an original one, the conclusion would be dif- 
 ferent. We think we may safely assert, that a majority of 
 the members of this court have at all times partaken of the 
 same regret, and that, whenever a case has occurred on the 
 circuit, involving the application of the case of the Bank and 
 Deveaux, it was yielded to because the decision had been 
 made, and not because it was thought to be right. We have 
 already said that the case of The Bank of Vicksburg and Slo- 
 comb was most reluctantly given, upon mere authority. We 
 are now called upon, upon the authority of those cases alone, 
 
NEW DOCTRINE ANNOUNCED. 43 
 
 to go further in this case than has yet been done. It has led 
 to a review of the principles of all the cases. We cannot 
 follow further, and upon our maturest deliberation we do not 
 think that the cases relied upon for a doctrine contrary to 
 that which this court will here announce, are sustained by a 
 sound and comprehensive course of professional reasoning." 
 
 New Doctrine Announced. After alluding to the statute 
 of 1839, 1 and bolding that the case at bar might be compre- 
 hended within the terms of that statute, the court continues : 
 " The case before us might be safely put upon the foregoing 
 reasoning and upon the statute, but hitherto we have rea- 
 soned upon this case upon the supposition that, in order to 
 found the jurisdiction in cases of corporations, it is necessary 
 there should be an averment, which if contested was to be 
 supported by proof, that some of the corporators are citizens 
 of the State by which the corporation was created, where it 
 does its business, or where it may be sued. But this has 
 been done in deference to the doctrine of former cases in this 
 court upon which we have been commenting. But there is 
 a broader ground upon which we desire to be understood, 
 upon which we altogether rest our present judgment, al- 
 though it might be maintained upon the narrower ground 
 already suggested. It is, that a corporation created by and 
 doing business in a particular State, is to be deemed to all 
 intents and purposes as a person, although an artificial per- 
 son, an inhabitant of the same State, for the purposes of its 
 incorporation, capable of being treated as a citizen of that 
 State, as much as a natural person. Like a citizen it makes 
 contracts, and though in regard to what it may do in some 
 particulars it differs from a natural person, and in this espe- 
 cially, the manner in which it can sue and be sued, it is sub- 
 stantially, within the meaning of the law, a citizen of the 
 State which creates it, and where its business is done, for all 
 the purposes of suing and being sued." 
 
 1 Kev. Stat. Sec. 737, ante, p. 11. 
 
44 JURISDICTION OF FEDERAL COURTS. 
 
 The Opinion in the Letson Case Critically Examined. The 
 
 opinion in the Letson case seems to show a regard more for 
 the attaining of certain results, than for reasons which would 
 necessarily lead to such results. The real question before 
 the court was, — where a corporation, being sued in the State 
 which chartered it, having corporate members who were citi- 
 zens there, and the suit being brought by a citizen of another 
 State, whether in such a case the suit would not be deemed 
 substantially a suit between citizens of different States, even 
 if it appeared that several members of the corporation were 
 citizens of a third State. The court answered this question 
 by ruling that the Act of 1839 applied, and thus decided the 
 main issue in the case, so that the decision might have been 
 satisfactorily placed upon that ground alone, without consid- 
 ering the great question of the capacity of a corporation to 
 sue or be sued in Federal courts. "But if in all we have 
 said upon jurisdiction " say the court, " we are mistaken, we 
 say that the Act of 28th of February, 1839, enlarges the juris- 
 diction of the courts, comprehends the case before us, and 
 embraces the entire result of the opinion which we shall now 
 give." And later in the opinion it is said : " The case might 
 safely be put upon the foregoing reasoning and the statute." 
 It is thus evident that had the court been satisfied with its 
 former position, there would have been no need to have re- 
 versed its decision in Bank v. Deveaux, and only necessary to 
 have slightly limited The Commercial, etc. Bank v. Slocomb. 
 
 But the determination to establish a new doctrine upon the 
 subject of corporate suits is made plainly evident by the lat- 
 ter part of the opinion, as follows : 
 
 " Hitherto we have reasoned upon this case upon the sup- 
 position that in order to found the jurisdiction in cases of 
 corporations it is necessary there should be an averment which 
 if contested was to be supported by proof that some of the corpo- 
 rators are citizens of th,e State by which the corporation was cre- 
 ated, where it does its business, or where it may be sued. . . . But 
 
EFFECT OF THE LETSON DECISION. 45 
 
 there is a broader ground upon which we desire to be under- 
 stood, upon which we altogether rest our present judgment, 
 although it might be maintained upon the narrower ground 
 already suggested. It is, that a corporation created by and 
 doing business in a particular State is to be deemed to all in- 
 tents and purposes as a person, although an artificial person, 
 an inhabitant of the same State, for the purposes of its incorpo- 
 ration capable of being treated as a citizen of that State, as 
 much as a natural person. Like a citizen it makes contracts, 
 and though in regard to what it may do in some particulars 
 it differs from a natural person, and in this especially, the 
 manner in which it can sue and be sued, it is, substantially, 
 within the meaning of the law, a citizen of the State which cre- 
 ated it, and where its business is done, for all the purposes of 
 suing and being sued. 
 
 Effect of the Letson Decision. In many respects the deci- 
 sion of the Supreme Court in the Letson case is one of the 
 most remarkable ever rendered by that body. It is difficult 
 at this day to realize the full import of the decision. The 
 status of corporations as parties to suits in Federal courts 
 had been considered as definitely settled ever since Bank v. 
 Deveaux. Even before that time the Supreme Court had re- 
 peatedly admitted corporations as suitors in United States 
 courts. For more than forty years — during almost all of 
 the first half-century of the existence of the Supreme Court, 
 — both bench and bar had considered that corporations might 
 properly sue and be sued in Federal courts, only when the 
 individual citizenship of the stockholders justified it, and the 
 Bank v. Deveaux merely laid down in judicial opinion what had 
 already been considered as settled law. When these facts are 
 remembered, it will be seen that to overturn these doctrines, 
 and to do so in a case where, for the purposes of the case 
 before it, a decision might have been safely placed upon other 
 grounds and thus might have been in entire accord with the 
 established cases, involved a change of opinion in the mind 
 
46 JURISDICTION OF FEDERAL COURTS. 
 
 of the court which could only have been produced by most 
 potent reasons. The whole opinion in the Zetson case pre- 
 sents the aspect of a determined effort to lay down in force- 
 ful terms — regardless of the case before it — a new doctrine 
 as to the standing of corporations in Federal courts. 
 
 The effect of the language used in the opinion in this case 
 was at once appreciated. The practice of years which re- 
 quired the court taking cognizance of a cause to which a cor- 
 poration was a party to look beyond the corporate entity to 
 the individual corporators was done away with. The theory 
 of Chief Justice Marshall was squarely reversed, as, indeed, 
 was his very language, for in Bank v. Deveaux he had de- 
 clared that " a corporation . . . could in no sense be deemed 
 a citizen of a State within the meaning of the Constitution." 
 The subtle theory upon which he had assumed to look beyond 
 the corporate being became a nullity under a rule which de- 
 clared a corporation itself a citizen. With it fell the doctrine 
 which required that the citizenship of the corporate members 
 be set forth. The simple averment of incorporation under 
 the laws of a given State became sufficient for all purposes of 
 Federal jurisdiction. 
 
 Marshall v. The Baltimore & Ohio Railroad Company. 1 
 Although the decision in Railroad Company v. Zetson was at 
 once followed by the various Circuit Courts, and their prac- 
 tice and procedure changed so as to conform to the rules 
 therein laid down, yet the overturning of long established 
 traditions was too marked to be allowed to pass into settled 
 law without an attempt to re-open the question in the Su- 
 preme Court. This was done in the case of Marshall v. The 
 Baltimore & Ohio Railroad Company, and the Supreme Court, 
 upon full consideration, approved the Zetson case, Justices 
 Catron, Campbell, and Daniel dissenting. Although the re- 
 ports of the Zetson case exhibit no dissenting opinion, still 
 the dissenting opinions in the Marshall case show that the 
 
 1 16 How. 314. 
 
MARSHALL V. THE BALTIMORE & OHIO R. R. CO. 47 
 
 Letson case did not have the approval of all of the court. In 
 Bundle v. The Delaware & Baritan Canal Company, 1 decided 
 previous to the Marshall case, Justices Catron and Daniel 
 filed dissenting opinions, upon the question of jurisdiction of 
 the Circuit Court over corporations, but the opinion of the 
 majority of the Supreme Court in that case does not show 
 that the question was considered by them. And although the 
 point was raised in several subsequent cases, the court did 
 not pass upon the question until the Marshall case was 
 brought before it; upon this occasion the entire field was 
 again reviewed, and the same result reached — the reasoning, 
 however, being different. 
 
 Although not so expressed in direct language, the effect of 
 the decision was to again base the theory of Federal jurisdic- 
 tion over corporations upon the citizenship of the individual 
 members of the corporation. The opinion seems to avoid the 
 doctrine of the Letson case wherein it is stated that a corpora- 
 tion could, for some purposes, be considered a citizen, and 
 proceeds upon the new theory that the individual corporators 
 were estopped to deny that they were citizens of the State 
 creating the corporation. The Letson case, although in some 
 ways implying the principle of estoppel, did not give it as a 
 reason for the court's decision, and in the Marshall case this 
 doctrine, which is now recognized as the established basis of 
 Federal jurisdiction over corporations, was first applied. 
 
 In this case the plaintiff, Marshall, averred in his declara- 
 tion that he was a citizen of Virginia and that the defendant 
 was " a body corporate by an Act of the General Assembly of 
 Maryland." It was objected that the averment as to the de- 
 fendant was insufficient to show jurisdiction in a Federal 
 Court. In considering this point, the court, Mr. Justice 
 Grier delivering the opinion, reviews the former decisions : 
 
 " The reasons for conferring this jurisdiction on the courts 
 of the United States are thus correctly stated by a contem- 
 
 i 14 How. 80. 
 
48 JURISDICTION OP FEDERAL COURTS. 
 
 porary writer: 1 'It may be esteemed as the basis of the 
 Union, that the citizens of each State shall be entitled to all 
 the privileges and immunities of the citizens of the several 
 States. And if it be a just principle that every government 
 ought to possess the means of executing its own provisions by 
 its own authority, it will follow, that in order to the invio- 
 lable maintenance of that equality of privileges and immuni- 
 ties, the national judiciary ought to preside in all cases in 
 which one State or its citizens are opposed to another State 
 or its citizens.' 
 
 "Now, if this be a right or privilege guaranteed by the 
 Constitution to the citizens of one State in their controversies 
 with citizens of another, it is plain that it cannot be taken 
 away from the plaintiff by any legislation of the State in 
 which the defendant resides. If A, B, and C, with other 
 dormant or secret partners, be empowered to act by their 
 representatives, *to sue or to be sued in a collective or corpo- 
 rate name, their enjoyment of these privileges, granted by 
 State authority, cannot nullify this important right conferred 
 on those who contract with them. It was well remarked by 
 Mr. Justice Catron, in his opinion delivered in the case of 
 Bundle,' 1 'that if the United States courts could be ousted of 
 jurisdiction, and citizens of other States be forced into the 
 State courts, without the power of election, they would often 
 be deprived, in great cases, of all benefit contemplated by the 
 Constitution ; and in many cases be compelled to submit their 
 rights to judges and juries who were inhabitants of the cities 
 where the suit must be tried, and to contend with powerful 
 corporations, where the chances of impartial justice would be 
 greatly against them ; and where no prudent man would en- 
 gage with such an antagonist, if he could help it. State 
 laws, by combining large masses of men under a corporate 
 name, cannot repeal the Constitution. All corporations must 
 have trustees and representatives who are usually citizens of 
 
 i Federalist, No. 80. 2 14 How. 80. 
 
MARSHALL V. THE BALTIMORE & OHIO K. E. CO. 49 
 
 the State where the corporation is created ; and these citizens 
 can be sued and the corporate property charged by the suit. 
 Nor can the courts allow the constitutional security to be 
 evaded by unnecessary refinements, without inflicting a deep 
 injury on the institutions of the country. ' 
 
 "Let us now examine the reasons which are considered so 
 conclusive and imperative, that they should compel the court 
 to give a construction to this clause of the Constitution, prac- 
 tically destructive of the privilege so clearly intended to be 
 conferred by it. 'A corporation,' it is said, 'is an artificial 
 person, a mere legal entity, invisible and intangible. ' This is 
 no doubt metaphysically true in a certain sense. The infer- 
 ence, also, that such an artificial entity 'cannot be a citizen,' 
 is a logical conclusion from the premises which cannot be 
 denied. But a citizen who has made a contract, and has a 
 controversy with a corporation, may also say, with equal truth, 
 that he did not deal with a mere metaphysical abstraction, but 
 with natural persons ; that his writ has not been served on an 
 imaginary entity, but on men and citizens ; and that his con- 
 tract was made with them as the legal representatives of numer- 
 ous unknown associates, or secret and dormant partners. 
 
 "The necessities and conveniences of trade and business 
 require that such numerous associates and stockholders should 
 act by representation, and have the faculty of contracting, 
 suing, and being sued in a factitious or collective name. But 
 these important faculties, conferred on them by State legisla- 
 tion, for their own convenience, cannot be wielded to deprive 
 others of acknowledged rights'. It is not reasonable that 
 those who deal with such persons should be deprived of a 
 valuable privilege by a syllogism, or rather sophism, which 
 deals subtly with words and names, without regard to the 
 things or persons they are used to represent. Nor is it rea- 
 sonable that representatives of numerous unknown and ever 
 changing associates should be permitted to allege the differ- 
 ent citizenship of one or more of these stockholders, in order 
 
50 JURISDICTION OP FEDERAL COURTS. 
 
 to defeat the plaintiff's privilege. It is true that these stock- 
 holders are corporators, and represented by this ' juridical 
 person,' and come under the shadow of its name. But for 
 all the purposes of acting, contracting, and judicial remedy, 
 they can speak, act, and plead, only through their represen- 
 tatives or curators. For the purposes of a suit or contro- 
 versy, the persons represented by a corporate name can 
 appear only by attorney, appointed by its constitutional or- 
 gans. The individual or personal appearance of each and 
 every corporator would not be a compliance with the exigency 
 of the writ of summons or distringas. Though nominally, 
 they are not really parties to the suit or controversy. In 
 courts of equity, where there are very numerous associates 
 having all the same interest, they may plead, and be im- 
 pleaded through persons representing their joint interests; 
 and, as in the case between the Northern and Southern 
 branches of the Methodist Church, lately decided by this 
 court, the fact that individuals adhering to each division were 
 known to reside within both States of which the parties to the 
 suit were citizens, was not considered as a valid objection to 
 the jurisdiction. 
 
 " In courts of law, an act of incorporation and a corporate 
 name are necessary to enable the representatives of a numer- 
 ous association to sue and be sued. 'And this corporation 
 can have no legal existence out of the bounds of the sover- 
 eignty by which it is created. It exists only in contempla- 
 tion of law and by force of the law; and where that law 
 ceases to operate, the corporation can have no existence. It 
 must dwell in the place of its creation. ' 1 The persons who 
 act under these faculties, and use this corporate name, may 
 be justly presumed to be resident in the State which is the 
 necessary habitat of the corporation, and where alone they 
 can be made subject to suit; and should be estopped in 
 equity from averring a different domicil as against those who 
 
 1 Bank of Augusta v. Earle, 13 Pet. 519. 
 
MARSHALL V. THE BALTIMORE & OHIO K. K. CO. 51 
 
 are compelled to seek them there, and can find them there 
 and nowhere else. If it were otherwise, it would be in the 
 power of every corporation, by electing a single director re- 
 siding in a different State, to deprive citizens of other States 
 with whom they have controversies, of this constitutional 
 privilege, and to compel them to resort to State tribunals in 
 cases in which, of all others, such privilege may be consid- 
 ered most valuable. 
 
 "But it is contended that, notwithstanding the court, in 
 deciding the question of jurisdiction, will look behind the 
 corporate or collective name given to the party, to find the 
 persons who act as the representatives, curators, or trustees, 
 of the association, stockholders, or cestuis que trust, and in 
 such capacity are the real parties to the controversy ; yet that 
 the declaration contains no sufficient averment of their citi- 
 zenship. Whether the averment of this fact be sufficient in 
 law, is merely a question of pleading. If the declaration sets 
 forth facts from which the citizenship of the parties may be 
 presumed or legally inferred, it is sufficient. The presump- 
 tion arising from the habitat of a corporation in the place of 
 its creation being conclusive as to the residence or citizenship 
 of those who use the corporate name, and exercise the facul- 
 ties conferred by it, the allegation that the ' defendants are a 
 body corporate by the Act of the General Assembly of Mary- 
 land, ' is a sufficient averment that the real defendants are 
 citizens of that State. This form of averment has been used 
 for many years. Any established form of words used for the 
 expression of a particular fact is a sufficient averment of it 
 in law. In the case of Gassies v. Ballon, 1 the petition alleged 
 that ' the defendant had caused himself to be naturalized an 
 American citizen, and that he was at the time of filing the 
 petition residing in the parish of West Baton Eouge. ' This 
 was held to be a sufficient averment that he was a citizen of 
 the State of Louisiana. And the court say, 'a citizen of the 
 
 i 6 Pet. 761. 
 
52 JURISDICTION OF FEDERAL COURTS. 
 
 United States residing in any State of the Union, is a citizen 
 of that State. ' They also express their regret that previous 
 decisions of this court had gone so far in narrowing and lim- 
 iting the rights conferred by this article of the Constitution. 
 And we may add that, instead of viewing it as a clause con- 
 ferring a privilege on the citizens of the different States, it 
 has been construed too often, as if it were a penal statute, 
 and as if a construction which did not adhere to its very let- 
 ter without regard to its obvious meaning and intention, 
 would be a tyrannical invasion of some power supposed to be 
 secured to the States or not surrendered by them." 
 
 Effect of the Marshall Case. The opinion of the court in 
 the Marshall case is the first to lay down the modern theory 
 upon which corporations are received as suitors in the Fed- 
 eral courts. The decision in the Letson case had decided the 
 main question for all practical purposes, and under that de- 
 cision corporations might enter a Federal court wherever a 
 similar action would lie between individuals. But the vul- 
 nerable point in the opinion in the Letson case had been the 
 holding that a corporation was a citizen within the meaning 
 of the constitutional grant of judicial powers. This had 
 been seized upon by strict constructionists of the Federal 
 Constitution as totally unwarranted. 1 In the Marshall case 
 this objection is avoided by the doctrine of presumptive 
 citizenship and estoppel there laid down, and this theory is 
 now universally recognized as the basis of Federal jurisdic- 
 tion over corporations. 
 
 The result of the reasoning of the cases quoted from in 
 this chapter is well expressed in an opinion at the circuit: 
 "Strictly speaking, corporations cannot be citizens; and 
 
 1 See opinion in Commonwealth privileges and immunities of citi- 
 
 v. Milton, 12 B. Mon. 212 (Sup. Ct. zens in the several States. Paul v. 
 
 Ky. 1851); a corporation is not a Virginia, 8 Wall. 168; Liverpool 
 
 citizen within the meaning of that Ins. Co. v. Massachusetts, 10 Wall, 
 
 clause of the Constitution which 566. See dissenting opinion of 
 
 declares that the citizens of each Justice Campbell in Marshall v. 
 
 State shall be entitled to all the Bait. & Ohio K. R., supra. 
 
CORPORATIONS ORGANIZED UNDER FOREIGN LAWS. 53 
 
 therefore, in order to hold them amenable to Federal juris- 
 diction on the ground of citizenship, it has been found ne- 
 cessary to assume, often contrary to the fact, that all the 
 stockholders are citizens of the State by which the corpora- 
 tion was created. It is only by virtue of this assumption 
 that a corporation can be said to be a citizen of any State. 
 The presumption that all the stockholders are citizens of the 
 State under whose laws they incorporate is a conclusive pre- 
 sumption, and the fact will not be inquired into. The fact 
 may be that not one of the stockholders is a citizen of such 
 State; but if so, it cannot be made to appear." 1 
 
 A number of cases bearing more or less directly upon the 
 theory of the constructive citizenship of corporations are given 
 in the note below. 2 How far corporations may be considered 
 as residents or inhabitants of States is treated of elsewhere. 3 
 
 Corporations Organized under the Laws of Foreign Nations. 
 That stockholders of a corporation created under the laws 
 of a foreign nation should be conclusively presumed to be 
 citizens of such foreign nation would seem to be a natural 
 sequence of the doctrine of the presumptive citizenship of the 
 corporators of a domestic corporation. Such was the view of 
 the Supreme Court in Steamship Company v. Tugman,* where 
 
 1 Pacific Railroad Co. v. Missouri U. S. 444; Galveston, &c. Ry. Co. v. 
 Pacific Railway Co., 23 Fed. Rep. Gonzales, 151 U. S. 496 ; St. Louis 
 565. & San Francisco Railway Co. v. 
 
 2 See Covington Drawbridge Co. James, 161 U. S. 545; McCabe v. 
 v. Shepherd, 20 How. 227; Ohio & 111. Central R. R. Co., 13 Fed Rep. 
 Mississippi R. R. Co. v. Wheeler, 827 ; Pacific Railway Company v. 
 1 Black, 286 ; Cowles v. Mercer Missouri Pacific Railway Company, 
 County, 7 Wall. 118 ; Paul v. 23 Fed. Rep. 565; Purcell v. Land 
 Virginia, 8 Wall. 168; Railroad Co. & Mortgage Co., 42 Fed. Rep. 465; 
 v. Harris, 12 Wall. 65; Railway Co. Myers v. Murray, 43 Fed. Rep. 695; 
 v. Whitton, 13 Wall. 270; Sewing Lonergan v. Illinois Central R. R. 
 Machine Company Cases, 18 Wall. Co., 55 Fed. Rep. 551. 
 
 553; Mueller v. Dows, 94 U. S. 444; " Post, Chapter IX. 
 
 Steamship Co. v. Tugman, 106 U. S. 4 106 U. S. 118; see Robertson 
 
 118; Wisconsin v. Pelican Ins. Co. v. Scotland, &c. Ins. Co., 68 Fed. 
 
 127 U. S. 265 ; Ex Parte Shaw, 145 Rep. 173. 
 
54 JURISDICTION OP FEDERAL COURTS. 
 
 it was said, after reviewing the cases of domestic corpora- 
 tions: "Upon this branch of the case it is, therefore, only 
 necessary to say that if the individual members of a corpora- 
 tion, created by the laws of one of the United States, are, for 
 the purposes of suit by or against it in the courts of the Union, 
 conclusively presumed to be citizens of the State by whose 
 laws that corporation is created and exists, it would seem to 
 follow, logically, that the members of a corporation, created 
 by a foreign State, should, for like purposes, be conclusively 
 presumed to be citizens or subjects of such foreign State. 
 Consequently, a corporation of a foreign State is, for pur- 
 poses of jurisdiction in the courts of the United States, to be 
 deemed, constructively, a citizen or subject of such State." 
 This decision has never been questioned, and the law may be 
 considered as settled. 
 
 Municipal Corporations. The theory of corporate citizen- 
 ship for the purposes of Federal jurisdiction extends to muni- 
 cipal as well as to private corporations. They are considered 
 as citizens of the State to which they owe their corporate 
 existence. 1 
 
 Corporations Created under Laws of the United States. A 
 corporation created under the laws of the United States may 
 sue or be sued in the Federal courts and may remove thereto 
 a suit brought against it in a State court. This is because 
 a suit by or against such a corporation is necessarily a suit 
 involving the Constitution and laws of the United States. 
 This is established by the case of Union Pacific Railway 
 Company v. Myers 2 ("Pacific Railroad Removal Cases"), 
 which in turn is founded upon the well known case of Osborn 
 v. The Bank of the United States? In the former case it is 
 
 1 Cowles v. Mercer County, 7 Lyell v. Lapeer County, 6 McL. 446, 
 Wall. 118; Insurance Co. v. Morse, Fed. Cas. No. 8618; City of Ysleta 
 20 Wall. 445 ; McCoy v. Washington , v. Canda, 67 Fed. Eep. 6. 
 County, 3 Wall. Jr. 381, Fed. Cas. » 115 tj. S . 1# 
 
 No. 8731 ; Barclay v. Levee Com'rs, s 9 Wheat. 73a 
 
 1 Woods, 254, Fed. Cas. No. 977; 
 
CORPORATIONS CREATED UNDER UNITED STATES LAWS. 55 
 
 said: "If the case of Osborn v. The Bank of the United States 
 is to be adhered to as a sound exposition of the Constitution, 
 there is no escape from the conclusion that these suits against 
 the plaintiffs in error, considering the said plaintiffs as cor- 
 porations created by and organized under the acts of Con- 
 gress referred to in the several petitions for removal in 
 these cases, were and are suits arising under laws of the 
 United States. An examination of those acts of Congress 
 shows that the corporations now before us not only derive 
 their existence, but their powers, their functions, their du- 
 ties, and a large portion of their resources, from those Acts, 
 and, by virtue thereof sustain important relations to the gov- 
 ernment of the United States." 1 
 
 1 In the case of Osborn v. The 
 Bank of the United States, supra, it 
 was said by Chief Justice Marshall : 
 " The charter of incorporation not 
 only creates it, but gives it every 
 faculty -which it possesses. The 
 power to acquire rights of any de- 
 scription, to transact business of any 
 description, to make contracts of 
 any description, to sue on those 
 contracts, is given and measured by 
 its charter, and that charter is a 
 law of the United States. This 
 being, can acquire no right, make 
 no contract, bring no suit which is 
 not authorized by a law of the 
 United States. It is not only itself 
 the mere creature of a law, but all 
 its actions and all its rights are 
 dependent on the same law. Can 
 a being, thus constituted, have a 
 case which does not arise literally 
 as well as substantially under the 
 law? Take the case of a contract, 
 which is put as the strongest against 
 the bank. When a bank sues, the 
 first question which presents itself, 
 
 and which lies at the foundation of 
 the cause, is, has this legal entity a 
 right to sue ? Has it a right to 
 come, not into this \ court, partic- 
 ularly, but into any court? This 
 depends on a law of the United 
 States. The next question is, has 
 this being a right to make this 
 particular contract ? If this question 
 be decided in the negative, the cause 
 is determined against the plaintiff ; 
 and this question, too, depends 
 entirely on a law of the United 
 States. These are important ques- 
 tions, and they exist in every 
 possible case. . . . The question 
 forms an original ingredient in 
 every cause. Whether it be in fact 
 relied on or not, in the defence, it is 
 still a part of the cause, and may be 
 relied on. The right of the plaintiff 
 to sue cannot depend on the defence 
 which the defendant may choose to 
 set up. His right to sue is anterior 
 to that defence, and must depend 
 on the state of things when the 
 action is brought. The questions 
 
56 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 When speaking of corporations created under the laws of 
 the United States, in this connection, an exception should be 
 noted as to national banks. These are treated of elsewhere. 1 
 
 Joint Stock Companies. A majority of the cases at the cir- 
 cuit have held that what are known as joint stock companies 
 may be treated as citizens of the States under whose laws 
 they are organized, for all purposes of jurisdiction of Federal 
 courts. 2 This being upon the theory that such associations 
 possess many of the attributes of corporations, including a 
 corporate name, a common seal, the right to own property, 
 real and personal, and, ordinarily, a right under statutes to 
 sue and be sued in the corporate name. Other courts have 
 declined to adopt this view. 3 The latter seems the only view 
 consistent with the theory of corporate citizenship, which, 
 as has been shown, is illogical enough at best. The rea- 
 sons given by Judge Hammond in a recent case 4 seem 
 
 which the case involved, then, must 
 determine its character, whether 
 those questions be made in the 
 cause or not." 
 
 1 See page 58, post. 
 
 2 Malz v. American Express Co., 
 1 Flip. 611, Fed Gas. No. 9002; 
 Fargo v. Louisville, &c. R. R. Co., 
 6 Fed. Rep. 787 ; Bait. & Ohio R. R. 
 Co. v. Adams Express Co., 22 Fed. 
 Rep. 404; Bushnell v. Park Bros. 
 & Co., Limited, 46 Fed. Rep. 209. 
 
 8 Dinsmore v. Phila. & Reading 
 R. R. Co., 3 Leg. Int. 388, Fed. 
 Cas. No. 3921. 
 
 4 Imperial Refining Co. v. Wy- 
 man et al., 38 Fed. Rep. 574. " One 
 has only to reflect a moment upon 
 the well known and interesting con- 
 flict, political and judicial, which 
 has raged over the ruling of the 
 Supreme Court that a corporation 
 may, by a fiction, be brought within 
 
 the designation of the constitutional 
 term "citizen of a State," to see 
 that the courts may well halt be- 
 fore extending any further, as our 
 Constitution now stands, the busi- 
 ness of creating artificial citizens 
 of the States by taking within the 
 fiction already established any other 
 than legitimate corporations dejure, 
 and thus acquiring jurisdiction over 
 partnerships or associations that are 
 called quasi corporations and cor- 
 porations de facto, merely to obtain 
 this jurisdiction ; and I cannot, as 
 now advised, assent to the circuit 
 rulings in that direction. ... If 
 the jurisdiction is to be maintained 
 it is not by the assimilation of these 
 nondescript organizations into cor- 
 porations, for the Constitution does 
 not use that term, but by an expan- 
 sion of the power of the court and 
 the selection of a similar material 
 
JOINT STOCK COMPANIES. 57 
 
 well in accord with the proper theory governing such 
 cases. 
 
 The views of the Supreme Court may be gathered from 
 its opinion in the case of CJiapman v. Barney, 1 where the 
 amended declaration contained the following averment : 
 "Ashbel H. Barney, president of the United States Ex- 
 press Company, a joint stock company organized under and 
 by virtue of a law of the State of New York, and which 
 said company is authorized by the laws of the State of New 
 York to maintain and bring suits, in the name of its presi- 
 dent, for or on account of any right of action accruing to 
 said company, and a citizen of the State of New York, etc." 
 In passing upon the jurisdiction of the court below, it was 
 said: "The allegation of the amended petition is, that the 
 United States Express Company is a joint stock company 
 organized under a law of the State of New York, and is a 
 citizen of that State. But the express company cannot be a 
 citizen of New York, within the meaning of the statutes regu- 
 lating jurisdiction, unless it be a corporation. ... In fact, 
 the allegation is that the company is not a corporation, but 
 a joint stock company, that is, a mere partnership. And, 
 
 out of which to manufacture other mon name or style, instead of in 
 artificial ' citizens ' of a similar or their individual personalities. That 
 analogous character to those already the same reason may be given for 
 admitted to this privilege of the extending the presumption as is 
 Constitution. Or, to be more pre- given for its original establishment 
 cise, — for it is admitted on all there can be no doubt, but whether 
 hands that this creation of an arti- its extension may not provide a 
 ficial ' citizen ' is the product of too easy method of evading the 
 a somewhat dubious process, — we Constitution deserves careful con- 
 are to extend the absolutely con- sideration at our hands." See 
 elusive legal presumption in favor Carnegie, Phipps, & Co., Limited, 
 of corporations that all of the in- v. Hurlburt, 53 Fed. Rep. 10, 10 
 corporators are citizens of the State U. S. App. 454, 3 C. C. A. 391, 
 granting the charter, to organiza- and note, 27 Am. Law Review, 612 ; 
 tions which have no charter, strictly Youngstown Coke Co. v. Andrews 
 speaking, but by authority of stat- Bros. Co., 79 Fed. Rep. C69. 
 ute exercise an analogous privilege 1 129 U. S. 677. 
 of suing and being sued by a com- 
 
58 JURISDICTION OF FEDERAL COURTS. 
 
 although it may be authorized by the laws of the State of 
 New York to bring suit in the name of its president, that 
 fact cannot give the company power, by that name, to sue in 
 a Federal court. The company may have been organized 
 under the laws of the State of New York, and may be doing 
 business in that State, and yet all the members of it may not 
 be citizens of that State. The record does not show the citi- 
 zenship of Barney, or of any of the members of the company. 
 They are not shown to be citizens of some State other than 
 Illinois." 
 
 Limited Partnerships. In many States limited partnerships 
 have substantially the same characteristics as joint stock com- 
 panies, and there exists the same difference of judicial opin- 
 ion as to their rights as suitors in the Federal courts. 1 
 
 Unincorporated Societies. Partnerships. Mere voluntary 
 associations, such as unincorporated societies, can enter the 
 Federal courts only when the citizenship of each individual 
 member is such as to warrant it. Obviously, they do not 
 come within the reasoning of the Supreme Court under 
 which corporations are admitted to the Federal courts. 2 
 Ordinary partnerships are subject to the same rule. 3 
 
 National Banks. The Act of Congress of July 12, 1882, 4 
 was the first limitation upon the right of national banks to 
 sue in the Federal courts. Prior to that Act, inasmuch as 
 national banks were created by Congress, and could acquire 
 no rights and make no contracts not authorized by the laws 
 of the United States, a suit by or against a national bank was 
 necessarily a suit arising under the laws of the United States, 
 and might be brought in or removed to a Federal court. 5 
 By the Act of 1882, however, it was provided, "That the 
 
 1 Youngstown Coke Co. v. An- International Union, 72 Fed. Rep. 
 drews Bros. Co., 79 Fed. Rep. 669; 695. 
 
 and see cases cited in notes on pages s See Chapter VII. 
 56 and 57, ante. * 22 Stat. 162, 163. 
 
 2 Oxley Stave Co. v. Coopers' 6 Petrie v. Com. Nat. Bank of 
 
 Chicago, 142 U. S. 644. 
 
NATIONAL BANKS. 59 
 
 jurisdiction for suits hereafter brought by or against any 
 association established under any law providing for national 
 banking associations, exeept suits between them and the 
 United States, or its officers and agents, shall be the same as, 
 and not other than, the jurisdiction for suits by or against 
 banks not organized under any law of the United States 
 which do or might do banking business where such national 
 banking associations may be doing business when such suits 
 may be begun ; and all laws and parts of laws of the United 
 States inconsistent with this proviso be and the same are 
 hereby repealed." 
 
 The effect of this Act was that the jurisdiction of the Fed- 
 eral courts over suits by or against national banks could no 
 longer be asserted on the ground of their Federal origin, as 
 they were placed in the same category with banks not organ- 
 ized under the laws of the United States. 1 And so far as the 
 mere source of its incorporation rendered suits in which a 
 national bank might be a party cognizable by the Circuit 
 Courts, that was taken away, but the jurisdiction which 
 those courts might exercise in such suits when arising be- 
 tween citizens of different States, or under the Constitution 
 or laws of the United States, except in that respect, remained 
 unchanged. 2 
 
 By the Act of 1887-88 3 it was provided as follows : — 
 " Section 4. That all national banking associations estab- 
 lished under the laws of the United States shall, for the pur- 
 poses of all actions by or against them, real, personal, or 
 mixed, and all suits in equity, be deemed citizens of the 
 States in which they are respectively located; and in such 
 cases the Circuit and District Courts shall not have jurisdic- 
 tion other than such as they would have in cases between in- 
 dividual citizens of the same State. The provisions of this 
 
 1 Leather Mnf 'rs Bank v. Cooper, s Petrie v. Com. Nat. Bank of 
 120 U. S. 778 ; Whittemore v. Amos- Chicago, 142 IT. S. 644. 
 keag Nat. Bank, 134 U. S. 527. 8 24 Stat. 552, 25 Stat. 433. 
 
60 JURISDICTION OF FEDERAL COURTS. 
 
 section shall not be held to affect the jurisdiction of the 
 courts of the United States in cases commenced by the 
 United States or by direction of any officer thereof, or cases 
 for winding up the affairs of any such bank." 
 
 The language of the statute is somewhat obscure in mean- 
 ing, and it was contended in the Circuit, 1 and later in the 
 Supreme 2 Court that the effect of the statute was to deprive 
 the Federal courts of jurisdiction in suits to which a national 
 bank was a party, where the sole basis of jurisdiction was the 
 diverse citizenship between the bank and the opposing party. 
 A contrary view was taken by both courts, and the effect of 
 the Act stated to be, that while the Federal origin of the 
 bank could not be considered as a ground of jurisdiction 
 in Federal courts, the banks might enter those courts in all 
 cases in which a citizen of the State in which the bank was 
 located might do so. 3 So, a judgment of a Circuit Court 
 of Appeals against a national bank, the jurisdiction being 
 founded upon diverse citizenship, is final and not review- 
 able in the Supreme Court by appeal. 4 
 
 1 First Nat. Bank v. Forest, 40 of Denison, 24 U. S. App. 351, 12 
 Fed. Rep. 705. C. C. A. 75, 64 Fed. Rep. 148 ; 
 
 2 Petvie v. Com. Nat. Bank of Wichita Nat. Bank v. Smith, 36 
 Chicago, 142 U. S. 644. U. S. App. 530, 19 C. C. A. 42, 
 
 8 Burnhara v. First Nat. Bank, 72 Fed. Rep. 568. 
 10 U. S. App. 485, 3 C.C. A. 486, 53 * Ex Parte Jones, 164 U. S. 691. 
 Fed. Rep. 163 ; Danahy y.Nat. Bank 
 
OHIO & MISSISSIPPI K. R. CO. V. "WHEELEB. 61 
 
 CHAPTER IV. 
 
 Corporate Citizenship, Continued. — Corporations Receiving Charters 
 from More than One State. — Consolidation of Corporations. — Cases 
 Reviewed. 
 
 The peculiar nature of the theory under which corporations 
 are considered as entitled to enter the Federal courts has led 
 to much difference of judicial opinion in cases where it ap- 
 peared that a corporation chartered by one State had consoli- 
 dated with a corporation of another State, or had accepted 
 such grants or privileges from such other State as to support 
 the claim that it was a corporation of both States. The vast 
 increase in the magnitude of corporations, particularly rail- 
 road corporations, has resulted in many cases involving these 
 and similar questions, and, as is said in a late case in the 
 Supreme Court, 1 it is no easy task to reconcile the expressions 
 used in the various opinions of that court. 
 
 Generally. Ohio & Mississippi Railroad Co. v. Wheeler. 
 The leading case in this connection is that of Ohio & Missis- 
 sippi Railroad Co. v. Wheeler. 2 This was an action brought 
 in the Circuit Court of the United States for the district of 
 Indiana against Wheeler, a citizen of Indiana, to recover 
 upon the latter's stock subscription. The declaration de- 
 scribed the plaintiffs as "the president and directors of the 
 Ohio and Mississippi Railroad Company, a corporation cre- 
 ated by the laws of the States of Indiana and Ohio, and hav- 
 
 1 St. Louis & San Francisco 3 1 Black, 286. 
 Railway Company v. James, 161 
 U. S. 545. 
 
62 JURISDICTION OP FEDERAL COURTS. 
 
 ing its principal place of business in Cincinnati, in the State 
 of Ohio, a citizen of the State of Ohio," and the defendant 
 pleaded to the jurisdiction of the court, averring that he was 
 a citizen of Indiana, and that the plaintiff was a body politic 
 created by the legislature of the same State. 
 
 In passing upon this issue, which had been brought before 
 the Supreme Court on a certificate of division of opinion be- 
 tween the judges of the Circuit Court, Chief Justice Taney 
 stated the law as follows : " This suit in the corporate name 
 is, in contemplation of law, the suit of the individual persons 
 who compose it, and must, therefore, be regarded and treated 
 as a suit in which citizens of Ohio and Indiana are joined as 
 plaintiffs in an action against a citizen of the last mentioned 
 State. Such an action cannot be maintained in a court of the 
 United States, where jurisdiction of the case depends alto- 
 gether on the citizenship of the parties. And, in such a suit, it 
 can make no difference whether the plaintiffs sue in their own 
 proper names, or by the corporate name and style by which 
 they are described. The averments in the declaration would 
 seem to imply that the plaintiffs claim to have been created a 
 corporate body, and to have been endued with the capacities 
 and faculties it possesses by the co-operating legislation of 
 the two States, and to be one and the same legal being in 
 both States. If this were the case it would not affect the 
 question of jurisdiction in this suit. But such a corporation 
 can have_ no legal existence upon the principles of the com- 
 mon law, or under the decision of this court in the case of 
 Batik of Augusta v. Earle. 1 It is true, that a corporation by 
 the name and style of the plaintiffs appears to have been 
 chartered by the States of Indiana and Ohio, clothed with the 
 same capacities and powers, and intended to accomplish the 
 same objects, and it is spoken of in the laws of the States as 
 one corporate body, exercising the same powers and fulfilling 
 the same duties in both States. Yet it has no legal existence 
 
 1 13 Pet. 519. 
 
EFFECT OF LEGISLATION BY TWO OE MORE STATES. 63 
 
 in either State, except by the law of the State. And neither 
 State could confer on it a corporate existence in the other, 
 nor add to or diminish the powers to be there exercised. 
 It may, indeed, be composed of, and represent, under the 
 corporate name, the same natural persons. But the legal 
 entity or person, which exists by force of law, can have no 
 existence beyond the limits of the State or sovereignty which 
 brings it into life and endues it with its faculties and powers. 
 The president and directors of the Ohio and Mississippi Rail- 
 road Company, is, therefore, a distinct and separate corporate 
 body in Indiana from the corporate body of the same name 
 in Ohio, and they cannot be joined in a suit as one and the 
 same plaintiff, nor maintain a suit in that character against 
 a citizen of Ohio or Indiana in a Circuit Court of the United 
 States." It was accordingly certified that the lower court 
 had no jurisdiction of the action. 
 
 Effect of Legislation by Two or More States. It is stated 
 in Railroad Company v. Harris, 1 that one State may make 
 a corporation of another State, as there organized and con- 
 ducted, a corporation of its own, quo ad hoc any property 
 within its territorial jurisdiction. And in Memphis & Charles- 
 ton Railroad Co. v. Alabama, 2 it was held that this could be 
 
 i 12 "Wall. 65. from the Supreme Court. It ap- 
 
 2 107 U. S. 581. This was an peared from the record that on 
 
 action brought by the State of Ala- January 7, 1850, the legislature 
 
 bama, for the use of a county in of Alabama, passed an Act en- 
 
 that State, against the railroad titled " An Act to incorporate the 
 
 company, to recover the amount Memphis & Charleston Railroad 
 
 of a county tax assessed upon the Company," which Act contained a 
 
 property of the railroad company, preamble reciting, " Whereas an Act 
 
 The suit was removed to the Cir- was passed by the State of Ten- 
 
 cuit Court of the United States nessee bearing date the 2nd day of 
 
 for the district upon the petition February, 1846, and the same was 
 
 of the railroad company, which amended by an Act of the same 
 
 alleged that it was a citizen of State, dated Feb. 4, 1848, for the 
 
 Tennessee. The Circuit Court re- formation of a company, under the 
 
 manded the case and the railroad name and style of the Memphis & 
 
 company obtained a writ of error Charleston Railroad Company, for 
 
64 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 done, the Supreme Court finding, upon the facts shown by 
 the record in that case, that the railroad company, although 
 
 the purpose of establishing a com- 
 munication by railroad between 
 Memphis, Tennessee, and Charles- 
 ton, South Carolina; and whereas 
 it is believed that the most eligible 
 route for said road is through a 
 portion of this State; and whereas 
 it is also believed that great and 
 lasting benefits will accrue to the 
 inhabitants of this State from said 
 improvement : Therefore," 
 
 It then proceeds, in the first sec- 
 tion, to provide that " the said com- 
 pany shall have the right of way 
 through the territory of this State 
 to construct their road " between 
 certain points named, " and said 
 company shall have and enjoy all 
 the rights, powers and privileges 
 granted to them by the Act of in- 
 corporation above mentioned, and 
 shall be subject to all the liabili- 
 ties and restrictions imposed by the 
 same, together with the following 
 requirements." 
 
 The second section provides that 
 " in the event said road shall be 
 located through Tuscumbia, it shall 
 be the duty of the company to con- 
 struct a branch to Florence ; and in 
 the event said road shall pass on 
 the north side of the Tennessee 
 River near Florence, it shall be 
 the duty of said company to con- 
 struct a branch to Tuscumbia : pro- 
 vided, that the subscription in the 
 town or county applying for such 
 branch shall be fully sufficient to 
 pay the cost of the same." The 
 third section provides that "the 
 said company shall be authorized 
 and required to open books for 
 
 the subscription of stock in the 
 capital of said corporation in the 
 State of Alabama, so as to afford 
 the citizens 'thereof an opportunity 
 to take stock to the amount of fif- 
 teen hundred thousand dollars of the 
 capital of said company ; provided, 
 that if said fifteen hundred thou- 
 sand dollars be not subscribed in 
 Alabama within ninety days after 
 the books are opened, then it may 
 be taken elsewhere." The fourth 
 section provides that "the said 
 company shall, at the first meet- 
 ing of the stockholders, designate 
 a time when, and a place or places 
 in north Alabama where, for the 
 convenience of the citizens of the 
 State who may be stockholders, 
 the subsequent election for direc- 
 tors shall be held, and shall give 
 notice thereof in one or more news- 
 papers published in north Alabama ; 
 and said elections shall be held at 
 the same time both in this State 
 and in Tennessee." The fifth sec- 
 tion provides that ' ' the moneys 
 subscribed by the citizens of Ala- 
 bama, whether by the State, coun- 
 ties, corporations or individuals, 
 shall first be applied to the con- 
 struction of the road within the 
 limits of the State of Alabama, 
 and said moneys shall be placed 
 in some safe depository in north 
 Alabama until required for use ; 
 provided, that nothing in this sec- 
 tion shall be so construed as to 
 prevent the company from put- 
 ting under contract the whole road 
 whenever in their estimation a suf- 
 ficient amount of funds shall have 
 
EFFECT OF LEGISLATION BY TWO OB MORE STATES. 65 
 
 originally a corporation of Tennessee, had been adopted by 
 such legislative action in Alabama as to constitute it a sepa- 
 rate corporation of that State. 
 
 been obtained." The seventh sec- 
 tion provided that "the company 
 hereby incorporated shall not locate 
 their road on the track of the Ten- 
 nessee Valley Railroad, nor of any 
 other railroad which has heretofore 
 been chartered by this State, pro- 
 vided companies have been organ- 
 ized under the same, without first 
 procuring the assent by agreement 
 with said companies; but it shall 
 be lawful for the company hereby 
 incorporated to acquire by purchase, 
 gift, release or otherwise, from any 
 other company, all the rights, priv- 
 ileges and immunities of said com- 
 pany, and possess and enjoy the 
 same as fully as they were or could 
 be possessed or enjoyed by the com- 
 pany making the transfer." The 
 eighth and ninth sections provide 
 that " any railroad company now 
 chartered or hereafter to be char- 
 tered in this State shall have the 
 right to connect their road with the 
 road authorized by this Act," and 
 that ' ' nothing contained in this 
 Act shall prevent the State of Ala- 
 bama from levying and collecting 
 such taxes on the property of said 
 company within this State as shall 
 by the General Assembly of the 
 State be assessed on the property 
 of other railroads in this State; nor 
 shall anything therein be construed 
 so as to prevent the chartering and 
 building other railroads in the State 
 coming within any distance what- 
 ever of said road, anything in the 
 said law of Tennessee to the con- 
 
 trary notwithstanding." By a sub- 
 sequent Act it was further provided 
 that if "the subscribers to the 
 capital stock of the Memphis and 
 Charleston Railroad in the State 
 of Alabama, from the failure to 
 obtain the necessary legislation 
 from the States of Tennessee and 
 Mississippi, or from any other 
 cause, deem it expedient to form 
 a separate and independent organ- 
 ization, then and in that event they 
 are hereby vested with full power 
 and authority to do the same ; and 
 said company so organized shall be 
 known by the name and style of 
 the Mississippi and Atlantic Rail- 
 road Company, and shall have 
 and enjoy all the rights, privileges 
 and powers heretofore granted or 
 intended to be granted, and be 
 subject to all the limitations, re- 
 strictions and liabilities heretofore 
 imposed, or intended to be imposed, 
 in the several Acts incorporating 
 the Memphis and Charleston Rail- 
 road Company." Still later an 
 additional Act was passed granting 
 the railroad company a right of 
 way for an extension of its road 
 through the State, and providing 
 that " said right of way is granted 
 upon the same terms, restrictions, 
 liabilities and conditions, that the 
 right of way is granted to said 
 company under the charter granted 
 to said company by the General 
 Assembly of this State, and ap- 
 proved 7th January, 1850." 
 
 Upon this record the Supreme 
 
66 JURISDICTION OF FEDERAL COURTS. 
 
 And in Clark v. Barnard, 1 it was said, Mr. Justice Mat- 
 thews delivering the opinion: "Although as a Connecticut 
 corporation, it may have had no capacity to act or exist in 
 Rhode Island for these purposes, and no capacity by virtue 
 of its Connecticut charter, to accept and exercise any fran- 
 chises not contemplated by it, yet the natural persons, who 
 were corporators, might as well be a corporation in Rhode 
 Island as in Connecticut; and, by accepting charters from 
 both States, could well become a corporate body, by the same 
 name, and acting through the same organization, officers, and 
 agencies, in each, with such faculties in the two jurisdictions 
 as they might severally confer. The same association of 
 natural persons would thus be constituted into two distinct 
 corporate entities in the two States, acting in each accord- 
 ing to the powers locally bestowed, as distinctly as though 
 they had nothing in common either as to name, capital, or 
 membership. Such was in fact the case in regard to this 
 company, so that in Rhode Island it was exclusively a 
 corporation of that State, subject to its laws, and compe- 
 tent to do within its territory whatever its legislation might 
 authorize." 2 
 
 Jurisdiction of Federal Courts in Cases of this Nature. 
 Where the legislative Acts and corporate acceptance are such 
 as to constitute a corporation of one State a corporation of 
 another State, it will be treated, for the purposes of jurisdic- 
 tion of the Federal courts, as to its acts and doings in either 
 State, when there sued, as a citizen of that State. Thus, in 
 Memphis & Charleston Railroad v. Alabama, 3 above referred 
 to, it was said by Mr. Justice Gray : " The defendant, being 
 
 Court found that the intention of l 108 U. S. 436. 
 
 the legislature of Alabama was to 2 See Railroad Co. v. Vance, 96 
 
 create a corporation, and not merely U. S. 450; Stone v. Farmers Co., 
 
 to license the Tennessee corpora- 116 U. S. 307; Graham v. Boston, 
 
 tion to enter Alabama, and the Hartford & Erie B. B. Co., 118 
 
 judgment of the Circuit Court re- U. S. 161. 
 
 manding the case was affirmed. 3 107 U. S. 581. 
 
LEGISLATION NOT AMOUNTING TO INCORPORATION. 67 
 
 a corporation of the State of Alabama, has no existence in 
 this State as a legal entity or person, except under and by 
 force of its incorporation by this State ; and, although also in- 
 corporated in the State of Tennessee, must, as to all its do- 
 ings within the State of Alabama, be considered a citizen cf 
 Alabama, which cannot sue or be sued by another citizen of 
 Alabama in the courts of the United States." So, in Rail- 
 way Co. v. Wliitton, 1 it was said by Mr. Justice Field, "The 
 plaintiff is a citizen of the State of Illinois, and the defend- 
 ant is a corporation created under the laws of Wisconsin. 
 Although a corporation, being an artificial body created by 
 legislative power is not a citizen within several provisions of 
 the Constitution ; yet it has been held, and that must now be 
 regarded as settled law, that, where rights of action are to be 
 enforced, it will be considered as a citizen of the State where 
 it was created, within the clause extending the judicial power 
 of the United States to controversies between citizens of dif- 
 ferent States. The defendant, therefore, must be regarded 
 for the purposes of this action as a citizen of Wisconsin. 
 But it is said, and here the objection to the jurisdiction 
 arises, that the defendant is also a corporation under the laws 
 of Illinois, and, therefore, is also a citizen of the same State 
 with the plaintiff. The answer to this position is obvious. 
 In Wisconsin the laws of Illinois have no operation. The 
 defendant is a corporation, and as such a citizen of Wiscon- 
 sin by the laws of that State. It is not there a corporation 
 or a citizen of any other State. Being there sued, it can 
 only be brought into court as a citizen of that State, what- 
 ever its status or citizenship may be elsewhere." 1 
 
 Legislation not Amounting to Incorporation. On the other 
 hand, a corporation of one State may accept privileges and 
 grants of corporate rights from another State to a very great 
 extent without thereby becoming a corporation of such other 
 State within the meaning of the Federal Constitution as con- 
 
 i 13 Wall. 270. 
 
68 ■ JURISDICTION OF FEDERAL COURTS. 
 
 strued by the Supreme Court in cases involving the right of 
 corporations to sue and be sued in the Federal courts. The 
 rule as formerly laid down was to the effect that it was a 
 question of legislative intent whether the Acts of a legislature 
 of one State for the benefit of a corporation of a second State 
 had the effect of making it a corporation of the second State 
 also, or amounted to a mere license — of greater or less ex- 
 tent as the case might be — to exercise corporate privileges 
 within such State. 1 This doctrine is extended in the later 
 case of Pennsylvania Co. v. St. Louis, &c. B. B. Co., 2 where 
 it is said: "It may not be easy in all such cases to dis- 
 tinguish between the purpose to create a new corporation 
 which shall owe its existence to the law or statute under con- 
 sideration, and the intent to enable the corporation already 
 in existence under laws of another State to exercise its func- 
 tions in the State where it is so received. The latter class of 
 laws are common in authorizing insurance companies, bank- 
 ing companies, and others to do business in other States than 
 those which have chartered them. To make such a company 
 a corporation of another State, the language used must imply 
 creation or adoption in such form as to confer the power usu- 
 ally exercised over corporations by the State, or by the legis- 
 lature, and such allegiance as a State corporation owes to its 
 creator. The mere grant of privileges or powers to it as an 
 existing corporation, without more, does not do this, and 
 does not make it a citizen of the State conferring such pow- 
 ers. In a case where the corporation already exists, even if 
 adopted by the law of another State and invested with full 
 corporate powers, it does not thereby become such new cor- 
 
 1 Blackburn v. Selma, M. & M. 545; Stout v. Sioux City & Pacific 
 
 R. Co., 2 Flip. 525, Fed. Cas. No. R. R. Co., 3 McCrary 1, 8 Fed. Rep. 
 
 1467; Copeland v. Memphis & 794. 
 
 Charleston R. R. Co., 3 Woods, 2 118 U. S. 290; see Goodlett 
 
 615, Fed. Cas. No. 3209; Uphofi v. v. Louisville & Nashville R. R. Co., 
 
 Chicago, &c. R. R. Co., 5 Fed. Rep. 122 N. S. 391. 
 
LEGISLATION NOT AMOUNTING TO INCOEPOBATION. 69 
 
 poration of another State, until it does some act which signi- 
 fies its acceptance of this legislation and its purpose to be 
 governed by it." 
 
 Accordingly it was held, in the case last cited, that a cor- 
 poration of Illinois, chartered by that State to build a rail- 
 road across Illinois from the Mississippi River to the Indiana 
 line, may by permission of the State of Indiana extend its line 
 a few miles into that State, and may operate its entire road 
 as one continuous line, without thereby becoming a corpora- 
 tion of Indiana, even if the legislature of the latter State con- 
 fers upon the corporation such powers to enable it to use and 
 control that part of its line situated in Indiana as the corpora- 
 tion had received from the legislature of Illinois in reference 
 to its line through that State; and a suit brought by the cor- 
 poration in the United States Circuit Court for the District 
 of Indiana against a citizen of Indiana was held within the 
 jurisdiction of that court. 1 Nor does a corporation of Min- 
 nesota become also a corporation of Iowa by filing a copy of 
 its Minnesota charter with the Secretary of State of Iowa, 
 under the provisions of a statute of the latter State providing 
 that a foreign railroad company which did this should be 
 empowered to extend its railroad into Iowa and possess all 
 the powers, franchises, rights, privileges, and liabilities of 
 corporations organized in Iowa ; 2 nor does the grant by the 
 legislature of Tennessee to a corporation of Kentucky of a 
 right of way through Tennessee, the company to have in 
 Tennessee all the rights and privileges, and be subject to all 
 the restrictions and liabilities which it possesses under its 
 Kentucky charter, constitute the company a corporation of 
 Tennessee ; 3 nor does a corporation of one State become a 
 
 1 Pennsylvania Co. v. St. Louis, s Callahan v. Louisville & Nash- 
 &c. R. R. Co., 118 U. S. 290. ville R. R. Co., 11 Fed. Rep. 536. 
 
 2 Chicago, I. & N. P. R. R. Co. See Williams v. Missouri, Kansas 
 v. Minnesota & Northwestern R. R. & Texas Ry. Co., 3 Dill. 267, Fed. 
 Co., 29 Fed. Rep. 337. Cas. No. 17,728. 
 
70 JURISDICTION OF FEDERAL COURTS. 
 
 ■ corporation of another State by leasing the railroad and fran- 
 chises of a corporation of that State, although its legislature 
 passes a confirmatory Act of the lease and authorizing the 
 lessee to hold, use, occupy, and enjoy all of the property, 
 franchises, and powers of the lessor as fully as authorized 
 by the charter of the lessor ; 1 nor by purchasing and oper- 
 ating the lines of a railroad company in another State ; 3 
 nor by purchasing the railroad and franchises of a rail- 
 road company of another State, although the charter of the 
 grantor company provided that in case of a sale of its fran- 
 chises and property to any foreign corporation such pur- 
 chasing corporation should have all the rights and privileges 
 of the grantor. 3 
 
 Same Subject. Rule Stated in a Recent Decision. It is 
 important to note that in a recent case 4 the Supreme Court 
 makes a decided advance over the former decisions of the 
 same court. In the case referred to it is said, " Whatever 
 may be the effect of such legislation, in the way of subjecting 
 foreign railroad companies to control and regulation by the 
 local laws of Arkansas, we cannot concede that it availed to 
 create an Arkansas corporation out of a foreign corporation 
 in such a sense as to make it a citizen of Arkansas within the 
 
 1 Wilkinson v. Delaware, Lack- 545, reversing James v. Same, 46 
 awana & Western R. R. Co., 22 Fed. Rep. 47; Chicago & North- 
 Fed. Rep. 353. -western Ry. v. Chicago & Pacific 
 
 3 Conn v. Chicago, Burlington R. R. Co., 6 Biss. 219, Fed. Cas. 
 
 &QuincyR. R. Co., 48 Fed. Rep. No, 2665; Chicago, Milwaukee & 
 
 177. St. Paul R. R. Co. v. Becker, 32 
 
 8 Morgan et al. v. East Tenn. Fed. Rep. 849; Mark wood v. South- 
 
 & Va. R. R. Co., 48 Fed. Rep. 705. ern Ry. Co., 65 Fed. Rep. 817; 
 
 And see for other cases upon this County Court v. Bait. & Ohio R. 
 
 subject generally, R. R. Co. v. Har- R. Co., 35 Fed. Rep. 161; Chap- 
 
 ris, 12 Wall. 65; R. R. Co. u. man v. Alabama Gt. Southern R. 
 
 Koontz, 104 U. S. 5 ; Marye v. Bait. R. Co., 59 Fed. Rep. 370. See 
 
 & Ohio R. R. Co., 127 U. S. 117; Bait. & Ohio R. R. Co. v. Cary, 
 
 Martina. Bait. & Ohio R. R. Co., 28 Ohio St. Reps. 208. 
 
 151 U. S. 673; St. Louis & San 4 St. Louis and San Francisco 
 
 Francisco Ry. v. James, 161 U. S. Railway v. James, 161 U. S. 545. 
 
LEGISLATION NOT AMOUNTING TO INCORPORATION. 71 
 
 meaning of the Federal Constitution so as to subject it as 
 such to a suit by a citizen of the State of its origin. In 
 order to bring such an artificial body as a corporation within 
 the spirit and letter of that Constitution, as construed by the 
 decisions of this court, it would be necessary to create it 
 out of natural persons, whose citizenship of the State creat- 
 ing it could be imputed to the corporation itself. But it is 
 not pretended in the present case that natural persons, resi- 
 dent in and citizens of Arkansas, were by the legislation 
 in question created a corporation, and that therefore the 
 citizenship of the individual corporators is imputable to the 
 corporation." 
 
 This case arose in the United States Circuit Court for 
 Western District of Arkansas, and was an action by Etta 
 James against the railroad company to recover for the alleged 
 wrongful killing of plaintiff's husband, at a station in Mis- 
 souri. The plaintiff was alleged to be a citizen of Missouri, 
 and the defendant a corporation of Arkansas. By proper 
 pleas the defendant set up that the court was without juris- 
 diction, alleging that defendant was a citizen of Missouri, 
 the same State as the plaintiff, and not a citizen of Arkansas. 
 The case was certified upon this point from the United States 
 Circuit Court of Appeals for the Eighth Circuit. The record 
 showed that the defendant St. Louis & San Francisco Rail- 
 way Company was organized under the laws of Missouri in 
 1876, and soon thereafter became the owner and has ever 
 since owned and operated a line of railroad extending from 
 Monett in that State to the southern boundary of the State. 
 At the time of the accident complained of it also owned and 
 operated the railroad extending from the southern line of 
 Missouri to Fort Smith, Arkansas. This portion had origi- 
 nally been built and owned by Arkansas corporations, but 
 in 1882 the St. Louis & San Francisco Eailway purchased 
 from the Arkansas corporations all their lines of railroad, 
 including all rolling stock, franchises, and other property, 
 
72 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 under an Act of the Arkansas legislature passed in March, 
 1881. 1 
 
 1 The Act was as follows: "That 
 every railroad corporation incorpo- 
 rated under the laws of this State, 
 whose road is wholly or in part 
 constructed and operated, is hereby 
 authorized to sell, lease, or other- 
 wise dispose of the whole or any 
 part of its road, ways, and rights 
 of way, with the franchises thereto 
 belonging, and its other property, 
 to any connecting railroad com- 
 pany, or to any railroad corpora- 
 tion now or hereafter organized 
 under the laws of this or any other 
 State, upon such terms and condi- 
 tions as may be agreed upon by the 
 board of directors of said corpora- 
 tions, and ratified by a two thirds 
 vote of the issued capital stock 
 thereof, and to receive the bonds 
 or stock of the purchasing corpo- 
 ration in whole or in part payment 
 of such purchase, and corporations 
 may be formed for the purpose of 
 purchasing or leasing the whole or 
 any part of any railroad, and such 
 purpose or object shall be stated in 
 articles of association, which shall 
 be executed and filed in the office 
 of the Secretary of State, the same 
 to be as near as may be in accord- 
 ance with Section 4918 of Gantt's 
 Digest. All shares of stock issued 
 in payment of such purchase shall 
 be deemed to be full paid shares, 
 and the number and amount of 
 shares so to be issued shall be 
 stated in the aforesaid articles of 
 association, and said articles shall 
 be otherwise altered, if necessary, 
 so as to conform to the facts." 
 
 Sec. 5 of the same act provided : 
 
 "Any railroad company incorpo- 
 rated by or under the laws of any 
 other State, and having a line of 
 railroad built, or partly built to 
 or near any boundary of this State, 
 and desiring to continue its line of 
 railroad into or through this State, 
 or any branch thereof, may, for the 
 purpose of acquiring the right to 
 build its line of railroad, lease, or 
 purchase, the property rights, priv- 
 ileges, lands, tenements, immuni- 
 ties, and franchises of any railroad 
 company organized under the laws 
 of this State, which said lease or 
 purchase shall carry with it the 
 right of eminent domain held and 
 acquired by said company at the 
 time of lease or sale, and there- 
 after hold, use, maintain, build, 
 construct, own, and operate the said 
 railroad so leased or purchased as 
 fully and to the same extent as the 
 company organized under the laws 
 of this State might or could have 
 done ; and the rights and powers 
 of such company, and its corporate 
 name, may be held and used by 
 such foreign railroad company as 
 will best subserve its purpose, and 
 the building of said line of rail- 
 road ; but before any such lease or 
 sale shall be made, by any com- 
 pany organized under the laws of 
 this State, two-thirds in amount of 
 the capital stock issued shall, at a 
 meeting of the stockholders thereof 
 — of which sixty days notice shall 
 be given in some newspaper pub- 
 lished at the city of Little Kock, 
 and in such other papers pub- 
 lished elsewhere as the president 
 
LEGISLATION NOT AMOUNTING TO INCORPORATION. 73 
 
 On March 13, 1889, the legislature of Arkansas passed an 
 Act 1 under the provisions of which the St. Louis & San Fran- 
 
 and directors of such company may 
 direct — assent thereto ; and any 
 railroad company organized under 
 the laws of any State, and having 
 a line of railroad built, or partly 
 built, to any boundary of this State, 
 and desiring to continue its line of 
 road, or any branch thereof, into 
 or through this State, is hereby au- 
 thorized and empowered so to do, 
 when it shall have acquired by 
 lease or purchase the corporate 
 rights, privileges, and franchises 
 of any railroad corporation in the 
 manner herein provided, formed 
 under the laws of this State, and 
 such railroad company, upon fil- 
 ing a certified copy of its articles 
 of incorporation, or the special Act 
 incorporating the same, shall have, 
 possess, and enjoy all the rights, 
 powers, privileges, franchises, and 
 immunities belonging to railroad 
 corporations formed under the gen- 
 eral laws of this State, which are 
 not in conflict with the Constitu- 
 tion or laws of this State ; but 
 nothing herein contained shall in- 
 terfere with, or abridge the right of 
 any railroad corporation acquired 
 under section 4942 of Gantt's Di- 
 gest. ... In all other matters said 
 foreign railroad company shall be 
 subject to all the provisions of all 
 Acts in relation to railroads, the 
 liabilities and -forfeitures thereby 
 imposed, and may sue and be sued 
 in the same manner as other rail- 
 road corporations, and subject to 
 the same service of process, and 
 shall keep an office or offices in said 
 
 State as is required by section 11 
 of article 12 of the Constitution of 
 this State, and an agent or agents 
 upon whom process may be served, 
 with the like force and effect as is 
 provided for the service of process 
 in section two of this Act." 
 
 1 This Act contained the follow- 
 ing : " Sec. 2. Any railroad com- 
 pany in this State, existing under 
 general or special laws, may sell 
 or lease its road, property, and 
 franchises to any other railroad com- 
 pany duly organized and existing 
 under the laws of any other State 
 or Territory, whose line of railroad 
 shall so connect with the leased or 
 purchased road by bridge, ferry, or 
 otherwise as to practically form a 
 continuous line of railroad, and any 
 railroad company in this State ex- 
 isting under general or special laws 
 may buy or lease, or otherwise ac- 
 quire, any railroad or railroads, 
 with all the property, rights, priv- 
 ileges, and franchises thereto per- 
 taining, or buy the stocks and 
 bonds, or guarantee the bonds of 
 any railroad company or compan- 
 ies incorporated or organized within 
 or without this State whenever the 
 roads of such companies shall form 
 in the operation thereof a continu- 
 ous line or lines: Provided, that 
 before any such lease or sale is 
 valid, it must be approved aDd rat- 
 ified by persons holding or repre- 
 senting two-thirds of the capital 
 stock of each of such companies 
 respectively, at a stockholders' meet- 
 ing called for that purpose ; and any 
 
74 
 
 JURISDICTION OP FEDERAL COURTS. 
 
 cisco Railway Company filed with the Secretary of State of 
 Arkansas a certified copy of its articles of incorporation under 
 
 railroad company existing under the 
 general or special laws of any other 
 State or Territory may buy or lease 
 or otherwise acquire any railroad 
 or railroads, the whole or part of 
 which is in this State, with all 
 the lights, privileges, and franchises 
 thereto pertaining, or buy the stock 
 and bonds, or guarantee the bonds 
 of any railroad company incorpo- 
 rated or organized under the laws 
 of this State, whenever the roads 
 of such companies shall form in the 
 operation thereof a continuous line 
 or Hues : Provided, that the road 
 so purchased shall not be parallel 
 or competing with the purchasing 
 road; and any railroad company 
 existing under the laws of any 
 other State or Territory may ex- 
 tend and construct its railroad into 
 or through this State : Provided 
 further, that any agreement of any 
 company existing under the gen- 
 eral or special laws of this State, 
 or of any other State or Territory, 
 to lease or buy a railroad and ap- 
 purtenances, or to buy the stock 
 or bonds, or guarantee the bonds 
 of any railroad company incorpo- 
 rated and organized within this 
 State, heretofore executed by the 
 proper officers of such companies 
 and ratified by the companies par- 
 ties thereto, by the assent of persons 
 holding two-thirds of the capital 
 stock in each of such companies, 
 expressed at a meeting of such 
 stockholders called for that pur- 
 pose, shall be taken and held to 
 be binding from the date of its 
 
 execution : Provided further, that 
 nothing in the foregoing provi- 
 sions shall be held or construed 
 as curtailing the right of State or 
 counties through which said con- 
 solidated, leased, or purchased road 
 or roads may be located to levy 
 and collect taxes upon the same 
 and the rolling stock thereof, pro 
 rata, in conformity with the provi- 
 sions of the laws of this State 
 upon that subject: Provided fur- 
 ther, that before any railroad cor- 
 poration of any other State or 
 Territory shall be permitted to 
 avail itself of the benefits of this 
 Act, or any part thereof, such cor- 
 poration shall file with the Secre- 
 tary of State of this State a certified 
 copy of its articles of incorporation, 
 if incorporated under a general law 
 of such State or Territory, or a cer- 
 tified copy of the statute laws of 
 such State or Territory incorpo- 
 rating such company, where the 
 charter of such railroad corpora- 
 tion was granted by special statute 
 of such State : and upon the filing 
 of such articles of incorporation or 
 such charter, with a map and pro- 
 file of the proposed line, and pay- 
 ing the fees prescribed by law for 
 railroad charters, such railroad com- 
 pany shall, to all intents and pur- 
 poses, become a railroad corporation 
 of this State, subject to all of the 
 laws of the State now in force or 
 hereafter enacted, the same as if 
 formally incorporated in this State, 
 anything in its articles of incorpo- 
 ration or charter to the contrary 
 
LEGISLATION NOT AMOUNTING TO INCORPORATION. 75 
 
 the laws of Missouri. It appeared that from the time of the 
 purchase of the railroad in Arkansas the connecting lines had 
 been operated as one line from Monett, in Missouri, to Fort 
 Smith, in Arkansas, and that the St. Louis & San Francisco 
 Railway Company owned all of the rolling stock and appur- 
 tenances used on the entire line ; it further appeared that the 
 Arkansas corporations operated no railroads after their sale 
 to the St. Louis & San Francisco Railway Company, although 
 keeping up their organizations as Arkansas corporations. 
 
 In delivering the opinion of the court in this case, Mr. 
 Justice Shiras, after reviewing previous cases, 1 proceeds: 
 
 notwithstanding, and such acts on 
 the part of such corporation shall 
 be conclusive evidence of the intent 
 of such corporation to create and 
 become a domestic corporation ; and 
 provided further, that every rail- 
 road corporation of any other State, 
 which has heretofore leased or pur- 
 chased any railroad in this State, 
 shall, within sixty days from the 
 passage of this act, file a duly cer- 
 tified copy of its articles of incorpo- 
 ration or charter with the Secretary 
 of State of this State, and shall, 
 thereupon, become a corporation of 
 this State, anything in its articles 
 of incorporation or charter to the 
 contrary notwithstanding, and in 
 all suits or proceedings instituted 
 against any such corporation pro- 
 cess may be served upon the agent 
 or agents of such corporation or 
 corporations in this State, in the 
 same manner that process is au- 
 thorized by law to be served upon 
 the agents of railroad corporations 
 in this State organized and existing 
 under the laws of this State. 
 
 " Sec. 3. Any foreign corpo- 
 ration which has heretofore con- 
 
 structed, purchased, leased, or ac- 
 quired or now operates any railroad 
 in this State, shall within sixty 
 days after the passage of this Act 
 comply with the provisions thereof, 
 by filing a copy of its articles of 
 incorporation, or of the special Act 
 of the legislature incorporating such 
 company in the office of the Secre- 
 tary of State of this State, and for 
 every day which any such company 
 shall fail to comply with the pro- 
 visions of this act it shall pay a 
 penalty of one thousand dollars, 
 which penalty may be recovered 
 by the district attorney in a civil 
 action instituted in the proper court 
 in any county through which such 
 railroad or any part thereof so 
 owned, purchased, leased, acquired 
 or operated by such foreign com- 
 pany may be located." 
 
 1 Bank of U. S. o. Deveaux, 5 
 Cr. 61; Louisville, Cincinnati, &c. 
 R. R. Co. v. Letson, 2 How. 497; 
 Marshall v. Bait. & Ohio R. R. Co., 
 16 How. 314 ; Covington Draw- 
 bridge Co. v. Shepherd, 20 How. 
 227; Ohio & Mississippi R. R. Co. 
 v. Wheeler, 1 Black, 286; Memphis 
 
76 JURISDICTION OP FEDERAL COURTS. 
 
 " To fully reconcile all the expressions used in these cases 
 would be no easy task, but we think the following proposi- 
 tions may be fairly deduced from them : There is an indispu- 
 table legal presumption that a State corporation, when sued 
 or suing in a Circuit Court of the United States, is composed 
 of citizens of the State which created it, and hence such a 
 corporation is itself deemed to come within that provision of 
 the Constitution of the United States which confers jurisdic- 
 tion upon the Federal courts in ' controversies between citi- . 
 zens of different States. ' 
 
 " It is competent for a railroad corporation organized under 
 the laws of one State, when authorized so to do by the con- 
 sent of the State which created it, to accept authority from 
 another State to extend its railroad into such State and to 
 receive a grant of powers to own and control, by lease or pur- 
 chase, railroads therein, and to subject itself to such rules 
 and regulations as may be prescribed by the second State. 
 . . . Such corporations may be treated by each of the States 
 whose legislative grants they accept as domestic corporations. 
 The presumption that a corporation is composed of citizens of 
 the State which created it accompanies such corporation when 
 it does business in another State, and it may sue or be sued 
 in the Federal courts in such other State as a citizen of the 
 State of its original creation. 
 
 " We are now asked to extend the doctrine of indisputable 
 citizenship, so that if a corporation of one State, indisputably 
 taken, for the purpose of Federal jurisdiction, to be com- 
 posed of citizens of such State, is authorized by the law of 
 another State to do business therein, and to be endowed, for 
 local purposes, with all the powers and privileges of a domes- 
 tic corporation, such adopted corporation shall be deemed to 
 be composed of citizens of the second State, in such a sense 
 
 & Charleston R. R. Co. v. Alabama, 118 U. S. 290; Kashua & Lowell 
 
 107 U. S. 581; Railway Company Railroad v. Boston & Lowell Rail- 
 
 v. Whitton, 13 Wall. 270; Pennsyl- road, 136 U. S. 356. 
 vania Co. v. St. Louis, &c. R. R. Co., 
 
LEGISLATION NOT AMOUNTING TO INCORPORATION. 77 
 
 as to confer jurisdiction on the Federal courts at the suit of 
 a citizen of the State of its original creation. 
 
 " We are unwilling to sanction such an extension of a doc- 
 trine, which as heretofore established, went to the very verge 
 of judicial power. That doctrine began, as we have seen, in 
 the assumption that State corporations were composed of citi- 
 zens of the State which created them ; but such assumption 
 was one of fact, and was the subject of allegation and trav- 
 erse, and thus the jurisdiction of the Federal courts might 
 be defeated. Then, after a long contest in this court, it was 
 settled that the presumption of citizenship is one of law, not 
 to be defeated by allegation or evidence to the contrary. 
 There we are content to leave it. 
 
 "It should be observed that, in the present case, the cor- 
 poration defendant was not incorporated as such by the State 
 of Arkansas. The legislation of that State was professedly 
 dealing with the railroad corporations of other States. The 
 Constitution of Arkansas provides that k foreign corporations 
 may be authorized to do business in this State under such 
 limitations and restrictions as may be prescribed by law, ' but 
 ' they shall not have power to condemn or appropriate private 
 property. ' 
 
 " Section 5 of the Act of March 16, 1881, as shown in the 
 preliminary statement, provides that 'any railroad company 
 incorporated by or under the laws of any .other State, and 
 having a line of railroad built, or partly built, to or near any 
 boundary of this State, and desiring to continue its line of 
 railroad into or through this State, or any branch thereof, 
 may, for the purpose of acquiring the right to build its line 
 of railroad, lease or purchase the property, rights, privileges, 
 lands, tenements, immunities and franchises of any railroad 
 company organized under the laws of this State, which said 
 lease or purchase shall carry with it the right of eminent 
 domain held and acquired by said company at the time of 
 lease or sale, and thereafter hold, use, maintain, build, con- 
 
78 JURISDICTION OE FEDERAL COURTS. 
 
 Struct, own and operate the said railroad so leased or pur- 
 chased as fully and to the same extent as the company 
 organized under the laws of this State might or could have 
 done; and the rights and powers of such company, and its 
 corporate name, may be held and used by such foreign rail- 
 road company as will best subserve its purpose and the build- 
 ing of said line of railroad. ... In all other matters said 
 foreign railroad company shall be subject to all the provisions 
 of all Acts in relation to railroads, the liabilities and forfeit- 
 ures thereby imposed, and may sue and be sued in the same 
 manner as other railroad corporations, and subject to the same 
 service of process, and shall keep an office or offices in said 
 State as required by the Constitution of this State. ' It was 
 under the provisions of this section that the St. Louis & San 
 Francisco Railway Company, in 1882, purchased from corpo- 
 rations of Arkansas, the railroad already built by them ex- 
 tending from the southern boundary of Missouri to Fort 
 Smith in Arkansas. These Arkansas corporations have since 
 maintained their separate organizations as corporations of that 
 State, but do not operate railroads. It is, therefore, obvious 
 that such purchase by the Missouri corporation of the rail- 
 road and franchises of the Arkansas companies did not con- 
 vert it into an Arkansas corporation. The terms of the 
 statute show that it merely granted rights and powers to an 
 existing foreign corporation, which was to continue to exist 
 as such, subject only to certain conditions — among others 
 that of keeping an office in the State, so as to be subject to 
 process of the Arkansas courts. 
 
 "It is true that by the subsequent Act of 1889, by the pro- 
 viso to the second section, it was provided that every railroad 
 corporation of any other State, which had theretofore leased 
 or purchased any railroad in Arkansas, should, within sixty 
 days from the passage of the act, file a certified copy of its 
 articles of incorporation or charter with the Secretary of State, 
 and shall thereupon become a corporation of Arkansas, any- 
 
CONSOLIDATION OP CORPORATIONS. 79 
 
 thing in its articles of incorporation or charter to the contrary 
 notwithstanding ; and it appears that the defendant company 
 did accordingly file a copy of its articles of incorporation with 
 the secretary of the State. But whatever may be the effect 
 of such legislation in the way of subjecting foreign railroad 
 companies to control and regulation by the local laws of 
 Arkansas, we cannot concede that it availed to create an 
 Arkansas corporation out of a foreign corporation in such a 
 sense as to make it a citizen of Arkansas within the mean- 
 ing of the Federal Constitution so as to subject it as such 
 to a suit by a citizen of the State of its origin. In order 
 to bring such an artificial body as a corporation within the 
 spirit and letter of that Constitution, as construed by the 
 decisions of this court, it would be necessary to create it 
 out of natural persons, whose citizenship of the State creat- 
 ing it could be imputed to the corporation itself. But it 
 is not pretended in the present case that natural persons, 
 resident in and citizens of Arkansas, were by the legislation 
 in question created a corporation, and that therefore the 
 citizenship of the individual corporators is imputable to 
 the corporation." 
 
 Consolidation of Corporations Chartered by Different States. 
 Although opposed to a dictum of the Supreme Court in Bail- 
 road Company v. Harris, 1 it is now well settled that two 
 States cannot join in creating a single corporation. This is 
 well expressed by Judge Thayer in a recent opinion in the 
 Circuit Court of Appeals for the Eighth Circuit, where it is 
 said: "At this day it must be regarded as settled beyond 
 doubt or controversy that two States of this Union cannot by 
 their joint action create a corporation which will be regarded 
 as a single corporate entity, and, for jurisdictional purposes, 
 
 1 12 Wall. 65 ; the language is: corporation or in combining several 
 
 "We see no reason why several pre-existing corporations into a 
 
 States cannot, by competent legisla- single one." 
 tion, unite in creating the same 
 
80 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 a citizen of each State which joined in creating it. One 
 State may create a corporation of a given name, and the legis- 
 lature of an adjoining State may declare that the same legal 
 entity shall be or become a corporation of that State as well, 
 and be entitled to exercise within its borders, by the same 
 board of directors and officers, all of its corporate functions. 
 Nevertheless, the result of such legislation is not to create a 
 single corporation, but two corporations of the same name, 
 having a different paternity." 1 
 
 Certainly the logic of the situation is found in Ohio & Mis- 
 sissippi Railroad Co. v. Wheeler, and not in the Harris case ; 
 in any view of our system of separate States, it is opposed to 
 
 1 Mo. Pac. Ey. Co. v. Meeh, 69 
 Fed. Rep. 753, 32 U. S. App. 691, 
 16 C. C. A. 510. See Chicago & 
 Northwestern R. R. Co. v. The 
 Auditor General, 53 Mieh. 79, 
 where it is said, Chief Justice 
 Cooley delivering the opinion: "It 
 is impossible to conceive of one joint 
 act, performed simultaneously by 
 two sovereign States, which shall 
 bring a single corporation into being, 
 except it be by compact or treaty. 
 There maybe separate consent given 
 for the consolidation of corporations 
 separately created; but when the two 
 unite they severally bring to the 
 new entity the powers and privileges 
 already possessed, and the consoli- 
 dated company simply exercises 
 in each jurisdiction the powers 
 the corporation there chartered had 
 possessed, and succeeds there to its 
 privileges." In The Quincy Rail- 
 road Bridge Company v. The County 
 of Adams, 88 111. 615, Justice Breese, 
 speaking of a corporation that had 
 been incorporated both by the States 
 of Illinois and Missouri, held as 
 follows : " The States of Illinois 
 
 and Missouri have no power to unite 
 in passing any legislative act. It 
 is impossible, in the very nature of 
 their organizations, that they can do 
 so. They cannot so fuse themselves 
 into a single sovereignty, and as such 
 create a body politic which shall be 
 a corporation of the two States, 
 without being a corporation of each 
 State or of either State. As argued 
 by appellee, the only possible status 
 of a company acting under charters 
 from two States is, that it is an 
 association incorporated in and by 
 each of the States, and when acting 
 as a corporation in either of the 
 States, it acts under the authority 
 of the charter of the State in which 
 it is then acting, and that only, the 
 legislation of the other State having 
 no operation beyond its territorial 
 limits. We do not, and cannot, 
 understand that appellant derives 
 any of its corporate powers from 
 the legislature of the State of Mis- 
 souri, but wholly and entirely 
 derived them from the ' General 
 Assembly of this State." 
 
CONSOLIDATION OF CORPORATIONS. 81 
 
 every fundamental principle to imagine such a co-ordinate 
 legislative act as would result in the creation of one corporate 
 entity. However misleading the fact of the single name in 
 both States, the single objective purpose, or the community 
 of interest, may be, the fact must remain that in legal effect 
 there is a distinct corporate entity in each State, owing its 
 paternity to that State alone. To adopt the language of the 
 court in Ohio & Mississippi Railroad Co. v. Wheeler, the 
 " President and Board of Directors of the Ohio & Mississippi 
 Railroad Company, is, therefore, a distinct and separate cor- 
 porate body in Indiana from the corporate body of the same 
 name in Ohio." 
 
 It results from this that the consolidation of corporations 
 of two different States, although sanctioned by legislative au- 
 thority in each State, however operative to create such an 
 identity as to make prima facie a single corporation owing 
 its existence to the joint legislative action of the two States, 
 leaves the status of each corporation as it was before, so far 
 as the legal fiction of corporate citizenship is indulged in 
 when suing or being sued in the Federal courts. Each en- 
 tity remains a citizen, judicially, of the State which created 
 it. This is well expressed by Judge Caldwell, in a case at 
 the circuit, where it was said, referring to an averment in a 
 petition for removal, that the defendant, the Missouri Pacific 
 Railway Company, was formed by the consolidation of corpo- 
 rations of Missouri, Kansas, and Nebraska : " This makes the 
 consolidated company, for all -purposes of jurisdiction in the 
 Federal courts, a citizen of each of those States. Although 
 it bears the same name in the three States, has one board of 
 directors, and the same shareholders, and operates the road as 
 one entire line, and is designed to accomplish the same pur- 
 poses, and exercises the same general corporate powers and 
 functions in all of the States, it is not the same corporation 
 in each State, but a distinct and separate entity in each. It 
 is a corporate trinity, having no citizenship of its own distinct 
 
 6 
 
82 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 from its constituent members, but a citizenship identical with 
 each. By the consolidation the corporation of one State did 
 not become a corporation of another, nor was either merged 
 in the other. The corporation of each State had a distinct 
 legislative paternity, and the separate identity of each as a 
 corporation of the State by which it was created, and as a 
 citizen of that State, was not lost by the consolidation. Nor 
 could the consolidated company become a corporation of three 
 States without being a corporation of each or of either. 
 While the consolidated corporation is a unit, and acts as a 
 whole in the transaction of its corporate business, it is not a 
 corporation at large, nor is it a joint corporation of the three 
 States." 1 
 
 The theories heretofore discussed are carried to their ex- 
 treme limit in Nashua and Lowell Railroad, v. Boston and 
 Lowell Railroad, 2 where it is said: "There are many decisions 
 
 1 Fitzgerald v. Mo. Pac. Ry. Co., 
 45 Fed. Eep. 812. 
 
 2 136 U. S. 356, citing Farnum 
 v. Blackstone Canal Co., 1 Sumn. 46, 
 ■where it appeared that in January, 
 1823, the legislature of Massachu- 
 setts created a corporation by the 
 name of the Blackstone Canal Com- 
 pany, for the purpose of construct- 
 ing a canal in that State. It also 
 appeared that in June, 1823, the 
 legislature of Rhode Island incor- 
 porated a company by the same 
 name, and authorized it to con- 
 struct a canal within the limits of 
 that State. In May, 1827, the 
 legislature of Rhode Island de- 
 clared that the stockholders in the 
 Massachusetts Company should be 
 stockholders in the Rhode Island 
 Company as if they had originally 
 subscribed thereto, if both corpora- 
 tions should agree thereto, and that 
 the books and proceedings of the 
 
 original and associated stockholders 
 should be deemed the books of both. 
 The court held that, though the 
 two corporations were created in 
 adjacent States by the same name, 
 to construct a canal in each of the 
 States, respectively, and afterwards 
 by subsequent Acts were permitted 
 to unite their interests, their separate 
 corporate existence was not merged, 
 and that the legislation only created 
 a unity of stock and interest. Story, 
 Justice : " Although in virtue of 
 these several Acts, the corporations 
 acquired a unity of interests, it by 
 no means follows that they ceased to 
 exist as distinct and different corpo- 
 rations. Their powers, their rights, 
 their privileges, their duties, re- 
 mained distinct and several, as be- 
 fore, according to their respective 
 Acts of incorporation. Neither could 
 exercise the rights, powers or privi- 
 leges conferred on the other. There 
 
CONSOLIDATION OF COKPORATIONS. 83 
 
 both of the Federal and State courts which establish the rule 
 that however closely two corporations of different States may- 
 unite their interests, and though even the stockholders of the 
 one may become the stockholders of the other and their busi- 
 ness be conducted by the same directors, the separate identity 
 of each, as a corporation of the State by which it was created, 
 and as a citizen of that State, is not thereby lost." 
 
 In this case it appeared that in 1835 the State of New 
 Hampshire incorporated seven persons as the Nashua and 
 Lowell Railroad Corporation with power to construct a rail- 
 road from Nashua to the boundary line of Massachusetts. 
 The State of Massachusetts in 1836 incorporated three of the 
 seven persons as the Nashua and Lowell Railroad Corpora- 
 tion with power to construct a railroad from Lowell, Mass., 
 to a junction with the road of the New Hampshire corpora- 
 tion. In 1838 the State of Massachusetts enacted that the 
 stockholders of the New Hampshire company were thereby 
 constituted stockholders of the Massachusetts company, and 
 that the two corporations were thereby united in one corpora- 
 tion of the same name, the Act to take effect when the legis- 
 lature of New Hampshire shotild pass a similar Act, and the 
 stockholders of both corporations should have accepted the 
 Acts of both States. The legislature of New Hampshire sub- 
 sequently enacted that the said corporations were empowered 
 to unite, and that after the union their property should be 
 the joint property of the stockholders of the two corporations. 
 It did not appear that any official acceptance of the Acts was 
 made by the stockholders as such, but a common stock was 
 
 was no corporate identity. Neither the sphere of their respective charters 
 
 was merged in the other. If it were for purposes of common interest, 
 
 otherwise, which became merged ? and hot as a case where all the 
 
 The Acts of incorporation create no powers of both were concentrated in 
 
 merger, and neither is pointed out one. The union was of interests 
 
 as survivor or successor. We must and stocks, and not a surrender of 
 
 treat the case, then, as one of personal identity or corporate exist- 
 
 distinct corporations, acting within ence by either corporation." 
 
84 JURISDICTION OE FEDERAL COURTS. 
 
 issued for the whole road, and for forty-five years the entire 
 property was under the management of one board of directors, 
 and the profits were divided as if there were but a single cor- 
 poration. Upon this state of affairs it was held that the 
 corporations did not lose their corporate identity, and that 
 the Nashua and Lowell Railroad Corporation, as a corpora- 
 tion of New Hampshire, might sue a Massachusetts corpora- 
 tion in the United States Circuit Court for the District of 
 Massachusetts. 
 
 Applying the principle of these cases, the rule may be gen- 
 erally stated that when a corporation made up of a consolida- 
 tion of corporations created by the laws of several States, is 
 sued in either one of those States, it must, for all purposes 
 of jurisdiction of Federal courts, be considered as a citizen 
 of that State alone, regardless of the effect of the legislation 
 of other States. 1 Thus, in a suit brought in a State court of 
 Illinois, by a corporation of that State, against a corporation 
 made up of a consolidation of an Illinois corporation with 
 corporations of Michigan, Ohio, and other States, the defend- 
 ant cannot remove the case to the Federal court because of 
 the fact that it is a corporation of the States other than Illi- 
 nois. 2 So a railroad company formed by consolidation Acts of 
 Kentucky and two other States, when sued in Kentucky by a 
 citizen of that State, cannot remove the cause to the Federal 
 court for the district on the ground of its incorporation under 
 the laws of the other States ; 3 and a citizen of Indiana cannot 
 maintain a suit based upon diverse citizenship in the Federal 
 
 i Muller v. Dows, 94 U. S. 444 ; * Chicago & W. I. R. R. Co. v. 
 
 Nashua & Lowell Railroad v. Boston Lake Shore & M. S. Ry. Co., 5 Fed. 
 
 & Lowell Railroad, 136 U. S. 356 ; Rep. 19; Paul v. B. & O. R. R. Co., 
 
 Cen. Trust Co. v. St. L. A. & T. Ry. 44 Fed. Rep. 513. 
 
 Co. , 41 Fed. Rep. 551 ; Missouri 8 Uphofi v. Chicago, St. Louis & 
 
 Pacific Ky. Co. v. Meeh, 69 Fed. N. O. R. R, 5 Fed. Rep. 545. See 
 
 Rep. 753, 32 U. S. App. 691, 16 C. Johnson v. P. W. & B. R. R. Co., 
 
 C. A. 510. 9 Fed. Rep. 6 ; Home v. B. & M. R. 
 
 R. Co., 18 Fed. Rep. 50. 
 
CONSOLIDATION OF CORPORATIONS. 85 
 
 court for the district of Indiana against a corporation formed 
 by the consolidation of an Indiana with a Michigan corpora- 
 tion, although the cause of action arose in Michigan. * 
 
 1 Burger v. Grand Rapids & 39 Fed. Rep. 227; Williamson v. 
 Indiana R. R Co., 22 Fed. Rep. Krohn, 66 Fed. Rep. 555, 31 U. S. 
 561. See Union Trust Co. v. App. 325, 13 C. C. A. 668; Louis- 
 Rochester & Pittsburgh R. R. Co., ville Trust Co. v. Louisville, &c. 
 29 Fed. Rep. 609 ; Cohn u. Louisville, R. R. Co., 75 Fed. Rep. 433, 43 
 New Orleans & Texas R. R. Co., U. S. App. 550, 22 C. C. A. 378. 
 
JURISDICTION OF FEDERAL COURTS. 
 
 CHAPTER V. 
 
 Change of Citizenship in order to Confer Jurisdiction upon a Federal 
 Court. — Transfers of Property with a like Object. — Effect of Motive 
 Actuating Parties in such Cases. — The Cases Reviewed. — Change 
 after Suit Brought. 
 
 The desire to bring a cause within the jurisdiction of a 
 Federal court has in many cases led prospective suitors to 
 change their domicile in order to bring about the necessary 
 diversity of citizenship to enable a Federal court to take 
 jurisdiction of the cause of action. The comparative ease 
 with which a citizen of one State can change his domicile 
 and thus become a citizen of another State, makes it a matter 
 of but little difficulty for an intending suitor to bring a suit 
 in a Federal court. It was at first thought that in such a 
 case, if it appeared that the change of domicile, even if in 
 fact accomplished, was for the express purpose of enabling 
 the party to bring suit in a Federal court, then such motive 
 ought to be considered by the court as fraudulently affecting 
 the suitor's claim for the exercise of its jurisdiction, and the 
 cause dismissed for that reason. 
 
 General Rule. But this view was early repudiated both at 
 the circuit and by the Supreme Court. The rule was then 
 adopted which is the law to-day; that is, that while the in- 
 tent may be considered upon the issue of whether or not a 
 change of domicile is bona fide accomplished, it cannot be 
 considered when the actual change of citizenship has taken 
 place. In other words, a party has the undoubted right to 
 change his citizenship from one State to another, although he 
 does so for the express purpose of qualifying himself to bring 
 a suit in a Federal court upon the ground of diverse citizen- 
 
TRANSFERS OF PROPERTY. 87 
 
 ship. His motive in so doing may aid the court in deter- 
 mining whether his removal is to be temporary or permanent, 
 but cannot affect his right to bring his suit in a Federal 
 court founded upon his citizenship in the State of his new 
 abode. 1 "I do not say, that we can inquire into the motives 
 for the change," says Justice Story, "or the reasons, which 
 influence a man to remove from one State to another. Be 
 these motives or reasons what they may, there must still be a 
 bona fide intention of removal, and a real change of domicile. 
 If a person, wishing to commence suits in the courts of the 
 United States, instead of the State courts, chooses to remove 
 into another State, and executes such intention bona fide, he 
 may thereby change his citizenship. But his removal must 
 be a real one, animo manendi, and not merely ostensible." 2 
 
 Transfers of Property. Of a similar nature is that class of 
 cases in which a transfer of property has been made from a 
 citizen of one State to a citizen of another State, and it is 
 contemplated by the parties that the new owner may enter 
 the Federal courts to litigate questions affecting the prop- 
 erty, although the former owner could not have done so. 
 
 In such a case, upon like reasoning with the cases cited in 
 the previous paragraph, the whole question is whether or not 
 the transfer has been actually made, without the grantor or 
 vendor reserving or having any right or power to compel or 
 require a reconveyance. The motive actuating the parties 
 may be considered in this class of cases, as in the cases of 
 change of citizenship, but only for the purpose of determin- 
 ing whether or not the change of ownership is complete. If 
 it is, then the motive with which it is done is immaterial. 3 
 
 Motive of Parties in Such Cases. This is well expressed 
 in the late case of Lehigh Mining & Manufacturing Co. v. 
 
 1 Robertson v. Carson, 19 Wall. 2 Case v. Clark, 5 Mason 70, 
 
 94; Cooper v. Galbraith, 3 Wash. Fed. Cas. No. 2490. 
 
 C. C. 546, Fed. Cas. No. 3193 ; 8 Crawford v. Neal, 144 U. S. 
 
 Morris v. Gilmer, 129 U. S. 315. 585; Cross v. Allen, 141 U. S. 528. 
 
88 JURISDICTION OP FEDERAL COURTS. 
 
 Kelly, 1 a decision which reviews the leading- cases on the 
 subject. " All of them concur in holding that the privilege 
 of a grantee or purchaser of property, being a citizen of 
 one of the States, to invoke the jurisdiction of a Circuit 
 Court of the United States for the protection of his rights as 
 against a citizen of another State . . . cannot be affected or 
 impaired merely because of the motive that induced his grantor 
 to convey, or his vendor to sell and deliver, the property, 
 provided such conveyance or such sale and delivery was a 
 real transaction by which the title passed without the grantor 
 or vendor reserving or having any right or power to compel 
 or require a reconveyance or return to him of the property in 
 question." So in a case at the circuit, 2 it was said: "Where 
 there is an actual change of residence and citizenship before 
 suit brought, the motive of such change is not material, 
 even if it was a desire to give capacity to sue in the courts of 
 the United States." 
 
 In all of these cases, both as to transfers of property to 
 enable the grantee to bring suit in a Federal court, and as to 
 change of domicile so as to bring about the necessary diver- 
 sity of citizenship to give a Federal court jurisdiction, the 
 same principle may be observed. It would be beyond the 
 proper limits of this work to take up in detail many of the 
 cases of transfers of property and change of citizenship for the 
 purpose of giving a Federal court jurisdiction; a few, how- 
 ever, will be cited, in order to trace the general principle. 
 
 Early Cases. The earliest case in the Supreme Court is that 
 of McDonald v. Smalley. 3 This was a suit in equity in the 
 Circuit Court of the United States for the District of Ohio 
 to obtain a conveyance of a tract of land situated in that 
 State. It appeared that one McArthur, owning the lands, 
 was apprehensive that his title could not be sustained in the 
 
 1 160 U. S. 327. Co., 12 Blatohf. 280, Fed. Cas^No. 
 
 2 Pond v. Vermont Valley K. R. 11,265. 
 
 8 1 Peters 620. 
 
EARLY CASES. 89 
 
 courts of Ohio, of which State he was a citizen. McArthur 
 was indebted to McDonald, who was a citizen of Alabama, in 
 the sum of $1,100, and offered to sell and convey to him the 
 land in controversy in payment of this debt. The letter in 
 which McArthur made this offer expressed the opinion that 
 his title was good, and would probably be established in the 
 courts of the United States but would fail in the State courts, 
 and although McArthur estimated the property as being 
 worth much more than the amount named, yet in conse- 
 quence of the difficulties attending the title he was willing 
 to convey it in satisfaction of the debt. He suggested that if 
 McDonald should be disinclined to engage in the controversy 
 himself, he might make an advantageous sale to some of his 
 neighbors who might be disposed to emigrate to Ohio, and 
 offered to render any service in his power to the proprietor of 
 the land in the prosecution of the claim in a United States 
 Court. McDonald accepted the proposition and received a 
 deed to the property, and subsequently gave his bond to a 
 third party to make a quitclaim deed to the land upon the 
 payment of $1,100. 
 
 "This testimony," says Chief Justice Marshall, "shows, we 
 think, a sale and conveyance to the plaintiff which was bind- 
 ing on both parties. McDonald could not have maintained 
 an action for his debt, nor McArthur a suit for his land. 
 His title was extinguished, and the consideration was re- 
 ceived. The motives which induced him to make the con- 
 tract, whether justifiable or censurable, can have no influence 
 on its validity. They were such as had sufficient influence 
 with himself, and he had a right to act upon them. A court 
 cannot enter into them when deciding on its jurisdiction. 
 The conveyance appears to be a real transaction, and the real 
 as well as nominal parties to the suit are citizens of different 
 States." 
 
 And in Barney v. Baltimore, 1 there was a suit in equity in 
 
 i 6 Wall. 280. 
 
90 JURISDICTION OF FEDERAL COURTS. 
 
 the Circuit Court of the United States for Maryland having 
 for its object a partition of real estate and an account of 
 rents and profits, and it appeared that certain of the joint 
 owners, citizens of the District of Columbia, had conveyed 
 their interest in the property to a citizen of Maryland. It 
 was admitted that the conveyance was made for the purpose 
 of conferring jurisdiction, was without consideration, and 
 that their grantee, on request, would reconvey to the gran- 
 tors. The Supreme Court said: "If the conveyance by the 
 Ridgelys of the District to S. C. Eidgely of Maryland 
 had really transferred the interest of the former to the latter, 
 although made for the avowed purpose of enabling the court 
 to entertain jurisdiction of the case, it would have accom- 
 plished that purpose. McDonald v. Smalley, and several 
 cases since, have well established this rule." 
 
 So, in Smith v. Kemochen, 1 the Supreme Court said: "The 
 true and only ground of objection in all these cases is that 
 the assignor, or grantor, as the case may be, is the real party 
 in the suit, and the plaintiff on the record but nominal and 
 colorable, his name being used merely for the purpose of 
 jurisdiction. The suit is then in fact a controversy between 
 the former and the defendants, notwithstanding the con- 
 veyance." 
 
 Colorable Transfers. But where the transaction is colorable 
 or collusive, the court will dismiss the case for want of juris- 
 diction, if its jurisdiction be founded upon it. This was done 
 in Jones v. League,* where there were two devices to give 
 jurisdiction, both of which the court found to be fraudulent. 
 In that case the plaintiff, League, claimed to be a citizen of 
 Maryland and brought ejectment to try title to land which 
 he claimed under a deed from one Power, a citizen of 
 Texas. 
 
 1 7 How. 198; see Marion v. Tucker et al, 10 Fed. Rep. 8S4; 
 Ellis, 10 Fed. Rep. 410. Coffin v. Haggin, 11 Fed. Rep. 219; 
 
 2 18 How. 76 ; Greenwalt v. McLean v. Clark, 31 Fed. Rep. 501. 
 
LEHIGH MINING & MANUFACTURING CO. V. KELLY. 91 
 
 The defendants were citizens of Texas, and the suit 
 was brought in the Federal court for the District of Texas, 
 where the land was situated. The Supreme Court, in 
 reversing the case for want of jurisdiction in the lower 
 court, said: "In this case jurisdiction is claimed by the 
 citizenship of the parties. The plaintiff avers that he is 
 a citizen of Maryland, and that the defendants are citizens 
 of Texas. In one of the pleas, it is averred that the plain- 
 tiff lived in Texas twelve years and upwards, and that, for 
 the purpose of bringing this suit he went to the State of 
 Maryland, and was absent from Texas about four months. 
 The change of citizenship, even for the purpose of bringing a 
 suit in the Federal court, must be with the bona fide intention 
 of becoming a citizen of the State to which the party removes. 
 Nothing short of this can give him a right to sue in the Fed- 
 eral courts, held in the State from whence he removed. If 
 League was not a citizen of Maryland, his short absence in 
 that State without a bona fide intention of changing his citi- 
 zenship, could give him no right to prosecute this suit. But 
 it very clearly appears from the deed of conveyance to the 
 plaintiff, by Power, that it was only colorable, as the suit was 
 to be prosecuted for the benefit of the grantor, and the one- 
 third of the lands to be received by the plaintiff was in con- 
 sideration that he should pay one-third of the costs, and 
 superintend the prosecution of the suit. The owner of a 
 tract of land may convey it in order that the title may be 
 tried in the Federal courts, but the conveyance must be made 
 bona fide, so that the prosecution of the suit shall not be for 
 his benefit." 
 
 Lehigh Mining & Manufacturing Co. v. Kelly. 1 In this case 
 the plaintiff in error brought an action in the Circuit Court 
 of the United States for the Western District of Virginia 
 against the defendants in error, to recover the possession of 
 certain lands. The defendants pleaded not guilty of the 
 
 i 160 U. S. 327. 
 
92 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 trespass, and also two pleas, 1 upon which plaintiff took 
 issue. 
 
 The cause was submitted by the parties upon the two pleas 
 and upon a general replication to each plea, as well as upon 
 an agreed statement of facts, as follows: 1. That the land in 
 
 1 The first plea was that "the 
 Virginia Coal and Iron Company is 
 a corporation organized and existing 
 under the laws of Virginia ; that as 
 such it has been for the last ten 
 years claiming title to the lands of 
 the defendant, J. J. Kelly, Jr., 
 described in the declaration in this 
 ease, and said defendants say that, 
 for the purpose of fraudulently 
 imposing on the jurisdiction of this 
 coui't, said Virginia Coal and Iron 
 Company has during the year 1893 
 attempted to organize, form and 
 create under the laws of the State 
 of Pennsylvania a corporation out 
 of its (the Virginia Coal and Iron 
 Company's) own members, stock- 
 holders, and officers, to whom it has 
 fraudulently and collusively con- 
 veyed the land in the declaration 
 mentioned for the purpose of ena- 
 bling this plaintiff to institute this 
 suit in this United States court, 
 and said defendants say that said 
 Lehigh Mining and Manufacturing 
 Company is simply another name 
 for the Virginia Coal and Iron Com- 
 pany, composed of the same parties 
 and organized alone for the purpose 
 of giving jurisdiction of this case on 
 [to] this court ; wherefore defendants 
 say that this suit is in fraud of the 
 jurisdiction of this court and should 
 be abated." 
 
 The second plea was that " said 
 plaintiff should not further have or 
 
 maintain said suit against them, 
 because they say there was no such 
 legally organized corporation as the 
 plaintiff company at the date of the 
 institution of this suit, and they say 
 that the real and substantial plain- 
 tiff in this suit is the Virginia Coal 
 and Iron Company, which is a 
 corporation organized and existing 
 under the laws of Virginia and a 
 citizen of Virginia. And said 
 defendants further say that said 
 Virginia Coal and Iron Company, 
 for the purpose and with the view 
 of instituting and prosecuting this 
 suit in the United States Court and 
 of conferring an apparent jurisdic- 
 tion on said court, did, by pre- 
 arrangement, fraud, and collusion, 
 attempt to organize said Lehigh 
 Mining and Manufacturing Com- 
 pany as a corporation of a foreign 
 State, to take and hold the land in 
 the declaration mentioned, for the 
 purpose of giving this court juris- 
 diction of said suit; wherefore de- 
 fendants say that the said plaintiff 
 has wrongfully and fraudulently im- 
 posed itself on the jurisdiction of 
 this court, has abused its process, 
 and wrongfully impleaded these 
 defendants in this court. Where- 
 fore they pray judgment, etc., that 
 this suit be abated and dismissed, 
 as brought in fraud of this court's 
 jurisdiction." 
 
LEHIGH MINING & MANUFACTURING CO. V. KELLY. 93 
 
 controversy in this case was, prior to March 1, 1893, claimed 
 by the Virginia Coal and Iron Company, and had been 
 claimed by said last-named company for some twelve years 
 prior to said date. 2. That said Virginia Coal and Iron 
 Company is a corporation organized and existing under the 
 laws of the State of Virginia, and is a citizen of Virginia, 
 
 3. That on March 1, 1893, said Virginia Coal and Iron Com- 
 pany executed and delivered a deed of bargain and sale to 
 said Lehigh Mining and Manufacturing Company, by which 
 it conveyed all its right, title, and interest in and to the land 
 in controversy to said last-named company in fee simple. 
 
 4. That said Lehigh Mining and Manufacturing Company is 
 a corporation duly organized and existing under the laws of 
 the State of Pennsylvania ; that it was organized in Febru- 
 ary, 1893, prior to said conveyance, and is and was at the 
 date of commencement of this action a citizen of the State 
 of Pennsylvania, and that it was organized by the individual 
 stockholders and officers of the Virginia Coal and Iron Com- 
 pany. 5. That the purpose in organizing said Lehigh Min"- 
 ing and Manufacturing Company and in making to it said 
 conveyance was to give to this court jurisdiction in this case, 
 but that said conveyance passed to said Lehigh Mining and 
 Manufacturing Company all of the right, title, and interest 
 of said Virginia Coal and Iron Company in and to said land, 
 and that since said conveyance said Virginia Coal and Iron 
 Company has had no interest in said land, and has not and 
 never has had any interest in this suit, and that it owns none 
 of the stock of said Lehigh Mining and Manufacturing Com- 
 pany, and has no interest therein whatever. The lower court 
 dismissed the case for want of jurisdiction, and it was brought 
 to the Supreme Court by writ of error. 
 
 "It is clear," says Harlan, Justice, speaking for the court, 
 " that the individual stockholders and officers of the Virginia 
 corporation, in February, 1893, organized the Pennsylvania 
 corporation; that immediately thereafter, on the first day of 
 
94 JURISDICTION OF FEDERAL COURTS. 
 
 March, 1893, the lands in controversy, which the Virginia 
 corporation had for many years claimed to own, and which, 
 during all that period, were in the possession of and claimed 
 by the present defendants, who are citizens of Virginia, were 
 conveyed by it in fee simple to the Pennsylvania corporation 
 so organized ; and that the only object, for which the stock- 
 holders and officers of the Virginia corporation organized the 
 Pennsylvania corporation, and for which the above convey- 
 ance was made, was to create a case cognizable by the Cir- 
 cuit Court of the United States for the Western District of 
 Virginia. In order to accomplish that object, the present 
 action was commenced on the second day of April, 1893. 
 Although the parties have agreed that the above conveyance 
 passed ' all of the right, title, and interest ' of the Virginia 
 corporation to the corporation organized under the laws of 
 Pennsylvania, it is to be taken, upon the present record, and 
 in view of what the agreed statement of facts contains, as 
 well as of what it omits to disclose, that the conveyance was 
 made without any valuable consideration ; that when it was 
 made, the stockholders of the two corporations were identi- 
 cal ; that the Virginia corporation still exists with the same 
 stockholders it had when the conveyance of March 1, 1893, 
 was made; and that, as soon as this litigation is concluded, 
 the Pennsylvania corporation, if it succeeds in obtaining 
 judgment against the defendants, can be required by the stock- 
 holders of the Virginia corporation, being also its own stock- 
 holders, to reconvey the lands in controversy to the Virginia 
 corporation without any consideration passing to the Penn- 
 sylvania corporation." 
 
 The Justice then discusses some of the cases previously 
 referred to in this chapter, and proceeds: 
 
 " None of these cases sustain the contention of the plain- 
 tiffs. All of them concur in holding that the privilege of a 
 grantee or purchaser of property, being a citizen of one of 
 the States, to invoke the jurisdiction of a Circuit Court of 
 
LEHIGH MINING & MANUFACTURING CO. V. KELLY. 95 
 
 the United States for the protection of his rights as against a 
 citizen of another State — the value of the matter in dispute 
 being sufficient for the purpose — cannot be affected or im- 
 paired merely because of the motive that induced his grantor 
 to convey, or his vendor to sell and deliver, the property, 
 provided such conveyance or such sale and delivery was a 
 real transaction by which the title passed without the grantor 
 or vendor reserving or having any right or power to compel or 
 require a reconveyance or return to him of the property in 
 question. We adhere to that doctrine. 
 
 "In harmony with the principles announced in former 
 cases, we hold that the Circuit Court properly dismissed this 
 action. The conveyance to the Pennsylvania corporation 
 was without any valuable consideration. It was a convey- 
 ance by one corporation to another corporation — the grantor 
 representing certain stockholders, entitled collectively or as 
 one body to do business under the name of Virginia Coal and 
 Iron Company, while the grantee represented the same stock- 
 holders, entitled collectively or as one body to do business 
 under the name of the Lehigh Mining and Manufacturing 
 Company. It is true that the technical legal title to the 
 lands in controversy is, for the time, in the Pennsylvania 
 corporation. It is also true that there was no formal agree- 
 ment upon the part of that corporation ' as an artificial being, 
 invisible, intangible, and existing only in contemplation of 
 law, ' that the title should ever be reconveyed to the Virginia 
 corporation. But when the inquiry involves the jurisdiction 
 of a Federal court — the presumption in every stage of a 
 cause being that it is without the jurisdiction of a court of 
 the United States, unless the contrary appears from the rec- 
 ord, 1 — we cannot shut our eyes to the fact that there exists 
 what should be deemed an equivalent to such an agreement, 
 namely, the right and power of those who are stockholders of 
 
 1 Citing Grace v. American Central Ins. Co., 109 U. S. 278; Bbrs v. 
 Preston, 111 U. S. 252. 
 
96 JURISDICTION OF FEDERAL COURTS. 
 
 each corporation to compel the one holding the legal title to 
 convey, without a valuable consideration, such title to the other 
 corporation. In other words, although the Virginia corpora- 
 tion, as such, holds no stock in the Pennsylvania corporation, 
 the latter corporation holds the legal title, suhject at any time 
 to be divested of it by the action of the stockholders of the 
 grantor corporation who are also its stockholders. The stock- 
 holders of the Virginia corporation — the original promoters 
 of the present scheme, and, presumably, when a question of 
 the jurisdiction of a court of the United States is involved, 
 citizens of Virginia — in order to procure a determination of 
 the controversy between that corporation and the defendant 
 citizens of Virginia, in respect of the lands in that Common- 
 wealth, which are here in dispute, assumed, as a body, the 
 mask of a Pennsylvania corporation for the purpose, and the 
 purpose only, of invoking the jurisdiction of the Circuit Court 
 of the United States, retaining the power, in their discretion, 
 and after all danger of defeating the jurisdiction of the Fed- 
 eral court shall have passed, to throw off that mask and reap- 
 pear under the original form of a Virginia corporation — their 
 right, in the meantime, to participate in the management of 
 the general affairs of the latter corporation not having been 
 impaired by the conveyance to the Pennsylvania corporation. 
 And all this may be done, if the position of the plaintiffs be 
 correct, without any consideration passing between the two 
 corporations. 
 
 "It is not decisive of the present inquiry that under the 
 adjudications of this court the stockholders of the Pennsyl- 
 vania corporation — the question being one of jurisdiction — 
 must be conclusively presumed to be citizens of that Com- 
 monwealth. Nor is it material, if such be the fact, that the 
 Pennsylvania corporation could not have been legally organ- 
 ized, under the laws of that Commonwealth, in February, 
 1893, unless some of the subscribers to its charter were then 
 citizens of Pennsylvania. We cannot ignore the peculiar 
 
LEHIGH MINING & MANUFACTURING CO. V. KELLY. 97 
 
 circumstances which distinguish the present case from all 
 others that have been before this court. The stockholders 
 who organized the Pennsylvania corporation were, it is 
 agreed, the same individuals who, at the time, were the 
 stockholders of the Virginia corporation. And under the 
 rule of decision adverted to, the stockholders of the Virginia 
 corporation, just before they organized the Pennsylvania cor- 
 poration as well as when the Virginia corporation conveyed 
 the legal title, were presumably citizens of Virginia. If the 
 rule which has been invoked be regarded as controlling in 
 the present case, the result, curiously enough, will be that 
 immediately prior to February, 1893 — before the Pennsyl- 
 vania corporation was organized — the stockholders of the 
 Virginia corporation were, presumably, citizens of Virginia; 
 that, a few days thereafter, in February, 1893, when they 
 organized the Pennsylvania corporation, the same stockhold- 
 ers became, presumably, citizens of Pennsylvania; and that, 
 on the first day of March, 1893, at the time the Virginia cor- 
 poration conveyed to the Pennsylvania corporation, the same 
 persons were presumably citizens, at the same moment of 
 time, of both Virginia and Pennsylvania. 
 
 "It is clear that the record justifies the assumption that 
 there was no valuable consideration for the conveyance to the 
 Pennsylvania corporation. Why should a valuable considera- 
 tion have passed at all, when the stockholders of the grantor 
 corporation and the stockholders of the grantee corporation 
 were, at the time of the conveyance, the same individuals? 
 Could it be expected that those stockholders, acting as one 
 body, under the name of the Virginia Coal and Iron Com- 
 pany, would take money out of one pocket for the purpose of 
 putting it into another pocket which they had used only 
 while acting under the name of the Lehigh Mining and 
 Manufacturing Company? A valuable consideration cannot 
 be presumed, merely because the agreed statement of facts 
 recites that the Virginia corporation executed and delivered 
 
98 JURISDICTION OP FEDERAL COUKTS. 
 
 a deed of 'bargain and sale ' conveying all its right, title, and 
 interest to the Pennsylvania corporation. In view of the 
 admitted facts, that recital must be taken as meaning noth- 
 ing more than that the deed was, in form, one of bargain and 
 sale, conveying the technical legal title. The deed cannot 
 be regarded even as a deed of gift, unless we suppose that a 
 body of stockholders, acting under one corporate name, sol- 
 emnly made a gift of property to themselves acting under an- 
 other corporate name. When it is remembered that the 
 plaintiff in error stipulates that all that was done had for its 
 sole object to create a case cognizable in the Federal court, which 
 would otherwise have been cognizable only in a court of Virginia, 
 it is not difficult to understand why the agreed statement of 
 facts failed to state, in terms, that a valuable consideration 
 was paid by the grantee corporation. 
 
 " The arrangement by which, without any valuable consid- 
 eration, the stockholders of the Virginia corporation organ- 
 ized a Pennsylvania corporation and conveyed these lands to 
 the new corporation for the express purpose — and no other 
 purpose is stated or suggested — of creating a case for the Fed- 
 eral court, must be regarded as a mere device to give juris- 
 diction to a Circuit Court of the United States, and as being, 
 in law, a fraud upon that court, as well as a wrong to the 
 defendants. Such a device cannot receive our sanction. The 
 court below properly declined to take cognizance of the case. 
 
 " This conclusion is a necessary result of the cases arising 
 before the passage of the Act of March 3, 1875. 1 The 
 fifth section of that Act provides that if, in any suit 
 commenced in a Circuit Court, it shall appear to the satis- 
 faction of that court, at any time after such suit is brought, 
 that it 'does not really and substantially involve a dis- 
 pute or controversy properly within the jurisdiction of said 
 Circuit Court, or that the parties have been improperly or col- 
 lusively made or joined, either as plaintiffs or defendants, for 
 
 1 18 Stat. 470. 
 
LEHIGH MINING & MANUFACTURING CO. V. KELLY. 99 
 
 the purpose of creating a case cognizable . . . under this Act, 
 the said Circuit Court shall proceed no further therein, but 
 shall dismiss the suit. ' Its scope and effect were determined 
 in Williams v. Nottawa, 1 and Morris v. Gilmer. 2 In the first 
 of those cases the court, referring to the Act of 1875, said: 
 'In extending a long way the jurisdiction of the courts of 
 the United States, Congress was specially careful to guard 
 against the consequences of collusive transfers to make par- 
 ties, and imposed the duty on the court, on its own motion, 
 without waiting for the parties, to stop all further proceed- 
 ings and dismiss the suit the moment anything of the kind 
 appeared. This was for the protection of the court as well 
 as parties against frauds upon its jurisdiction. ' 
 
 " The organization of the Pennsylvania corporation and the 
 conveyance to it by the Virginia corporation, for the sole pur- 
 pose of creating a case cognizable by the Circuit Court of the 
 United States is, in principle, somewhat like a removal from 
 one State to another with a view only of invoking the juris- 
 diction of the Federal court. In Morris v. Gilmer, just 
 cited, the court said: 'Upon the evidence in this record, we 
 cannot resist the conviction that the plaintiff had no purpose 
 to acquire a domicile or settled home in Tennessee, and that his 
 sole object in removing to that State was to place himself in 
 a situation to invoke the jurisdiction of the Circuit Court of 
 the United States. He went to Tennessee without any pres- 
 ent intention to remain there permanently or for an indefinite 
 time, but with a present intention to return to Alabama as 
 soon as he could do so without defeating the jurisdiction of 
 the Federal court to determine his new suit. He was, there- 
 fore, a mere sojourner in the former State when this suit was 
 brought. He returned to Alabama almost immediately after 
 giving his deposition. The case comes within the principle 
 announced in Butler v. Famsworth, 3 where Mr. Justice 
 
 » 104 U. §. 209. " 4 Wash. C. C. 101, Fed. Cas. 
 
 2 129 U. S. 315. Kb. 2240. 
 
100 JURISDICTION OP FEDERAL COURTS. 
 
 Washington said : " If the removal be for the purpose of com- 
 mitting a fraud upon the law, and to enable the party to 
 avail himself of the jurisdiction of the Federal courts, and 
 that fact be made out by his acts, the court must pronounce 
 that his removal was not with a bona fide intention of chang- 
 ing his domicile, however frequent and public his declarations 
 to the contrary may have been." ' " 1 
 
 Effect of Sec. 5 of Act of Mar. 3, 1875. The concluding 
 paragraphs of the opinion in the Lehigh case would seem to 
 imply that under the fifth section of the Act of March 3; 
 1875, 2 the motive actuating the parties in cases of this charac- 
 ter may be considered in deciding whether or not the case 
 is fraudulently brought in the Federal court. This would 
 seem to indicate a departure from the theory of previous 
 cases; and while the opinion states that the court adheres 
 to the doctrine of former cases, it is difficult to reconcile the 
 two theories upon which the opinion proceeds. There seems 
 much to justify the strong dissenting opinion of Justice 
 Shiras, in which Justices Field and Brown joined. 
 
 Jurisdiction not Divested by Changes after Suit. It is a 
 well settled principle of Federal jurisprudence that where the 
 jurisdiction of a Federal court has once vested, it will not be 
 divested by subsequent changes in the citizenship or residence 
 
 1 See for other cases upon this Wright, 4 Fed. Rep. 168; Marvin 
 
 subject, Blackburn v. Selma, M. &. v. Ellis, 9 Fed. Rep. 367; Lanning 
 
 M. R. R. Co., 2 Flipp. 525, Fed. v. Lockett, 10 Fed. Rep. 451;' The 
 
 Cas. No. 1467; Briggs o. French, Garland, 16 Fed. Rep. 283 ; Norton 
 
 2 Sumn. 251, Fed. Cas. No. 1871; v. European & N. A. Ry. 32 Fed. 
 
 Catlett v. Pacific Ins. Co., 1 Paine, Rep. 865; Williams v. Nottawa, 
 
 594, Fed. Cas. No. 2517; De Laveaga 104 U. S. 209 ; Hayden v. Manning, 
 
 v. Williams, 5 Sawy. 573, Fed. Cas. 106 U. S. 586 ; Manhattan Life Ins. 
 
 No. 3759; Foote v. Hancock, 15 Co. v. Broughton, 109 U. S. 121; 
 
 Blatchf. 343, Fed. Cas. No. 4911 ; Farmington v. Pillsbury, 114 U. S. 
 
 Johnson v. Monell, 1 Woolw. 390, 138; Lanier v. Nash, 121 U. S. 404; 
 
 Fed. Cas. No. 7399; Osborne v. Morris v. Gilmer, 129 U. S. 315; 
 
 Brooklyn City R. R. Co., 5 Blatchf. and see Chapter XIII., post. 
 366, Fed. Cas. No. 10,597; Mattocks 2 18 Stat. 470. 
 v. Baker, 2 Fed. Rep. 455; Hoyt v. 
 
CHANGES AFTER SUIT. 101 
 
 of the parties. In such cases it is uniformly held that the 
 jurisdiction depends upon the condition of the parties at the 
 commencement of the suit. This rule was laid down by 
 Chief Justice Marshall, in the early case of Morgan's Heirs v. 
 Morgan et al., 1 which was a suit brought in the Circuit 
 Court of Kentucky against citizens of that State, and it ap- 
 peared that after the suit was brought one of the complain- 
 ants became a citizen of Kentucky. Upon this point the 
 court " were all of opinion that the jurisdiction having once 
 vested was not divested by the change of residence of either 
 of the parties." 2 
 
 Upon like reasoning, the case of Clarke v. Mathewson z was 
 decided. This was originally a bill in equity brought by 
 Wetmore, a citizen of Connecticut, against defendants who 
 were citizens of Rhode Island. Pending proceedings before 
 a master the complainant died, and Clarke, a citizen of Rhode 
 Island, was appointed administrator of his estate, and filed a 
 bill of revivor in which these facts were set forth, from which 
 it was evident that the bill could not be maintained if it was 
 considered solely as an original suit, because the complain- 
 ant and defendants were all citizens of Rhode Island. This 
 objection was interposed by the defendants and sustained, and 
 the bill dismissed by Mr. Justice Story, presiding at the Cir- 
 cuit. In the Supreme Court, however, the case was reversed, 
 Justice Story himself delivering the opinion, in which all the 
 justices concurred, the opinion holding that the bill of revivor 
 was in no sense an original suit, but was a mere continuation 
 of it; that the parties to the original bill were citizens of dif- 
 ferent States, and that the jurisdiction of the court completely 
 
 1 2 Wheat. 290; White u.Leahy, Fed. Rep. 628; Jones v. Shapera, 
 3 Dill. 378, Fed. Cas. No. 17,751; 57 Fed. Rep. 457, 13 U. S. App. 481, 
 Thaxter v. Hatch, 6 McL. 68, Fed. 6 C. C. A. 423 ; Brigel v. Tug River 
 Cas. No. 13,866. Coal & Salt Co., 73 Fed. Rep. 13. 
 
 2 Connolly v. Taylor, 2 Pet. 556 ; 8 12 Peters, 164. See Dunn v. 
 Anderson v. Watt, 138 U. S. 694 ; Clarke, 8 Peters, 1. 
 
 Laskey v. Newtown Mining Co., 56 
 
102 JURISDICTION OF FEDERAL COURTS. 
 
 attached, and having so attached, could not be divested by 
 any subsequent event. 
 
 And in Phelps v. Oaks, 1 it was held that a Circuit Court, 
 having, by removal from a State Court by reason of the citi- 
 zenship of the parties, properly acquired jurisdiction of an 
 action against a tenant for the possession of land, was not 
 ousted of it by the admission as a co-defendant, under the 
 provisions of a State statute, of his landlord, although the 
 latter was a citizen of the same State as the plaintiff. In a 
 later case it was held that the substitution of the landlord as 
 defendant in place of the tenant, in a case where the jurisdic- 
 tion of the court had completely attached, would not defeat 
 the jurisdiction, although the landlord was a citizen of the 
 same State as the plaintiff. 2 
 
 And the same rule will apply in cases where there is a 
 change in ownership of the subject matter of the suit. Thus 
 in Glover v. Shepperd et al., s Glover, a citizen of Wisconsin, 
 brought suit in the United States Circuit Court for the West- 
 ern District of Wisconsin, against the defendants, one of 
 whom was a citizen of Minnesota, to set aside a tax deed as 
 a cloud upon complainant's title to certain lands within the 
 district. After issue joined, evidence taken, and the cause 
 set for hearing before the court, the complainant transferred 
 his entire interest in the land to a citizen of Minnesota ; and 
 the latter thereupon asked leave to file a supplemental bill or 
 an original bill in the nature of a supplemental bill as grantee 
 of the original complainant. This, it was held, might be 
 done. 4 
 
 1 117 U. S. 236. U. S. v. Meyers, 2 Brock. 516, Fed. 
 
 2 Hardenbergh v. Ray, 151 U. S. Cas. No. 15,844 ; Hatch v. Dorr, 4 
 112. McLean, 112, Fed. Cas. No. 6206; 
 
 » 21 Fed. Rep. 481. Culver v. Woodruff Co., 5 Dill. 392, 
 1 See Jarboe v. Templar, 38 Fed. Fed. Cas. No. 3469; Trigg v. Con- 
 Rep. 213, and upon this subject way, Hempst. 711, Fed. Cas. No. 
 generally, Mollan v. Torrance, 9 14,173; Cross v. Evans, 86 Fed. 
 Wh. 537 ; Hatfield v. Bushnell, 1 Rep. 1. 
 Blatchf. 393, Fed. Cas. No. 6211; 
 
ANCILLARY JURISDICTION. 103 
 
 CHAPTER VI. 
 
 Jurisdiction not Dependent upon Citizenship. — Ancillary Jurisdiction 
 in General. — Limits of this Jurisdiction. — Bills to Restrain En- 
 forcement of Judgments. — Bills to Impeach Decrees for Fraud. — 
 Cross-Bills. — Creditors' Bills. — Intervenors. — Other Cases. 
 
 Generally. Under this title it is proposed to discuss a class 
 of cases in which the Federal courts entertain jurisdiction 
 over certain matters, although under different conditions the 
 suits could not be maintained in those courts, owing to the 
 lack of diverse citizenship, or other grounds of Federal juris- 
 diction. These cases may be grouped under the necessary or 
 ancillary jurisdiction which is inherent in these courts. It 
 will readily be seen that in courts such as the Federal courts 
 — which, though of limited jurisdiction, are not inferior 
 courts — ■ occasion must often arise when to fully protect the 
 rights of litigants in previous suits in those courts, or to pre- 
 serve the rights of intervenors and other claimants in causes 
 then pending before it, a Federal court must, of necessity, 
 exercise jurisdiction over some proceedings, which, were they 
 strictly original, the court would not undertake, as not being 
 within its jurisdiction. 
 
 Extent of this Jurisdiction. The precise limits of this sup- 
 plemental, or ancillary, jurisdiction are, perhaps, not easily 
 determinable, so as to be covered by a single positive rule ; 
 but in general it may be said that this jurisdiction will be 
 exercised by a Federal court whenever it is necessary to pro- 
 tect its officers and process, to secure to its litigants the bene- 
 fit of its judgments and decrees, and to protect the rights of 
 third parties in property under its control. 
 
104 JURISDICTION OF FEDERAL COURTS. 
 
 The rule is laid down at the circuit by Hawley, J., 1 as fol- 
 lows : " The ancillary jurisdiction of the [Circuit] Court can 
 only be maintained where the parties to a former suit are be- 
 fore the court, or the facts are such as to make the case a 
 continuation of the former suit, or where the court is called 
 upon to enforce or vacate its judgment or decree, or set aside 
 its process, or to give relief with reference to property in its 
 possession or under its control, or to bring in outside parties 
 having an interest in the litigation, or where the property in- 
 volved is in the custody of the court or its officers, and the 
 rights of parties thereto could not be determined in any other 
 court without a conflict of jurisdiction between the courts." 
 
 "In many instances," says McDonald, J., in Conwell v. 
 White Water Valley Canal Co., 2 "where the jurisdiction 
 originally depends upon the citizenship of the parties, if 
 the proceedings happen to affect the interests of other 
 persons not original parties, the latter may often be brought 
 before the court, and made parties, irrespective of their citi- 
 zenship. This rule arises from the necessity of the case, and 
 to prevent a failure of justice; for, since, when a court has 
 obtained jurisdiction of a cause, it cannot suffer any other 
 court to disturb its proceedings or interfere with property in 
 its custody, a party aggrieved, if he could not be heard in 
 the court where the judgment was rendered, or in which the 
 property is held, would be without redress. " 
 
 The Limits stated by Justice Miller. In equity causes, the 
 limits of this ancillary jurisdiction are not to be determined 
 by the general rules of equity pleading, but by considering 
 whether or not the proceeding is supplemental or ancillary 
 with reference to the line which divides the jurisdiction of 
 Federal courts from that of the State courts. 3 "No one, for 
 instance," says Mr. Justice Miller, in Minnesota Co. v. St. 
 
 1 Ralston v. Sharon, 51 Fed. s Minnesota Co. v. St. Paul Co., 
 Rep. 702. 2 Wall. 609. 
 
 2 i Biss. 195, Fed. Cas. No. 3148. 
 
CASES CONSIDERED. 105 
 
 Paul Co. (a leading case), "would hesitate to say that, ac- 
 cording to the English Chancery practice, a bill to enjoin a 
 judgment at law, is an original bill in the chancery sense of 
 the word. Yet this court has decided many times, that when 
 a bill is filed in the Circuit Court to enjoin a judgment of 
 that court, it is not to be considered as an original bill, but 
 as a continuation of the proceeding at law; so much so, that 
 the court will proceed in the injunction suit without actual 
 service of subpoena on the defendant, and though he be a 
 citizen of another State, if he were a party to the judgment 
 at law." 1 
 
 Cases Considered — Bills to Restrain Enforcement of Judg- 
 ment. A reference to some of the adjudged cases will illus- 
 trate the scope of this jurisdiction. One of the most obvious 
 cases calling for the application of this doctrine will readily 
 be seen to arise where for some reason it is necessary to en- 
 join the enforcement of a judgment rendered in a Federal 
 court. Of this class of cases Justice Story said : " I believe 
 the general, if not universal practice has been, to consider 
 bills of injunction upon judgments in the Circuit Courts of 
 the United States, not as original, but as auxiliary and de- 
 pendent suits, and properly sustainable in that court which 
 gave the original judgment and has it completely under its 
 control. The court itself possesses a power over its own 
 judgments by staying execution thereon; and it would be 
 very inconvenient if it did not possess the means of rendering 
 such further redress as equity and good conscience required." 
 
 The earliest case of this nature decided by the Supreme 
 Court is that of Dunn v. Clarke. 2 This was a bill filed in 
 the United States Circuit Court for the District of Ohio, 
 
 1 Miller, J., Minnesota Co. v. St. Cas. No. 13,482; O'Brien County v. 
 Paul Co., 2 Wall. 609. Brown, 1 Dill. 588, Fed. Cas. No. 
 
 2 8 Peters, 1 ; See Dunlap v. Stet- 10,399 ; St. Luke's Hospital v. Bar- 
 son, 4 Mas. 349, Fed. Cas. No. 4164; clay, 3 Blatchf. 259, Fed. Cas. No. 
 Stone v. Bishop, 4 Clifford, 593, Fed. 12,241. 
 
106 JURISDICTION OE FEDERAL COURTS. 
 
 asking for an injunction to restrain the enforcement of a 
 judgment recovered in the same court against the complain- 
 ants in an action of ejectment, and further asking for a decree 
 for a conveyance of the land in controversy. The parties to 
 the bill were all citizens of Ohio. The judgment in the eject- 
 ment suit had been obtained by one Graham, a citizen of 
 Virginia, who died after the rendition of the judgment, and 
 Dunn, the defendant, was trustee under the will of Graham. 
 Upon these facts the Supreme Court said: "No doubt is 
 entertained by the court that jurisdiction of the case may be 
 sustained, so far as to stay execution on the judgment at 
 law against Dunn. He is the representative of Graham ; and 
 although he is a citizen of Ohio, yet this fact, under the cir- 
 cumstances, will not deprive this court of an equitable con- 
 trol over the judgment. But beyond this the decree of this 
 court cannot extend. Of the action at law, the Circuit Court 
 had jurisdiction; and no change in the residence or condition 
 of the parties can take away a jurisdiction which has once 
 attached. If Graham had lived, the Circuit Court might 
 have issued an injunction to his judgment at law, without a 
 personal service of process, except on his counsel; and, as 
 Dunn is his representative, the court may do the same thing 
 against him. The injunction bill is not considered an origi- 
 nal bill between the same parties as at law ; but, if other par- 
 ties are made in the bill, and different interests involved, it 
 must be considered, to that extent at least, an original bill ; 
 and the jurisdiction of the Circuit Court must depend upon 
 the citizenship of the parties." 
 
 The more recent cases, however, evince a tendency on 
 the part of the Supreme Court rather to extend this jurisdic- 
 tion than to curtail it. It was early held that the ancillary 
 suit need not be between the same parties as the original suit, 
 overruling, in that respect, Dunn v. Clarke, 1 and subsequent 
 
 1 8 Peters, 1. 24 How. 450, where Mr. Justice 
 
 Note. — See Freeman v. Howe, Nelson, referring to this case, says : 
 
CASES CONSIDERED. 107 
 
 cases take a much broader view of the matter than the 
 early decisions. 
 
 In Johnson v. Christian 1 there was a bill praying that com- 
 plainants might have a decree releasing certain lands from the 
 lien of a deed of trust, and seeking to enjoin the enforcement 
 of a judgment in ejectment obtained by the beneficiaries, who 
 claimed under a sale made under the powers in the deed" of 
 trust, the judgment having been rendered in the court in 
 which the bill was filed. The bill alleged that certain equi- 
 table defences existed, stating them, but that complainants 
 could not present these defences in the suit at law. The Cir- 
 cuit Court decreed as prayed, and upon appeal the Supreme 
 Court reversed the case upon the ground that the record did 
 not show diversity of citizenship. The counsel for appellee 
 at once asked for a rehearing upon the ground that the judg- 
 ment reversing the case was caused by an obvious oversight, 
 in failing to notice the peculiar character of the bill. This 
 the court granted, and said, after stating the facts : " This is 
 sufficient to give the Circuit Court jurisdiction of the case, 
 without any averment of the citizenship of the parties ; and 
 not only is the present suit in equity merely an incident of 
 and ancillary to the ejectment suit, but no other court than 
 
 " The case in 8 Peters, 1, ■which was eral court, in a like case, would not 
 among the first which came before merely restrain the enforcement of 
 the court, deserves, perhaps, a word the judgment until the other 
 of explanation. It would seem, matters could be determined by a 
 from a remark in the opinion, that State court, but would proceed to 
 the power of the court upon the bill determine all the equities of the par- 
 was limited to a case between the ties so as to give complete relief in 
 parties to the original suit. This the single suit. See generally, Jones 
 was probably not intended, as any v. Andrews, 10 Wall. 327; Minnesota 
 party may file the bill whose inter- Company v. St. Paul Company, 2 
 ests are affected by the suit at law." Wall. 609 ; Pacific Railroad v. Mis- 
 This has been criticised as obiter souri Pacific By. Co., Ill U. S. 505; 
 dictum, but is reiterated in Krippen- Thompson v. McReynolds, 29 Fed. 
 dorf v. Hyde, 110 U. S. 276. And Rep. 657. 
 
 there is probably no doubt but that 1 125 U. S. 642 ; Smythe v. 
 
 under the present decisions a Fed- Henry, 41 Fed. Rep. 705. 
 
108 JXTEISDICTION OP FBDEEAL COURTS. 
 
 the one which rendered the judgment in the ejectment suit 
 could interfere with it or stay process in it, on the ground set 
 forth in the bill. " The decree reversing the cause for want 
 of jurisdiction was therefore vacated, and the cause stood for 
 hearing. 
 
 Upon a like theory jurisdiction will he entertained of a bill 
 by a third party, to impeach a judgment for fraud, and to 
 prevent garnishment proceedings against him based upon the 
 judgment. 
 
 Thus, in Jones v. Andrews,* the defendant Andrews leased 
 a hotel to Reed and Bryson for five years, taking their notes 
 for the rent. The latter parties sublet to one Jones, who 
 went into possession, and took his notes for the rent. An- 
 drews evicted Jones, and took possession, for failure to pay 
 rent, and brought suit in a Federal court against Reed and 
 Bryson upon their notes, and obtained judgment by default, 
 and commenced a garnishment suit for the purpose of seizing 
 the Jones notes in the hands of Reed and Bryson. There- 
 upon Jones filed a bill in the same court setting up that Reed 
 and Bryson had in fact transferred his (Jones') notes to An- 
 drews in payment of their notes to Andrews ; that Andrews 
 thus had no claim against Reed and Bryson when he sued 
 them, and that the judgment obtained against them was 
 fraudulent and collusive, and was obtained for the purpose of 
 garnisheeing his (Jones') notes, pretended to be in their hands, 
 and that all this was done to avoid on the part of Andrews 
 a direct suit against complainant by reason of the fact that 
 complainant had a good defence to the notes, and a set-off 
 (growing out of illegal eviction of complainant, and seizure 
 of his furniture) which would largely exceed the amount of 
 the notes. The bill prayed for an injunction against the 
 garnishment proceedings, for the delivery up of complain- 
 ant's notes, and the establishment of his set-off. The court 
 below dismissed the bill for want of jurisdiction. Upon ap- 
 
 1 10 Wall. 327. 
 
BILLS TO SET ASIDE DECREES FOR FRAUD. 109 
 
 peal the Supreme Court said : " The jurisdiction of the court 
 did not depend on the residence or citizenship of the par- 
 ties. The suit is, in its nature, not an original but a defen- 
 sive or supplementary sui-t, like a cross-bill, or a bill filed to 
 enjoin a judgment of the same court. The bill is filed for an 
 injunction against the garnishee proceedings under the suit 
 at law, for the delivery up of the complainant's notes, and 
 for the establishment of his set-off against Andrews. This 
 is, in substance, its character, and if the facts charged fur- 
 nish a sufficient ground of equity for the relief asked, as to 
 which the court refrain from expressing any opinion, the 
 complainant had a right to file it against the defendants, and 
 the court had a right to take cognizance of it as a defensive 
 or supplementary proceeding, growing out of, and having 
 direct reference to, the proceedings of the defendants in the 
 same court against him. The case, in this respect, as before 
 said, is analogous to that of a cross-bill or bill of review, or a 
 bill for injunction against a judgment at law in the same 
 court, of which the court has jurisdiction irrespective of the 
 residence of the parties." 
 
 Bills to set aside Decrees for Fraud. So a bill by a corpo- 
 ration, filed in a Circuit Court, to impeach for fraud a decree 
 against it previously rendered in that court, although an 
 original bill in the chancery sense of the word, is but a con- 
 tinuation of the former suit, so far as the jurisdiction of the 
 court is concerned, and may be retained without regard to 
 the citizenship of the parties. 1 And a bill filed by a stock- 
 holder, against certain citizens of the same State, with others, 
 to impeach for fraud a foreclosure decree previously rendered 
 in the same court, under a railroad mortgage, may be main- 
 tained as ancillary to the original bill. 2 
 
 1 Pacific Kailroad of Missouri 2 Foster v. Mansfield, Coldwater 
 
 v. Missouri Pacific Ry. Co., Ill & Lake Michigan R. R. Co., 36 
 
 U. S. 505. See Railroad Co. v. Fed. Rep. 627; Symmes v. Union 
 
 Chamberlain, 6 "Wall. 748. Trust Co., 60 Fed. Rep. 330. 
 
110 JURISDICTION OF FEDERAL COT7ETS. 
 
 And where a Circuit Court rendered a default decree in a 
 suit prima facie between citizens and aliens, a bill was sus- 
 tained in the same court to impeach such decree for fraud, 
 upon the ground that the complainant in the original suit 
 had fraudulently represented the defendant therein to be an 
 alien, when in fact she was a citizen of the same State as the 
 complainant. 1 
 
 Cross-BiUs. A Circuit Court having jurisdiction over a 
 cause in equity, will also, under proper conditions, entertain 
 a cross-bill, although by so doing parties are brought before 
 it between whom it could exercise no jurisdiction, were the 
 cross-bill an original proceeding. 2 And if the court has pos- 
 session of the property of a railroad company by a receiver 
 appointed under a bill filed by parties claiming a lien superior 
 to a first mortgage, it will entertain a cross-bill filed by a 
 trustee under such mortgage for a foreclosure thereof, irre- 
 spective of the citizenship of the parties. " Whether this bill 
 be regarded as a pure cross-bill, as an original bill in the 
 nature of a cross-bill, or as an original bill, there is no error 
 calling for the disturbance of the decree because the court 
 proceeded upon it in connection with other pleadings. The 
 jurisdiction of the Circuit Court did not depend upon the citi- 
 zenship of the parties, but on the subject matter of the litiga- 
 tion. The property was in the actual possession of that 
 court, and this drew to it the right to decide upon conflicting 
 claims to its ultimate possession and control." 3 
 
 1 Broadis v. Broadis, 86 Fed. ton v. Jessup, 68 Fed. Rep. 263, 31 
 Eep. 951. U. S. App. 496, 15 C. C. A. 397. 
 
 2 Jessup v. 111. &c. R. R. Co., 43 "In a cause over which the 
 Fed. Rep. 487. national court has acquired jurisdic- 
 
 8 Morgan's Co. v. Texas Central tion solely by reason of the citizen- 
 
 Ry. Co., 137 U. S. 171 ; see Carey ship of the parties, if the rights and 
 
 v. Houston & Texas Central Ry. Co., interests of third persons should 
 
 52 Fed. Rep. 671 ; First Nat. Bank become complicated with the litiga- 
 
 v. Salem Capital Flour Mills Co., 31 tion, either as to the original judg- 
 
 Fed. Rep. 580 ; Henderson v. Goode ment, or any property in the custody 
 
 et al., 49 Fed. Rep. 887. See Comp- of the court, or any abuse or mis- 
 
CROSS-BILLS. Ill 
 
 Upon a like principle where a trustee under a deed of trust 
 has filed a bill in a Circuit Court to foreclose, making the 
 railroad company (the mortgagor) the only defendant, it was 
 held that contractors claiming a mechanic's lien upon the rail- 
 road property might maintain a bill in the same court for the 
 enforcement of their liens, although thereby the court must 
 necessarily adjudicate upon the conflicting claims of citizens 
 of the same State. 1 And where a suit was brought by a citi- 
 zen of Vermont in the United States Circuit Court for the 
 Southern District of New York, asking for a receiver for a 
 railroad company organized under the laws of New York, 
 and a receiver was appointed, and the property sequestered, 
 a trust company was allowed to intervene and exhibit its 
 cross-bill asking for the foreclosure of a mortgage, although 
 the trust company was also a citizen of New York. 2 So in a 
 suit by a corporation of New York against citizens of Iowa, 
 to foreclose a chattel mortgage upon property within the 
 jurisdiction of the court, a second citizen of New York was 
 allowed to intervene and file a cross-bill to establish the fact 
 that he, and not the defendants, was the real owner of the 
 mortgaged property, and that the mortgage was not effectual 
 as to him. 3 But where the controversy between the com- 
 plainant and the defendant is not of such a nature as to bring 
 
 application of its process; and if no v. White Water Valley Canal Co., 4 
 
 State court has power to guard and Biss. 195, Fed. Cas. No. 3148. 
 determine those rights and interests x McBee v. Marietta & North 
 
 without a conflict of authority with Georgia Ry. Co., 48 Fed. Rep. 243; 
 
 the national court, the latter will, affirmed as to this point, nom. Cen- 
 
 from the necessity of the case, and tral Trust Co. u. Bridges, 57 Fed. 
 
 to prevent a failure of justice, give Rep. 753, 16 U. S. App. 115, 6 
 
 such third persons a hearing, C. C. A. 539. 
 
 irrespective of their citizenship, so 2 Parke v. New York, Lake Erie 
 
 far as to protect their rights and & Western R. R. Co., 70 Fed. Rep. 
 
 interests relating to such judgment 641. See Fish v. Ogdensburgh & 
 
 or property, and as to correct any L. C. R. R., 79 Fed. Rep. 131. 
 abuse or misapplication of its 3 Osborne & Co. v. Barge et al., 
 
 process, and no further." Conwell 30 Fed. Rep. 805. 
 
112 JURISDICTION OF FEDERAL COURTS. 
 
 the possession and control of defendant's property into the 
 hands of the court, a third party, who is a citizen of the same 
 State as the defendant cannot intervene and litigate a con- 
 troversy with the defendant. 1 
 
 Property in Possession of a Federal Court. It may be 
 added that the principles just alluded to may be applied 
 generally to cases where property is in the hands of a 
 Federal court, and various parties interpose claims to its 
 possession, or to priorities in the distribution of the fund 
 arising from its sale. A leading case is that of Gumlcl v. 
 Pitkin, 2 where a marshal, acting under invalid process 
 issuing out of a Federal court, took possession of property, 
 and a sheriff sought to levy upon the property by virtue 
 of a lawful attachment from a State court, and the marshal 
 refusing to surrender the property, served him as garnishee. 
 The marshal afterwards sold the property under a valid 
 process which came into his hands after the service of the 
 garnishment process from the State court. It was held 
 that the plaintiff in the State attachment proceedings might 
 intervene in the suit in the Federal court, and be awarded 
 the priority to which he would have been entitled had 
 the marshal permitted the sheriff to make an actual levy 
 under his writ. Mr. Justice Matthews, in delivering the 
 opinion of the court concluded as follows: "The case there- 
 fore stands thus: For the reasons growing out of the pe- 
 culiar relation between the Federal and State courts exer- 
 cising coordinate jurisdiction over the same territory, the 
 Circuit Court acquired the exclusive jurisdiction to dispose 
 of the property brought into its custody under color of 
 its authority, although by illegal means, and to decide all 
 questions of conflicting right thereto; the plaintiff in error 
 having pursued his remedy by action against his debtor in 
 
 1 United Electric Securities Co. man et al. v. City of Santa Rosa, 
 v. Louisiana Electric Light Co. et 81 Fed. Rep. 524. 
 al., 68 Fed. Rep. 673. See Selig- 2 124 U. S. 131. 
 
creditors' bills. 113 
 
 the State court, to which alone by reason of citizenship 
 he could resort, attempted the levy of his writ of attach- 
 ment upon the goods in the possession of the marshal; not 
 being allowed to withdraw from the marshal the actual pos- 
 session of the property sought to be attached, he served 
 upon the marshal notice of his writ as garnishee ; not being 
 able by this process to subject the marshal to answer person- 
 ally to the State court, he made himself a party to the pro- 
 ceedings in the Circuit Court by its leave, and proceeded in 
 that tribunal against its officer and the creditors for whom he 
 had acted; on a regular trial it appeared as a fact that at 
 the time of the notice the marshal was in possession of the 
 property wrongfully as an officer, and therefore chargeable 
 as an individual. It was competent for the Circuit Court, 
 and having the power, it was its duty, to hold the marshal 
 liable as garnishee, and having in its custody the fund aris- 
 ing from the sale of the property, and all the parties inter- 
 ested in it before it, that court was bound to do complete 
 justice between all the parties, on the footing of these rights, 
 and give to the plaintiff in error the priority over all other 
 creditors, to which, by virtue of his proceedings, and as prayed 
 for in his petition of intervention, he was entitled." 1 
 
 Creditors' Bills. And where a creditor's bill is properly 
 brought by citizens of different States, on behalf of com- 
 plainants and all others who might become complainants, the 
 jurisdiction of the Circuit Court, having once lawfully at- 
 tached between the original parties, will not be ousted by 
 subsequent admission of other creditors as co-complainants, 
 although the latter are citizens of the same State as the de- 
 fendants. Thus in Stewart v. Dunham et al., 2 certain citi- 
 zens of New York and South Carolina filed a creditor's bill 
 in a State court of Mississippi, against certain defendants, 
 
 1 People's Savings Institution of 253 ; 22 C. C. A. 152 ; and cases 
 Erie County v. Miles, 76 Fed. Rep. cited in note, p. 117, post. 
 
 * 115 U. S. 61. 
 
 8 
 
114 JURISDICTION OP FEDERAL COURTS. 
 
 citizens of that State and of Louisiana. Upon application of 
 the complainants the cause was removed to the Circuit Court 
 of the United States for Mississippi, and afterwards certain 
 other parties were admitted as co-complainants, the bill being 
 on behalf of the original complainants and of all others 
 similarly situated who might come in and share costs, etc. 
 Certain of these latter co-complainants were described as 
 "resident" citizens of and doing business in the city of New 
 Orleans, State of Louisiana, and in the city of New York, 
 State of New York, and as to others there was no averment 
 as to citizenship. The cause proceeded to a decree, and upon 
 appeal the point was made that the court below was without 
 jurisdiction, because, after the amendment, it did not appear 
 that the controversy was wholly between citizens of different 
 States. In delivering the opinion of the Supreme Court, 
 Justice Matthews (after stating the point) proceeds as fol- 
 lows : " This, of course, could have furnished no objection to 
 the removal of the cause from the State Court, because at the 
 time these parties had not been admitted to the cause ; and 
 their introduction afterwards as co-complainants did not oust 
 the jurisdiction of the court, already lawfully acquired, as 
 between the original parties. The right of the court to pro- 
 ceed to decree between the appellants (defendants below) 
 and the new parties did not depend upon difference of citi- 
 zenship; because, the bill having been filed by the original 
 complainants on behalf of themselves and all other creditors 
 choosing to come in and share the expenses of the litigation, 
 the court, in exercising jurisdiction between the parties, could 
 incidentally decree in favor of all other creditors coming in 
 under the bill. Such a proceeding would be ancillary to the 
 jurisdiction acquired betwesn the original parties, and it 
 would be merely a matter of form whether the new parties 
 should come in as co-complainants, or before a master, under 
 a decree ordering a reference to prove the claims of all per- 
 sons entitled to the benefits of the decree. If the latter 
 
creditors' bills. 115 
 
 course had been adopted, no question of jurisdiction could 
 have arisen. The adoption of the alternative is, in sub- 
 stance, the same thing." 1 
 
 Under circumstances such as in the case last cited, if in 
 the course of proceedings a receiver be appointed, he may 
 bring suit in the Federal court to collect the assets of the 
 insolvent, regardless of the citizenship of the parties, and 
 although the amount involved be less than $2,000. 2 
 
 So a receiver appointed by the Circuit Court, for an insol- 
 vent corporation, may file a petition in that court against a 
 stockholder in the corporation to enforce his stock liability, 
 without regard to citizenship. 3 
 
 And where a State statute gives a peculiar and additional 
 remedy in aid of common-law proceedings, a Federal court 
 in that State may entertain such a proceeding as supple- 
 mental to its jurisdiction already acquired in a common-law 
 case then pending before it. Thus in a recent case 4 the facts 
 were these : The West Fairmont Gas Coal Company brought 
 a suit in a State court of West Virginia against D. V. & Co., 
 claiming damages for breach of contract. The defendants 
 removed the suit to the United States Circuit Court for the 
 District of West Virginia, on the ground of diversity of citi- 
 zenship, the plaintiff being a corporation of New York, and 
 
 1 In Belmont Nail Co. v. Co- court, as they were citizens of the 
 
 lumbia I. & S. Co., 46 Fed. Rep. same State as the defendant. The 
 
 336, a bill was filed by a judgment court held that there would be no 
 
 creditor, a citizen of another State, ouster, citing Stewart v. Dunham, 
 
 in the Circuit Court for the Western 115 U. S. 61. 
 
 District of Pennsylvania against a 2 White v. Ewing, 159 TJ. S. 36 ; 
 
 corporation of that State, on behalf Price o. Abbott, 17 Fed. Eep. 36; 
 
 of himself and all other creditors Armstrong v. Trautman, 36 Fed. 
 
 who might join him as complain- Rep. 275. 
 
 ants. Certain citizens of Pennsyl- 8 Peck v. Elliott, 79 Fed. Rep. 
 
 vania thereupon petitioned the court 10, 47 U. S. App. 605, 24 C. C. A. 
 
 for leave to be joined as complain- 425 ; Bausman v. Denny, 73 Fed. 
 
 ants and it was suggested that the Rep. 69. 
 
 possible effect of their joinder would * Dewey v. West Fairmont Gas 
 
 be to oust the jurisdiction of the Coal Co., 123 U. S. 329. 
 
116 JURISDICTION OF FEDERAL COURTS. 
 
 the defendants citizens of West Virginia and Ohio. There- 
 upon the defendants filed a bill in the same court against the 
 West Fairmont Gas Coal Company, and against the West 
 Fairmont and Marion Consolidated Gas Coal Company, alleg- 
 ing a breach of warranty on the part of the former company 
 as to the goods forming the subject of the suit at law and 
 asking damages for the breach, and alleging further that said 
 company had become insolvent, and had made a fraudulent 
 assignment of its property to its co-defendant, the West 
 Fairmont and Marion Consolidated Gas Coal Company. The 
 bill prayed that the amount of damages be ascertained, that 
 the assets of the West Fairmont Gas Coal Company, so fraudu- 
 lently assigned, be subjected to the payment thereof, and that 
 in the meantime all proceedings in the action at law might 
 be stayed. The right to maintain such a creditor's bill was 
 based upon the code of West Virginia, which provided that: 
 "A creditor, before obtaining a judgment or decree for his 
 claim, may institute any suit to avoid a gift, conveyance, 
 assignment or transfer of or charge upon the estate of his 
 debtor, which he might institute after obtaining such judg- 
 ment or decree, and he may, in such suit, have all the relief 
 in respect to said estate which he would be entitled to after 
 obtaining a judgment or decree for the claim which he may 
 be entitled to recover." The defendants having answered, 
 denying the equity of the bill, set up their claims for dam- 
 ages by way of a cross-bill, and sought a decree for the 
 amount thereof. After a hearing the lower court dismissed 
 the creditors' bill for want of equity, and the cross-bill as 
 dependent thereon. Upon appeal the Supreme Court held 
 that an assignment of error that the court had no jurisdic- 
 tion, on account of the fact that certain of the complainants 
 in the creditor's bill were citizens of West Virginia, of which 
 State the West Fairmont and Marion Consolidated Gas Coal 
 Company was a corporation, was not well taken. " The suit 
 in equity was an exercise of jurisdiction on the part of the 
 
OTHER CASES. 
 
 117 
 
 Circuit Court ancillary to that which it had already acquired 
 in the action at law, which it might well entertain according 
 to the rule adjudged in Krippendorf v. Hyde, 1 and Pacific 
 Railroad Co. v. Missouri Pacific Railway Co." 2 
 
 Other Cases. The decisions quoted from fairly illustrate 
 the general principles governing the exercise of this jurisdic- 
 tion. Reference to others is given in the notes below. The 
 rule has been applied to suits upon a marshal's bond, 3 upon 
 supersedeas bonds, 4 a bill to enjoin the assignment of judg- 
 ment, 5 to bills in the nature of supplemental bills although 
 not such by strict equity rules, 6 to a bill filed long subsequent 
 to a decree by the grantee of the successful party to enjoin 
 
 1 110 U. S. 276. 
 
 2 111 U. S. 505. 
 
 Note. — See Reilly v. Golding, 
 10 Wall. 56. Golding brought suit 
 against Milne, in a State court of 
 Louisiana by attachment against 
 certain property alleged to belong 
 to defendants, and in the posses- 
 sion of third parties. The latter 
 intervened in the suit, and ob- 
 tained the return of the goods 
 upon a forthcoming bond executed 
 by them with one Reilly as surety. 
 The defendants removed the cause 
 to the United States Circuit Court, 
 and afterwards judgment was ren- 
 dered against the intervenors by de- 
 fault, reserving the plaintiff's rights 
 under the forthcoming bond. Reilly, 
 the surety, was then ruled to show 
 cause why he should not pay the 
 debt, and appeared and excepted to 
 the jurisdiction of the court upon 
 the ground that the present pro- 
 ceedings were substantially a new 
 suit, and that he was a citizen of 
 the same State as the plaintiffs in 
 the suit. Being overruled he an- 
 swered to the merits, and after 
 
 hearing judgment was rendered 
 against him, and he brought error. 
 It appeared that the practice of the 
 State courts in such cases had been 
 adopted by the Federal courts in 
 that State. Held, that the pro- 
 ceeding was merely incidental to 
 the original suit, and therefore 
 maintainable regardless of citizen- 
 ship. See cases cited in note 3, 
 p. 118, post. 
 
 3 Gwin v. Breedlove, 2 How. 29; 
 U. S. ex rel. v. Davidson, 1 Biss. 
 433; but see Wetmore v. Rice, 1 
 Biss. 237. 
 
 4 Lamb v. Ewing, 54 Fed. Rep. 
 269, 12 U. S. App. 11, 4 C. C. A. 
 320. See Pullman's Palace Car Co. 
 v. Washburn, 66 Fed. Rep. 790. 
 
 6 Thompson v. McReynolds, 29 
 Fed. Rep. 657. 
 
 6 Miller v. Rogers el ah, 29 Fed. 
 Rep. 401 ; assignees in bankruptcy 
 brought their bill in a Circuit Court 
 to set aside a conveyance made, 
 previous to the bankruptcy, by one 
 of the bankrupts, to his wife, and 
 pending the suit the assignees sold 
 the land to a bank; held, that the 
 
118 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 the former defendant from asserting a claim contrary to the 
 decree. 1 The jurisdiction in these cases will not be extended 
 beyond certain limits, 2 but in general a liberal tendency will 
 be observed where the exercise of this jurisdiction is neces- 
 sary to effect substantial justice. 3 
 
 bank might file a bill in the nature 
 of a supplemental bill, praying for 
 the same relief as the previous bill, 
 although it was a citizen of the same 
 State as the defendants. 
 
 1 Thus, where a decree was ren- 
 dered in a Circuit Court on a bill to 
 quiet title to certain land in A, as 
 against B, and the decree ordered 
 B to convey the land to A, and in 
 default thereof that a master should 
 make the conveyance, which the 
 master subsequently did, and B 
 afterward re-entered upon the prem- 
 ises and claimed possession, held, 
 that A's grantee might maintain 
 a bill in the same court for an 
 injunction restraining B from claim- 
 ing title, and for a writ of posses- 
 sion, although both he and B were 
 citizens of the same State. Root v. 
 Woolworth, 150 U. S. 401. 
 
 2 Vannerson v. Leverett, 31 Fed. 
 Rep. 376, where a creditor's bill 
 was filed by A against B and C as 
 trustees, and C thereupon filed a 
 cross-bill against B, seeking to ob- 
 tain relief as to certain indebt- 
 edness which he alleged existed 
 between him and C. B filed a 
 plea to the jurisdiction, alleging 
 that both he and C were citizens 
 of the same State, and C demurred 
 to the plea upon the ground that 
 A's bill was a creditor's bill, and 
 that therefore the court had juris- 
 diction to entertain the cross-bill 
 
 as ancillary to the original bill. 
 The demurrer was overruled, the 
 court holding that, "If it be true, 
 that A and B are both citizens of 
 Georgia, the one can have in this 
 court no relief against the other 
 in a cross-bill filed to an original 
 bill against tbem both, which he 
 could not have obtained by original 
 bill here. In other words, the 
 fact that they are both sued in 
 one bill here does not confer any 
 power on them to litigate their 
 controversies inter sese in this court. 
 Most clearly if the plea is true C 
 had no standing in this court as 
 a suitor by original bill. He prays 
 no relief against A. His cross- 
 bill has no relation to the subject 
 matter of their suit, nor is his cross- 
 bill in any sense a reply to the 
 allegations of the original bill." 
 And see Adams Exp. Co. v. Denver 
 & R. G. Ry., 16 Fed. Rep. 712; 
 Anglo-Florida Phosphate Co. v. 
 McKibben, 65 Fed. Rep. 529, 23 
 U. S. App. 675, 15 C. C. A. 36. 
 
 8 See Abraham v. North German 
 Fire Ins. Co., 37 Fed. Rep. 731; 
 Hagan v. Lucas, 10 Pet. 400 ; Free- 
 man v. Howe, 24 How. 450; People's 
 Bank v. Calhoun, 102 U. S. 256; 
 Krippendorf ». Hyde, 110 U. S. 
 276 ; Covell v. Heyman, 111 U. S. 
 176 ; Williams v. Morgan, 111 U. S. 
 684; In re Tyler, Petitioner, 149 
 U. S. 164; Rouse v. Letcher, 156 
 
OTHER CASES. 
 
 119 
 
 U. S. 47; Carpenter v. Northern 
 Pacific R. R. Co., 75 Fed. Rep. 850; 
 People's Saving Institution v. Miles, 
 76 Fed. Rep. 252, 341 U. S. App. 
 40, 22 C. C. A. 152; Blake v. Pine 
 Mountain Iron & Coal Co., 76 Fed. 
 Rep. 624, 43 U. S. App. 490, 22 
 C. C. A. 430; Central Trust Co. v. 
 Carter, 78 Fed. Rep. 225, 31 U. S. 
 App. 496, 15 C. C. A. 397; Lanning 
 v. Osborne, 79 Fed. Rep. 657. 
 
 And where an alien complainant 
 brought a suit against an alien 
 defendant, in a Circuit Court, to 
 impeach for fraud and enjoin the 
 enforcement of a former judgment 
 
 of the same court by which de- 
 fendant's testatrix was adjudged 
 the owner of certain lands, to 
 which complainant claimed to be 
 entitled, it was held that although 
 the present suit was between aliens, 
 yet the jurisdiction of the court 
 could be maintained as ancillary 
 to its former suit. Lacassagne v. 
 Chapius, 144 U. S. 119. 
 
 And a writ of scire facias to 
 charge for costs the endorser of a 
 writ is ancillary. Pullman's Pal- 
 ace Car Co. v. Washburn, 66 Fed. 
 Rep. 790. 
 
120 JURISDICTION OP FEDERAL COURTS. 
 
 CHAPTER VII. 
 
 Plurality of Parties Plaintiff or Defendant. — The Requisite Diversity of 
 Citizenship must exist between each Plaintiff and each Defendant. — 
 Dismissal of Parties as to whom the Court cannot exercise Jurisdic- 
 tion. — Non-Joinder of such Parties Equity Rule. 
 
 The principle is well settled that in a suit in a Federal 
 court where the jurisdiction is founded upon the fact that 
 the parties are citizens of different States, and there is a plu- 
 rality of parties plaintiff, or defendant, the requisite diver- 
 sity of citizenship must exist between all of the parties on 
 one side, and all of those upon the other. 
 
 Strawbridge v. Curtiss. This was decided at a very early 
 day, in the leading case of Strawbridge v. Curtiss. 1 In that 
 case, Chief Justice Marshall said (referring to the words of 
 the original judiciary act, " suit between a citizen of the State 
 where the suit is brought and a citizen of another State"): 
 " The court understands these expressions to mean that each 
 distinct interest should be represented by persons all of whom 
 are entitled to sue or may be sued in the Federal courts. 
 That is, that where the interest is joint each of the persons 
 concerned in that interes't must be competent to sue, or liable 
 to be sued, in the courts of the United States." 
 
 The court in the case last cited expressly declined to give 
 an opinion as to a case in which it should appear that the 
 interests of the parties on one side of the controversy were 
 several and not joint, but this distinction has never been 
 developed, and in Coal Co. v. filatchford, 2 the rule is broadly 
 stated by Mr. Justice Field, as follows : " In other words, if 
 
 1 3 Cr. 267. s 11 Wall. 172. 
 
STKAWBEIDGE V. CUKTISS. 121 
 
 there are several co-plaintiffs, the intention of the act is that 
 each plaintiff must be competent to sue, and if there are sev- 
 eral defendants, each defendant must be liable to be sued, or 
 the jurisdiction cannot be sustained." 
 
 If, therefore, parties who might have severally* brought 
 suit, elect to join in a single suit, then for the purpose of 
 jurisdiction the action is joint. Thus, in the early case 
 of New Orleans v. Winter, 1 plaintiffs brought ejectment, 
 claiming as joint heirs, and upon the cause being brought 
 before the Supreme Court upon error, it appeared that 
 one of the plaintiffs was a citizen of the territory of Mis- 
 sissippi. It was held, Justice Marshall speaking for the 
 court, that the jurisdiction could not be maintained. He 
 says: "Gabriel Winter, then, being a citizen of the Missis- 
 sippi Territory, was incapable of maintaining a suit alone in 
 the Circuit Court of Louisiana. Is his case mended by being 
 associated with others who are capable of suing in that court ? 
 In the case of Strawbridge v. Curtiss, it was decided that, 
 where a joint interest is prosecuted, the jurisdiction cannot be 
 sustained, unless each individual be entitled to claim that 
 jurisdiction. In this case, it has been doubted whether the 
 parties might elect to sue jointly or severally. However this 
 may be, having elected to sue jointly, the court is incapable of 
 distinguishing their case, so far as respects jurisdiction, from 
 one in which they were compelled to unite." 
 
 The rule laid down in New Orleans v. Winter has been 
 uniformly followed. Thus, in Peninsular Iron Go. v. Stone, 2 
 certain citizens of Michigan, together with Carpenter, Wason, 
 and Hubby, citizens of Ohio, brought their bill in the United 
 States Circuit Court for the Southern District of Iowa, 
 against Stone, a. citizen of New York, the Iowa, &c. Railroad 
 Co., an Iowa corporation, the Chicago, &c. Railroad Co., an 
 Illinois corporation, and Eels, a citizen of Ohio, to bring 
 defendants Stone and Eels to an accounting under a contract 
 
 1 1 Wh. 91. 2 121 U. S. 631. 
 
122 JURISDICTION OF PEDBBAL COURTS. 
 
 made by Stone with the complainants and others, by which 
 Stone was to purchase a railroad property about to be sold 
 under a decree of foreclosure, and hold the same in trust for 
 complainants, and it was said, Chief Justice Waite speaking 
 for the court : " In the present case the rights of each and all 
 of the parties depend on the alleged contract with Stone, and 
 although, as between themselves, they have separate and dis- 
 tinct interests, they join in a suit to enforce an obligation 
 which is common to all. There is but a single cause of 
 action, and while all of the complainants need not have joined 
 in enforcing it, they have done so, and this, under the rule 
 in New Orleans v. Winter, controls the jurisdiction. It is, 
 therefore, a suit to which citizens of Ohio are parties on the 
 one side and a citizen of Ohio a party on the other, with 
 interests so conflicting that the relief prayed cannot be had 
 without keeping them on opposite sides of the matter in dis- 
 pute. It follows that the Circuit Court was without juris- 
 diction." The decree was accordingly reversed. 1 
 
 Parties may be Dismissed before Judgment. It is, however, 
 entirely within the power of the court, at least in equity, to 
 review its proceedings at any time before final decree, and 
 permit the complainant to dismiss as to any party over whom 
 the court could not exercise jurisdiction. Thus in Horn v. 
 Zockhart, 2 it was said: 
 
 "The objection to the jurisdiction of the court, that two 
 
 1 Hubbard v. Northern R. R. Co., land v. Ryan, 17 Fed. Rep. 1 ; Ex- 
 3 Blatchf. 84, Fed. Cas. No. 6818 ; celsior Pebble Phosphate Co. v. 
 Brigham v. Luddington, 12 Blatchf. Brown, 74 Fed. Rep. 321, 42 U. S. 
 237, Fed. Cas. No. 1874; Petterson App. 55, 20 C. C. A. 428; Removal 
 v. Chapman, 13 Blatchf. 395, Fed. Cases, 100 U. S. 457; Barney v. 
 Cas. No. 11,042; Sawyer v. Switzer- Latham, 103 U. S. 205; Smith v. 
 land Marine Ins. Co., 14 Blatchf. Lyon, 133 U. S. 315; Anderson v. 
 451, Fed. Cas. No. 12.408; Teal e. Watt, 138 U. S.694; Hooe D.Jamie- 
 Walker, 5 Rep'r, 202, Fed. Cas. No. son, 166 U. S. 395. 
 13,012 ; Dormitzero. 111. & St. Louis 2 17 Wall. 570. 
 Bridge Co., 6 Fed. Rep. 217; Hoi- 
 
PROPER PRACTICE IN SUCH CASES. 123 
 
 of the defendants were residents of Texas, the same State with 
 the complainants, was met and obviated by the dismissal of 
 the suit as to them. They were not indispensable parties, 
 that is, their interests were not so interwoven and bound up 
 with those of the complainants, or other parties, that no de- 
 cree could be made without necessarily affecting them. And 
 it was only the presence of parties thus situated which was 
 essential to the jurisdiction of the court. The rights of the 
 parties, other than the defendants who were citizens of 
 Texas, could be, and were, adequately and fully determined 
 without prejudice to the interests of those defendants. And 
 the question always is, or should be, when objection is taken 
 to the jurisdiction of the court by reason of the citizenship of 
 some of the parties, whether to a decree authorized by the 
 case presented they are indispensable parties, for if their 
 interests are severable and a decree without prejudice to their 
 rights can be made, the jurisdiction of the court should be 
 retained and the suit dismissed as to them." 1 
 
 And in the late case of Mason v. Dullaghan, 2 the rule was 
 applied to a case at law, even after verdict. 3 
 
 Proper Practice in such Cases. In view of Section 5 of the 
 Act of March 3, 1875, i providing that if the court shall at 
 any time discover its lack of jurisdiction it shall " proceed no 
 further," but dismiss or remand the case, it is believed that 
 the correct practice in such case would be for the court to 
 stop all proceedings the moment its lack of jurisdiction is 
 
 i Carneal v. Banks, 10 Wh. 181; App. 423, 5 C. C. A. 421; Smith 
 
 Claiborne v. Waddell, 50 Fed. Rep. et al. v. Consumers Cotton-Oil Co., 
 
 368; Hicklin u.Marco, 56 Fed. Rep. 86 Fed. Rep. 359; Sioux City 
 
 549, 15 U. S. App. 55, 6 C. C. A. Terminal R. & W. Co. v. Trust Co. 
 
 10.' of North America, 82 Fed. Rep. 
 
 '» 82 Fed. Rep. 689, 53 U. S. 124, 49 U. S. App. 523, 27 C. C. A. 
 
 App. 539, 27 C. C. A. 296. 73; Tug River Coal & Salt Co. v. 
 
 » See Tnbusch v. Farwell, 1 Brigel, 86 Fed. Rep. 818. 
 
 Black, 566; Walker v. Windsor, * 18 Stat. 470. 
 Nat. Bank, 56 Fed. Rep. 76, 5 U. S. 
 
124 JURISDICTION OF FEDERAL COURTS. 
 
 apparent, and either dismiss or remand the case, or at least 
 decline to proceed until the defect in its jurisdiction be 
 cured. 
 
 This would seem to be the effect of the late case of Eooe 
 v. Ja?nieson, 1 where there was a suit in ejectment, in the 
 Circuit Court of the United States for the Western District 
 of Wisconsin, by the complaint in which plaintiffs in error 
 alleged that they were citizens of Washington, D. C, and 
 that the defendants were citizens of Wisconsin. Defendants 
 moved to dismiss the action on the ground that the Circuit 
 Court had no jurisdiction, as the controversy was not be- 
 tween citizens of different States. The Circuit Court ordered 
 that the action be dismissed unless plaintiffs, within five days 
 thereafter, should so amend their complaint as to allege the 
 necessary jurisdictional facts. Plaintiffs then moved for 
 leave to amend their complaint by averring that three of them 
 were, when the suit was commenced, and continued to be, 
 citizens of the District of Columbia, but that one of them 
 was a citizen of the State of Minnesota, and that each 
 was the owner of an undivided one-fourth of the lands de- 
 scribed in the complaint, and that they severally claimed 
 damages and demanded judgment. This motion was denied 
 and the action dismissed, and a writ of error sued out, under 
 which the Circuit Court certified to the Supreme Court these 
 questions : " First. Whether or not said complaint set forth 
 any cause of action in which there is a controversy between 
 citizens of different States, so as to give said Circuit Court 
 jurisdiction thereof. Second. Whether or not said com- 
 plaint, as so proposed to be amended, would, if so amended, 
 set forth any cause of action in which there is a controversy 
 between citizens of different States, so as to give said Circuit 
 Court jurisdiction thereof." 
 
 In delivering the opinion Chief Justice Fuller spoke as 
 follows : 
 
 1 166 U. S. 395. 
 
PEOPEE PEACTICE IN SUCH CASES. 125 
 
 "In Strawhridge v. Curtiss, 1 it was held that, if there be 
 two or more joint plaintiffs, and two or more joint defend- 
 ants, each of the plaintiffs must be capable of suing each of 
 the defendants in the courts of the United States in order 
 to support the jurisdiction; and in Smith v. Lyon," 2, Straw- 
 bridge v. Curtiss was followed, and it was decided that under 
 the Acts of 1887 and 1888 the Circuit Court has not jurisdic- 
 tion, on the ground of diverse citizenship, if there are two 
 plaintiffs to the action who are citizens of and residents in 
 different States, and the defendant is a citizen of and resi- 
 dent in a third State, and the action is brought in the State 
 in which one of the plaintiffs resides." 
 
 The court then discuss New Orleans v. Winter, 3 Peninsular 
 Iron Co. v. Stone, 41 and Barney v. Baltimore, 5 as holding that 
 where parties elect to sue jointly, the court is incapable of 
 distinguishing the case, so far as respects jurisdiction, from 
 one in which they were compelled to unite, and then proceed : 
 
 " Many other decisions are to the same effect, and in the 
 last case of Merchants Cotton Press & Storage Co. v. Insurance 
 Co., 6 the rule in New Orleans v. Winter was applied, and it 
 was held that ' the voluntary joinder of the parties has the 
 same effect, for purposes of jurisdiction, as if they had been 
 compelled to unite. ' 
 
 " In the case at bar, no application was made for leave to 
 discontinue as to the three plaintiffs who were citizens of 
 the District of Columbia, and to amend the complaint and 
 proceed with the cause in favor of that one of the plaintiffs 
 alleged to be a citizen of Minnesota. Jurisdiction of the 
 case as to four plaintiffs could not be maintained on the the- 
 ory that when the trial terminated it might be retained as to 
 one. The Circuit Court was right, and its judgment is 
 affirmed." 7 
 
 i 3 Cr. 267. 6 151 U. S. 368. 
 
 2 133 U. S. 315. ' Compare Mason v. Dullaghan, 
 
 8 1 Wh. 91. 82 Fed. Rep. 689, 53 U. S. App. 
 
 * 121 U. S. 631. 539, 27 C. C. A. 296. 
 
 6 6 "Wall. 280. 
 
126 JURISDICTION OP FEDERAL COURTS. 
 
 And where it develops that one of the defendants is a citi- 
 zen of the same State as the complainants, the mere filing of 
 a disclaimer by such defendant will not authorize the court 
 to proceed with the cause ; he should be actually dismissed 
 out of the case. 1 
 
 Non-Joinder of Parties under the Statute of 1839. But in 
 a large number of cases the effect of the decision in Straw- 
 bridge v. Curtiss may be avoided by the omission of parties 
 who cannot be reached by process of the court. This is done 
 by virtue of the Act of February 28, 1839, 2 by which it is 
 provided that, — 
 
 " When there are several defendants in any suit at law or 
 in equity, and one or more of them are neither inhabitants of 
 nor found within the district in which the suit is brought, and 
 do not voluntarily appear, the court may entertain jurisdic- 
 tion and proceed to the trial and adjudication of the suit 
 between the parties who are properly before it ; but the judg- 
 ment or decree rendered therein shall not conclude or preju- 
 dice other parties not regularly served with process nor 
 voluntarily appearing to answer; and non- joinder of parties 
 who are not inhabitants of nor found within the district, as 
 aforesaid, shall not constitute matter of abatement or objec- 
 tion to the suit. " 
 
 This statute, it is said, 3 was passed with the express pur-_ 
 pose of avoiding as far as possible the effect of the decision 
 in Strawbridge v. Curtiss. 
 
 Cases under the Statute. In Clearwater v. Meredith,* plain- 
 tiff, a citizen of Ohio, brought an action against three 
 citizens of Indiana, upon a guaranty executed by defendants 
 and one Smith. The latter was not made a party defendant, 
 because he was not a citizen of Indiana. It was held that 
 
 1 Wetherby v. Stinson, 62 Fed. 8 Louisville, &c. R. R. Co. v. 
 Rep. 173, 18 U. S. App. 714, 10 Letson, 2 How. 497. 
 
 C. C. A. 243. 4 21 How. 489. 
 
 2 5 Stat. 321 ; Rev. Stat. Sec. 737. 
 
PRACTICE IN EQUITY. 127 
 
 the plaintiff might maintain his suit in spite of the omission 
 of one jointly bound with the defendants. 
 
 So in Iribusch v. Far well, 1 an action of debt upon a forth- 
 coming bond was sustained against two of the obligors, 
 although the third obligor was not served with process, it 
 appearing that he was beyond the jurisdiction of the court. 2 
 
 Scope of the Statute. It has been held that the statute 
 " does not affect any case where persons having an interest 
 are not joined because their citizenship is such that their 
 joinder would defeat the jurisdiction." 3 But it would seem 
 that this is governed by the question whether or not the 
 omitted party is an indispensable party to the suit, and that 
 if he is not an indispensable party he may be omitted, although 
 for no other reason than that his citizenship is such as would 
 oust the court of jurisdiction. 4 But if he is an inhabitant of 
 or found within the district, and is an indispensable party, it 
 would seem that he must be joined. 6 
 
 Practice in Equity. Equity Rule 47. "In all cases where 
 it shall appear to the court that persons, who might other- 
 wise be deemed necessary or proper parties to the suit cannot 
 be made parties by reason of their being out of the jurisdic- 
 tion of the court, or incapable otherwise of being made par- 
 ties, or because their joinder would oust the jurisdiction of 
 the court as to the parties before the court, the court may in 
 
 1 1 Black, 566. were omitted because they ■were 
 
 2 See Cooper v. Gordon, 4 McL. citizens of the same State as the 
 6, Fed. Cas. No. 3195; United States defendant did not cure the mis- 
 v. Backus, 6 McLean, 443, Fed. Cas. joinder. Farni v. Tesson, 1 Black, 
 No. 14,491. 309. Compare Martin v. Meyer, 45 
 
 8 Shields v. Barrow, 17 How. Fed. Rep. 435. 
 130; Farni v. Tesson, 1 Black, 309; 4 Barney ». Baltimore, 6 Wall. 
 
 Lovejoy v. Washburne, 1 Biss. 416, 280; Ober v. Gallagher, 93 U. S. 
 
 Fed. Cas. No. 8550; Drake v. Good- 199; Doremas v. Bennet, 4 McL. 
 
 ridge, 6 Blatchf. 151; Duchesse 224, Fed. Cas. No. 4001. 
 d'Auxy v. Porter, 41 Fed. Rep. 68. 6 Patchin v. Hunter et al, 38 Fed. 
 
 Where in a suit on an injunction Rep. 51; Allnut v. Lancaster, 76 
 
 bond certain obligees were omitted, Fed. Rep. 131. See p. 140, post. 
 it was held that the fact that they 
 
128 JURISDICTION OP FEDERAL COURTS. 
 
 their discretion proceed in the cause without making such 
 persons parties ; and in such cases the decree shall be with- 
 out prejudice to the rights of the absent parties." 
 
 When statute Inapplicable. But neither the statute nor 
 the 47th Equity Rule applies to cases where by the established 
 equity practice a decree cannot be rendered without affecting 
 the rights of the absent party. " It remains true, notwith- 
 standing the Act of Congress and the 47th Equity Rule, that 
 a Circuit Court can make no decree affecting the rights of 
 an absent person, and can make no decree between the parties 
 before it, which so far involves or depends upon the rights of 
 an absent person, that complete and final justice cannot be 
 done between the parties to the suit without affecting those 
 rights." 1 This reasoning was applied in Barney v. Balti- 
 more,' 2, which was a bill for partition, filed by Barney, a citi- 
 zen of Delaware, in the Circuit Court of Maryland, against 
 the City of Baltimore, and several others, citizens of Mary- 
 land, and certain others who were citizens of the District of 
 Columbia. These latter subsequently made a conveyance to 
 one Proud, a citizen of Maryland, without consideration, for 
 the express purpose of conferring jurisdiction upon the Fed- 
 eral court, and with an agreement for a reconveyance upon 
 request, and the suit was dismissed as to these defendants. 
 It was held that the conveyance, being merely colorable, con- 
 ferred no jurisdiction upon the court, and that the court 
 could not make a decree in such a suit without the presence 
 of the citizens of the District of Columbia. 
 
 1 Shields v. Barrow, 17 How. H. W. Co., 1 Sawy. 685, Fed. Cas. 
 
 130; Coiron v. Millaudon, 19 How. No. 2990; Burke v. Flood, 1 Fed. 
 
 113; Barney v. Baltimore, 6 Wall. Rep. 541; Taylor v. Holmes, 14 
 
 280; Ribon v. Railroad Co., 16 Fed. Rep. 498; Bell v. Donohoe, 
 
 Wall. 446; Davenport v. Dows, 18 17 Fed. Rep. 710; Collins Mfg. Co. 
 
 Wall. 626; Williams ». Bankhead, v. Ferguson & Hutters Trustee, 54 
 
 19 Wall. 563; Kendig v. Dean, 97 Fed. Rep. 721. See Gregory v. 
 
 U. S. 423; Robertson v. Carson, 86 Swift et al., 39 Fed. Rep. 708. 
 U. S. 94 ; Mining Co. v. V. & G. 2 6 Wall. 280. 
 
PRACTICE IN EQUITY. 
 
 129 
 
 When Courts of Equity will follow the Statute. But where 
 a decree may be made without affecting the rights of absent 
 parties, courts of equity will follow the statute and the rule. 1 
 
 1 Payne v. Hook, 7 Wall. 425; 
 Horn v. Lockhart, 17 Wall. 570; 
 Coann v. Atlanta Cotton Factory 
 Co., 14 Fed. Rep. 4; Goldsmith v. 
 
 Gilliland, 24 Fed. Eep. 154; Gaily 
 v. Colt's Patent Mfg. Co., 30 Fed. 
 Rep. 118; Claiborne v. Waddell, 50 
 Fed. Rep. 368. See p. 140, post. 
 
130 JURISDICTION OP FEDERAL COURTS. 
 
 CHAPTER VIII. 
 
 Whose Citizenship Governs. — Nominal Parties. — Suits by Next Friend. 
 — Trustees. — Receivers. — Receivers of National Banks. — Executors 
 and Administrators. — Guardians. — Parties having Legal Right. — 
 Formal, Necessary, and Indispensable Parties. — Re-arranging Parties 
 for Jurisdictional Purposes. 
 
 Nominal Parties. Although the general rule is unques- 
 tioned that it is the citizenship of the parties to the record 
 that governs the jurisdiction of the Federal courts, there are 
 some qualifications to this general rule which require special 
 notice. Thus, cases often arise where a person, although a 
 party to the record, has still only a nominal or formal inter- 
 est in the controversy. 
 
 In such cases, the rule laid down by the Supreme Court is 
 that if the requisite diversity of citizenship exists between 
 the persons really interested in the controversy, it will not 
 defeat the jurisdiction if some statute or rule of law requires 
 the suit to be brought in the name of some third person who 
 acts as a mere nominal plaintiff, although there is no diver- 
 sity of citizenship between the nominal plaintiff and the de- 
 fendant. When this appears, the court will " look to things, 
 not names — to the actors in controversies and suits, not to 
 the mere forms or inactive instruments used in conducting 
 them, in virtue of some positive law." 1 
 
 This has been the view of the Supreme Court from the 
 earliest cases, although not without an occasional dissent. 2 
 Thus in Browne v. Strode, 8 a suit was brought in the Circuit 
 
 1 McNutt ». Bland, 2 How. 9. * 5 Cr. 303. (This case is im- 
 
 2 See dissenting opinion of Jus- perfectly reported in 5 Cr. See 
 tice Daniel in case last cited. opinion in McNutt v. Bland, 2 How. 
 
 9, for a better statement.) 
 
NOMINAL PARTIES. 131 
 
 Court of the United States for the District of Virginia, upon 
 a bond given by an executor for the faithful performance of 
 his trust, under a Virginia statute which required such bond 
 to be payable to the justices of the County Court, and pro- 
 vided that such bonds might be put in suit and prosecuted by 
 and at the cost of the party injured. The object of the suit 
 was to recover a debt due from the testator to a citizen of 
 Great Britain, and the defendant was a citizen of Virginia, 
 and it was held that the Circuit Court had jurisdiction, al- 
 though the plaintiffs were the justices of a County Court of 
 Virginia, and citizens of the same State as the defendant. 
 
 And in Maryland v. Baldwin, 1 a statute of Maryland re- 
 quired bonds of administrators to be taken in the name of the 
 State for the benefit of the parties interested. A, claiming 
 as heir, brought suit in a State Court in Maryland against 
 citizens of that State who were sureties upon the bond 
 given by the administrators of his father's estate, the suit 
 being entitled, "State of Maryland, for use, etc., v. Bald- 
 win et al." Afterwards, upon A's petition, he being a citi- 
 zen of New Jersey, the suit was removed to the United States 
 Circuit Court for the District, upon the ground of local prej- 
 udice. Upon writ of error the Supreme Court held the suit 
 removable, the real controversy being between the heir and 
 the obligors on the bond, the State of Maryland being a mere 
 nominal party, and the suit, for the purpose of jurisdiction, 
 being treated as if A were alone named as plaintiff. 
 
 So in McNutt v. Bland, 2 suit was brought in the United 
 States Circuit Court by McNutt, who was the Governor of 
 Mississippi, for the use of Leggett, Smith, and Lawrence, 
 citizens of New York, against Bland, a sheriff, and his bonds- 
 men, defendants, who were citizens of Mississippi, and was 
 an action of debt upon the sheriff's bond for an escape. 
 Upon error the point was made that the action was not within 
 
 i 112 U. S. 490. See State of a 2 How. 9. 
 Indiana ex rel. v. Stanton, 155 U. S. 
 513. 
 
132 JURISDICTION OE FEDERAL COURTS. 
 
 the jurisdiction of the court. The Supreme Court, after re- 
 citing the statute of Mississippi, which provided that all 
 sheriffs should give bond running to the Governor of the 
 State, which bond might be put in suit and prosecuted by 
 and at the costs of any party injured, proceed as follows: 
 " We can perceive no sound reason for denying the right of 
 prosecuting the same cause of action against the sheriff and 
 his sureties in the bond, by and in the name of the governor, 
 who is a purely naked trustee for any party injured. He is 
 a mere conduit through whom the law affords a remedy to 
 the person injured by the acts or omissions of the sheriff ; the 
 governor cannot prevent the institution or prosecution of the 
 suit, nor has he any control over it. The real and only 
 plaintiffs are the plaintiffs in the execution. ... In this case 
 there is a controversy and suit between citizens of New York 
 and Mississippi; there is neither between the governor and 
 the defendants ; as the instrument of the State law to afford 
 a remedy against the sheriff and his sureties, his name is in 
 the bond and to the suit upon it, but in no just view of the 
 constitution or law can he be considered as a litigant party; 
 both look to things, not names — to the actors in controversies 
 and suits, not to the mere forms or inactive instruments used 
 in conducting them, in virtue of some positive law." 
 
 Upon the principle of these cases it has accordingly been 
 held that an action upon a forthcoming bond given to a 
 United States marshal, might be maintained by the marshal 
 for the use of the parties in interest, if the necessary diver- 
 sity of citizenship existed between those parties and the 
 defendant, although the marshal and the defendants were 
 citizens of the same State. 1 
 
 Infants Suing by Next Friend. It is the citizenship of the 
 infant, in a suit brought by his next friend, which determines 
 
 1 Huff v. Hutchinson, 14 How. original suit. See Paterson, el al. v 
 586. This action might also have Mater et al, 26 Fed. Rep. 31. 
 been maintained as ancillary to the 
 
PAETIES HAVING SUBSTANTIAL INTEREST. 133 
 
 j 
 
 the jurisdiction of the court. 1 And the same rule is applied 
 in the case of one non compos mentis, suing by nest friend ; 2 
 and so of a married woman. 3 
 
 Parties having Substantial Interest. Trustees. But where 
 the parties to the record have a real as distinguished from a 
 merely nominal interest in the suit, their citizenship deter- 
 mines the jurisdiction of the court, although they represent 
 beneficiaries who have the ultimate interest in the litigation. 
 
 Thtis in Coal Co. v. Blatchford,* a bill was filed in the Cir- 
 cuit Court of the United States for the Western District of 
 Pennsylvania, by Blatchford, a citizen of New York, and 
 Newman, a citizen of Pennsylvania, against the Susquehanna 
 and Wyoming Valley Railroad and Coal Company, a Penn- 
 sylvania corporation, to foreclose a mortgage given by the 
 Eailroad Company to Blatchford and Newman as trustees. 
 The bill averred that the complainants sued " solely for the 
 use of Henry Beckett, an alien and a subject of the Queen of 
 Great Britain, and Joseph Loyd, a citizen of New Jersey." 
 Upon appeal it was sought to bring the case within the rea- 
 soning of Browne v. Strode and McNutt v. Bland, but the 
 Supreme Court refused to take this view. "There is no 
 analogy between these cases and the case at bar, " says Field, 
 J., in delivering the opinion of the court. "The nominal 
 plaintiffs in those cases were not trustees, and held nothing 
 for the use or benefit of the real parties in interest. They 
 could not, as was said in McNutt v. Bland, prevent the insti- 
 tution or prosecution of the actions or exercise any control 
 
 1 Williams v. Kichey, 3 Dillon, 8 Ruckman v. Palisade Land Co., 
 406, Fed. Cas. No. 17,734; Wool- 1 Fed. Rep. 367. 
 
 ridge v. M'Kenna, 8 Fed. Rep. 650 ; i 11 Wall. 172. See Gardner v. 
 
 Voss v. Neineber, 68 Fed. Rep. 947; Brown, 21 Wall. 36 ; New Orleans 
 
 Blumenthal et al. v. Craig, 81 Fed. v. Gaines, 138 U. S. 595; Foss v. 
 
 Rep. 320. First Nat. Bank, 3 Fed. Rep. 185 ; 
 
 2 Wiggins v. Bethune, 29 Fed. Goodnow v. Litchfield, 47 Fed. Rep. 
 Rep. 51. 753 ; Griswold v. Batcheller, 75 Fed. 
 
 Rep. 470. 
 
134 JURISDICTION OP FEDERAL COURTS. 
 
 over them. The justices of the peace, in the one case, and 
 the governor in the other, were the mere conduits through 
 whom the law afforded a remedy to the parties aggrieved. 
 In the case at bar the plaintiffs are the real prosecutors of the 
 suit. They are parties to the mortgage contract negotiating 
 its terms and stipulations, and to them the usual rights and 
 powers of mortgagees are reserved, and to them the usual 
 obligations of mortgagors are made. The right to use differ- 
 ent remedies is expressly provided upon default in the pay- 
 ments stipulated, and the adoption of either rests at the 
 option of the plaintiffs." It was accordingly held that the 
 suit could not be maintained. 
 
 And where a trustee under a deed of trust brings a suit to 
 foreclose the trust deed, it is immaterial that the owner of 
 the bond secured by the trust deed is a citizen of the same 
 State as the defendant. In such a case the trustee represents 
 the beneficiaries, whether there be many of them, as in the 
 case of a railroad mortgage, or only one. 1 
 
 Trustee Refusing to Act. Nor is the rule changed by the 
 fact that the trustee refuses to act; 2 although this may not 
 
 1 Dodge v. Tulleys, 144 U. S. tion, inasmuch as the complainants 
 451. See Knapp v. R. R. Co., 20 and defendants would have been 
 Wall. 117 ; Shirk v. City of Lafay- citizens of the same State. The 
 ette, 52 Fed. Rep. 857 ; Morris v. result would have been the same if 
 Lindauer, 54 Fed. Rep. 23, 6 U. S. Williams and wife, creditors and 
 App. 510, 4 C. C. A. 162 ; Thayer v. beneficiaries under the deeds of 
 Life Asso., 112 U. S. 717. trust, had been joined with them 
 
 2 Thus in Shipp v. Williams, 62 as complainants, or made parties 
 Fed. Rep. 4, 22 U. S. App. 380, 10 defendant along with the debtor 
 C. C. A. 247, it is said: "We are defendants. In courts of the 
 clearly of opinion that the Circuit United States, where the jurisdiction 
 Court had no jurisdiction, and that depends on citizenship, all the 
 appellants' demurrer should have co-plaintiffs must be competent to 
 been sustained. It is clear that if sue ; and, if there is more than one 
 Woodworth and Wheeler had filed defendant, each must be liable to 
 this bill, as they well might, in their be sued in those courts. If a trustee 
 character as trustees, the Federal is, by his citizenship, qualified to 
 court would have had no jurisdic- sue in a Federal Court, the citizen- 
 
TRUSTEE REFUSING TO ACT. 
 
 135 
 
 always be true, as where on a bill filed by a bondholder ask- 
 ing for foreclosure of a mortgage upon the ground that the 
 
 State court, Gardner appealed. 
 The opinion was by Waite, C. J., 
 who said: " The motion of Gardner, 
 the mortgagor, to transfer the cause, 
 as to himself, to the Circuit Court, 
 under the provisions of the Act of 
 July 27, 1866, could not be granted 
 unless there could be a final determi- 
 nation of the cause, so far as it con- 
 cerned him, without the presence of 
 the other defendant as a party. And 
 we think that the Circuit Court was 
 right in its opinion that Walker was 
 a necessary party to the relief asked 
 against Gardner, and in refusing to 
 entertain jurisdiction, and in re- 
 manding the cause. The bill prayed 
 a foreclosure of the mortgage by a 
 sale of the land. This required the 
 presence of the party holding the 
 legal title. The complainant had 
 only the equitable title. Walker 
 held the legal title. The final 
 determination of the controversy, 
 therefore, required his presence, and 
 as the cause was not removable as 
 to him, under the authority of Coal 
 Co. v. Blatchford, it could not be 
 removed as to Gardner alone. . . . 
 " A trustee under a mortgage or 
 a deed of trust is made so by act of 
 the parties. His duties are active. 
 The legal title vested in him by deed 
 cannot be divested, so that a fee may 
 be passed to the purchaser, unless 
 he be a party to the cause. ... A 
 trustee, instead of being a formal 
 or nominal party, is a necessary 
 party where the beneficiary seeks a 
 decree of foreclosure. In the case 
 of Pittsburgh, C. & St. L. Ry. Co. 
 v. Baltimore & O. R. Co., 61 Fed, 
 
 ship of the beneficiary under the 
 trust is wholly unimportant. If the 
 trustee is disqualified by reason of 
 citizenship in the same State as that 
 of the necessary defendants, the 
 suit cannot be entertained, even 
 though the beneficiary might be 
 qualified. The jurisdiction is to be 
 determined, in all such instances, 
 by the citizenship of the trustee. 
 Neither is the rule changed by the 
 refusal of the trustee to act. His 
 refusal may authorize the beneficiary 
 to exhibit a bill against the debtor 
 to obtain a decree of foreclosure. 
 But if the legal title to the property 
 conveyed in the trust be in the 
 trustee, then the court could not 
 grant any relief until the trustee 
 was made a party defendant. In 
 Gardner v. Brown, 21 Wall. 36, the 
 facts were almost identical with 
 those of the case before us. There 
 the trustee, Walker, and the benefi- 
 ciary, Brown, were citizens of 
 Tennessee. Gardner, the debtor, 
 was a citizen of New York. Brown 
 filed his bill in the State Court, 
 seeking foreclosure, alleging that 
 Walker, the trustee, had never 
 qualified as trustee, and did not 
 intend to qualify, or execute the 
 same. 
 
 Walker and Gardner were made 
 co-defendants. Gardner removed 
 the case to the United States Circuit 
 Court, alleging that there was a 
 separable controversy, which could 
 be finally determined, so far as he 
 was concerned, without the presence 
 of Walker, his co-defendant. From 
 a decree remanding the case to the 
 
136 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 trustee refuses to take that proceeding, it is also sought to 
 exclude a large part of the holders of similar bonds from par- 
 ticipating in the proceeds of the foreclosure sale, the trustee, 
 who represents the entire bond issue, is properly made a de- 
 fendant, as the bill practically denies the trustee's right to 
 act on behalf of all of the bondholders. 1 
 
 And where a State court of Indiana appointed a citizen of 
 Illinois trustee of certain property within the State of Indi- 
 ana, it was held no bar to the trustee maintaining an action 
 in the Federal court for Indiana, against a citizen of that 
 State, for damages to the trust property. 2 
 
 Receivers. A receiver is a representative as much as an 
 executor, and his personal citizenship will be regarded in 
 determining the jurisdiction of the court, and he may there- 
 fore remove a suit brought against him in his official capacity, 
 although the corporation of which he is receiver is organized 
 
 Rep., 705, we said: 'In determin- 
 ing a question of jurisdiction, where 
 it depends upon citizenship, it is 
 unimportant that the pleader has 
 put a particular party upon the one 
 or the other side of the case. Juris- 
 diction in such cases depends, not 
 upon an arbitrary arrangement 
 of the parties by the pleader, but 
 upon their arrangement according 
 to interest. If, when arranged by 
 interest in the litigated question, 
 all on one side are citizens of a 
 State other than that of those of the 
 other side, then jurisdiction exists.' 
 The duty of arranging parties ac- 
 cording to their interests applies as 
 well in cases of original jurisdiction 
 under the first section of the Act of 
 March 3, 1875,' as it does under the 
 removal section of the same Act. 
 Arranging the parties to this suit 
 according to their interests operates 
 to place Woodworth and Wheeler 
 
 on the same side of the case oc- 
 cupied by the complainants. We 
 then have a case where some of the 
 complainants are citizens of the 
 same State as the defendants. Jur- 
 isdiction is thereby defeated. The 
 judgment must be reversed and 
 the bill dismissed for want of juris- 
 diction." And see McRae v. Bank, 
 19 How. 376 ; Knapp v. Railroad 
 Co., 20 Wall. 117 ; Thayer v. Life 
 Asso., 112 U. S. 717; Peper v. 
 Fordyce, 119 U. S. 469. Compare 
 Reinach v. Railroad Company, 58 
 Fed. Rep. 33 ; First Nat. Bank v. 
 Radford Trust Co., 80 Fed. Rep. 
 569, 47 U. S. App. 692, 26 C. C. A. 1. 
 
 1 First Nat. Bank v. Radford 
 Trust Co., 80 Fed. Rep. 569, 47 
 U. S. App. 692, 26 C. C. A. 1. 
 
 3 Shirk v. City of Lafayette, 52 
 Fed. Rep. 857, following in prin- 
 ciple Rice v. Houston, 13 Wall. 66. 
 
EXECUTORS AND ADMINISTRATORS. 137 
 
 under the laws of the State of which the plaintiff is a 
 citizen. 1 
 
 Receivers of National Banks. A receiver of a national 
 bank, being an officer of the United States, may sue in the 
 Federal courts without regard to his citizenship. 2 
 
 Executors and Administrators. The same rule applies to 
 executors as to receivers or other trustees. In Chappedelaine 
 v. Dechenaux, 3 complainants, citizens of France, brought suit, 
 one as residuary legatee and the other as administrator de 
 bonis non of a testator who had been a citizen of Georgia, 
 against the defendant, wbo was a citizen of that State. The 
 action was in a Federal court for Georgia. Counsel, on open- 
 ing the question of jurisdiction, were stopped by the court, 
 Chief Justice Marshall observing that the impression of the 
 court was that the case was clearly within the jurisdiction of 
 courts of the United States ; that the plaintiffs were aliens, 
 and although they sued as trustees, they were entitled to sue 
 in the Circuit Court. 
 
 And in a suit by an administratrix in her representative 
 capacity it is her citizenship which is material, and not that 
 of her intestate. 4 
 
 So, in Duchesse d'Auxy v. Porter, 1 it was held that in 
 action for an accounting brought by an administratrix of a 
 
 1 Davies v. Lathrop, 12 Fed. nental Ins. Co. v. Rhoads, 119 U. S. 
 Kep. 353 ; Brisenden v. Chamberlain, 237 ; New Orleans v. Gaines, 138 
 53 Fed. Rep. 307. Am. Nat. Bank U. S. 595 ; Dodge v. Perkins, 4 Mas. 
 v. Nat. Benefit Co., 70 Fed. Rep. 420. 543, Fed. Cas. No. 3954 ; Carter v. 
 
 2 Price v. Abbott, 17 Fed. Rep. Treadwell, 3 Story 25, Fed. Cas. 
 506; Armstrong v. Ettlesohn, 36 No. 2480; Foss v. First Nat. Bank, 
 Fed. Rep. 209; Stephens v. Ber- 3 Fed. Rep. 185; Harper v. Nor- 
 nays, 41 Fed. Rep. 401; Gibson folk & Western R. R. Co., 36 Fed. 
 v. Peters, 150 U. S. 342. Rep. 102; Duchesse d'Auxy v. Por- 
 
 3 4 Cranch, 306. See Childress ter, 41 Fed. Rep. 68 ; Bangs v. Lov- 
 v. Emory, 8 Wheat. 642; Rice v. eridge, 60 Fed. Rep. 963; Security 
 Houston, 13 Wall. 66 ; Amory v. Co. v. Pratt, 64 Fed. Rep. 405. 
 Amory, 95 U. S. 186 ; Blake v. Mc- * Continental Ins. Co. v. Rhoads, 
 Kim, 103 U. S. 336 ; American Bible supra. 
 
 Soc. v. Price, 110 U. S. 61 ; Conti- 6 41 Fed. Rep. 68. 
 
138 JURISDICTION OP FEDERAL COURTS. 
 
 deceased partner, the administratrix being a citizen of New 
 York, against one of the surviving partners, who was a citi- 
 zen of Connecticut, in the United States Circuit Court for 
 Connecticut, must be dismissed for want of jurisdiction, it 
 appearing that the other two surviving partners were citizens 
 of New York, and were necessary parties. 
 
 And where by the Virginia Code a right of action for the 
 wrongful killing of his intestate vests in an administrator, 
 and he alone can sue upon it, although the Code further pro- 
 vides that damages recovered go to the widow and children 
 of deceased, if any, if not, to be assets in the hands of the 
 administrator, in an action brought in a Federal court of 
 Virginia by an administrator who is a citizen of Tennessee, 
 against a Virginia corporation, a plea in abatement that the 
 plaintiff's intestate was a citizen of Virginia, and that he left 
 a widow and children who are also citizens of that State, must 
 be overruled. 1 And an administrator who is a citizen of an- 
 other State may be selected for the express purpose of main- 
 taining a suit in a Federal court. 2 
 
 Nor is it material in this class of cases from what State the 
 administrator derives his power to act as such. Thus, in Rice 
 v. Houston, Adm'r, 3 the latter had been appointed by a Ten- 
 nessee court administrator of the estate of a deceased citizen 
 of Tennessee. Afterwards Houston, who at the time of his 
 appointment was a citizen of Tennessee, became a citizen of 
 Kentucky, and as such brought suit in the Federal court for 
 the Middle District of Tennessee against certain citizens of 
 that State to recover upon debts due the estate, and it was 
 held that the suit might be maintained, in spite of the fact 
 that his letters of administration were issued by a Tennessee 
 court, and the decedent a citizen of the same State as the 
 defendants. 
 
 1 Harper v. Norfolk & Western ! 13 Wall. 66. So in a suit by 
 R. R., 36 Fed. Rep. 102. an attorney against a non-resident 
 
 2 Goff v. Norfolk & Western administrator to establish an attor- 
 R. R., 36 Fed. Rep. 299. ney's lien, the fact that the defend 
 
PARTIES HAVING LEGAL EIGHT. 139 
 
 Guardians. It would seem that the same rule should apply 
 to the case of a guardian as to an executor or administrator, 
 referring now to a guardian appointed with general powers, 
 and not to a mere guardian ad litem ; 1 but in a case at the 
 circuit Mr. Justice Brewer draws a distinction between a 
 guardian and an executor, in that the title to the property of 
 a minor is in the minor, the curator or guardian merely repre- 
 senting the minor, but not having the title to his property. 2 
 It was accordingly held in the case last cited that in a suit by 
 the guardian of two minors, citizens of Texas, against the 
 administrator of a bondsman of a former guardian of the 
 minors, the fact that the present guardian and the bondsman 
 were both citizens of Missouri, where the suit was brought, 
 would not prevent the court from taking jurisdiction of the 
 suit. 
 
 Parties having Legal Right with others Equitably Interested. 
 Persons having the legal right may sue at law in the Federal 
 courts, without regard to the citizenship of those having the 
 equitable interest. Thus, in Bonnafee v. Williams, 5 a suit 
 was brought in the United States Circuit Court for the 
 Southern District of Mississippi, by plaintiffs, upon notes by 
 which the defendants promised to pay to M, or hearer, for 
 the use of the Real Estate Banking Company of H county, 
 at their banking house in Clinton, the sum therein named. 
 The defendants demurred, stating that "although it is true 
 the nominal plaintiffs are the bearers of the paper sued on, 
 and citizens of a State other than Mississippi, yet those for 
 
 ant holds his letters of administra- App. 409, 24 C. C. A. 145 ; In re 
 
 tion from a court of the same State Estate of McClean, Jr., 26 Fed. 
 
 as the plaintiff will not defeat the Rep. 49. 
 
 jurisdiction of a Federal court 2 Dodd v. Ghiselin, 27 Fed. Rep. 
 
 founded upon diverse citizenship. 405. The learned justice bases his 
 
 Semmes v. Whitney, 50 Fed. Rep. conclusions upon Lamar v. Micou, 
 
 666. 122 U. S. 452. 
 
 1 And so held in Pennington v. 3 3 How. 574. See Knapp v. 
 
 Smith, 78 Fed. Rep. 399, 45 U. S. Railroad Co., 20 Wall. 117. 
 
140 JURISDICTION OP FEDERAL COURTS. 
 
 whose benefit suit is brought, for anything which appears in 
 the declaration, are citizens of the State of Mississippi." In 
 reversing a judgment sustaining the demurrer, the Supreme 
 Court said : " The notes in question passed by delivery, and 
 the plaintiffs, as bearers, have a right to sue in their own 
 names, as the promise to pay is made to bearer. The plain- 
 tiffs allege that they are citizens of New York, and, conse- 
 quently, the Circuit Court had jurisdiction of the case. 
 Where the citizenship of the parties gives jurisdiction, and 
 the legal right to sue is in the plaintiff, the court will not 
 inquire into the residence of those who may have an equitable 
 interest in the claim. They are not necessary parties on the 
 record. Any person having the legal right may sue in the 
 Federal courts without reference to the citizenship of those 
 who may have the equitable interest." 
 
 Formal, Necessary, and Indispensable Parties. In the case of 
 mere formal parties, if the action can be maintained as between 
 the other parties to the suit, the fact that formal parties are 
 " joined as complainants or defendants, between whom and the 
 opposing parties the requisite diversity of citizenship does not 
 exist, will not oust the court of jurisdiction. 
 
 In cases of this character, the only question is as to who 
 may be considered merely formal parties. In chancery pro- 
 ceedings, the Supreme Court has divided parties into three 
 classes : (1) Formal parties, who have no interest in the con- 
 troversy between the immediate litigants, but have such an 
 interest in the subject matter as may be conveniently settled 
 in the suit, and thereby prevent further litigation ; (2) Neces- 
 sary parties, who have an interest in the controversy, but 
 whose interests are separable from those of the parties before 
 the court, and will not be directly affected by a decree which 
 does complete and full justice between them ; (3) Indispen- 
 sable parties, who not only have an interest in the subject 
 matter of the controversy, but an interest of such a nature 
 that a final decree cannot be made without either affecting 
 
RE-ARRANGING PARTIES FOR JURISDICTION. 141 
 
 their interests or leaving the controversy in such a condition 
 that its final determination may be wholly inconsistent with 
 equity and good conscience. Formal parties may be made 
 parties or not, at the option of the complainant. Necessary 
 parties must be made parties if practicable, in obedience to the 
 general rules which require all persons to be made parties 
 who are interested in the controversy, in order that there may 
 be an end to litigation; but this general rule in the national 
 courts is subject to the exception that, if such parties are 
 beyond the jurisdiction of the court, or if making them par- 
 ties would oust the jurisdiction of the court, the suit may 
 proceed to a final decree between the parties before the court 
 leaving the rights of the absent parties untouched, and to be 
 determined in any competent forum. Indispensable parties 
 must, of course, be made parties, and the court cannot pro- 
 ceed without them. 1 
 
 It would be beyond the scope of this work to enter into a 
 discussion of the various classes of parties. Some of the lead- 
 ing cases are given in the note below. 2 
 
 Re-arranging Parties for Jurisdictional Purposes. In all cases, 
 moreover, the Federal court is not limited, in determining 
 whether diversity of citizenship exists between each plaintiff 
 
 1 Marco v. Hicklin, 56 Fed. Rep. lin, 56 Fed. Eep. 549, 15 U. S. App. 
 549, 15 U. S. App. 55, 6 C. C. A. 10. 55, 6 C. C. A. 10. 
 
 See Eq. Rule 47. Indispensable Parties. Shields 
 
 2 Formal Parties. Wormley v. v. Barrow, 17 How. 130; Ribon v. 
 Wormley, 8 Cr. 421 and note; Wal- R. R. Co., 16 Wall. 446; Williams 
 den v. Skinner, 101 U. S. 577; v. Bankhead, 19 Wall. 563; Kendig 
 Wade, Marshal, v. Wortsman, 29 v. Dean, 97 U. S. 423; Coney v. 
 Fed. Rep. 754; New Chester Water Winshell, 116 U. S. 227; Wilson 
 Co. v. Holly Mfg. Co., 53 Fed. Rep. v. Oswego Township, 151 U. S. 
 19, 13 U. S. App. 264, 3 C. C. A. 56 ; Construction Co. v. Cane Creek 
 399 ; Arapahoe Co. v. Kansas Pac. Township, 155 U. S. 283 ; Connolly 
 Ry. Co., 4 Dill. 277, Fed. Cas. No. v. Wells, 33 Fed. Rep. 205; Mangels 
 502. v. Donau Brewing Co. 53 Fed. Rep. 
 
 Necessary Parties. Payne v. 513; Rust v. Brittle Silver Mining 
 Hook, 7 Wall. 425; Hotel Co. v. Co., 58 Fed. Rep. 611, 19 U. S. 
 Wade, 97 U. S. 13; Marco v. Hick- App. 237, 7 C. C. A. 389. 
 
142 JURISDICTION OP FEDERAL COURTS. 
 
 and each defendant, to the position occupied by the parties in 
 the pleadings as plaintiffs or defendants. No matter what 
 position the pleader has assigned to the parties, the court will 
 look into the real facts of each particular case, and if neces- 
 sary will re-arrange the parties according to the nature of the 
 controversy, and will then view the array to determine its 
 jurisdiction. 
 
 This rule was first adopted in the Removal Cases? as ap- 
 plied to the removal of causes, and was almost immediately 
 applied to original suits in the case of Pacific Railroad v. 
 Ketchum.' 2 In the latter case Chief Justice Waite said: 
 "The first section of the Act of March 3, 1875, 3 provides 
 ' that the Circuit courts of the United States shall have origi- 
 nal cognizance ... of all suits of a civil nature at common 
 law or in equity, where the matter in dispute exceeds, exclu- 
 sive of costs, the sum or value of $500, ... in which there 
 shall be a controversy between citizens of different States.' 
 The same general language is used in the second section of the 
 same Act in respect to the removal of suits from the State 
 courts, and in Removal Gases we held it to mean that when the 
 controversy about which the suit was brought was between 
 citizens of different States, the courts of the United States 
 might take jurisdiction without regard to the position the 
 parties occupied in the pleadings as plaintiffs or defendants. 
 For the purposes of jurisdiction the court had power to ascer- 
 tain the real matter in dispute, and arrange the parties on one 
 side or the other of that dispute. If in such arrangement it 
 appeared that those on one side were all citizens of different 
 States from those on the other, jurisdiction might be enter- 
 tained, and the cause proceeded with. That rule, we think, 
 applies as well to the first section as to the second." 
 
 The rule is now universally applied. 4 Thus, the trustees 
 
 J 100 U. S. 457. * Harter v. Kernochan, 103 U. 
 
 2 101 D. S. 289. S. 562 ; Blacklock «. Small, 127 
 
 3 18 Stat. pt. 3, 470. U. S. 96; Merchants Cotton Press 
 
RE-ARRANGING PARTIES FOR JURISDICTION. 
 
 143 
 
 of a mortgage which is being foreclosed at the suit of bond- 
 holders may be properly arranged on the same side of the 
 controversy over the foreclosure with the complainants, al- 
 though nominally made defendants, there being no antago- 
 nism between them and the complainants, and no relief being 
 asked against them ; 1 so where complainant, as owner of 
 unpaid coupons upon bonds secured by an income mortgage 
 upon a railroad, brought suit against the company for an 
 accounting of its earnings and expenses since the making of 
 the mortgage, and prayed for an injunction against the ap- 
 propriation of its earnings contrary to the rights of the in- 
 come bondholders, and for a decree for the payment of the 
 income properly applicable to that purpose, and made the 
 trustee named in the mortgage a party defendant because it 
 asserted that no duty rested upon it in respect to the matters 
 complained of in the bill, and had refused to bring the suit 
 
 Co. v. Insurance Co., 151 U. S. 368; 
 Evers v. Watson, 156 U. S. 527; 
 Burke v. Flood, 1 Fed. Rep. 541 ; 
 Bybee v. Hawkett, 5 Fed. Rep. 1; 
 Sayer v. La Salle & Peru Gas Light 
 & Coke Co., 14 Fed. Rep. 69; 
 Snow v. Texas Trunk R. R. Co., 
 16 Fed. Rep. 1; People ex rel. v. 
 HI. Cen. R. R. Co., 16 Fed. Rep. 
 881; Langdon v. Fogg, 18 Fed. 
 Rep. 5; Pollock et al. v. Loucheim 
 et al., 19 Fed. Rep. 465; Barry v. 
 Missouri, Kansas & Texas Ry. Co., 
 27 Fed. Rep. 1 ; Saginaw Gas Light 
 Co. v. City of Saginaw et al., 28 
 Fed. Rep. 529; Bland v. Fleeman, 
 29 Fed. Rep. 669; Covert v. Wal- 
 dron, 33 Fed. Rep. 311; Rich v. 
 Bray, 37 Fed. Rep. 273; Ander- 
 son v. Bowers, 40 Fed. Rep. 708 ; 
 Adelbert College v. Toledo, Wabash 
 & Western R. R. 47 Fed. Rep. 836 ; 
 Claiborne v. Waddell, 50 Fed. Rep. 
 
 368; Perrin's Admrs. v. M'Gibbens 
 Admrs., 53 Fed. Rep. 86, 3 C. C. A. 
 443, 6 U. S. App. 348; Wolcott v. 
 Sprague, 55 Fed. Rep. 545 ; Pitts- 
 burgh, Chicago & St. Louis R. R. 
 v. Baltimore & Ohio R. R., 61 Fed. 
 Rep. 705, 22 U. S. App. 359, 10 
 C. C. A. 20; Shipp v. Williams, 62 
 Fed. Rep. 4, 22 U. S. App. 380, 10 
 C. C. A. 247; Cilley v. Patten, 62 
 Fed. Rep. 498; Kildare Lumber 
 Co. v. Nat. Bank of Commerce, 
 69 Fed. Rep. 2, 16 C. C. A. 107, 
 30 U. S. App. 762; Trustees of 
 Oberlin College v. Blair, 70 Fed. 
 Rep. 414; Consolidated Water Co. 
 v. Babcock, 76 Fed. Rep. 243; 
 Hutton v. Joseph Bancroft & Sons 
 Co., 77 Fed. Rep. 481. 
 
 1 Pacific Railroad v. Ketcham, 
 101 U. S. 289. See Arapahoe Co. 
 v. Kansas Pacific Railway Co., 4 
 Dill. 277, Fed. Cas. No. 502. 
 
144 JURISDICTION OF FEDERAL COURTS. 
 
 after request, but prayed no relief against the trustee, it was 
 held that the suit might be maintained, though both com- 
 plainant and the trustee were citizens of the State of New 
 York ; 1 and a bill is demurrable upon its face for lack of 
 diverse citizenship where non-resident heirs bring a suit for 
 partition against a defendant in possession, and join as de- 
 fendant a co-heir who is a citizen of the same State as the 
 defendant in possession, the co-heir's interest in the subject 
 matter of the suit being identical with the complainant's, and 
 no antagonistic acts upon her part being alleged ; 2 and where 
 complainant, a citizen of New York, filed his bill in the 
 United States Circuit Court for the District of Mississippi 
 for a partition of lands in that State, and joined as defendants 
 two citizens of Mississippi, tenants in common with com- 
 plainant, and a railroad company organized under the laws of 
 Mississippi, the latter claiming title by virtue of certain tax 
 deeds, it was held, upon demurrer, that the court had no 
 jurisdiction as to the railroad company, since upon arranging 
 the parties according to their interests, the railroad company 
 claimed adversely to all of the joint tenants, and as to that 
 part of the action there Avas no controversy between citizens 
 of different States. The bill was accordingly dismissed as to 
 the railroad company, but retained as a simple partition suit. 3 
 
 1 Barry d. Missouri, Kansas & s Beebe v. Louisville, New Or- 
 Texas R. K. Co., 27 Fed. Eep. 1. leans & Texas R. R., 39 Fed. Rep. 
 
 2 Rich et al. v. Bray et al., 37 481; see Morse v. South, 80 Fed. 
 Fed. Rep. 273. See Bland v. Flee- Rep. 206. 
 
 man, 29 Fed. Rep. 669. 
 
DISTRICT OP SUITS. 145 
 
 CHAPTER IX. 
 
 Statutory Restrictions as to District of Suit. — Such Restrictions Confer 
 a Personal Privilege which may be Waived. — Application of Statute 
 where there is a Plurality of Parties. — Application of Statute to 
 Corporations. — In Suits by or against Aliens. 
 
 Generally. The subject of the limitation upon the exercise 
 of jurisdiction by Federal courts, arising out of statutes which 
 prescribe in what districts parties may be liable to answer to 
 suits in Federal courts, based upon the place of residence or 
 inhabitancy of the parties, is secondary in importance only to 
 the main issue of whether or not the cause itself is within the 
 general jurisdiction of the courts. It is, of course, elemen- 
 tary that Congress has supreme discretion as to how far it 
 will enable the inferior courts of the United States to exer- 
 cise the judicial power granted by the Constitution. As a 
 matter of fact, there has never been a time when the Circuit 
 Courts of the United States have possessed a jurisdiction as 
 extensive as that with which they might constitutionally have 
 been invested by Congress had it seen fit so to do. 
 
 Thus, in the original Judiciary Act, 1 in conferring civil 
 jurisdiction upon the Circuit Courts it was provided that 
 they should have cognizance of all suits at law or in equity 
 between " a citizen of the State where the suit is brought, and 
 a citizen of another State." This was a much more limited 
 field of jurisdiction than might have been given under the 
 Constitution ; 2 but it remained the law until the Act of March 
 
 1 Sept. 24, 1789, 1 Stat. 78-79, the plaintiff was a citizen of one 
 
 sec. 11. State, and the defendant of an- 
 
 3 In practice this resulted, that if other, the action could not be main- 
 
 10 
 
146 JURISDICTION OF FEDERAL COUKTS. 
 
 3, 1875, 1 when for the first time the jurisdiction of these 
 courts was extended in this particular to the limits of the 
 constitutional grant. 2 
 
 Limitations as to Place of Suit in Acts of 1789 and 1875. 
 In the Act of 1879, however, was a further limitation, which 
 has been retained ever since, subject to some modification, 
 and omitting one important feature. By this it was provided 
 that — 
 
 No civil suit should be brought against an inhabitant of 
 the United States " in any other district than that whereof he 
 is an inhabitant, or in which he shall be found at the time of 
 serving the writ." 
 
 This clause was left substantially unchanged in the Act of 
 March 3, 1875, excepting as to suits of a local nature, for 
 the enforcement of liens, as contemplated by section 8 of the 
 same Act. 
 
 Act of 1887-8. But in the Act of 1887-8, 3 the provision 
 allowing the bringing of the suit in any district where the 
 defendant might be found was repealed ; in its stead that Act 
 added a clause as follows: 
 
 " And no civil suit shall be brought before either of said 
 [Circuit] courts against any person by any original process or 
 proceeding in any other district than that whereof he is an 
 inhabitant, but where the jurisdiction is founded only on the 
 fact that the action is between citizens of different States, 
 suit shall be brought only in the district of the residence of 
 either the plaintiff or the defendant. " 
 
 Such Provisions Confer Personal Privilege only. These 
 provisions of the various judiciary acts have been uniformly 
 
 tained in a Federal court held in a Fed. Cas. 17,547. See Brooks v. 
 
 third State. See Mofiat v. Soley, Bailey, 9 Fed. Rep. 438. 
 
 2 Paine, 103, Fed. Cas. No. 9688; J 18 Stat. 470. 
 
 Kelley v. Harding, 5 Blatch. 502, 2 Van Patten v. C. M. & St. 
 
 Fed. Cas. No. 7670; Craig v. Cum- Paul R. R. Co., 74 Fed. Rep. 981. 
 
 mins, Pet. C. C. 431, Fed. Cas. No. « 24 Stat. 552; 25 Stat. 433. 
 
 3331; White v. Fenner, 1 Mas. 520, 
 
EARLY CASES. 147 
 
 construed as conferring a personal privilege upon the parties 
 to suits in Federal courts, and not as going to the general 
 jurisdiction of the court. If the action is between citizens of 
 different States, involving a sufficient amount, or if there are 
 other grounds of Federal cognizance, then the right of a 
 party to insist that the suit be brought in a particular district 
 is one which may be waived by him. If objection is made, 
 the jurisdiction of the court over the person of the party ob- 
 jecting ceases ; and on the other hand, if he makes no objec- 
 tion, the matter being but a personal privilege, is deemed 
 waived by his failure to insist upon the exemption. The dis- 
 tinction of course must always be noted between matters of 
 mere privilege, which may be waived, and matters affecting 
 the general jurisdiction of the court, which can never be 
 waived in a Federal court. 
 
 Early Cases. This was the construction given to this por- 
 tion of the Act of 1789 1 by Chief Justice Marshall when, in 
 Grade v. Palmer, 2 this subject was first considered by the 
 Supreme Court. In that case the plaintiffs were described as 
 aliens and subjects of the King of Great Britain, and Gracie, 
 et al., the defendants, were alleged to be citizens of New 
 York. The suit was brought in the Circuit Court for the 
 District of Pennsylvania, and it did not appear that the de- 
 fendants were inhabitants of or found in the District of Penn- 
 sylvania, at the time of serving the writ. Upon a motion (in 
 the Supreme Court) to dismiss the writ of error, that court 
 said: "The uniform construction under the clause of the Act 
 referred to had been that it was necessary to aver on the rec- 
 ord that the defendant was an inhabitant of the district, or 
 found therein. That it was sufficient if the court appeared 
 to have jurisdiction by the citizenship or alienage of the par- 
 ties. The exemption from arrest in a district in which the 
 defendant was not an inhabitant, or in which he was not 
 found, at the time of serving the process, was the privilege 
 
 1 1 Stat. 78-79. 2 8 Wheat. 699. 
 
148 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 of the defendant, which he might waive by a voluntary ap- 
 pearance." So in Toland v. Sprague, 1 it was held that a 
 defendant brought into court by attachment and who was not 
 an inhabitant of the district in which the action was brought 
 nor found therein, but who had entered his appearance and 
 pleaded generally, had waived the objection that he had not 
 been personally served. 
 
 The whole subject is carefully considered in the well known 
 case of Ex parte Schollenierger, 2 where Chief Justice Waite, 
 speaking for the court, said : " The Act of Congress prescrib- 
 ing the place where a person may be sued is not one affecting 
 the general jurisdiction of the courts. It is rather in the 
 nature of a personal exemption in favor of a defendant, and 
 it is one which he may waive. If the citizenship of the par- 
 ties is sufficient, a defendant may consent to be sued anywhere 
 he pleases, and certainly jurisdiction will not be ousted be- 
 cause he has consented." 3 
 
 1 12 Pet. 300. 
 
 2 96 U. S. 369. 
 
 8 See Fitzgerald Construction 
 Co. v. Fitzgerald, 137 U. S. 98; 
 St. Louis & San Francisco Railway 
 v. McBride, 141 U. S. 127, where 
 the authorities are reviewed by Mr. 
 Justice Brewer; Texas & Pacific 
 Ry. Co. v. Cox, 145 U. S. 593; 
 Southern Pacific Ry. Co. v. Denton, 
 146 U. S. 202 ; Texas & Pacific Ry. 
 Co. v. Saunders, 151 U. S. 105; 
 Central Trust Co. v. McGeorge, 151 
 U. S. 129; Norris v. Atlas Steam- 
 ship Co., 37 Fed. Rep. 279; Mc- 
 Bride v. Grand de Tour Plow Co., 
 40 Fed. Rep. 162; Purcell v. British 
 Land & Mortgage Co., 42 Fed. Rep. 
 465. So where a national bank 
 appeared and defended an action 
 brought against it to recover inter- 
 est which it had illegally exacted, 
 
 under a statute allowing such suits 
 to be had " in any circuit, district 
 or territorial court of the United 
 States held within the district in 
 which such association may be es- 
 tablished, or in any State, county, 
 or municipal court in the county 
 or State in which said association 
 is located, having jurisdiction in 
 similar cases," it was objected, after 
 judgment, that the suit was brought 
 in another county than that in 
 which the bank was located. On 
 this point the Supreme Court said: 
 " Considering the object, as well as 
 the words of the statute authoriz- 
 ing suit against a national banking 
 association to be brought in the 
 proper State court of the county 
 where it is located, we are of opin- 
 ion that its exemption from suits 
 in other courts of the same State 
 
ACTS OF 1875 AND 1887-8 COMPARED. 
 
 149 
 
 Nor is the Act of 1887-8 to be construed as establishing a 
 different rule in this particular. Some of the language of 
 the opinion in Shaw v. Quincy Mining Co. 1 may be taken as 
 tending toward such a construction, and this led a Circuit 
 Court into error, 2 but upon appeal the Supreme Court held 
 such a construction unwarranted, and reversed the case. 3 
 
 Acts of 1875 and 1887-8 Compared. For convenience part 
 of the first section of the Act of March 3, 1875, and of the Act 
 of March 3, 1887 (as corrected by the Act of August 13, 1888) 
 are given below, the italic denoting the changes made by the 
 Act of 1887, as corrected. 
 
 1875. 
 
 • ' 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 dis- 
 pute exceeds, exclusive of costs, 
 the sum or value of five hun- 
 dred dollars, 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 the 
 United States are plaintiffs or 
 petitioners, or in which there 
 
 1887-8. 
 
 "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 dis- 
 pute exceeds, exclusive of in- 
 terest and costs, the sum or 
 value of two thousand dollars, 
 and arising under the Consti- 
 tution or laws of the United 
 States, or treaties made, or 
 which shall be made, under 
 their authority or in which con- 
 troversy the United States are 
 
 was a personal privilege that it 
 could waive, and which in this 
 case the defendant did waive, by 
 appearing and making defence 
 without claiming the immunity 
 granted by Congress." First Nat. 
 Bank v. Morgan, 132 U. S. 141. 
 1 145 U. S. 444. 
 
 1 Central Trust Co. of New York 
 v. Virginia, Tenn. & Carolina Steel 
 & Iron Co., 55 Fed. Rep. 769. See 
 St. Louis Ry. Co. v. Pacific Ry. Co., 
 52 Fed. Rep. 770. 
 
 8 Central Trust Co. v. Mc George, 
 151 U. S. 129. 
 
150 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 1875 (continued). 
 shall be a controversy between 
 citizens of different States 
 
 or a controversy between citi- 
 zens of the same State claiming 
 lands under grants of different 
 States, or a controversy be- 
 tween citizens of a State and 
 foreign states, citizens or sub- 
 jects ; 
 
 and shall have exclusive cog- 
 nizance of all crimes and of- 
 fenses cognizable under the 
 authority of the United States, 
 except as otherwise provided 
 by law, and concurrent juris- 
 diction with the district courts 
 of the crimes and offenses cog- 
 nizable therein. 
 
 But no person shall be arrested 
 in one district for trial in an- 
 other in any civil action before 
 a circuit or district court. 
 And no civil suit shall be 
 brought before either of said 
 courts against any person by 
 any original process or pro- 
 ceeding in any other district 
 than that whereof he is an in- 
 habitant, or in which he shall 
 be found at the time of serv- 
 ing such process or commenc- 
 ing such proceeding. 
 
 1887-8 (continued). 
 plaintiffs or petitioners, or in 
 which there shall be a con- 
 troversy between citizens of 
 different States, in which the 
 matter in dispute exceeds, ex- 
 clusive of interest and costs, 
 the sum or value aforesaid, or 
 a controversy between citizens 
 of the same State claiming 
 lands under grants of different 
 States, or a controversy be- 
 tween citizens of a State and 
 foreign states, citizens, or sub- 
 jects, in which the matter in 
 dispute exceeds, exclusive of in- 
 terest and costs, the sum or value 
 aforesaid, and shall have exclu- 
 sive cognizance of all crimes 
 and offenses cognizable under 
 the authority of the United 
 States, except as otherwise pro- 
 vided by law, and concurrent 
 jurisdiction with the district 
 courts of the crimes and of- 
 fenses cognizable by them. 
 
 But no person shall be arrested 
 in one district for trial in an- 
 other in any civil action before 
 a circuit or district court; and 
 no civil suit shall be brought 
 before either of said courts 
 against any person by any orig- 
 inal process or proceeding in 
 any other district than that 
 whereof he is an inhabitant ; 
 but where the jurisdiction is 
 founded only on the fact that 
 the action is between citizens of 
 different /States, suit shall be 
 
ACTS OP 1875 AKD 1887-8 COMPARED. 
 
 151 
 
 1887-8 (continued), 
 brought only in the district of 
 the residence of either the plain- 
 tiff or the defendant." 
 
 The language of the Act of 1887-8 as given above gave 
 rise to a considerable doubt at the circuit as to the proper 
 construction to be given the clauses limiting the place where 
 the suit could be brought. It was held by Sawyer, J., Field, 
 Justice, concurring, in County of Yuba v. Mining Co., 1 that 
 this clause limited the place of bringing suit to the dis- 
 trict of the residence of the defendant, but the courts of 
 other circuits declined to adopt this view, 2 and it was over- 
 ruled by the learned justice himself the following year, 3 and 
 he then held that, " the concluding lines are to be read as a 
 proviso to the general provision that no civil suit shall be 
 brought except in the district whereof the defendant is an 
 inhabitant." 4 
 
 1 32 Fed. Rep. 183. 
 
 2 See Fales v. Chicago, Milwau- 
 kee & St. Paul R. R., 32 Fed. Rep. 
 673; St. Louis, Vandalia & Terre 
 Haute R. R. Co. v. Terre Haute & 
 Indianapolis R. R., 33 Fed. Rep. 385 ; 
 Loomis v. New York & Cleveland 
 Gas Co., 33 Fed. Rep. 353; Gavin 
 v. Vance, 33 Fed. Rep. 84; Swayne 
 v. Boylston Insurance Company, 35 
 Fed. Rep. 1 ; Pitkin County Mining 
 Co. v. Markell, 33 Fed.Rep. 386. 
 
 3 Wilson v. Western Union Tel. 
 Co., 34 Fed. Rep. 561. 
 
 4 The purpose of the Act of 
 1887-8 was to contract, not to en- 
 large the jurisdiction of the Circuit 
 Courts. Thus, in Smith v. Lyon, 
 133 U. S. 315, it is said, speak- 
 ing of the statute referred to: 
 " The statute which we are now 
 
 construing leaves out the provision 
 that if the party has the diverse 
 citizenship required by the statute 
 he may be sued in any district 
 where he may be found at the time 
 of the service of process. The 
 omission of these words, and the 
 increase of the amount in contro- 
 versy necessary to the jurisdiction 
 of the Circuit Court, and the repeal 
 of so much of the former Act as 
 allowed plaintiffs to remove causes 
 from the State courts to those of 
 the United States, and many other 
 features of the new statute, show 
 the purpose of the legislature to 
 restrict rather than to enlarge the 
 jurisdiction of the Circuit Courts, 
 while, at the same time, a suit is 
 permitted to be brought in any dis- 
 trict where either plaintiff or de- 
 
152 JURISDICTION OP FEDERAL COURTS. 
 
 Shortly afterwards these questions were brought directly 
 before the Supreme Court in McCormick Harvesting Machine 
 Co. v. Walthers, 1 and it was there held, Chief Justice Fuller 
 speaking for the court, that the correct construction of the 
 Act was that where the jurisdiction of the court was founded 
 upon any of the causes mentioned in Section one of the Act, 
 except the citizenship of the parties, the suit must be brought 
 in the district of which the defendant was an inhabitant; but 
 that where the jurisdiction was founded solely upon the fact 
 that the parties were citizens of different States, the suit 
 might be brought in the district in which either the plaintiff 
 or the defendant resided. 
 
 The effect of this construction of the statute may be out- 
 lined thus : — 
 
 Where the jurisdiction is founded on the fact that there is 
 a controversy — 
 
 (1) " Arising under the Constitution or laws of the United 
 States, or treaties made, or which shall be made, under their 
 authority," or 
 
 (2) " In which controversy the United States are plaintiffs 
 or petitioners, " or 
 
 (3) "Between citizens of the same State claiming lands 
 under grants of different States, " or 
 
 (4) " Between citizens of a State and foreign states, citi- 
 zens, or subjects, " 
 
 the suit must be brought in the district whereof the defend- 
 ant is an inhabitant; 2 but that where — 
 
 (5) "There shall be a controversy between citizens of 
 different States, " — in other words, where the jurisdiction is 
 
 fendant resides." See also, In re 2 That is, where aliens are plain- 
 Pennsylvania Co., 137 U. S. 451; tiffs; if aliens are defendants suit 
 Fisk v. Henarie, 142 U. S. 459; may be brought in any district 
 Shaw ». Quincy Mining Co. , 145 where the alien can be found. See 
 U. S. 444. p. 159, post. 
 i 134 U. S. 41. 
 
PLURALITY OP PARTIES PLAINTIFF OK DEFENDANT. 153 
 
 founded, solely upon the fact that the parties are citizens of 
 different States, — 
 
 then the suit must be brought "in the district of the residence 
 of either the plaintiff or the defendant." 1 
 
 Plurality of Parties Plaintiff or Defendant. Under the pro- 
 visions of the Act of 1887-8, as given above, a question at 
 once arose as to the construction to be given the statute in a 
 case where there was a plurality of parties plaintiff or defend- 
 ant, and suit was brought in a district of which one of these 
 parties was not a resident. In other words, were the words 
 "plaintiff" and "defendant" in the statute used collectively, 
 so as to require that all of the parties on one side or the other 
 must be residents of the district in which the action was 
 brought ? Such a question came before the Circuit Court for 
 the Eastern District of Missouri, in the case of Smith v. 
 Lyon. 2 In that case, Smith and Fordyce, as copartners, 
 brought suit in the United States Circuit Court for the East- 
 ern District of Missouri against Lyon, alleging in the petition 
 that plaintiff Smith was a resident and citizen of St. Louis, 
 in the State of Missouri, and that plaintiff Fordyce was a 
 citizen and resident of Hot Springs, in the State of Arkan- 
 sas, and that the defendant Lyon was a resident and citizen 
 of Sherman, in the State of Texas. The latter, who was 
 served with process within the Eastern District of Missouri 
 (within which St. Louis is situated), appeared specially, and 
 filed a plea to the jurisdiction of the court, upon the ground 
 that the suit was not brought in the district of the residence 
 of either the plaintiff Fordyce or the defendant Lyon. The 
 Circuit Court (Brewer, J.) dismissed the suit, and upon writ 
 of error the Supreme Court affirmed this judgment. " In the 
 case before us, "says Mr. Justice Miller, speaking for the court, 
 
 1 St. Louis &o. Ry.Co.v.McBride, Pacific Ry. Co., 54 Fed. Rep. 420; 
 
 141 U. S. 127 ; Shaw v. Quincy Min- and see cases cited ante, p. 148, n. 3. 
 ing Co., 145 U. S. 444; Fairbank v. 2 38 Fed. Rep. 53. 
 Cincinnati, New Orleans & Texas 
 
154 JURISDICTION OF FEDERAL COURTS. 
 
 " one of the plaintiffs is a citizen of the State where the suit 
 is brought, namely, the State of Missouri, and the defendant 
 is a citizen of the State of Texas. But one of the plaintiffs is 
 a citizen of the State of Arkansas. The suit, so far as he 
 is concerned, is not brought in the State of which he is a 
 citizen. Neither as plaintiff nor as defendant is he a citizen 
 of the district where the suit is brought. The argument in 
 support of the error assigned is that it is sufficient if the suit 
 is brought in a State where one of the defendants or one of 
 the plaintiffs is a citizen. This would be true if there were 
 but one plaintiff or one defendant. But the statute makes 
 no provision, in terms, for the case of two defendants or two 
 plaintiffs who are citizens of different States. In the pres- 
 ent case, there being two plaintiffs, citizens of different States, 
 there does not seem to be, in the language of the statute, any 
 provision that both plaintiffs may unite in one suit in a State 
 of which either of them is a citizen." 1 
 
 The rule in Smith v. Lyon, supra, may be applied with 
 equal force where suit is brought in the district of the resi- 
 dence of one of the defendants, the other being a resident of 
 a third district. 3 In such a case, however, if the action is 
 such as can be maintained against the defendant residing in 
 the district of suit without joining the other defendant, then 
 the suit will be abated as to the latter only. 3 In Smith v. 
 Lyon, supra, the interest of the plaintiffs being joint, the plea 
 in abatement necessarily resulted in a dismissal of the suit in 
 its entirety. 
 
 1 Smith v. Lyon, 133 U. S. 315. Rep. 341; Goddard v. Mailler, 80 
 In the language above quoted the Fed. Rep. 422. 
 
 learned justice uses the word " citi- 8 Bensinger Self- Adding Cash 
 
 zen" throughout, even referring to Register Co. v. Nat. Cash Register 
 
 a citizen of a district, which is of Co. et al. , 42 Fed. Rep. 81 ; Jewett 
 
 course an oversight, although under v. Bradford Savings Bank & Trust 
 
 the peculiar facts of the case the Co., 45 Fed. Rep. 801; Excelsior 
 
 citizenship and residence would be Pebble Phosphate Co. v. Brown, 74 
 
 synonymous, under the decision in Fed. Rep. 321, 42 U. S. App. 55, 20 
 
 Shaw v. Mining Co., 145 U. S. 444. C. C. A. 428. 
 
 2 Ames v. Holderbaum, 42 Fed. 
 
"WHEEE CORPORATION IS A "RESIDENT." 155 
 
 A Corporation not a " Resident " or " Inhabitant " of any State 
 other than that which Chartered it. The use of the words 
 "resident" and "inhabitant" in the provisions of the Act of 
 1887-8 above referred to led to some difference of opinion at 
 the circuit, in cases wherein corporations were parties, as to 
 the precise meaning of those terms as applied to corporations. 
 It was contended that a corporation — a railroad company, 
 for instance — maintaining an office in a State might be 
 sued in the Federal court of that State by a citizen of an- 
 other State, although the corporation was incorporated under 
 the laws of a third State. In the cases of railroads, there 
 seemed to be a particular propriety in so holding, for they 
 were very often the owners of lines of railroad extending 
 through several States, and having such extensive and per- 
 manent property interests in each as to almost justify an 
 assumption that they were inhabitants of each Federal dis- 
 trict through which their lines extended. This was the view 
 taken by Mr. Justice Harlan, at the circuit, in United States 
 v. Railway Co., 1 and his reasoning was approved by several 
 Circuit Courts. 2 
 
 When the question came before the Supreme Court, how- 
 ever, a contrary view was expressed (Justice Harlan dissent- 
 ing); this was the case of Shaw v. Quincy Mining Co. 3 In 
 that case, speaking of the original Judiciary Act, 4 particu- 
 larly of Section 11, which conferred jurisdiction on the Cir- 
 cuit Courts of suits of a civil nature, at common law or in 
 equity, "between a citizen of the State where the suit is 
 brought and a citizen of another State," and provided that 
 "no civil suit shall be brought" against an inhabitant of the 
 United States, " in any other district than that whereof he is 
 an inhabitant, or in which he shall be found at the time of 
 
 1 49 Fed. Rep. 297. lantic & Florida R. R. Co., 49 Fed. 
 
 2 See Gilbert v. New Zealand Rep. 608. 
 
 Ins. Co., 49 Fed. Rep. 884; East * 145 U. S. 444. 
 Tenn., Va. & Ga. R. R. Co. v. At- * 1 Stat. 78. 
 
156 JURISDICTION OP FEDERAL COURTS. 
 
 serving the writ," the court said: "The word 'inhabitant ' in 
 that Act was apparently used, not in any larger meaning than 
 ' citizen, ' but to avoid the incongruity of speaking of a citi- 
 zen of anything less than a State, when the intention was to 
 cover not only a district which included a whole State, but 
 also two districts in one State, like the districts of Maine and 
 Massachusetts in the State of Massachusetts, and the district 
 of Virginia and Kentucky in the State of Virginia, estab- 
 lished by Section 2 of the same act." 1 After reviewing the 
 various acts governing the jurisdiction of Federal courts, in 
 which the words "residents " and "inhabitants " are used, the 
 court proceeds: 
 
 "As to natural persons, therefore, it cannot be doubted 
 that the effect of this Act, read in the light of earlier Acts 
 upon the same subject, and of the judicial construction 
 thereof, is that the phrase, ' district of the residence of a 
 person ' is equivalent to ' district whereof he is an inhabi- 
 tant, ' and cannot be construed as giving jurisdiction, by rea- 
 son of citizenship, to a Circuit Court held in a State of which 
 neither party is a citizen, but, on the contrary, restricts the 
 jurisdiction to the district in which one of the parties resides 
 within the State of which he is a citizen; and that this Act 
 [1887-8], therefore, having taken away the alternative, per- 
 mitted in the earlier Acts, of suing a person in the district ' in 
 which he shall be found ' requires any suit, the jurisdiction 
 of which is founded only on its being between citizens of dif- 
 ferent States, to be brought in the State of which one is a 
 citizen, and in the district therein of which he is an inhabi- 
 tant and resident." 
 
 So far in this case the court had been considering the 
 meaning of the words in question as applied to natural per- 
 sons. But proceeding to corporations, the court say that, 
 to say the least, the reasons are quite as strong for holding 
 that they can sue and be sued only in the State and district 
 
 1 1 Stat. 78. 
 
WHERE CORPORATION IS A "RESIDENT." 157 
 
 in which they have been incorporated, or in the State of 
 which the other party is a citizen, and that " the legal exist- 
 ence, the home, the domicile, the habitat, the residence, the 
 citizenship of the corporation can only be in the State by 
 which it was created, although it may do business in other 
 States whose laws permit it." 1 
 
 As to corporations chartered by one of the United States, 
 therefore, the construction of the statute amounts to this: If 
 the suit be founded upon diverse citizenship, the corporation 
 cannot be compelled to answer to a civil suit in a circuit 
 court of the United States, except in the State where the 
 plaintiff resides, or in the State which chartered the corpora- 
 tion; nor can the corporation be held in a suit in a Federal 
 court in a third State, even though it has a usual place of 
 business there. If the jurisdiction of the Federal court be 
 founded on some ground other than diverse citizenship, then 
 the corporation can be sued only in the State which char- 
 tered it. 2 
 
 And where the plaintiff brings suit in the district of 
 which he is a resident a corporation may be made defend- 
 ant the same as an individual, provided service can be had 
 upon it. 3 
 
 i See Fales v. Chicago, Milw. & 52 Fed. Kep. 770; Wilcox & Gibbs 
 St. Paul R. R. Co., 32 Fed. Rep. Guano Co. v. Phoenix Ins. Co., 60 
 673 ; Booth v. St. Louis Fire Engine Fed. Rep. 929 ; Donnelly v. United 
 Mfg. Co., 40 Fed. Rep. 1; Ben- States Cordage Co., 66 Fed. Rep. 
 singer Self -Adding Cash Register 613; Rust v. United Waterworks 
 Co. v. Nat. Cash Register Co., 42 Co., 70 Fed. Rep. 129, 17 C. C. A. 
 Fed. Rep. 81 ; Myers v. Murray, 43 16, 36 U. S. App. 167. 
 Fed. Rep. 695; Nat. Typographic 2 MeCormick Harvesting Ma- 
 Co. v. New York Typographic Co., chine Co. v. Walthers, 134 U. S. 
 44 Fed. Rep. 711; Miller et al. v. 41; Southern Pacific Co. v. Denton, 
 Wheeler & Wilson Mfg. Co., 46 146 U. S. 202; In re Keasbey & 
 Fed. Rep. 882; Baughmanw. Water- Mattison Co., 160 U. S. 221, and 
 works Co., 46 Fed. Rep. 4 ; Campbell cases cited in note 1. 
 v. Duluth, South Shore & Atlantic 8 Dinzy v. HI. Cent. R. R. Co., 
 Ry. Co., 50 Fed. Rep. 241; St. 61 Fed. Rep. 49; Shainwald v. 
 Louis Ry. Co. v. Pacific Ry. Co., Davids, 69 Fed. Rep. 704. 
 
158 JURISDICTION OF FEDERAL COURTS. 
 
 And in Galveston, &c. Railway Co. v. Gonzales, 1 it was held, 
 under the doctrine of previous cases, that a railroad company, 
 incorporated in a State having two Federal judicial districts, 
 is an inhabitant of the district in which it has its principal 
 office only, although its railroad extends through the other 
 districts, and might insist that it be sued in the district in 
 which it has its principal office. 
 
 Statute not Applicable to Suits in Admiralty. But the pro- 
 visions of the Act of 1887-8 as to district of suit have no 
 application to suits in admiralty, even where the libel is in 
 personam. 2 
 
 Application of the Statute in Suits by or against Aliens. 
 The effect of these provisions of the statute in cases to which 
 an alien is a party is considered by the Supreme Court in Be 
 Hohorst, z and Galveston, &c. Railway Go. v. Gonzales,* and a 
 distinction is drawn between suits brought by and those 
 brought against aliens. The former case was a petition in 
 the Supreme Court for a writ of mandamus to the judges of 
 the Circuit Court for the Southern District of New York, 
 commanding them to take jurisdiction of a suit against the 
 Hamburg-American Packet Company, upon a bill in equity 
 filed in that court by the petitioner. The amended bill de- 
 scribed complainant as of the city of New York, and a citizen 
 of the State of New York, and the defendant as a corporation 
 organized under the laws of the Empire of Germany, and 
 doing business in the city of New York, and having its prin- 
 cipal office in this country in that city. The suit was for an 
 infringement of a patent right. The return of the rule to 
 show cause why the petition should not be granted set up 
 that the defendant corporation was not at the time of service 
 of process, or at any time, an inhabitant of the Southern Dis- 
 trict of New York. In this case, Justice Gray, speaking for 
 
 1 151 U. S. 496. » 150 U. S. 653. 
 
 2 In re Louisville Underwriters, 4 151 U. S. 496. 
 Petitioners, 134 U. S. 4S8. 
 
SUITS BY OK AGAINST ALIENS. 159 
 
 the court, referring to the words "no civil suit shall be 
 brought before either of said courts against any person by an 
 original process or proceeding in any other district than that 
 whereof he is an inhabitant, " stated their effect as follows : 
 " These words evidently look to those persons, and those per- 
 sons only, who are inhabitants of some district within the 
 United States. Their object is to distribute among the par- 
 ticular districts the general jurisdiction fully and clearly 
 granted in the earlier part of the same section. ... To con- 
 strue the section as applicable to all suits between a citizen 
 and an alien would leave the courts of the United States open 
 to aliens against citizens, and close them to citizens against 
 aliens. Such a construction is not required by the language 
 of the provision, and would be inconsistent with the general 
 intent of the section as a whole." For these reasons, and for 
 the further reason that the suit was one for the infringement 
 of a patent right, which the court held was not governed by 
 the Act, 1 the mandamus was awarded. 2 
 
 In Galveston, &c. Railway Co. v. Gonzales,* an action was 
 brought by the defendant in error, alleged to be an alien, 
 against the plaintiff in error, a Texas corporation, in the 
 United States Circuit Court for the Western District of 
 Texas, to recover for alleged wrongful injury. The ques- 
 tion in the Supreme Court was whether the court below erred 
 in overruling a plea to the jurisdiction which set up that 
 plaintiff in error was not an inhabitant of the district in which 
 the suit was pending. The court held that the railroad com- 
 pany was an inhabitant of the district in which it had its 
 principal office, and was not liable to suit in any other district 
 of the State. 
 
 Upon the suggestion made by defendant in error, that, 
 
 1 Seep. 161, post. Note. — As to removal of suit 
 
 2 See Miller v. Eastern Oregon to which an alien is party, see Sher- 
 Gold Mining Co., 45 Fed. Rep. 345. wood v. Newport News & Missis- 
 
 8 151 U. S. 496. sippi Valley Co., 55 Fed. Rep. 1. 
 
160 JURISDICTION OF FEDERAL COURTS: 
 
 this being a suit by an alien, the suit, under the Hohorst 
 case, might be brought in any district in which the defendant 
 might be found, the court distinguish that case as follows: 
 " Nor in our view does it make any difference that the plain- 
 tiff is an alien instead of a citizen. The provision that no 
 civil suit shall be brought against any person in any other 
 district than that whereof he is an inhabitant is of universal 
 application, except, that, if the plaintiff be also a citizen he 
 may bring it in his own district, if he can obtain service 
 upon the defendant in that district. The purpose of this is 
 that the plaintiff may have the same advantage of litigation 
 in his own district that the defendant has. An alien, how- 
 ever, is assumed not to reside in the United States, and hence 
 must resort to the domicile of the defendant. On the other 
 hand, if the suit be against the alien, he may doubtless, 
 under Hohorst' s case, be sued in any district wherein he is 
 found." 
 
PATENT CAUSES. 161 
 
 CHAPTER X. 
 
 Statutory Restrictions as to District of Suit, continued. — Application 
 of Statute in Patent Causes. — Suits for Infringement of Trademarks 
 and Copyrights. — Meaning of " Inhabitant " and "Resident " as used 
 in the Statute. — Waiver of Benefit of Statute. — Attachments. — 
 Constructive Service. — Suits to Enforce Liens. — Application of 
 Statute where State Contains more than one Federal District. 
 
 Patent Causes. The provisions of the Act of 1887-8, in 
 regard to the district in which suit might be brought, 
 occasioned some difference of opinion at the circuit as to the 
 effect to be given these provisions of the statute in cases 
 brought under the patent laws. Prior to the decision of the 
 Supreme Court in Be Hohorst, 1 decided at the October Term, 
 1893, it was repeatedly held at the circuit that these limita- 
 tions of the statute applied as well to patent causes as to suits 
 upon other grounds of Federal cognizance. 2 In the opinion 
 of these judges, these cases came directly within the clause 
 of the statute. The language of the statute is : " (a) And no 
 civil suit shall be brought before either of said courts against 
 any person by any original process or proceeding in any other 
 district than that whereof he is an inhabitant ; (b) But when 
 the jurisdiction is founded only on the fact that the action is 
 between citizens of different States, suit shall be brought 
 only in the district of the residence of either the plaintiff or 
 defendant." The fact that the last clause applies particularly 
 to causes founded upon diverse citizenship, was in the earlier 
 cases taken as an indication that the first clause applied to all 
 other suits in Federal courts, including patent cases. 
 
 1 150 U. S. 653. Dist. Ohio, Jackson, J.); Halstead 
 
 2 See Miller-Magee Co. et al. v. v. Manning, 34 Fed. Rep. 565 (So. 
 Carpenter, 34 Fed. Rep. 433 (So. Dist. N. Y., Wallace, J.) ; Gormully 
 
162 JURISDICTION OF FEDERAL COURTS. 
 
 Since the decision in Re Jlohorst, 1 however, and especially 
 in view of the language in Ee Keasbey & Mattison Co., 2 a 
 number of the Circuit Courts have held that the statute of 
 1887-8 does not apply to patent causes. This would seem to 
 be the correct ruling, in view of the language of the opinion 
 in the Hohorst case. The facts of the latter case are given 
 elsewhere, 3 and it is only here necessary to quote briefly from 
 the opinion, where it is said, Mr. Justice Gray speaking 
 for the court : " Moreover, the present suit is for an infringe- 
 ment of a patent for an invention, the jurisdiction of the 
 national courts over which depends upon the subject matter, 
 and not upon the parties ; and by statutes in force at the time 
 of the passage of the Acts of 1887 and 1888, the courts of the 
 nation had original jurisdiction, 'exclusiye of the courts of 
 the several States,' 'of all cases arising under the patent 
 right or copyright laws of the United States, ' without regard 
 to the amount or value in dispute. (Rev. Stat. sec. 629, 
 cl. 9; sec. 711, cl. 5.) The section now in question, at the 
 outset, speaks only of so much of the civil jurisdiction of the 
 Circuit Courts of the United States as is 'concurrent with 
 the courts of the several States,' and as concerns cases in 
 which the matter in dispute exceeds two thousand dollars in 
 amount or value. The grant to the Circuit Courts of the 
 United States, in this section, of jurisdiction over a class of 
 cases described generally as 'arising under the Constitution 
 and laws of the United States, ' does not affect the jurisdic- 
 tion granted by earlier statutes to any court of the United 
 
 & Jeffrey Mfg. Co. v. Pope Mfg. Co. Rep. 849 ; Bicycle Stepladder Co. v. 
 
 (N. Dist. 111., Blodgett, J.), 34 Fed. Gordon (N. D. 111., Jenkins, J.), 
 
 Rep. 818; Reinstadler v. Reeves 57 Fed. Rep. 529; Cramer v. Singer 
 
 (E. Dist. Mo., Thayer, J.), 33 Fed. Mfg. Co. (N. D. Cal., McKenna, 
 
 Rep. 308; Preston v. Fire Extin- J.), 59 Fed. Rep. 74. 
 guisher Mfg. Co. et al. (N. D. of * 150 U. S. 653. 
 111., Blodgett, J.), 36 Fed. Rep. 721; * 180 U. S. 221. 
 Nat. Typewriter Co. v. Pope Mfg. 8 See ante, p. 158. 
 
 Co. (D. Mass., Colt, J.), 56 Fed. 
 
PATENT CAUSES. 163 
 
 States over specified cases of that class. If the clause of this 
 section defining the district in which suit shall be brought is 
 applicable to patent cases, the clause limiting the jurisdiction 
 to matters of a certain amount or value must be held to be 
 equally applicable, with the result that no court of the coun- 
 try, national or State, would have jurisdiction of patent suits 
 involving a less amount or value. It is impossible to adopt a 
 construction which necessarily leads to such a result. . . . 
 
 "Upon deliberate advisement, and for the reasons above 
 stated, we are of the opinion that the provision of the exist- 
 ing statute which prohibits suit to be brought against any 
 person ' in any other district than that whereof he is an in- 
 habitant, ' is inapplicable to an alien or a foreign corporation 
 sued here, and especially in a suit for the infringement of a 
 patent right; and that, consequently, such a person or corpo- 
 ration may be sued by a citizen of a State of the Union in 
 any district in which valid service can be made upon the 
 defendant. " 
 
 And in the subsequent case of Be Keasbey & Mattison Co. , * 
 referring to the Hohorst case, it is said : " It was a suit for 
 infringement of a patent right, exclusive jurisdiction of which 
 had been granted to the Circuit Courts of the United States 
 by section 629, cl. 9, and section 711, cl. 5, of the Revised 
 Statutes, re-enacting earlier Acts of Congress ; and was there- 
 fore not affected by general provisions regulating the juris- 
 diction of the courts of the United States, concurrent with 
 that of the several States." 
 
 This last decision in connection with the Hohorst case was 
 considered by Judge Lacombe as conclusive that the statute 
 did not apply to patent cases. He says : " Subsequent to the 
 passage of the Act of 1887, and prior to the decision of the 
 Supreme Court in Be Hohorst, applications such as this, when 
 made upon like facts, were uniformly granted in patent 
 causes in this circuit, and the decided preponderance of 
 
 » 160 U. S. 221. 
 
164 JURISDICTION OP FEDERAL COURTS. 
 
 authority in other circuits approved such a disposition of 
 them; the Act of 1887 being construed as operating in re- 
 striction of jurisdiction. The opinion in the Hohorst case 
 has been held to apply to all patent causes by Judge Wheeler 
 in Smith v. Manufacturing Co., 1 and by Judge Townsend to 
 apply only to such suits when brought against aliens. 2 The 
 latter construction commended itself to the judge now sitting, 
 and has been followed in at least two cases, not reported. It 
 is doubtful, however, whether the Hohorst case can be thus 
 distinguished in view of the later opinion of the Supreme 
 Court in Be Keasbey & Mattison Co. " 3 
 
 Several of the Circuit Courts, however, have declined to 
 accept the ruling of the Hohorst case as applicable to patent 
 suits generally, and insist that what was there said was with 
 reference to the facts of that case, particularly the fact that 
 the suit was against a foreign corporation. 4 It is believed, 
 however, that the reasoning of the Hohorst case is applicable 
 to all patent cases, and this would seem to be the majority 
 opinion at the circuit. 6 
 
 Act of March 3, 1897. 6 By this act it is evident that Con- 
 
 1 67 Fed. Rep. 801. Dist. Cal., Morrow, J.), 75 Fed. 
 
 2 Citing Union Switch & Signal Rep. 609. 
 
 Co. v. Hall Signal Co., 65 Fed. Rep. Note. — Following the reason- 
 
 625, and Donnelly v. Cordage Co., ing of the opinion in the Hohorst 
 
 66 Fed. Rep. 613. case, it was held by Shiras, J., in 
 
 8 Nat. Button Works v. Wade, Van Patten v. Chicago, Milwaukee 
 
 72 Fed. Rep. 298. & St. Paul R. R. Co., 74 Fed. Rep. 
 
 4 See opinion of Townsend, J., 981, that as the Federal courts 
 
 in Union Switch & Signal Co. v. had exclusive jurisdiction of suits 
 
 Hall Signal Co., 65 Fed. Rep. 625, to recover damages under sections 
 
 and Colt, J., in Donnelly v. Cord- 8 and 9 of the Interstate Commerce 
 
 age Co., 66 Fed. Rep. 613. Act, by special legislation passed 
 
 6 See Smith v. Sargent Mfg. Co. prior to the Acts of 1887-8, this 
 
 (So. Dist. N. Y., Wheeler, J.), 67 jurisdiction was not affected by 
 
 Fed. Rep. 801; National Button the provisions of the latter Acts 
 
 Works v. Wade (So. Dist. N. T., limiting the place of bringing suit 
 
 Lacombe, J.), 72 Fed. Rep. 298; to the district whereof the defend- 
 
 Earl v. Southern Pacific Co. (N. ant is an inhabitant. 
 
 6 Chap. 395, 29 Stat. 695. 
 
SUITS FOR INFRINGEMENT OP TRADE-MARKS. 165 
 
 gress has attempted to make clear the jurisdiction of the 
 Federal courts as to patent causes, so far as relates to the 
 district of suit. The act provides — 
 
 " That in suits brought for the infringement of letters pat- 
 ent the circuit courts of the United States shall have juris- 
 diction, in law or in equity, in the district of which the 
 defendant is an inhabitant, or in any district in which the 
 defendant, whether a person, partnership, or corporation, shall 
 have committed acts of infringement and have a regular and 
 established place of business. If such suit is brought in a 
 district of which the defendant is not an inhabitant but in 
 which such defendant has a regular and established place of 
 business, service of process, summons, or subpoena upon the 
 defendant may be made by service upon the agent or agents 
 engaged in conducting such business in the district in which 
 suit is brought." 
 
 The language of the act seems involved, and it remains to 
 be seen whether it will accomplish the purpose intended. 
 There does not seem to have been any judicial construction 
 of it. 
 
 Suits for Infringement of Trade-marks. In view of the de- 
 cision in the Hohorst case, the Supreme Court, in Be Keasbey 
 & Mattison Co., 1 was asked to rule similarly in a suit involv- 
 ing the infringement of a trade-mark. The application was 
 for a mandamus to the United States Circuit Court for the 
 Southern District of New York, to compel it to take jurisdic- 
 tion of a suit brought by a Pennsylvania corporation against a 
 Massachusetts corporation, for the infringement of a trade- 
 mark, service being had upon an agent of the defendant 
 within the Southern District of New York. The Supreme 
 Court, however, pointed out the distinction between the case 
 at bar and the Hohorst case, showing that the Circuit Courts 
 were by special Acts of Congress given exclusive jurisdiction 
 over patent causes, but that the special acts conferring juris- 
 
 i 160 U. S. 221. 
 
166 JURISDICTION OP FEDERAL COURTS. 
 
 diction upon those courts in trade-mark cases makes that 
 jurisdiction concurrent with, but not exclusive of the juris- 
 diction of the State courts. In the course of the opinion 
 Mr. Justice Gray, speaking for the court, states its position 
 as follows : — 
 
 "The case of Rdhorst Petitioner, 1 ... is distinguishable 
 from the one now before the court in two essential particulars. 
 First. It was a suit against a foreign corporation, which, 
 like an alien, is not a citizen or an inhabitant of any dis- 
 trict within the United States ; and was therefore not within 
 the scope or intent of the provision requiring suit to be 
 brought in the district in which the defendant is an in- 
 habitant. Second. It was a suit for infringement of a patent 
 right, exclusive jurisdiction of which had been granted to the 
 Circuit Courts of the United States by section 629, cl. 9, 
 and section 711, cl. 5 of the Revised Statutes, re-enacting 
 earlier Acts of Congress ; and was therefore not affected by 
 general provisions regulating the jurisdiction of the courts 
 of the United States, concurrent with that of the several 
 States. . . . 
 
 " No such rule is applicable to a suit for infringement of a 
 trade-mark under the Act of 1881. That Act, while confer- 
 ring upon the courts of the United States, in general terms, 
 jurisdiction over such suits, without regard to the amount in 
 controversy, does not specify either the court or the district 
 of the United States in which such suits shall be brought; 
 nor does it assume to take away or impair the jurisdiction 
 which the courts of the several States always had over suits 
 for infringement of trade-marks. 
 
 " This suit, then, assuming it to be maintainable under the 
 Act of 1881, is one of which the courts of the United States 
 have jurisdiction concurrently with the courts of the several 
 States. The only existing Act of Congress which enables 
 it to be brought in the Circuit Court of the United States is 
 
 1 150 U. S. 653. 
 
•inhabitant" and "resident" synonymous. 167 
 
 the Act of 1888. The suit comes within the terms of that 
 Act both as arising under a law of the United States, and as 
 being between citizens of different States. In either aspect, 
 by the provisions of the same Act, the defendant cannot be 
 compelled to answer in a district of which neither the defend- 
 ant nor the plaintiff is an inhabitant. The objection, having 
 been seasonably taken by the defendant corporation, appear- 
 ing specially for the purpose, was rightly sustained by the 
 Circuit Court." 
 
 "Inhabitant" and "Resident" Synonymous. In view of the 
 decision in Shaw v. Quincy Mining Co., 1 it must be accepted, 
 
 1 145 U. S. 444. 
 
 Note. — See the decision of the 
 Circuit Court in Bicycle Stepladder 
 Company v. Gordon, 57 Fed. Rep. 
 529. Complainant, an Iowa corpora- 
 tion, brought its bill in the Circuit 
 Court of the United States for the 
 Northern District of Illinois against 
 the defendant, alleged to be a citizen 
 of the State of Kentucky, and " a 
 business inhabitant of, and doing 
 business at, the city of Chicago, 
 Illinois." Process was served upon 
 the defendant within the Northern 
 District of Illinois, and he there- 
 ivpon moved to dismiss upon the 
 facts appearing upon the face of 
 the bill, claiming his privilege of 
 being sued only in the District 
 of Kentucky. It appeared from 
 affidavits that the defendant was 
 exhibiting his goods at the Colum- 
 bian Exposition in Chicago, and 
 left his family in Kentucky, to which 
 State he expected to return at the 
 close of the exposition. In dismiss- 
 ing the bill, the court said : "In the 
 light of previous legislation upon 
 the subject of the original jurisdic- 
 tion of the Federal courts, and of the 
 
 connection in which the word is used, 
 I think the word ('inhabitant') 
 is here employed in the sense of 
 resident. It comprehends locality 
 of existence, — the dwelling-place 
 where one maintains his fixed and 
 legal settlement ; not the casual and 
 temporary abiding-place required by 
 the necessities of present surround- 
 ing circumstances. A mere ' so- 
 journer ' is not an inhabitant in the 
 sense of the act." Although arriv- 
 ing at the correct determination of 
 the question, it would seem that the 
 learned judge failed to appreciate 
 the full significance of the decision 
 in Shaw v. Mining Company. Upon 
 the face of the bill before him 
 appeared the allegation that the de- 
 fendant was a citizen of Kentucky, 
 and that being the case, it would 
 seem that evidence as to the perma- 
 nence of the sojourn in the Northern 
 District of Illinois was upon an im- 
 material issue. Had the suit been 
 brought in the wrong district of 
 Kentucky, it might there have been 
 a material issue of what district of 
 that State the defendant was an 
 inhabitant; but, it being admitted 
 
168 JURISDICTION OE FEDERAL COURTS. 
 
 that within the meaning of the statute, the words " inhabi- 
 tant " and "resident" are used synonymously, and neither 
 possesses any broader significance — in this connection — than 
 the term citizen ; they may mean something less than citizen. 
 Thus in a particular case, as for instance a citizen of Ohio 
 suing a citizen of Illinois in a Federal Court of Illinois, the 
 citizen of Illinois cannot set up that although he is a citizen 
 of Illinois he is in fact an inhabitant or resident of Indiana, 
 and thus claim the privilege of being sued there. He may, 
 however, if sued in the Federal court for the Northern Dis- 
 trict of Illinois, set up that he is a resident or an inhabitant 
 of the Southern District of Illinois, and claim his exemption 
 from suit in the Northern District. 
 
 It is citizenship of the State, with residence in the district, 
 which is the test of jurisdiction in these cases. 1 
 
 what Constitutes Waiver. As we have seen, the objection 
 as to the district in which suit may be brought being a matter 
 of personal privilege only, the objection must be formally 
 taken or it will be considered as waived. And the objection 
 must be made in apt time. Anything which indicates a will- 
 ingness to submit to the jurisdiction of the court will be a 
 waiver — as entering a general appearance, 2 or coupling with 
 a motion to dismiss for want of jurisdiction a motion to dis- 
 miss for want of equity, 3 etc. 
 
 It would seem that this privilege, being in its nature per- 
 
 that the defendant was a citizen of U. S. 129 ; McBride v. Grand de 
 
 Kentucky, no question could arise Tour Plow Co., 40 Fed. Rep. 162 ; 
 
 as to his residence or inhabitancy Southern Express Co. v. Todd, 56 
 
 elsewhere. Fed. Rep. 104, 12 U. S. App. 351, 
 
 1 Southern Pacific Co. v. Denton, 5 C. C. A. 432 ; Walker v. Windsor 
 
 146 U. S. 202, Nat. Bank, 56 Fed. Rep. 76, 5 U. S. 
 
 * Gracieu. Palmer, 8 Wheat. 699; App. 423, 5 C. C. A. 421; Hoover 
 
 Toland v. Sprague, 12 Peters, 300 ; & Allen Co. v. Columbia Straw 
 
 St. Louis & San Francisco R. R. v. Paper Co. , 68 Fed. Rep. 945. 
 
 McBride, 141 U. S. 127; Texas & 8 Jones v. Andrews, 10 WalL 
 
 Pacific Ry. v. Cox, 145 U. S. 593; 327. 
 Central Trust Co. v. McGeorge, 151 
 
RESIDENCE AS WELL AS CITIZENSHIP. 169 
 
 sonal to the party, could only be presented by him, and not 
 by his co-defendants. In a late case, however, there is a 
 dictum to the effect that if the non-resident fails to appear in 
 the suit his co-defendants might raise the objection in apt 
 time. 1 The case was decided upon another point, and was 
 argued by counsel upon one side only, and is therefore of 
 little value as an authority. And in a recent case it was 
 held that where a corporation had appeared by its proper offi- 
 cers and submitted itself to the jurisdiction of the court, such 
 voluntary action could not be overruled at the instance of 
 stockholders and creditors not parties to the suit as brought, 
 but who were permitted to become such by intervening 
 petition. 2 
 
 Privilege not -waived by Compliance -with State Statute in 
 Appointing Agent to receive Service of Process. Nor does a 
 corporation of one State which complies with the laws of an- 
 other State wherein it does business, by filing its charter and 
 appointing an agent in tbat State to receive service of process, 
 thereby waive its right to insist that it shall be sued in the 
 State of its incorporation. 3 
 
 Record should Show Residence as •well as Citizenship. Thus, 
 a bill is bad on demurrer which is brought in the State of 
 
 1 Interior Construction & Im- that the defendant is a corporation 
 provement Co. v. Gibney, 160 U. S. chartered by the laws of another 
 217. See Jewett v. Bradford Savings State, or a foreign country, does not 
 Bank and Trust Co., 45 Fed. Rep. have to allege negatively that it is 
 801. not a citizen or a resident of the 
 
 2 Central Trust Co. v. McGeorge, State in which suit is brought against 
 151 U. S. 129. it, because in legal contemplation 
 
 3 Rowbottom v. Steele Iron Co., its residence and citizenship can 
 71 Fed. Rep. 758; see Filli v. Dela- only be in the State or country by 
 ware, L. & W. R. R. Co., 37 Fed. the laws of which it was created, 
 Rep. 65. A corporation created although it may have an office 
 by the laws of a foreign country and do business in other States 
 does not become a citizen or resi- whose laws permit it. Shattuck v. 
 dent of a State of this Union by North British & Mercantile Ins. Co. 
 merely opening an office in the State of London and Edinburgh et al., 58 
 and transacting business there; and Fed. Rep. 609, 19 U. S. App. 215, 
 a petition for removal which shows 7 C. C. A. 386. 
 
170 JURISDICTION OP FEDERAL COUETS. 
 
 which defendant is a citizen, and which does not allege that 
 the defendant is a resident of the district in which the suit is 
 brought, there being two districts in the State. 1 Likewise 
 of a complaint which does not show that either the plaintiff 
 or defendant is a resident of the district where the suit is 
 brought. 2 
 
 Attachment. The decision of the Supreme Court in the 
 early case of Toland v. Sprague, 3 upon the subject of attach- 
 ments in the Federal courts, although a pure dictum, has ever 
 since been taken as establishing the law upon this question. 
 It was there held : 1, that by the general provisions of the 
 laws of the United States, the Circuit Courts can issue no 
 process beyond the limits of their district; 2, that indepen- 
 dently of positive legislation, the process can only be served 
 upon persons within the same district; 3, that the Acts of 
 Congress adopting the State process, adopt the form and 
 modes of service, only so far as the persons are rightfully 
 within the reach of such process, and did not intend to enlarge 
 the sphere of the jurisdiction of the Circuit Courts ; 4, that 
 the right to attach property, to compel the appearance of per- 
 sons, can properly be used only in cases in which such per- 
 sons are amenable to the process of the court, in personam ; 
 that is, where they are inhabitants, or found within the 
 United States; and not where they are aliens, or citizens 
 resident abroad, at the commencement of the suit, and have 
 no inhabitancy here; and 5, that even in case of a person 
 being amenable to process in personam, an attachment against 
 his property cannot be issued against him, except as part of, 
 or together with, process to be served upon his person. 4 
 
 Effect of Federal Attachment Act. Nor do the provisions 
 
 1 Harvey v. Richmond & M. Ry. * In the dissenting opinion of 
 Co. et at, 64 Fed. Rep. 19. Chief Justice Taney it is stated that 
 
 2 Laskey v. Newtown Mining Co., the practice at many of the circuits 
 50 Fed. Rep. 634. had been to issue attachments and 
 
 3 12 Peters, 300. proceed without personal service. 
 
PRACTICE IN ATTACHMENT SUITS. 171 
 
 of the act relating to attachment 1 enable the Federal courts 
 to dispense with personal service, it being held that this act 
 is applicable only to proceedings supplemental to personal 
 service upon the defendant. 2 
 
 Practice in Attachment Suits. The theory of attachments 
 in Federal courts is well stated in an opinion of Mr. Justice 
 Matthews, delivered at the Circuit. 8 He says: "An attach- 
 ment proceeding in the courts of the United States has alto- 
 gether a different character from that proceeding in rem in 
 common use in the States, the object of which is either to 
 enforce the appearance of the absent defendant or to subject 
 his property to the payment of his debts. In the Federal 
 courts there must be jurisdiction over the person of the 
 defendant and of a subject matter, independent of a pro- 
 ceeding in attachment, and without which no attachment 
 can be effectual. Everything pertaining to the attachment, 
 therefore, arises and occurs in the course and progress of a 
 pending suit, and is mere matter of procedure in the exercise 
 of a jurisdiction otherwise acquired. Any irregularity, omis- 
 sion, or defect, therefore, in that proceeding is mere error, 
 and does not and cannot affect the jurisdiction of the court ; 
 for that is acquired over his person by process served upon 
 
 1 Sec. 915, Rev. Stat. " In com- similar security, as required by such 
 
 mon-law causes in the circuit and State laws, shall be first furnished by 
 
 district courts the plaintiff shall be the party seeking such attachment or 
 
 entitled to similar remedies by at- other remedy." See Nazrou. Cragin, 
 
 tachment or other process, against 3 Dill. 474, Fed. Cas. No. 10,062; 
 
 the property of the defendant, which Mauldin v. Carll, 3 Hughes, 249, 
 
 are now provided by the laws of the Fed. Cas. No. 9307 ; North v. 
 
 State in which such court is held McDonald, 1 Biss. 57, Fed. Cas. No. 
 
 for the courts thereof ; and such 10,312. 
 
 circuit or district courts may, from 2 Anderson v. Shaffer, 10 Fed. 
 
 time to time, by general rules, adopt Rep. 206 ; Central Trust Co. v. 
 
 such State laws as may be in force Chattanooga &c. R. R. Co., 68 Fed. 
 
 in the State where they are held in Rep. 685. 
 
 relation to attachments and other 8 Erstein et al. v. Rothschild et 
 
 process; Provided, that similar pre- al, 22 Fed. Rep. 61. 
 liminary affidavits or proofs, and 
 
172 JURISDICTION OF FEDERAL COURTS. 
 
 the defendant, and over his property attached by the actual 
 seizure under the writ of attachment." In that case it was 
 accordingly held that in a Federal court a defective writ of 
 attachment might be amended, the court already having juris- 
 diction over the person of the defendant by service of pro- 
 cess, although the State procedure would not admit of such 
 a practice. 
 
 Hence a Federal court cannot give judgment even against 
 the res where the defendant has neither been served with 
 process nor appeared. 1 
 
 But, it is held, a Circuit Court having jurisdiction of the 
 parties may issue a writ of attachment to any other district 
 within the same State. Such a construction of the statute in 
 no proper sense enlarges the jurisdiction of the court. 2 Gar- 
 nishment is a form of attachment, and cannot be maintained 
 in the Federal court except as incident to a jurisdiction 
 already acquired by personal service of process. 3 
 
 Constructive Service. Prior to the Act of 1872, 4 no power 
 existed in a Federal court to make constructive service of 
 process upon parties not within reach of the ordinary process 
 of the court. By that Act, subsequently incorporated as 
 section 738 of the Revised Statutes, provision was made for 
 constructive service upon parties without the territorial juris- 
 diction of the court. Although this Act was not repealed in 
 terms by the Act of March 3, 1875, 6 it is evident that sec- 
 
 1 Harland v. United Lines Tele- Cas. No. 12,206 ; Richmond v. Drey- 
 graph Co., 40 Fed. Rep. 308. fous, 1 Sumn. 131, Fed. Cas. No. 
 
 3 Treadwell v. Seymour, 41 Fed. 11,799; Day v. Newark Mfg. Co., 1 
 
 Rep. 579. Blatchf. 628, Fed. Cas. No. 3685; 
 
 » Central Trust Co. v. Chatta- Lovejoy v. Hartford Fire Ins. Co., 11 
 
 nooga, &o. R. R. Co., 68 Fed. Rep. Fed. Rep. 63 ; Noyes v. Canada, 30 
 
 ' 635. Fed. Rep., 665; Perkins v. Hendryx, 
 
 Cases on attachment. Chittenden 40 Fed. Rep. 657; Sackett v. Rum- 
 
 v. Darden, 2 Woods, 437, Fed. Cas. baugh,45Fed. Rep 23; ExParte Des 
 
 No. 2688; Hollingsworth v. Adams, Moines & M. Ry. Co., 103 U. S. 794. 
 2 Dall. 306, Fed. Cas. No. 6611; 4 17 Stat. 196. 
 Saddler v. Hudson, 2 Curtis, 6, Fed. « 18 Stat. 470. 
 
CONSTRUCTIVE SERVICE. 173 
 
 tion 8 of that Act was intended to supersede the Act of 
 1872, l and the Act of 1887-8 (sec. 5) expressly provides that 
 nothing in the last named Act should be held or construed 
 to affect the provisions of this section of the Act of 1875. It 
 is therefore the law at the present time. The statute reads 
 as follows : 
 
 " Sec. 8. That when in any suit, commenced in any circuit 
 court of the United States, to enforce any legal or equitable 
 lien upon, or claim to, or to remove any incumbrance or lien 
 or cloud upon the title to real or personal property within the 
 district where such suit is brought, one or more of the de- 
 fendants therein shall not be an inhabitant of, or found 
 within, the said district, or shall not voluntarily appear 
 thereto, it shall be lawful for the court to make an order 
 directing such absent defendant or defendants to appear, 
 plead, answer, or demur, by a day certain to be designated, 
 which order shall be served on such absent defendant or de- 
 fendants, if practicable, wherever found, and also upon the 
 person or persons in possession or charge of said property, if 
 any there be ; or where such personal service upon such ab- 
 sent defendant or defendants is not practicable, such order 
 shall be published in such manner as the court may direct, 
 not less than once a week for six consecutive weeks ; and in 
 case such absent defendant shall not appear, plead, answer, 
 or demur within the time so limited, or within some further 
 time, to be allowed by the court, in its discretion, and upon 
 proof of the service or publication of said order, and of the 
 performance of the directions contained in the same, it shall 
 be lawful for the court to entertain jurisdiction, and proceed 
 to the hearing and adjudication of such suit in the same 
 manner as if such absent defendant had been served with pro- 
 cess within the said district ; but said adjudication shall, as 
 regards said absent defendant or defendants without appear- 
 ance, affect only the property which shall have been the sub- 
 
 1 Shainwald v. Lewis, 5 Fed. Kep. 510. 
 
174 JURISDICTION OF FEDERAL COURTS. 
 
 ject of the suit and under the jurisdiction of the court therein, 
 within such district. And when a part of the said real or per- 
 sonal property against which such proceedings shall be taken 
 shall be within another district, but within the same State, 
 said suit may be brought in either district in said State ; Pro- 
 vided, however, That any defendant or defendants not actually 
 personally notified as above provided may, at any time 
 within one year after final judgment in any suit mentioned 
 in this section, enter his appearance in said suit in said cir- 
 cuit court, and thereupon the said court shall make an order 
 setting aside the judgment therein, and permitting said de- 
 fendant or defendants to plead therein on payment by him or 
 them of such costs as the court shall deem just ; and there- 
 upon said suit shall be proceeded with to final judgment ac- 
 cording to law." 
 
 Limitations as to District of Suit do not apply to Suits 
 brought under the Provisions of Revised Statutes, Sec. 738. The 
 portion of the statute of 1887-8 providing that where the 
 jurisdiction of the court is founded only on the fact that the 
 action is between citizens of different States, suit shall be 
 brought only in the district of the residence of either the 
 plaintiff or the defendant, has no application to actions 
 brought under the Acts of Congress providing for construc- 
 tive service, but relate to personal actions only. 1 
 
 Court may Proceed though Neither Party Resides in Dis- 
 trict. The Circuit Courts under this Act may exercise juris- 
 diction where the res is within the district, although neither 
 the plaintiff nor defendant is a citizen or resident of the 
 State or district where the action is brought, there being, of 
 course, the requisite diversity of citizenship. Thus, a eiti- 
 
 1 Greeley v. Lowe, 155 U. S. 58; McBee v. Marietta & North Georgia 
 American F. L. M. Co. v. Benson, Ry. Co., 48 Fed. Rep. 243; Wheel- 
 ed al, 33 Fed. Rep. 456 ; Carpenter might v. St. L., N. O. & O. Canal 
 v. Talbot, 33 Fed. Rep. 537 : Ames Co., 50 Fed. Rep. 709. 
 v. Holderbaum, 42 Fed. Rep. 341 ; 
 
"WHAT IS A LEGAL OK EQUITABLE LIEN. 175 
 
 zen of Ohio may file his bill in the Circuit Court for the 
 District of Arkansas against a citizen of Illinois, to remove a 
 tax deed as a cloud upon complainant's title, the lands being 
 within the District of Arkansas. 1 And a bill may be filed in 
 the Circuit Court for the Eastern District of Louisiana, by a 
 citizen of New York, against a corporation organized under 
 the laws of New Jersey, to foreclose a mortgage upon prop- 
 erty within the Eastern District of Louisiana. 2 
 
 But Statute does not Enlarge the Jurisdiction of Federal 
 Courts. It is important to observe that this provision of the 
 statute does not enlarge the jurisdiction of the Federal courts, 
 but only provides a method of bringing in parties in cases 
 where the court can exercise jurisdiction between the parties. 3 
 
 Thus, where in a bill to foreclose a mortgage brought by a 
 non-resident trustee, it was sought to bring in by publication 
 under the Act in question certain necessary parties who were 
 citizens of the same State as the complainant, it was held 
 error, and the cause reversed, the Court of Appeals for the 
 Sixth Circuit calling attention to the fact that the necessary 
 citizenship is a constitutional as well as statutory require- 
 ment. 4 And the court cannot entertain jurisdiction as be- 
 tween an alien complainant and an alien defendant, even 
 though the suit is for foreclosure of a mortgage, and the res 
 within the district. 6 
 
 "What is a Legal or Equitable Lien. Substituted service is 
 
 i Dick v. Foraker, 155 U. S. 404. v. Mo. Pac. Ry., 3 Fed. Rep. 772. 
 
 See Cuhn v. Morrisson, 75 Fed. Rep. See Jewett v. Bradford Savings, &c. 
 
 81. Bank, 45 Fed. Rep. 801 ; Ames v. 
 
 2 Wheelright v. St. L., N. 0. & Holderbaum, 42 Fed. Rep. 341 ; 
 
 O. Caual Co., 50 Fed. Rep. 709. U. S. v. American Lumber Co., 80 
 
 See Spencer v. Kansas City Stock Fed. Rep. 309. 
 
 Yards Co., 56 Fed. Rep. 741 ; Single * Tug River Coal & Salt Co. v. 
 
 v. Scott Paper Mfg. Co., 55 Fed. Brigel, 67 Fed. Rep. 625, 31 U. S. 
 
 Rep. 553. App. 665, 14 C. C. A. 577. 
 
 8 Greeley v. Lowe, 155 U. S. 58 ; 6 Pooley v. Luco, 72 Fed. Rep. 
 
 Brigham v. Luddington, 12 Blatchf. 561. 
 237, Fed. Cas. No. 1874; Pacific R. R. 
 
176 JURISDICTION OE FEDERAL COURTS. 
 
 thus proper in a bill for partition; 1 in a bill brought by a 
 trustee to foreclose a mortgage; 2 in a suit instituted by a 
 creditor of a corporation to set aside a conveyance of its real 
 estate and a mortgage of its personal property made to de- 
 fraud creditors ; 3 in a bill for injunction and for a receiver 
 of a railroad property, although it did not appear that any 
 specific lien was claimed;* in a suit by parties claiming a 
 mechanic's lien upon railroad property, and opposing the 
 foreclosure of a mortgage thereon; 6 and a bill to subject a 
 specific fund within the jurisdiction of the court to complain- 
 ant's claim. 6 
 
 When Statute Inapplicable. The statute has no application 
 to purely personal actions, 7 and applies only where some 
 claim is sought to be enforced upon real or personal property. 
 Accordingly, a bill praying for an account of lumber taken, 
 and damages for breach of covenant, and for the appointment 
 of a receiver of the demised premises, lumber, etc., was held 
 not within the act. 8 
 
 Other statutes. In this connection reference may be made 
 to sections 740, 741, and 742 of the Revised Statutes, which 
 provide : 
 
 " Sec. 740. When a State contains more than one district, 
 every suit not of a local nature, in the circuit or district 
 
 1 Greeley v. Lowe, 155 U. S. 58. 6 McBee v. Marietta & North 
 
 2 Wheelwright v. St. L., N. O. Georgia Ry. Co., 48 Fed. Rep. 243. 
 & O. Canal Co., 50 Fed. Rep. 709; « Goodman ». Niblack, 102 U. S. 
 Ames v. Holderbaum, 42 Fed. Rep. 556. See Pollitz v. Farmers Loan 
 341. See Black v. Scott, 9 Fed. Rep. & Trust Co., 39 Fed. Rep. 707. 
 187; Mass. Mut. Life Ins. Co. v. 7 Insurance Co. v. Bangs, 103 U. 
 Chicago & Alton R. R. Co., 13 Fed. S. 435. 
 
 Rep. 857; Carpenter v. Talbot, 33 8 Ellis v. Reynolds, 35 Fed. Rep. 
 
 Fed. Rep. 537. 394. See Pacific R. R. Co. v. Mo. 
 
 » Mellen w. Moline Malleable Iron Pacific Ry., 3 Fed. Rep. 772; Dor- 
 Works, 131 U. S. 352. mitzer v. III. Bridge Co., 6 Fed. Rep. 
 
 * East Tenn. Va. & Ga. R. R. 217; Shainwald v. Lewis, 5 Fed. 
 
 Co. v. Atlanta & Florida R. R. Co., Rep. 510. 
 49 Fed. Rep. 608. 
 
OTHEB STATUTES. 177 
 
 courts thereof, against a single defendant, inhabitant of such 
 State, must be brought in the district where he resides ; but 
 if there are two or more defendants, residing in different dis- 
 tricts of the State, it may be brought in either district, and 
 a duplicate writ may be issued against the defendants, di- 
 rected to the marshal of any other district in which any 
 defendant resides. The clerk issuing the duplicate writ shall 
 endorse thereon that it is a true copy of a writ sued out of 
 the court of the proper district ; and such original and dupli- 
 cate writs, when executed and returned into the office from 
 which they issue, shall constitute and be proceeded on as one 
 suit; and upon any judgment or decree rendered therein, exe- 
 cution may be issued, directed to the marshal of any district 
 in the same State. 
 
 " Sec. 741. In suits of a local nature, where the defendant 
 resides in a different district, in the same State, from that in 
 which the suit is brought, the plaintiff may have original and 
 final process against him, directed to the marshal of the dis- 
 trict in which he resides. 
 
 " Sec. 742. Any suit of a local nature, at law or in equity, 
 where the land or other subject matter of a fixed character 
 lies partly in one district and partly in another, within the 
 same State, may be brought in the Circuit or District Court 
 of either district ; and the court in which it is brought shall 
 have jurisdiction to hear and decide it, and to cause mesne 
 or final process to be issued and executed, as fully as if the 
 said subject matter were wholly within the district for which 
 such court is constituted." 
 
 Just how these sections are affected by the Act of 1887-8 J 
 has not been authoritatively determined. In Greeley v. Lowe 2 
 it is said : " As no exception was made in that act of the cases 
 provided for by sections 740, 741, and 742 Eevised Statutes, 
 it is at least open to some doubt as to whether suits will lie 
 against non-resident defendants under those sections." 
 
 i 25 Stat. 433. 2 155 U. S. 5g. 
 
 12 
 
178 JURISDICTION OF FEDERAL COURTS. 
 
 At the circuit, it has been twice decided that these sec- 
 tions are not repealed. 1 In one of these cases 2 complainants, 
 citizens of Rhode Island and Maryland, brought their bill in 
 the Circuit Court for the Southern District of New York, as 
 stockholders, against the receiver and directors of a corpora- 
 tion for an accounting by reason of alleged malfeasance of the 
 defendants and consequent impairment of the capital stock of 
 the corporation. The defendants were citizens of New York, 
 New Jersey, and other States, and one of them filed a plea to 
 the jurisdiction of the court upon the ground that he was not 
 a resident of the Southern District of New York, but of the 
 Eastern District. It appeared that the other New York de- 
 fendants were residents of the Southern District of that State. 
 Upon this state of facts the plea was overruled. 
 
 1 East Term. Va. & Ga. Ry. Co. Rep. 608 ; Goddard v. Mailler et al. 
 v. Altanta & F. Ry. Co., 49 Fed. 80 Fed. Rep. 422. 
 
 2 Goddard v. Mailler et al., supra. 
 
OBJECT OP THE STATUTE. 179 
 
 CHAPTER XI. 
 
 Statutory Restrictions as to Suits by Assignees of Choses in Action. — 
 Object of the Statute. — Pleading. — Restriction refers to Citizen- 
 ship. — What Statute Embraces. 
 
 Actions by Assignees. In the original Judiciary Act of 
 
 1789. 1 and. in subsequent Acts covering the general juris- 
 diction of the Federal courts, is to be found a clause limiting 
 the jurisdiction of these courts in suits by assignees of promis- 
 sory notes or other choses in action. The provision in the 
 original Judiciary Act of 1789 was carried forward into sec- 
 tion 629 of the Revised Statutes. The Act of March 3, 
 
 1875. 2 contains the same restriction in somewhat different 
 phraseology, and the restriction as to promissory notes was 
 removed; but this was restored by the Act of 1887-8, s which 
 provides, — 
 
 "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 if such 
 instrument be payable to bearer and be not made by any cor- 
 poration, unless such suit might have been prosecuted in such 
 court to recover the said contents if no assignment or transfer 
 had been made." 
 
 Object of the Statute. " The restriction in regard to suits 
 upon assigned choses in action," says Judge Shiras, 4 "is in- 
 tended to prevent the creation of jurisdiction by the transfer 
 
 1 1 Stat. 78, 79, chap. 20, sec. Stat. 552; Act Aug. 13, 1888, c. 
 11. 866, 25 Stat. 433. 
 
 2 18 Stat. 470. i Chase v. Sheldon Roller-Mills 
 8 Act Mar. 3, 1887, c. 373, 24 Co., 56 Fed. Rep. 625. 
 
180 JURISDICTION OF FEDERAL COURTS. 
 
 of claims held by a citizen of the same State with the debtor 
 to a citizen of another State. The general rule being that 
 the jurisdiction depends upon the adverse citizenship of the 
 parties plaintiff and defendant, it would be an easy matter to 
 create jurisdiction in regard to claims originating between 
 citizens of the same State by the transfer of the chose in 
 action to one who was a citizen of a State other than that 
 wherein the party to be sued resided, unless some restriction 
 was placed upon the right to take jurisdiction over assigned 
 claims." 
 
 Effect of Statute as to Pleading. In view of this limitation 
 it has been uniformly held that in an action in a Circuit Court 
 of the United States, by an assignee of a chose in action, the 
 record must affirmatively show, by apt allegations, that the 
 assignor could have maintained the action. This was held 
 as long ago as the case of Turner v. Bank of North America, 1 
 where it was ruled that when an action upon a promissory 
 note was brought in a Federal court by an endorsee against 
 the maker, not only the citizenship of the parties to the suit 
 but also the citizenship of the payee and endorser must be 
 averred in the record to be such as to give the court 
 jurisdiction. 2 
 
 And on demurrer for failure to show citizenship of the 
 payee it will be assumed that the original parties to a note 
 were citizens of the same State. 3 
 
 1 4Dall. 8. Nichols, 130 U. S. 230; Brook v. 
 
 2 See Montalet v. Murray, 4 Cr. Northwestern Fuel Co., 130 U. S. 
 46 ; Mollan v. Torrance, 9 Wh. 537 ; 341 ; Parker v. Ormuby, 141 U. S. 81 ; 
 Gibson et al. v. Chew, 16 Peters, Rollins v. Chaffee County, 34 Fed. 
 315; Bank of U. S. v. Moss, 6 Rep. 91 ; Republic Iron Mining Co. 
 How. 31 ; Coffee v. Planter's Bank v. Jones, 37 Fed. Rep. 721 ; Hudson 
 of Tennessee, 13 How. 183 ; Brad- v. Bishop, 38 Fed. Rep. 560; Benja- 
 ley v. Rhines' Admrs., 8 Wall. 393; min v. City of New Orleans, 71 Fed. 
 Morgan's Executor v. Gay, 19 Wall. Rep. 758. 
 
 81 ; King Bridge Co. v. Otoe County, » United States Nat. Bank v. 
 
 120 U. S. 225; Metcalf v. Water- McNair, 56 Fed. Rep. 323. 
 town, 128 U. S. 586; Stevens v. 
 
RESTRICTION REFERS TO CITIZENSHIP. 181 
 
 Restriction Refers to Citizenship. The restriction in the 
 statute refers to the citizenship of the parties, and not to the 
 amount of the note or other chose in action assigned. 1 
 
 It is the citizenship of the parties at the time suit is brought, 
 and not at the time the assignment was made, which deter- 
 mines the application of the statute. Hence if the assignor 
 be a citizen of the same State as the maker at the time of 
 making the assignment, but subsequently removes to another 
 State, his assignee (supposing him to be a citizen of a differ- 
 ent State from the maker) may maintain i suit upon the con- 
 tract, despite the fact that originally both the maker and the 
 assignor were citizens of the same State. 2 
 
 In regard to promissory notes, there were two recognized 
 exceptions to the application of the statutes as they existed 
 prior to the Act of 1887-8. An endorsee could sue the en- 
 dorser in the Circuit Court, if the requisite diversity of citi- 
 zenship existed between them, whether or not a suit could 
 have been brought by the payee against the maker; this be- 
 cause the endorsee would not claim through an assignment, but 
 by virtue of a new contract between himself and his endorser. 3 
 And the holder of a negotiable instrument payable to bearer, 
 or to a named payee or bearer, could sue the maker in a court 
 of the United States without reference to the citizenship of 
 the original payee or original holder, because his title did 
 not come to him by assignment but by delivery merely. 4 
 
 1 Stanley v. Board of Supervis- McLean, 68, Fed. Cas. No. 13,866; 
 ors Albany Co., 15 Fed. Rep. 483; Jones v. Shapera, 57 Fed. Rep. 457, 
 Hammond v. Cleaveland, 23 Fed. 13 U. S. App. 481, 6 C. C. A. 423. 
 Rep. 1 ; Bernheim v. Birnbaum, 30 8 Young v. Bryan, 6 Wheat. 
 Fed. Rep. 885 ; Chase v. Sheldon 146 ; Mollan v. Torrance, 9 Wheat. 
 Roller Mills Co., 56 Fed. Rep. 625; 537. 
 
 Bowden v. Burnham, 59 Fed. Rep. 4 Bank of Kentucky v. Wister, 
 
 752, 19 U. S. App. 448, 8 C. C. A. 2 Pet. 318; City of Lexington „. 
 
 248. Butler, 14 Wall. 282; Cooper v. 
 
 2 White v. Leahy, 3 Dill. 378, Thompson, 13 Blatchf. 434, Fed. 
 Fed. Cas. No. 17,751. See Chamber- Cas. No. 3202; Pettit v. Town of 
 lain v. Eckert, 2 Biss. 126, Fed. Cas. Hope, 2 Fed. Rep. 623. 
 
 No. 2577; Thaxter v. Hatch, 6 
 
182 JURISDICTION OF FEDERAL COURTS. 
 
 The Act of 1887-8, however, provides that no action shall 
 lie in favor of any assignee, " or of any subsequent holder if 
 such instrument be payable to bearer and be not made by any 
 corporation." This apparently covers the exceptions above 
 noted, except as to corporations. 
 
 A note made payable to the order of the maker and by it 
 endorsed in blank, is in legal effect a note payable to bearer, 
 and hence if it be made by a corporation, the restriction does 
 not apply. 1 
 
 Meaning of " Contents." The terms of the statute " the con- 
 tents of any promissory note or other chose in action," em- 
 brace the rights the instrument confers which are capable of 
 enforcement by suit. The language is not happily chosen to 
 convey this meaning, but such is the construction given it by 
 the Supreme Court. 2 Thus in DesUer v. Dodge, z it is said 
 that the statute applies where suit is brought to enforce the 
 contract contained in the instrument assigned, and in Bush- 
 nell v. Kennedy, i that the restriction applies to rights founded 
 upon contracts which contain within themselves some promise 
 or duty to be performed, and that such contracts may be 
 properly said to have contents. 
 
 "The contents of a contract, as a chose in action," says 
 
 1 Bank of British North Amer- son, who successively holds the note 
 ica v. Barling et al. 46 Fed. Rep. lonafide, not by virtue of any assign- 
 357. See Bullard v. Bell, 1 Mason, ment of the promise, but by an 
 243, Fed. Cas. No. 2121, where it original and direct promise, moving 
 was said by Mr. Justice Story: "A from the maker to bearer." See 
 note payable to bearer is often said generally, Newgass v. New Orleans, 
 to be assignable by delivery; but in 33 Fed. Rep. 196 ; Rollins v. Chaffee 
 correct language there is no assign- Co., 34 Fed. Rep. 91 ; Wilson v. 
 ment in the case. It passes by mere Knox Co., 43 Fed. Rep. 481; Bar- 
 delivery; and the holder never makes num v. Caster Co., 34 Fed. Rep. 
 any title by or through any assign- 91 ; Steel v. Rathbun, 42 Fed. Rep. 
 ment, but claims merely as bearer. 390. 
 
 The note is an original promise by 2 Shoecraft v. Bloxham, 124 U. 
 
 the maker to pay any person who S. 730. 
 shall become the bearer. It is there- 8 16 How., 622. 
 fore payable to any and every per- * 9 Wall. 387. 
 
MEANING OF "CONTENTS." 183 
 
 Mr. Justice Blatehford, 1 "in the sense of section 629 (Re- 
 vised Statutes) are the rights created by it in favor of a party 
 in whose behalf stipulations are made in it which he has a 
 right to enforce in a suit founded on the contract; and a suit 
 to enforce such stipulation is a suit to recover such contents." 
 The terms used in the statute "were designed to embrace 
 the rights the instrument conferred which were capable of 
 enforcement by suit." 2 
 
 Thus a bill to enforce the specific performance of contract 
 is a suit to recover the contents of the contract within the 
 meaning of the act. 3 And so of an action to recover upon a 
 contract of reinsurance, and for a reformation of the policy. 4 
 
 And an assignee of a judgment founded on a contract is 
 within the prohibition of the statute. 5 
 
 In New Orleans v. Benjamin* it appeared that the legis- 
 lature of Louisiana had created a corporation called "The 
 Board of Metropolitan Police," having the administration 
 of police affairs for certain territory, including the city 
 of New Orleans, and provided that the cities included in the 
 territory should levy a tax sufficient to pay the expenses of 
 the police board apportioned to the respective cities. After- 
 ward, the legislature repealed the Act creating the board, and 
 complainant, owner of warrants issued by the board prior to 
 its dissolution for supplies and labor furnished, filed a bill in 
 the Circuit Court of the United States for the District of 
 Louisiana, setting forth the above facts, and that complainant 
 had no remedy by a suit at law, the board having ceased to 
 exist, and praying that an account might be taken of the 
 
 1 Corbin v. County of Black Tampa & Key West Ky. Co., 152 
 Hawk, 105 U. S. 659. * U. S. 71. 
 
 2 Justice Field in Shoecraft v. 4 Laird v. Indemnity Mutual 
 Bloxham, 124 U. S. 730. Marine Ins. Co., 44 Fed. Rep. 712. 
 
 * Corbin v. County of Black 6 Walker v. Powers, 104 U. S. 
 Hawk, 105 U. S. 659. See Plant 245; Mississippi Mills v. Cohn, 150 
 Investment Co. v. Jacksonville, U. S. 202. 
 
 • 153 U. S. 411. 
 
184 JURISDICTION OP FEDERAL COURTS. 
 
 amount due from the city of New Orleans upon its unpaid 
 apportionments, as well as for taxes collected for account of 
 and not turned over to the police board, and that the city be 
 decreed to pay to a receiver the balance found due, to be by 
 him applied to the payment of complainant's warrants, and 
 those of such other warrant-holders as might prove up their 
 claims. 
 
 Upon this state of facts, the Supreme Court held that the 
 suit was not merely a suit to "establish a fund," but involved 
 first of all a suit to judicially determine the amount of the 
 claims, and after citing Walker v. Powers, 1 and Mississippi Mills 
 v. Coh7i, 2 to the effect that the assignee of a judgment founded 
 on contract could not maintain a suit thereon in a Federal 
 court unless such suit might have been prosecuted there had 
 no assignment been made, the Court proceeds : " If the board 
 had not been abolished, judgment could not have been re- 
 covered against it by complainants in the Circuit Court ; and 
 if a judgment had been recovered by them in the State court, 
 a creditor's bill would have been merely ancillary to the judg- 
 ment, and could not have been entertained in the Circuit 
 Court as an original bill. Upon the facts appearing in this 
 record, the assignees would have acquired no new and inde- 
 pendent right of recovery, by reason of the judgment, not 
 possessed by the assignors. The board being abolished, 
 recovery of a judgment was dispensed with, but the establish- 
 ment of the claims was still required as the basis for further 
 relief, and that relief involved nothing more than recovery 
 over, or a direct decree within the principles of New Orleans 
 v. Gaines' Adm'r, 3 analogous to judgment on garnishee pro- 
 cess. The suit must, therefore, be regarded as a suit to 
 enforce the payments of the warrants and certificates, and as 
 such, a suit to recover their contents; and this is so on any 
 other ground of equity jurisdiction which has been suggested. 
 
 1 104 U. S. 245. » 131 U. S. 191. 
 
 2 150 U. S. 202. 
 
WHEN STATUTE INAPPLICABLE. 185 
 
 In our judgment the pleadings show a suit to recover the 
 contents of choses in action, and, as the bill contained no 
 averment that it could have been maintained by the assign- 
 ors, if no assignments had been made, the jurisdiction of the 
 Circuit Court cannot be sustained on the ground of diverse 
 citizenship." 
 
 "What " Chose in Action " Includes. As used in the statute, 
 the term " chose in action " is comprehensive in its nature. It 
 includes accounts or unliquidated claims ; all debts and claims 
 for damages for breach of contract or for torts connected with 
 contracts. 1 
 
 The contract assigned need not be in writing. 2 
 When Statute Inapplicable. The statute, it is held, does 
 not apply to proceedings by an assignee of a chose in action 
 to recover possession of the thing in specie, or damages for 
 its wrongful caption or detention. 3 Thus, a suit in equity to 
 compel the defendant corporation to transfer upon its books 
 to complainant certain shares of stock. 4 And an action 
 against a corporation to recover damages for a breach of an 
 implied contract in neglecting to protest and give notice in 
 regard to certain drafts forwarded to it by a correspondent 
 bank, was held not within the statute, the court drawing a 
 distinction between the rights of action founded upon con- 
 tracts, — which contracts contain within themselves some 
 promise or duty to be performed, — and mere naked rights of 
 action founded upon some wrongful act, — some neglect or 
 breach of duty to which the law attaches damages. 5 And so 
 
 1 Bushnell v. Kennedy, 9 Wall. 4 Jewett v. Bradford Savings 
 387. See Wilkinson v. Wilkinson, Bank & Trust Co., 45 Fed. Kep. 
 2 Cart. 582, Fed. Cas. No. 17,677. 801. 
 
 2 Simons v. Ypsilanti Paper Co. , 6 Barney v. Globe Bank, 5 
 33 Fed. Rep. 193. Blatchf. 107, Fed. Cas. No. 1031. 
 
 8 Deshler v. Dodge, 16 How. See Bushnell v. Kennedy, 9 Wall. 
 622. See Ambler v. Eppinger, 137 387. 
 U. S. 480 ; Van Bokkelen v. Cook, 
 5 Sawyer, 587, Fed. Cas. No. 16,831. 
 
186 JURISDICTION OF FEDERAL COURTS. 
 
 of an action brought by assignee of a claim for damages for 
 entering the assignor's land and cutting timber. 1 
 
 Indeed, the denial of jurisdiction of suits by assignees has 
 never been taken in an absolutely literal sense. 2 Thus in some 
 cases it is apparent that although the holder of a note holds 
 it by virtue of an endorsement to him, still the transaction 
 may be such that as a matter of fact the contract is intended 
 to be an original undertaking directly between the nominal 
 assignee and the maker of the paper. Thus, in Holmes v. 
 Goldsmith, 3 Holmes and others executed their note in favor 
 of one Owen, who on the day of its date endorsed the note, 
 with waiver of demand, notice, and protest, to the plaintiff 
 and received the face of the note. In this case it was held 
 that the plaintiff might show by parol testimony that the 
 nominal endorser was not really such, but that the note was 
 made by the makers for his accommodation and as his sure- 
 ties, and that he was in legal effect a maker of the note, and 
 having himself received the proceeds of the note and having 
 no right of action against the makers thereof, he could not be 
 regarded as an assignor of any right of action against the 
 makers. 4 
 
 And where a contractor for city water works gives his 
 creditors an order for funds due him from the city and the city 
 accepts the order, such acceptance constitutes a direct con- 
 tract between the city and the creditor, and if the latter be a 
 citizen of another State he may maintain a suit in a Federal 
 court against the city to enforce payment without regard to 
 the citizenship of the contractor. 5 So where by the rule of 
 equity a creditor is subrogated to the rights of his debtor, 
 the fact that the debtor has executed a formal assignment to 
 
 1 Ambler v. Eppinger, 137 U. S. 4 See Wachuset Nat. Bank. v. 
 
 480; Conn. v. C. B. & Q. R. R. Co., Sioux City Stove Works, 56 Fed. 
 
 48 Fed. Rep. 177. Rep. 321. 
 
 a Bushnell v. Kennedy, 9 Wall. 6 Superior City v. Ripley, 138 
 
 387. U. S. 93. 
 
 a 147 U. S. 150. 
 
ASSIGNMENTS BY OPERATION OP LAW. 187 
 
 the creditor, being only in aid of the creditor's right and not 
 creative of it, will not bar a suit in a Federal court if the 
 creditor and the defendant possess the requisite citizenship, 
 although as between the defendant and the debtor and as- 
 signor the action could not have been maintained. 1 
 
 Assignments by Operation of Law. In the early case of Sere 
 v. Pitot, 2 the circumstance that the plaintiffs were tbe as- 
 signees of an insolvent debtor by operation of law was held 
 not to take the case out of the letter and meaning of the law, 
 although possibly not within the policy of the Act. But exec- 
 utors and administrators, it is said, are not usually desig- 
 nated by the term "assignees," and hence are not within the 
 words of the Act. 3 
 
 1 New Orleans v. Gaines' Admr., 130, Fed. Cas. No. 1769; U. S. Nat. 
 138 U. S. 595. Bank v. McNair, 56 Fed. Rep. 323. 
 
 a 6 Cr. 332. Likewise of a re- 8 Chappedelaine v. Dechenaux, 
 ceiver, Bradford v. Jenks, 2 McL. 4 Cr. 306; Childress v. Emory, 8 
 
 Wh. 642. 
 
188 JURISDICTION OP FEDERAL COURTS. 
 
 CHAPTER XII. 
 
 Pleading. — Showing Jurisdictional Facts. —Pleadings must be Explicit 
 in this Particular. — Proper Averments of Diverse Citizenship. — 
 Examples of Insufficient Averments. — Averments as to Corpora- 
 tions. — Averments of Alienage. 
 
 Jurisdictional Facta must be Pleaded. "Inasmuch as the 
 proceedings of no court can be deemed valid further than its 
 jurisdiction appears or can be presumed, " says the Supreme 
 Court in the early case of Turner v. The Bank, 1 "it is neces- 
 sary to set forth on the record the facts or circumstances 
 which give jurisdiction, either expressly or in such manner as 
 to render them certain by legal intendment." As stated else- 
 where, 2 there are no presumptions in favor of the jurisdic- 
 tion of the Federal courts, and it therefore results that the 
 record must be looked to for substantial affirmative evidence 
 that the court has jurisdiction. This rule as applied to Federal 
 courts has never been departed from by the Supreme Court. 
 It follows that in all cases commenced in a Federal court 
 the first duty, after ascertaining that the facts warrant the 
 exercise of its jurisdiction, is to set them forth in a proper 
 manner so that the record will show affirmatively the juris- 
 diction of the court. 
 
 In the natural order of pleading those facts should be set 
 forth in the first pleadings filed in the cause. 3 It has been 
 held sufficient, upon appeal, if the necessary jurisdictional 
 facts appear anywhere upon the record, 4 but proper practice 
 demands that the bill, or the declaration or petition should 
 
 1 4Dall. 8. 3 Bradstreet u.Thomas, 12 Peters, 
 
 1 Post, p. 241. 59. 
 
 * See p. 242, post. 
 
AVERMENTS SHOULD BE EXPLICIT. 189 
 
 itself show these facts, and a demurrer will lie should they be 
 omitted. 
 
 Averments should be Explicit. These jurisdictional aver- 
 ments should be framed so as to in themselves form an ex- 
 plicit statement of the jurisdictional facts. Nothing should 
 be omitted which would make them complete, for the court 
 will not indulge in any presumptions with which to aid a de- 
 fective jurisdictional averment. "It is not sufficient," says 
 Chief Justice Marshall, speaking of a declaration, in the early 
 case of Brown v. Jfeene, 1 "that jurisdiction maybe inferred 
 argumentatively from its averments." And in the same case, 
 "The decisions of this court require that the averment of 
 jurisdiction shall be positive, that the declaration shall state 
 expressly the fact on which jurisdiction depends." 
 
 And in a later case it was said : " Where jurisdiction de- 
 pends upon the citizenship 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 
 should appear affirmatively, and with equal distinctness, in 
 other parts of the record." 2 
 
 In Manufacturing Co. v. Bradley : 3 "To confer or oust 
 jurisdiction, when that depends on citizenship, the necessary 
 facts must be distinctly alleged and admitted or proved." 
 
 In Continental Insurance Co. v. Bhoads,* defendant in error, 
 as administratrix, brought a suit in the Circuit Court of the 
 United States for the Eastern District of Pennsylvania, 
 against the plaintiff in error, upon a policy of insurance upon 
 the life of her husband. There was a judgment for the de- 
 fendant in error, and upon a writ of error from the Supreme 
 Court it was assigned for error that the record did not show 
 the citizenship of the defendant in error. It appeared from 
 
 i 8 Peters, 112 (1834). Orleans, 74 Fed. Rep. 417, 41 U. S. 
 
 2 Robertson v. Cease, 97 U. S. App. 178, 20 C. C. A. 591. 
 646. See Benjamin v. City of New 3 105 U. S. 175. 
 
 4 119 U. S. 237. 
 
190 JURISDICTION OF FEDERAL COURTS. 
 
 the record that the deceased was a citizen of Pennsylvania at 
 the time of his death, and it was urged that, as the record 
 showed that letters of administration were granted to defend- 
 ant in error in the State of Pennsylvania, she might be con- 
 sidered a citizen of that State. "It may be," said the court, 
 " that by the law of Pennsylvania the personal representative 
 of a deceased citizen of Pennsylvania is, in contemplation of 
 law, resident within the State, and at all times amenable to 
 the jurisdiction of the proper courts of that State, but that 
 does not necessarily imply citizenship of the State. He must 
 be there for the purpose of his administration, but that is all. 
 And, besides, the jurisdiction must appear positively. It is 
 not enough that it may be inferred argumentatively. " 1 
 
 Diverse Citizenship — How Alleged. Nothing would seem 
 to present less difficulty than making the proper averments 
 as to citizenship and residence of the parties, but a brief re- 
 view of adjudged cases will illustrate the necessity of care 
 upon this point. Perhaps the best method of obtaining a 
 correct understanding of the matter is to examine the cases 
 where such averments have been adjudged insufficient. First 
 among these are the cases where the pleader has had in mind 
 the statutes governing such matters, but has failed to bring 
 himself within their terms. 
 
 "Resident" not Synonymous with "Citizen." The earliest 
 illustration of this is that of Abercrombie v. Dupuis. 2 It was 
 there held that an averment that parties were " residents " of 
 
 1 Thus in a recent case the al- said county of Miller, and State 
 
 legation of the declaration was: aforesaid." Held, insufficient. St. 
 
 " The St. Louis, Iron Mountain Louis, I. M. & S. Ry. Co. v. New- 
 
 & Southern Ry. Co., a corpora- com, 56 Fed. Rep. 951, 12 U. S. 
 
 tion operating a railway as com- App. 503, 6 C. C. A. 172. See 
 
 mon carriers through the State of Robertson v. Cease, 97 U. S. 646. 
 Arkansas, and from Texai'kana, in 2 1 Cr. 343. For a statement 
 
 said State, to St. Louis, Mo., which showing what the averments were 
 
 said line traverses the county of in this case, see opinion of the 
 
 Miller in said State of Arkansas, court in Brown v. Keene, 8 Peters, 
 
 and has an office and agent in 112. 
 
EFFECT OF FOURTEENTH AMENDMENT. 
 
 191 
 
 different States was not equivalent to an averment that they 
 were citizens of such States, and therefore the record did not 
 show jurisdiction in the Federal court. The rule established 
 by this case has never been departed from. 1 
 
 Effect of Fourteenth Amendment. The case of Robertson v. 
 Cease 2 arose upon similar facts, and to avoid the effect of 
 Abercrombie v. Dupuis, s it was contended that since the 
 passage of the Fourteenth Amendment of the Constitution, 
 providing 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," an 
 averment of residence in a State was sufficient to establish at 
 least a prima facie case of citizenship, which in the absence 
 of evidence to the contrary would be sufficient to confer juris- 
 diction upon a Federal court. "It was suggested," says the 
 Supreme Court, " that a resident of one of the States is prima 
 
 1 Brown v. Keene, 8 Peters, 112 ; 
 Parker v. Overman, 18 How. 137; 
 Kobertson v. Cease,- 97 U. S. 646; 
 Grace v. Am. Cent. Ins. Co., 109 
 U. S. 278 ; Continental Ins. Co. v. 
 Ehoads, 119 U. S. 237 ; Halsted v. 
 Buster, 119 U. S. 341; Everhart v. 
 Huntsville College, 120 U. S. 223; 
 Menard v. Goggan, 121 U. S. 253 ; 
 Cameron v. Hodges, 127 U. S. 322; 
 Neel v. Pennsylvania Co., 157 U. S. 
 153; Tinsley v. Hoot et al, 53 Fed. 
 Kep. 682, 2 U. S. App. 548, 3 C. C. A. 
 612 ; Crasswell v. Belanger, 56 Fed. 
 Kep. 529, 15 U. S. App. 104, 6 
 C. C. A. 3; Texas & Pacific Ky. Co. 
 v. Rogers, 57 Fed. Rep. 378, 13 U. S. 
 App. 547, 6 C. C. A. 403 ; Haskell 
 v. Bailey, 63 Fed. Rep. 873, 25 
 U. S. App. 99, 11 C. C. A. 476 ; Tug 
 River Coal & Salt Co. v. Brigel 
 et al, 67 Fed. Rep. 625, 31 U. S. 
 App. 665, 11 C. C. A. 577. See Dan- 
 
 ahy v. National Bank of Denison, 
 64 Fed. Rep. 148, 24 U. S. App. 351, 
 12 C. C. A. 75. 
 
 2 97 U. S. 646. Under a statute 
 providing that the U. S. Circuit 
 Court should have jurisdiction "of 
 all suits by or against any banking 
 association established in the dis- 
 trict for which the court is held, 
 under any law providing for na- 
 tional banking associations," held 
 on demurrer that describing plain- 
 tiff as "Third National Bank of Bal- 
 timore " was not an averment either 
 that the plaintiff was established 
 under the laws of the United States 
 or that it was located within the 
 district of Maryland, it appearing 
 that there were other cities in the 
 United States having the name of 
 Baltimore. Third Nat. Bank of 
 Baltimore v. Teal, 5 Fed. Rep. 503. 
 
 » 1 Cr. 343. 
 
192 JURISDICTION OF FEDERAL COURTS. 
 
 facie, either a citizen of the United States or an alien, — if a 
 citizen of the United States, and also a resident of one of the 
 States, he is, by the terms of the Fourteenth Amendment, 
 also a citizen of the State wherein he resides, — and if an 
 alien, he was entitled in that capacity to sue in the Federal 
 court, without regard to residence in any particular State. 
 It is not to be denied that there is some force in these sug- 
 gestions, but they do not convince us that it is either neces- 
 sary or wise to modify the rules heretofore established by a 
 long line of decisions upon the subject of the jurisdiction of 
 the Federal courts. Those who think that the Fourteenth 
 Amendment requires some modification of those rules, claim, 
 not that the plaintiff's residence in a particular State neces- 
 sarily or conclusively proves him to be a citizen of that State, 
 within the meaning of the Constitution, but only that a gen- 
 eral allegation of residence, without indicating the character 
 of such residence, whether temporary or permanent, made a 
 prima facie case of right to sue in the Federal courts. As 
 the jurisdiction of the Circuit Court is limited in the sense 
 that it has none except that conferred by the Constitution and 
 laws of the United States, the presumption now, as well as 
 before the adoption of the Fourteenth Amendment, is, that a 
 cause is without its jurisdiction unless the contrary affirma- 
 tively appears. In cases where jurisdiction depends upon the 
 citizenship 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 should appear 
 affirmatively, and with equal distinctness, in other parts of 
 the record. And so where jurisdiction depends upon the 
 alienage of one of the parties. In Brown v. JTeene, 1 Mr. 
 Chief Justice Marshall said : ' The decisions of this court 
 require that the averment of jurisdiction shall be positive, 
 that the declaration shall state expressly the fact on which 
 jurisdiction depends. It is not sufficient that jurisdiction 
 
 i 8 Peters, 112. 
 
EFFECT OF FOURTEENTH AMENDMENT. 193 
 
 may be inferred argumentatively from its averments. ' Here 
 the only fact averred, or appearing from the record, is that 
 Cease was a resident of Illinois ; and we are, in effect, asked, 
 in support of the jurisdiction of the court below, to infer 
 argumentatively, from the mere allegation of ' residence, ' 
 that, if not an alien, he had a fixed permanent domicile in 
 that State, and was a native or naturalized citizen of the 
 United States, and subject to the jurisdiction thereof. By 
 such argumentative inferences, it is contended that we should 
 ascertain the fact, vital to the jurisdiction of the court, of 
 his citizenship in some State other than that in which the suit 
 was brought. We perceive nothing in either the language or 
 policy of the Fourteenth Amendment which requires or jus- 
 tifies us in holding that the bare averment of the residence of 
 the parties is sufficient, 'prima facie, to show jurisdiction." 1 
 
 So upon the authority of Robertson v. Cease, it was held that 
 where a complaint alleged that plaintiffs were citizens of the 
 State of Wisconsin, and the answer denied that plaintiffs 
 were residents of Wisconsin, such an answer tendered an im- 
 material issue, and did not put the fact of citizenship in issue, 
 and therefore confessed it. 2 
 
 And upon this principle, it was held in Neel v. Pennsyl- 
 vania Co. , 3 that a general averment, in a petition for removal, 
 that the matters in controversy were wholly between citizens 
 of different States, would not aid an averment which was de- 
 fective in alleging that one of the parties was a "resident" 
 
 1 See Wolffe v. Hartford Life & vania Co., 157 U. S. 153. A plea to 
 Annuity Co., 148 U. S. 389, South- the jurisdiction which says that par- 
 western Telegraph & Telephone Co. ties "are'' citizens of the same State, 
 v. Robinson, 48 Fed. Hep. 767, 2 and does not aver that they were 
 U. S. App. 148, 1C. C. A. 91; Pa- such at the time of the commence- 
 cific Postal Telegraph-Cable Co. v. ment of the action, is bad on de- 
 Irvine, 49 Fed. Kep. 113. murrer. Mollan v. Torrance, 9 
 
 2 Hoppenstedt v. Fuller, 71 Fed. Wh. 537. 
 
 Rep. 99, 36 U. S. App. 271, 17 * 157 U. S. 153. 
 C. C. A. 623. See Neel v. Pennsyl- 
 
 13 
 
194 JURISDICTION OP FEDERAL COURTS. 
 
 of the State of Ohio, without otherwise averring that he was 
 a citizen of that State. 1 
 
 Describing Parties as "of" a certain State. So, where the 
 pleadings in describing the parties averred that, " The peti- 
 tion of John Peter Wagnon, a citizen of the State of Penn- 
 sylvania, showeth that James Wood, of the State of Georgia, " 
 etc., — it was held that the averment was insufficient. 2 
 
 And an averment that none of the opposite parties are citi- 
 zens of the same State as the party making the averment, is 
 insufficient. In Cameron v. ITodges, 5 a petition by a defend- 
 ant, filed in a State court of Tennessee for the removal of 
 the cause to the United States Circuit Court upon the 
 ground of diversity of citizenship, alleged that petitioner 
 then was, and was at the time of the institution of the suit, a 
 citizen of the State of Arkansas, and that none of the com- 
 plainants were then or at the time of the institution of the 
 suit citizens of the State of Arkansas. The State court al- 
 lowed the removal, and there was a decree upon the merits, 
 from which an appeal was prayed to the United States Su- 
 preme Court, and error assigned that the record did not show 
 jurisdiction in the United States Circuit Court. 
 
 In reversing and remanding, the court (Justice Miller) 
 say: "While this petition sets forth the citizenship of 
 Hodges to be in the State of Arkansas, both at the com- 
 mencement of the suit and at the time of the application 
 for removal, it does not state that of any of the com- 
 plainants, but merely says that 'none of the complainants 
 are or were at that time citizens of said State of Arkansas, ' 
 nor have we been able to find in the record any evidence, 
 
 1 See Grace v. American Central comprising the United States, and 
 Ins. Co., 109 U. S. 278. an allegation that a party is a citi- 
 
 2 Wood v. Wagnon, 2 Cr. 9; zen of Missouri is sufficient, with- 
 Grand Trunk Ry. v. Twitchell, 59 out an allegation that Missouri is 
 Fed. Rep. 727, 21 U. S. App. 45, one of the United States. Wright 
 8 C. C. A. 237. But all courts v. Hollingsworth, 1 Peters, 165. 
 take judicial notice of the States 8 127 U. S. 322. 
 
AVERMENTS AS TO CITIZENSHIP OP CORPORATIONS. 195 
 
 allegation, or statement as to the citizenship of any of 
 them. That the defendant, Hodges, was a citizen of Ar- 
 kansas, in connection with the fact that none of the com- 
 plainants were citizens of that State, is not sufficient to 
 give jurisdiction in a Circuit Court of the United States. 
 The adverse party must be a citizen of some other named 
 State than Arkansas, or an alien. All the complainants 
 might be residents and citizens of the District of Columbia, 
 or of any Territory, and they might not be citizens of the 
 State of Tennessee, where the suit was brought, or indeed of 
 any State in the Union. A citizen of a Territory, or of the 
 District of Columbia, can neither bring nor sustain a suit on 
 the ground of citizenship, in one of the Circuit Courts." 1 
 
 And an averment that the citizenship of parties is un- 
 known is, of course, insufficient. 2 
 
 So, in a petition for removal, an allegation that "said plain- 
 tiffs, as such executors, are citizens of the State of New York, 
 etc.," is bad, as from the language of the petition the court 
 would be justified in inferring that as natural persons the 
 plaintiffs were not citizens of New York. 3 
 
 Averments as to Citizenship of Corporations. Although a 
 somewhat loose practice in regard to averments of corporate 
 citizenship appears to have been tolerated if not encouraged 
 by several of the Federal Courts of Appeals, it is believed that 
 
 i Plaintiff brought suit in the and definite notice in the plaintiff's 
 
 Circuit Court for Louisiana, as pleading of the citizenship, or alleged 
 
 assignee of a number of vouchers citizenship, of each assignor. Benja- 
 
 issued by the defendant, and alleged min v. City of New Orleans, 74 
 
 that plaintiff's assignors were citi- Fed. Rep. 417, 41 U. S. App. 178, 
 
 zens respectively of States other than 20 C. C. A. 591. 
 Louisiana, and competent, as such 2 Tug River Coal & Salt Co. v. 
 
 citizens, to maintain suit in this Brigel, 67 Fed. Rep. 625, 31 U. S. 
 
 court; held, that it was essential to App. 665, 14 C. C. A. 577; Speigle 
 
 the jurisdiction of the court that v. Meredith, 4 Biss. 120, Fed. Cas. 
 
 such other States be specifically No. 13,227. 
 
 named. " The defendant is en- 8 Amory v. Amory, 95 U. S. 186. 
 titled," says the opinion, " to actual 
 
196 JURISDICTION OP FEDERAL COURTS. 
 
 the true doctrine in this regard requires that to aver the citi- 
 zenship of a corporation its name should be given, with the 
 statement that it is a corporation, followed by words showing 
 it to be chartered or organized under the laws of some par- 
 ticular State. This is in accordance with the theory of 
 corporate citizenship as explained in a previous chapter, and 
 is supported by the decisions of the Supreme Court. 
 
 Two cases decided by the Supreme Court may be cited as 
 illustrating the views of that court. In Lafayette Insurance 
 Co. v. French et al., 1 the declaration described the plaintiff 
 as " The Lafayette Insurance Company, a citizen of the State 
 of Indiana." In considering whether this was a sufficient 
 averment, it was said by Mr. Justice Curtis, speaking for the 
 court : " This averment is not sufficient to show jurisdiction. 
 It does not appear from it that the Lafayette Insurance Com- 
 pany is a corporation; or, if it be such, by the law of what 
 State it was created. The averment, that the company is a 
 citizen of the State of Indiana, can have no sensible meaning 
 attached to it. This court does not hold, that either a vol- 
 untary association of persons, or an association into a body 
 politic created by law is a citizen of a State within the 
 meaning of the Constitution. And, therefore, if the defec- 
 tive averment in the declaration had not been otherwise sup- 
 plied, the suit must have been dismissed." 2 
 
 So in Mutter v. Dows, 3 Mr. Justice Strong, speaking for 
 the court, stated the rule as follows : " The first [objection] 
 is that the court had no jurisdiction of the suit, in conse- 
 quence of the want of proper and necessary citizenship of the 
 parties. This objection was not taken in the Circuit Court, 
 but it is of such a nature, that, if well founded, it must be 
 regarded as fatal to the decree. . . . The two original de- 
 
 1 18 How. 404. the laws of the State of Indiana," 
 
 2 Note. — It appeared by a rep- and this, it was held, cured the 
 lication that the Insurance Company defective averment. 
 
 was ' ' a corporation created under s 94 U. S. 444. 
 
AVERMENTS AS TO CITIZENSHIP OF COEPOE ATIONS . 197 
 
 fendants, the Chicago and Southwestern Railway Company, 
 and the Chicago, Rock Island and Pacific Railroad Company, 
 are averred to be citizens of the State of Iowa. Were this all 
 that the pleadings exhibit of the citizenship of the parties, it 
 would not be enough to give the Circuit Court jurisdiction of 
 the case. In The Lafayette Insurance Co. v. French et al., 1 a 
 similar averment was held to be insufficient, because it did 
 not appear from it that the Lafayette Insurance Company was 
 a corporation ; or, if it was, that it did not appear by the law 
 of what State it was made a corporation. It was therefore 
 ruled, that, if the defective averment had not been otherwise 
 supplied, the suit must have been dismissed. A corpora- 
 tion itself can be a citizen of no State in the sense in which 
 the word * citizen ' is used in the Constitution of the United 
 States. A suit may be brought in the Federal courts by or 
 against a corporation, but in such a case it is regarded as a 
 suit brought by or against the stockholders of the corpora- 
 tion; and, for the purposes of jurisdiction, it is conclusively 
 presumed that all of the stockholders are citizens of the State 
 which, by its laws, created the corporation. It is, therefore, 
 necessary that it be made to appear that the artificial being 
 was brought into existence by the law of some State other 
 than that of which the adverse party is a citizen." 
 
 And in Pennsylvania v. Quicksilver Co., 2 a corporation was 
 described as " a body politic in the law of, and doing busi- 
 ness in, the State of California," and it was held an insuffi- 
 cient averment, the court saying : " The court is of opinion 
 that this averment is insufficient to establish that the defend- 
 ant is a California corporation. It may mean that the de- 
 fendant is a corporation doing business in that State by its 
 agent; but not that it had been incorporated by the laws of 
 the State. It would have been very easy to have made the 
 fact clear by averment, and, being a jurisdictional fact, it 
 should not have been left in doubt." 
 
 1 18 How. 401. 2 10 Wall. 553. 
 
198 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 These cases would seem to be ample authority for the rule, 
 laid down in the text, and they are followed by a number of 
 case's at the circuit. 1 
 
 i See N. Y. & N. E. R. R. Co. 
 v. Hyde, 56 Fed. Rep. 188, 5 U. S. 
 App. 443, 7 C. C. A. 384, where 
 the court say: " The only allega- 
 tion touching the jurisdictional 
 character of the New York & New 
 England Railroad Company is con- 
 tained in the following words: 
 ' A corporation duly established 
 by law, and having its principal 
 place of business in Boston, in the 
 State of Massachusetts.' This fails 
 to state by what law the corpora- 
 tion was established; and therefore 
 it is an insufficient allegation that it 
 was created by the law of Massa- 
 chusetts, and was thus presumably 
 a citizen of that State, and insuffi- 
 cient to bring the case within the 
 jurisdiction of the Circuit Court. 
 A forced construction might connect 
 the word ' law ' with the words ' of 
 Massachusetts;' but this would not 
 be a natural or a reasonable one. 
 ... It is not sufficient that juris- 
 diction may be inferred argumenta- 
 tively from the averments." The 
 judgment below was accordingly 
 reversed. 
 
 And in Frisbie v. Chesapeake & 
 Ohio Ry. Co., 57 Fed. Rep. 1, it was 
 held, upon a motion to remand: 
 " The petition of plaintiff states 
 that the defendant company is a 
 railroad corporation, but does not 
 aver the State of its origin. The 
 answer is silent as to this. The 
 petition for removal avers ' that the 
 suit is wholly between citizens of 
 different States, to wit, between said 
 
 petitioner, who avers that it was at 
 the time of the bringing of this suit, 
 and still is, a citizen of the State of 
 Virginia, and the said plaintiff, who, 
 as your petitioner avers, was and 
 still is a citizen of the State of 
 Kentucky.' An averment that a 
 corporation is a citizen of a particu- 
 lar State is insufficient. A corpora- 
 tion is not a citizen of a State, 
 within the meaning of the Constitu- 
 tion. The averment should be that 
 it was a corporation created by the 
 laws of a particular State." The 
 motion to remand was therefore 
 granted. 
 
 In Lonergan v. Illinois Central 
 Railroad Co., 55 Fed. Rep. 550, it 
 was said by Judge Shiras, on 
 motion to remand: " It is settled 
 that a corporation is not, strictly 
 speaking, a citizen ; and therefore to 
 sustain a suit by or against a cor- 
 poration in the Federal courts, it is 
 regarded as a suit by or against the 
 stockholders of the corporation, and 
 for jurisdictional purposes it is con- 
 clusively presumed that the stock- 
 holders are citizens of the State 
 under whose laws the corporation is 
 created. In other words, if it is 
 averred in a given case that a cor- 
 poration is created under the laws 
 of a named State, the court will 
 indulge in the legal presumption 
 that all the stockholders are citizens 
 of the named State, and that as 
 citizens of such State they may sue 
 or be sued in the corporate name. 
 The jurisdiction is based upon the 
 
CONTRABY CASES EXAMINED. 199 
 
 Contrary Cases Examined. Several courts, however, have 
 not followed the above doctrine. But it is believed that 
 a careful examination of these cases will show that these 
 opinions are not only intrinsically wrong, but are also opposed 
 to the very decided weight of authority. The most recent 
 case upon this question is that of Chicago Lumber Co. v. 
 ComstocJc, 1 decided in the Circuit Court of Appeals for the 
 Seventh Circuit. In that case the declaration contained the 
 only statement in the record as to the citizenship of the par- 
 ties. It read, " Daniel F. Comstock, who is a citizen of the 
 State of Michigan, and plaintiff in this suit, complains of the 
 Chicago Lumber Company, who is a citizen of Illinois, de- 
 fendant, etc." In considering the assignment of error on this 
 point the Circuit Court of Appeals held as follows: "It is 
 objected that the description of the defendant is insufficient 
 to show jurisdiction, because it is impossible for a corpora- 
 tion to be a ' citizen ' within the general signification of that 
 term, and that, therefore, it was necessary to charge that the 
 defendant was incorporated or organized under the laws of 
 the State of Illinois, in order to show that it was a ' citizen ' 
 within the meaning of the Act of Congress conferring juris- 
 diction. We are not impressed with the force of the conten- 
 
 assumed citizenship of the stock- The averment found in the petition 
 
 holders ; and to give rise to this for removal, that the defendant is a 
 
 legal assumption it must he averred, citizen of the State of Illinois, is not 
 
 and in case of contest it must be sufficient to justify the court in 
 
 proved, of what State the corporation assuming that the company is an 
 
 is a creation. As already stated, it Illinois corporation." 
 is not averred in any part of the And see American Sugar Refining 
 
 record in this cause that the defend- Co. v. Johnson, 60 Fed. Rep. 503, 
 
 ant railway company is a corporation 13 U. S. App. 681, 9 C. C. A. 110; 
 
 created under the laws of the State Same v. Tatum, 60 Fed. Rep. 514, 
 
 of Illinois, or of any State other 13 U. S. App. 700, 9 C. C. A. 121 ; 
 
 than Iowa, and therefore no facts Grand Trunk Ry. Co. v. Tennant, 
 
 are averred from which the court can 66 Fed. Rep. 922. 
 draw the legal conclusion that the 1 71 Fed. Rep. 477, 21 U. S. App. 
 
 stockholders are citizens of Illinois, 682, 14 C. C. A. 190. 
 or of any State other than Iowa. 
 
200 JURISDICTION OF FEDERAL COURTS. 
 
 tion. While, strictly speaking, it may be better to allege 
 the incorporation of the company, we do not deem it indis- 
 pensable. The use of the corporate name implies incorpora- 
 tion for the purpose of charging citizenship of the parties. 
 The objection is technical, going to the pleading, and, to be 
 availing, should have been raised by plea in abatement." 
 
 An examination of this opinion shows many weak points. 
 The suggestion that the question could only be raised by plea 
 in abatement is, of course, opposed to all authority ; the de- 
 fect appearing upon the face of the record could be taken at 
 any time, before or after verdict, or upon error or appeal. 1 
 Either the lower or appellate court was bound to notice it 
 sua sponte. 2. Upon the main question, we have already 
 seen 3 the theory upon which corporations are allowed to sue 
 in Federal courts. It is therefore apparent that the reason- 
 ing of the appellate court is fatally defective in two particu- 
 lars, viz. : that it does not appear that the defendant was a 
 corporation, and not a joint stock company or a partnership ; 
 and if it be assumed to be a corporation it does not appear 
 what State chartered it. Upon the first point the argument 
 of the opinion that "the use of the corporate name implies 
 incorporation for the purpose of charging citizenship of the 
 parties," it is sufficient to say that jurisdiction cannot be 
 argumentatively inferred,* and that it is a matter of common 
 knowledge that there are many concerns transacting business 
 under similar names which are not corporations, but mere 
 trading partnerships. As to the second point, if we were to 
 concede that the name was conclusive proof of actual incor- 
 poration, it does not appear by what State the company was 
 chartered. Unless the court can know by what State the 
 corporation was created it has no ground upon which to base 
 its assumption that the stockholders are citizens of such State. 
 
 1 See Mansfield, C, & L. M. K. * Ante, Chapter III. 
 
 K. Co. v. Swan, 111 U. S. 379. * Robertson v. Cease, 97 U. S. 
 
 51 Idem. 646. 
 
CONTRARY CASES EXAMINED. 
 
 201 
 
 The allegation that the company is a citizen of Illinois, as we 
 have seen, "can have no sensible meaning attached to it." a 
 
 But in Ward v. Blake Mfg. Co. 2 it was held, by the Cir- 
 cuit Court of Appeals for the Eighth Circuit, that an alle- 
 gation that the plaintiff was "a corporation organized and 
 domiciled in the State of New York " was sufficient. The 
 reasoning of the court is given below, and possesses some 
 
 1 Lafayette Ins. Co. v. French, 
 18 How. 405. 
 
 2 56 Fed. Rep. 437, 12 U. S. 
 App. 295, 5 C. C. A. 538. "The 
 jurisdiction of the court is chal- 
 lenged upon the ground that it 
 does not appear from the averments 
 of the complaint that the plaintiff is 
 a citizen of New York, or that its 
 citizenship is different from that of 
 the defendant. The point was not 
 suggested in the court below. The 
 allegation of the complaint is that 
 the plaintiff is a ' corporation or- 
 ganized and domiciled in the State 
 of New York.' A corporation must 
 dwell in the State of its creation. 
 It cannot have a domicile in any 
 other State. ' It has no faculty to 
 emigrate.' (St. Louis v. Ferry Co. 
 11 Wall. 423.) The doctrine of the 
 Supreme Court in the case of Bank 
 v. Earle (13 Peters, 519), that a cor- 
 poration ' must dwell in the place of 
 its creation, and cannot migrate to 
 another sovereignty,' has never been 
 departed from. In a recent case in 
 that court, after quoting the lan- 
 guage of Chief Justice Taney in the 
 case last cited, Mr. Justice Gray, 
 speaking for the court, said: 'This 
 
 'statement has been often reaffirmed 
 by this court, with some change of 
 phrase, but always retaining the 
 idea that the legal existence, the 
 
 home, the domicile, the habitat, 
 the residence, the citizenship of the 
 corporation, can only be in the State 
 by which it was created, although it 
 may do business in other States 
 whose laws permit it.' (Shaw v. 
 Quincy Mining Company, 145 U. S. 
 444.) 
 
 " The logical and necessary result 
 of this doctrine is that a corporation 
 cannot have a domicile anywhere 
 except in the place of its creation. 
 The averment, therefore, of the 
 complaint, that the plaintiff is a cor- 
 poration organized and domiciled in 
 the State of New York, is, for the 
 purpose of jurisdiction, tantamount 
 to an allegation that it was chartered 
 by the laws of that State. There is 
 no prescribed formula for jurisdic- 
 tional averments. It is sufficient to 
 support the jurisdiction that the 
 diverse citizenship requisite to confer 
 it appears in any part of the record 
 (Gordon v. Bank, 144 U. S. 97), or 
 is the necessary consequence of 
 the facts stated in the pleadings. 
 (Express Co. v. Kountze, 8 Wall. 
 342; Jones v. Andrews, 10 Wall. 
 327.) 
 
 " For the purpose of jurisdiction 
 in the courts of the United States 
 in the case of natural persons, 
 domicile is the test of citizenship. 
 It is equally the test of citizenship of 
 
202 
 
 JUKISDICTION OP FEDERAL COURTS. 
 
 plausibility. But it is believed tbat it would have been more 
 in accord with tbe reasoning of the opinions of the Supreme 
 Court in the cases previously cited, had the cause been re- 
 versed. And an averment that a corporation is " doing busi- 
 ness in " a named State is, of course, insufficient to warrant 
 the court in presuming that it is organized under the laws of 
 that State. 1 
 
 Averments of Alienage. In setting forth the fact that a 
 party is an alien, it is necessary to state the particular sov- 
 ereignty to which the alien owes allegiance. Thus, a cause 
 will be reversed where the only averment in the record is 
 that the plaintiff is a " citizen of London, England. " 2 
 
 And it may be here stated that the fact that one party is 
 properly averred to be an alien does not dispense with the 
 need of proper averments as to the citizenship of the other 
 parties. 3 It has been held at the circuit that an averment 
 
 a corporation. There is only this 
 difference : a natural person may 
 change his domicile, and therefore 
 his citizenship, but the domicile of 
 a corporation must always remain 
 the same, and is necessarily in the 
 State of its creation." 
 
 And see Baltimore & Ohio R. R. 
 Co. v. M'Laughlin, 73 Fed. Rep. 
 519, 43 U. S. App. 181, 19 C. C. A. 
 551, where it was averred that the 
 defendant company was an associa- 
 tion of persons duly incorporated 
 under the laws of Maryland, and it 
 was held that the due incorporation 
 under the laws of Maryland raises 
 the conclusive presumption, in ac- 
 cordance with the decisions of the 
 Supreme Court, that all the members 
 of the association thus incorporated 
 are and were citizens of Maryland. 
 
 But where act of incorporation is 
 a public law, of which the court is 
 
 bound to take notice, an allegation 
 as to the State of incorporation 
 is unnecessary. Covington Draw- 
 bridge Co. 17. Shepherd, 20 How. 
 227. 
 
 And compare Kennedy v. Solar 
 Kenning Co., 69 Fed. Rep. 715, 
 where the averment was that 
 one defendant was "a corporation 
 created and existing in due form of 
 law within the said Northern Dis- 
 trict of Ohio," and as to the other 
 that it was " a corporation created 
 and existing in due form of law in 
 the said State of Ohio." These 
 averments were held sufficient upon 
 the ground of waiver by failure to 
 make objection before hearing. 
 
 1 Brock v. Northwestern Fuel 
 Co., 130 U. S. 341. 
 
 2 Stuart v. Easton, 156 U. S. 46. 
 8 Mossman v. Higginson, 4 Dall. 
 
 12; Hodgson v. Bowerbank, 5 Cr. 
 
RESIDENCE OP PARTIES SHOULD BE SHOWN. 203 
 
 that plaintiff is a citizen of the province of Ontario, in the 
 Dominion of Canada, is sufficient. 1 But in a late case the 
 Circuit Court of Appeals for the Sixth Circuit held that an 
 averment that plaintiff was " a resident of Ontario, Canada, 
 and a citizen of the Dominion of Canada and of the Empire of 
 Great Britain" was insufficient; the proper averment, it is 
 said, would have been that plaintiff was an alien and a 
 subject of the Queen of England. 2 
 
 Residence of Parties should be Shown. The statute regu- 
 lating the districts wherein parties may be sued makes it im- 
 portant to show the residence of parties litigant upon the 
 pleadings. Averments in this regard should be as explicit as 
 those relating to citizenship. A declaration which fails to 
 show the residence of the parties is bad on demurrer. 3 
 
 303 ; Piquignot v. Penn. R. R. Co., see Bishop v. Averill et ux., 76 Fed. 
 
 16 How. 104 ; Wilson v. City Bank, Rep. 386. 
 
 3 Sumn. 422; Picquet v. Swan, 5 2 Rondot v. Township of Rogers, 
 
 Mas. 35, Fed. Cas. No. 11,134. 79 Fed. Rep. 676, 47 U. S. App. 
 
 i Lumley v. Wabash Ry. Co., 290, 25 C. C. A. 145. 
 71 Fed. Rep. 21; but compare 8 Laskey v. Newtown Mining 
 
 Stuart v. Easton, 156 U. S. 40; and Co., 50 Fed. Rep. 634. See p. 169, 
 
 ante. 
 
204 JURISDICTION OP FEDERAL COURTS. 
 
 CHAPTER Xm. 
 
 Pleading. — Objections to Jurisdiction, how Taken. — Matters Appar- 
 ent on Face of Pleadings. — Matters not so Apparent. — Statutory 
 Provisions. — Cases Reviewed. — Practice in Code States. — Time 
 of Objecting to Jurisdiction. — Effect of Delay. — Matters of Privi- 
 lege. — Waiver. 
 
 Distinction between Matters Affecting the Jurisdiction and 
 Matters of Privilege. In the consideration of the method of 
 raising the objection that a Federal court is without jurisdic- 
 tion, the distinction must always be noted between matters 
 affecting the jurisdiction of the court, such as the citizenship 
 of the parties, and matters relating to the district of suit, or 
 residence of the parties. These latter, while, strictly speak- 
 ing, relating to the jurisdiction of the court, are nevertheless 
 matters which may be waived, and are subject to different 
 rules. They are, it is said, matters of personal privilege, 
 going to the jurisdiction of the party, rather than affecting 
 the general powers of the court. 1 
 
 It is, for instance, beyond the power of a party to a suit in 
 a Federal court, to do or omit to do anything which would 
 enable the court to decide matters in controversy between 
 two citizens of the same State, where the record showed that 
 fact and the sole ground of jurisdiction of the case is diver- 
 sity of citizenship. In such a case the Constitution and the 
 statutes regulate the jurisdiction, and acts of the parties are 
 powerless to enlarge it. 
 
 But the statutes regulating the district in which a party to 
 
 a suit in a Federal Court may be sued, confer only a personal 
 
 privilege upon the party, of which he may avail himself or 
 
 not as he sees fit. The manner of objecting to the district of 
 
 1 See Chapter IX., ante. 
 
ACT OF MARCH 3, 1875. 205 
 
 suit, therefore, is in such cases a matter of especial care, in 
 order that the party so objecting may not inadvertently pre- 
 clude himself from raising the objection by some act which in 
 legal contemplation is a waiver of it. 
 
 It is proposed to first discuss the methods of presenting 
 matters going directly to the general jurisdiction of the court. 
 
 Matters Apparent on Pace of the Pleadings. In cases where 
 it does not affirmatively appear upon the face of the pleadings 
 that the court has jurisdiction, the objection is properly taken 
 by demurrer. 1 
 
 Matters not Apparent upon the Face of the Pleadings. Pre- 
 vious to the Statute of March 3, 1875, 2 it was uniformly held 
 that matters going to the jurisdiction of the court, and not 
 apparent upon the face of the pleadings, must be pleaded in 
 abatement. And it was therefore held in a number of cases 
 that, without such a plea, the averments of citizenship in a 
 declaration stood confessed, and no evidence upon this ques- 
 tion could be offered under a plea to the merits. 3 
 
 Act of March 3, 1875. Section 5 of the Act of March 3, 
 1875, 4 however, effected a marked change in the procedure in 
 matters of this nature. By this section it was provided — 
 
 " That if, in any suit commenced in a circuit court, or re- 
 moved from a State court to a circuit court of the United 
 States, it shall appear to the satisfaction of said circuit court 
 at any time after such suit has been brought or removed 
 thereto, that such suit does not really and substantially in- 
 volve a dispute or controversy properly within the jurisdic- 
 tion of said circuit court, or that the parties to said suit 
 have been improperly or collusively made or joined, either as 
 plaintiffs or defendants, for the purpose of creating a case 
 
 1 Coal Co. v . BlatcMord, 11 Sims v. Hundley, 6 How. 1 ; Smith 
 Wall. 172, and see p. 217. v. Kernochen, 7 How. 198; Jones v. 
 
 2 Chap. 137, sec. 5, 18 Stat. pt. League, 18 How. 76 ; De Sobry v. 
 3, p . 470. Nicholson, 3 Wall. 420. 
 
 a De Wolff v. Rabaud, 1 Peters, i 18 Stat. pt. 3, p. 470. 
 476; Evans v. Gee, 11 Peters, 80; 
 
206 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 cognizable or removable under this act, the said circuit court 
 shall proceed no further therein, but shall dismiss the suit or 
 remand it to the court from which it was removed as justice 
 may require, and shall make such order as to costs as shall be 
 just." 
 
 Cases arising under the Statute. The first construction by 
 the Supreme Court of this section of the Act of 1875 was in 
 the well known case of Williams v. Nottawa Township. 1 
 The importance of this case justifies its insertion in the note 
 below. 2 Referring to the lack of jurisdiction, the Supreme 
 
 i 104 U. S. 209. 
 
 5 ' ' This suit was brought by Wil- 
 liams, a citizen of Indiana, against 
 the Township of Nottawa, a munici- 
 pal corporation of Michigan, to re- 
 cover the amount alleged to be 
 due on certain of its bonds, nego- 
 tiable by the law merchant, and 
 payable to Samuel Kline or bearer. 
 A trial was had by jury, which 
 resulted in a verdict, by the direc- 
 tion of the court, in favor of Wil- 
 liams for six of the bonds, and in 
 favor of the township for the re- 
 mainder. This writ of error has 
 been brought by Williams to re- 
 verse the judgment against him; 
 and, as the court directed the ver- 
 dict which was rendered, the whole 
 of the evidence has been embodied 
 in the bill of exceptions, and is 
 properly before us for consideration. 
 
 "From the testimony of Wil- 
 liams himself, it distinctly appears 
 he was personally the owner of 
 only three of the bonds sued on, 
 of $100 each. One Bracey Tobey 
 was the owner of three others of 
 the same amount. The judgment in 
 favor of Williams was upon these 
 six bonds, and for $994.57 only. 
 
 All the other bonds, being those 
 on which the judgment was ren- 
 dered in favor of the township, 
 were owned by Samuel Kline and 
 William Connor, both of whom 
 were residents of the township 
 and citizens of Michigan when the 
 bonds were issued. There is no 
 evidence of any change of citizen- 
 ship by Kline since the bonds were 
 delivered, and Connor, who was a 
 witness at the trial, testified that 
 he continued to be a -citizen of 
 Michigan. The bonds were trans- 
 ferred by Kline and Connor to 
 Williams simply for the purpose 
 of collection with his own. The 
 same is true of those belonging to 
 Tobey, but there is nothing in 
 the evidence to show of what 
 state he was a citizen, though he 
 testified that he bought his bonds 
 In Michigan. . . . 
 
 " This case, so far as the bonds 
 owned by Kline and Connor are 
 concerned, comes clearly within this 
 prohibition (referring to Sec. 5 of 
 the Act of March 3, 1875, as to 
 duty of the court to dismiss). As 
 the actual owners of the bonds were 
 citizens of Michigan, they could 
 
CASES ARISING UNDER THE STATUTE. 
 
 207 
 
 Court, speaking by Mr. Chief Justice Waite, broadly stated 
 the effect of this section to be that it " imposed the duty on 
 
 not sue in the courts of the United 
 States, and Williams distinctly tes- 
 tifies that he received and held 
 their bonds solely for the purpose 
 of collection with his own, and 
 for their account. It cannot for 
 a moment be doubted that this 
 was done ' for the purpose of creat- 
 ing a case ' for Kline and Connor, 
 cognizable in the courts of the 
 United States. That being so, it 
 was the duty of the Circuit Court 
 to dismiss the suit as to these bonds, 
 and proceed no further; for as to 
 them the controversy was clearly 
 between citizens of the same State, 
 Kline and Connor being the real 
 plaintiffs. The transfer to Wil- 
 liams was colorable only, and never 
 intended to change the ownership. 
 This both Williams and Kline and 
 Connor knew.-"'' 
 
 After thus stating the case, the 
 court proceeds : — 
 
 " Under the Act of 1789, it was 
 held in Smith v. Kernochen (7 
 How. 198) that this objection was 
 one which could only be taken by 
 plea in abatement; but in Barney 
 v. Baltimore (6 Wall. 280) there 
 was no such plea, and the bill was 
 dismissed in this court without prej- 
 udice, because it appeared in evi- 
 dence that certain conveyances, by 
 means of which the citizenship of 
 the parties was changed so as to 
 give the courts of the United States 
 jurisdiction, did not transfer the 
 real interest of the grantors. 
 
 " But whatever may have been 
 the practice in this particular under 
 
 the Act of 1789, there can be no 
 doubt what it should be under that 
 of 1875. In extending a long way 
 the jurisdiction of the courts of the 
 United States, Congress was spe- 
 cially careful to guard against the 
 consequences of collusive transfers 
 to make parties, and imposed the 
 duty on the court, on its own mo- 
 tion, without waiting for the parties, 
 to stop all further proceedings and 
 dismiss the suit the moment any- 
 thing of the kind appeared. This 
 was for the protection of the court as 
 well as parties against frauds upon 
 its jurisdiction ; for, as was very 
 properly said by Mr. Justice Miller, 
 speaking for the court in Barney 
 v. Baltimore (supra), such transfers 
 for such purposes are frauds upon 
 the court, and nothing more. . . . 
 Inasmuch as it was the duty of the 
 Circuit Court, on its own motion, 
 as soon as the evidence was in and 
 the collusive character of the case 
 shown, to stop all further proceed- 
 ings and dismiss the suit, the judg- 
 ment is reversed, and the cause 
 remanded with instructions to dis- 
 miss the suit at the costs of the 
 plaintiff in error. ... In this con- 
 nection we deem it proper to say 
 that this provision of the act of 
 1875 is a salutary one, and that 
 it is the duty of the Circuit Courts 
 to exercise their power under it 
 in proper cases. . . . 
 
 "Whether, if a defendant allows 
 a case to go ou until judgment has 
 been rendered against him, he can 
 take advantage of the objection on 
 
208 JURISDICTION OP FEDERAL, COURTS. 
 
 the court, on its own motion, without waiting for the parties, 
 to stop all further proceedings and dismiss the suit the mo- 
 ment 'anything of the kind appeared." This language was 
 approved in Farmington v. Pillsbury, 1 where it was said: 
 "The old rule established by the decisions, which required 
 all objections to the citizenship of the parties, unless shown 
 on the face of the record to be taken by plea in abatement 
 before pleading to the merits, was changed, and the courts 
 were given full authority to protect themselves against the 
 false pretences of apparent parties. This is a salutary provi- 
 sion which ought not to be neglected. 
 
 "It was intended to promote the ends of justice, and is 
 equivalent to an express enactment by Congress that the 
 Circuit Courts shall not have jurisdiction of suits which do 
 not really and substantially involve a dispute or controversy 
 of which they have cognizance, nor of suits in which the 
 parties have been improperly or collusively made or joined 
 for the purpose of creating a case cognizable under the Act." 2 
 
 appeal, or writ of error, we need held in this class of cases that the 
 
 not now decide. That would be a citizenship of the parties could not 
 
 different case from this. Here the be put in issue on the merits, but 
 
 party guilty of the collusion asks that it must be brought forward 
 
 relief from a judgment against him- at an earlier stage in the proeeed- 
 
 self. In such a case we deem it ings by a plea in abatement, in 
 
 our duty to stop the suit just where the nature of a plea to the juris- 
 
 it should have been stopped in the diction, and that a plea to the mer- 
 
 court below, and remit the parties its was a waiver of such plea to the 
 
 to their original rights." jurisdiction. . . . 
 
 1 114 U. S. 138. " Such was the condition of the 
 
 2 " The subject of colorable trans- law when the Act of 1875 was 
 fers to create a case for the juris- passed, which allowed suits to be 
 diction of the courts of the United brought by assignees of promissory 
 States was presented for the most notes negotiable by the law mer- 
 part in suits for the recovery of real chant, as well as of foreign and 
 property, when a conveyance had domestic bills of exchange, if the 
 been made by a citizen of the State necessary citizenship of the parties 
 in which the suit must be brought existed. This opened wide the door 
 to a citizen of another State. for frauds upon the jurisdiction of 
 
 " At a very early day it was the court by collusive transfers, so 
 
LATER CASES. 
 
 209 
 
 Later Cases. These rulings, although broader than the na- 
 ture of the cases under consideration strictly warranted, have 
 nevertheless been approved in subsequent cases, and taken in 
 connection with the later case of Morris v. Gilmer, 1 consti- 
 tute what is believed to be the proper construction of this 
 section of the Act. It is true that in Hartog v. Memory 2 an 
 attempt was made to limit the effect of the language used in 
 the Williams and Pillsbury cases, and to establish the distinc- 
 tion that while the court might of itself take such action as it 
 deemed proper if it was in any way led to suspect that a cause 
 pending before it was not one properly within its jurisdiction, 
 still, the parties were not to treat the case as if a plea to the 
 jurisdiction had been filed when none had been in fact, and 
 thus introduce evidence upon jurisdictional points when no 
 
 as to make colorable parties and 
 create cases cognizable by the courts 
 of the United States. To protect 
 the courts as well as parties against 
 such frauds upon their jurisdiction, 
 it was made the duty of a court, at 
 any time when it satisfactorily ap- 
 peared that a suit did not ' really 
 and substantially involve a dispute 
 or controversy ' properly within its 
 jurisdiction, or that the parties 'had 
 been improperly or collusively made 
 or joined . . . for the purpose of 
 creating a case cognizable under 
 that act, to proceed no further 
 therein,' but to dismiss the suit or 
 remand it to the State court from 
 which it had been removed. This, 
 as was said in Williams v. Nbttawa, 
 104 U. S. 209-211, 'imposed the 
 duty on the court, on its own mo- 
 tion, without waiting for the parties, 
 to stop all further proceedings and 
 dismiss the suit the moment a fraud 
 on its juristiction was discovered.' 
 " The old rule established by the 
 
 decisions, which required all objec- 
 tions to the citizenship of the par- 
 ties, unless shown on the face of 
 the record to be taken by plea in 
 abatement before pleading to the 
 merits, was changed, and the courts 
 were given full authority to protect 
 themselves against the false pre- 
 tences of apparent parties. This 
 is a salutary provision which ought 
 not to be neglected. 
 
 " It was intended to promote the 
 ends of justice, and is equivalent 
 to an express enactment by Con- 
 gress that the Circuit Courts shall 
 not have jurisdiction of suits which 
 do not really and substantially in- 
 volve a dispute or controversy of 
 which they have cognizance, nor 
 of suits in which the parties have 
 been improperly or collusively made 
 or joined for the purpose of creat- 
 ing a case cognizable under the 
 Act." 
 
 i 129 U. S. 315. 
 
 2 116 U. S. 588. 
 
 14 
 
210 JURISDICTION OF FEDERAL COURTS. 
 
 such issue had been made by the pleadings. But this case 
 was expressly overruled in the leading case of Morris v. 
 Gilmer, which came before the Supreme Court only three 
 years after the Hartog case. And in Morris v. Gilmer the 
 statute was given its fullest meaning, it being there held 
 that, " while under the Judiciary Act of 1789, an issue as to 
 the fact of citizenship could only be made by plea in abate- 
 ment, when the pleadings properly averred the citizenship of 
 the parties, the Act of 1875 imposes upon the Circuit Court 
 the duty of dismissing a suit, if it appears at any time after it 
 is brought and before it is finally disposed of, that it does not 
 really and substantially involve a controversy of which it may 
 properly take cognizance." 
 
 The case last named was a bill filed in the United States 
 Circuit Court for the Middle District of Alabama, by Gilmer, 
 against Morris and Billing, for an accounting. The bill 
 averred that Gilmer was a citizen of Tennessee, and that the 
 defendants were citizens of Alabama. The defendants filed 
 a plea in bar, by which it appeared that Gilmer (then a citi- 
 zen of Alabama) had theretofore brought a similar bill in the 
 State Court of Alabama upon the same cause of action, 
 which, upon hearing, was dismissed, and this decision after- 
 wards affirmed by the Supreme Court of that State. This 
 plea was overruled, and the defendants then answered sever- 
 ally, and the complainant filed a replication, and depositions 
 were taken in the cause. The hearing did not take place 
 until a year after these depositions were taken, but shortly 
 before the hearing the defendant, with leave of court, filed a 
 motion to dismiss the cause because it did not really and sub- 
 stantially involve a controversy within the jurisdiction of the 
 court. This motion was heard upon the question of whether 
 complainant's removal to Tennessee was bona fide or not, 
 upon affidavits filed subsequent to the motion, and upon some 
 of the testimony taken in the depositions referred to, and the 
 motion was denied, and from a decree in complainant's favor, 
 
DUTY OF THE COURT. 211 
 
 upon the merits, the defendant Morris appealed, and one of 
 the assignments of error was upon the action of the lower 
 court in overruling the motion to dismiss. 
 
 In passing upon this question, Mr. Justice Harlan, speak- 
 ing for the court, stated the law as follows: "We are of 
 opinion that the motion to dismiss the suit, as one not really- 
 involving a controversy within its jurisdiction, should have 
 been sustained. . . . The case presents no question of a 
 Federal nature, and the jurisdiction of the Circuit Court was 
 invoked solely upon the ground that the plaintiff was a citi- 
 zen of Tennessee, and the defendants citizens of Alabama. 
 But if the plaintiff, who was a citizen of Alabama when the 
 suit in the State Court was determined, had not become, in 
 fact, a citizen of Tennessee when the present suit was in- 
 stituted, then, clearly, the controversy between him and the 
 defendants was not one of which the Circuit Court could 
 properly take cognizance ; in which case, it became the duty 
 of that court to dismiss it. It is true that, by the words of 
 the statute, this duty arose only when it appeared to the satis- 
 faction of the court that the suit was not one within its juris- 
 diction. But if the record discloses a controversy of which 
 the court cannot properly take cognizance, its duty is to pro- 
 ceed no further and to dismiss the suit; and its failure or 
 refusal to do what, under the law applicable to the facts 
 proved^ it ought to do, is an error which this court, upon its 
 own motion, will correct, when the case is brought here for 
 review. 
 
 Duty of the Court. "The rule is inflexible and without 
 exception, as was said, upon full consideration, in Mansfield, 
 Coldwater, &c. Railway v. Swan, 1 'which requires this court, 
 of its own motion, to deny its own jurisdiction, and, in the 
 exercise of its appellate power, that of all other courts of the 
 United States, in all cases where such jurisdiction does not 
 affirmatively appear in the record on which, in the exercise of 
 
 i 111 U. S. 379. 
 
212 JURISDICTION OP FEDERAL COURTS. 
 
 that power, it is called to act. On every writ of error or 
 appeal, the first and fundamental question is that of jurisdic- 
 tion, first, of this court, and then of the court from which 
 the record comes. This question the court is bound to ask 
 and answer for itself, even when not otherwise suggested, 
 and without respect to the relations of the parties to it. ' a 
 
 "These were cases in which the record did not affirma- 
 tively show the citizenship of the parties, the Circuit Court 
 being without jurisdiction in either of them unless the par- 
 ties were citizens of different States. But the above rule is 
 equally applicable in a case in which the averment as to citi- 
 zenship is sufficient, and such averment is shown, in some 
 appropriate mode, to be untrue. 
 
 Method of Objection. "While under the Judiciary Act of 
 1789, an issue as to the fact of citizenship could only be 
 made by a plea in abatement, when the pleadings properly 
 averred the citizenship of the parties, the Act of 1875 imposes 
 upon the Circuit Court the duty of dismissing a suit if it 
 appears at any time after it is brought and before it is finally 
 disposed of, that it does not really and substantially involve a 
 controversy of which it may properly take cognizance. And 
 the statute does not prescribe any particular mode in which 
 such fact may be brought to the attention of the court. It 
 may be done by affidavits, or the depositions taken in the 
 cause may be used for that purpose. However done, it 
 should be upon due notice to the parties to be affected by the 
 dismissal. 
 
 Hartog v. Memory Criticised. "It is contended that the 
 defendant precluded himself from raising the question of 
 jurisdiction, by inviting the action of the court upon his plea 
 of former adjudication, and by waiting until the court had 
 ruled that plea to be insufficient in law. In support of this 
 position Hartog v. Memory 2 is cited. "We have already seen 
 
 1 Citing King Bridge Co. u. Otoe 278 ; Blacklock v. Small, 127 U. S. 
 Co., 120 U. S. 225; Grace v. Amer- 96. 
 ican Central Ins. Co., 109 U. S. " 116 U. S. 58S. 
 
HAKTOG V. MEMORY CRITICISED. 213 
 
 that this court must, upon its own motion, guard against any 
 invasion of the jurisdiction of the Circuit Court of the United 
 States as defined by law, where the want of jurisdiction ap- 
 pears from the record brought here on appeal or writ of error. 
 At the present term it was held that whether the Circuit 
 Court has or has not jurisdiction is a question which this 
 court must examine and determine, even if the parties for- 
 bear to make it or consent that the case be considered upon 
 its merits. 1 
 
 " Nor does the case of Hartog v. Memory sustain the posi- 
 tion taken by the defendant ; for it was there said that ' if, 
 from any source, the court is led to suspect that its jurisdic- 
 tion has been imposed upon by the collusion of the parties or 
 in any other way, it may at once, of its own motion, cause 
 the necessary inquiry to be made, either by having the proper 
 issue joined and tried, or by some other appropriate form of 
 proceeding, and act as justice may require for its own pro- 
 tection against -fraud or imposition. ' In that case, the citi- 
 zenship of the parties was properly set out in the pleadings, 
 and the case was submitted to the jury without any question 
 being raised as to want of jurisdiction, and without the atten- 
 tion of the court being drawn to certain statements inciden- 
 tally made in the deposition of the defendant against whom 
 the verdict was rendered. After verdict, the latter moved for 
 a new trial, raising upon that motion, for the first time, the 
 question of jurisdiction. The court summarily dismissed the 
 action, upon the ground, solely, of want of jurisdiction, with- 
 out affording the plaintiff any opportunity whatever to rebut 
 or control the evidence upon the question of jurisdiction. 
 The failure, under the peculiar circumstances disclosed in 
 that case, to give such opportunity, was, itself, sufficient to 
 justify a reversal of the order dismissing the action, and what 
 was said that was irrelevant to the determination of that 
 question was unnecessary to the decision, and cannot be re- 
 
 1 Citing Metcalf v. Watertown, 128 U. S. 586. 
 
214 JURISDICTION OF FEDERAL COURTS. 
 
 garded as authoritative. The court certainly did not intend 
 in that case to modify or relax the rule announced in previ- 
 ous well considered cases." 
 
 Practice in Cases of this Nature. It will be noted that the 
 learned justiee in the case last cited states that the statute 
 " does not prescribe any particular mode in which such fact 
 may be brought to the attention of the court. It may be done 
 by affidavit, or the depositions taken in the cause may be used 
 for that purpose." This would seem to dispose of the ques- 
 tion whether special pleadings upon jurisdictional points 
 are necessary, and it is believed that the rule as stated by the 
 learned justice is the law upon that point. In view, how- 
 ever, of the fact that the decision in the Morris case may be 
 criticised as deciding more than the case at bar called for, 
 and of the evident disposition upon the part of some Circuit 
 judges 1 to insist upon the old rule as far as possible, the safe 
 practice is to raise jurisdictional questions by appropriate 
 pleadings, although it is believed the absence of pleadings 
 will not prevent either the parties or the court from going 
 into the matter. 2 It is unnecessary to add that in such cases 
 the court should act only upon due notice to all concerned. 
 
 1 See Cuthbert v. Galloway, 34 motions for new trials, and ques- 
 Fed. Rep. 466 ; Hewitt v. Story, 39 tions respecting amendments to the 
 Fed. Rep. 158; Kennedy v. Solar pleadings, are purely discretionary 
 Refining Co. , 09 Fed. Rep. 715. matters for the consideration of the 
 
 2 See Vannerson v. Leverett, 31 trial court, and, unless there has 
 Fed. Rep. 376 ; Rae v. Grand Trunk been gross abuse of that discretion, 
 Ry. Co., 14 Fed. Rep. 401; Bland they are not reviewable in this court 
 v. Fleeman, 29 Fed. Rep. 669. See on writ of error." The court said, 
 Mexican Central Ry. v. Pinkney, however, that " the proposition is 
 149 U. S. 194, where it is held that not controverted that if it appears 
 the refusal during a trial to grant in the course of the trial that the 
 leave to file a plea in abatement as controversy is not one of which the 
 to the citizenship of the plaintiff, court could take cognizance, by rea- 
 founded upon facts brought out in sou of the citizenship of the par- 
 cross-examination, and to permit ties to it, the Circuit Court has 
 an issue thereon, is not reviewable the right, and it is its duty, to dis- 
 error. " Matters of procedure, such miss the cause for the want of 
 as the granting or refusing of jurisdiction." 
 
CASES UNDER THIS STATUTE. 215 
 
 Meaning of "Appear to the Satisfaction of the Court." In 
 considering cases arising under this statute, it is to be re- 
 membered that the clause makes it the duty of the court to 
 dismiss when its lack of jurisdiction shall appear "to the 
 satisfaction of the court." In Barry v. Edmunds, 1 the Su- 
 preme Court holds that in making such an order of dismissal 
 the court "exercises a legal and not a personal discretion, 
 which must be exerted in view of the facts sufficiently proven, 
 and controlled by fixed rules of law. It might happen that 
 the judge, on the trial or hearing of a cause, would receive 
 impressions amounting to a moral certainty that it does not 
 really and substantially involve a dispute or controversy 
 within the jurisdiction of the court. But upon such a per- 
 sonal conviction, however strong, he would not be at liberty 
 to act, unless the facts on which the persuasion is based, 
 when made distinctly to appear on the record, create a legal 
 certainty of the conclusion based on them. Nothing less than 
 this is meant by the statute when it provides that the failure 
 of its jurisdiction, on this account, shall appear to the satis- 
 faction of the court." 2 
 
 Cases under this statute. In addition to the cases previ- 
 ously cited in this chapter the statute has been applied to a 
 suit brought by an alien to restrain certain corporations from 
 so operating their mines as to throw debris upon complain- 
 ant's premises, it appearing that the complainant was in fact 
 acting on behalf of a county which desired to have mining in 
 the vicinity prohibited, and which had agreed to take charge 
 of the case, pay all costs and attorneys' fees, and hold com- 
 plainant harmless from any damage resulting from the suit, 
 the county not being able to sue in the Federal court be- 
 cause the defendants were citizens of the State in which the 
 
 1 116 U. S. 550. perial Refining Co. v. Wyman, 38 
 
 3 Manhattan Life Ins. Co. v. Fed. Rep. 574; Foster v. Cleveland, 
 
 Broughton, 109 U. S. 121; Depu- C. C. & St. L. Ry. Co., 56 Fed. 
 
 tron v. Young, 134 U. S. 241 ; Im- Rep. 434. 
 
216 JURISDICTION OP FEDERAL COURTS. 
 
 county was located ; 1 to a collusive transfer of real estate so 
 as to enable the grantee to bring suit in a Federal court; 2 to 
 a collusive refusal by a majority of a board of directors to 
 institute legal proceedings for the protection of a corpora- 
 tion's interests, in order that a non-resident stockholder 
 might bring a suit in a Federal court based upon such re- 
 fusal ; 3 to an ejectment suit in which plaintiff claimed that 
 defendants relied upon certain Federal land grants which 
 would bring a Federal question into the case, and defendants 
 answered, and the answers showed that no such defences 
 were relied upon ; * to a collusive transfer of bonds in order 
 to enable the vendee to bring suit in a Federal court, the 
 vendor retaining an interest in the bonds. 6 Other cases have 
 been held not within the statute. 6 
 
 Under Code Practice. And under code practice a different 
 rule may prevail from the rule adopted in the early cases as 
 to pleas in abatement. Thus, in accordance with the Ne- 
 braska Code, a defendant in a suit in the Federal court in 
 that State denied each and every allegation of the complaint, 
 and it was held upon error that this put the averments as to 
 citizenship in issue, and that there being no proof or finding 
 upon that issue, the judgment must be reversed. 7 
 
 Time of Raising Objections to Jurisdiction. It will be no- 
 ticed that the Supreme Court construes the language of the 
 statute, "at any time after such suit has been brought or 
 
 1 Cashman v. Amador & Sacra- v. Gaines et al., 37 Fed. Rep. 817 
 mento Canal Co., 118 U. S. 58. Towle v. Am. Bldg. Loan & Inv. 
 
 2 Hayden v. Manning, 106 U. S. Soc, 60 Fed. Rep. 131; Bowdoin 
 586 ; McLean v. Clark, 31 Fed. Rep. College v. Merritt, 63 Fed. Rep 
 501. 213, and cases cited in note 2, p 
 
 « Detroit v. Dean, 106 U. S. 537. 215, ante. 
 
 4 Robinson v. Anderson, 121 U. 7 Roberts v. Lewis, 144 U. S 
 
 S. 522. 653. See Jones v. Rowley, 73 Fed 
 
 6 Norton v. European & N. A. Rep. 286 ; Nat. Masonic Accident 
 
 Ry. et al., 32 Fed. Rep. 865. Ass'n v. Sparks, 83 Fed. Rep. 225, 
 
 « Manhattan Life Ins. Co. v. 49 U. S. App. 681, 28 C. C. A. 399. 
 Broughton, 109 U. S. 121 ; Belding 
 
BUKDEN OF PROOF. 217 
 
 removed," to mean, "at any time after it is brought and before 
 it is finally disposed of." 1 This would seem to be in strict 
 accord with the general spirit of the Act. 
 
 Effect of Delay in Raising Objections. But delay in pre- 
 senting objections to the exercise of jurisdiction by the court 
 will be considered by the court when considering the grounds 
 upon which the lack of jurisdiction is alleged to rest. 2 
 
 Questions of Jurisdiction — How Raised. For lack of juris- 
 diction upon the face of the bill a demurrer is proper; 3 or by 
 plea ; i or by answer ; 6 or want of jurisdiction upon the face 
 of the record may be suggested upon argument; 6 or by 
 motion ; 7 or (see post, p. 239) the court — either at nisi prius 8 
 or on error or appeal 9 — will take notice of its own motion, 
 that the record before it does not affirmatively show its juris- 
 diction. 
 
 Burden of Proof. Where citizenship is properly averred in 
 the declaration, but denied by the answer, it was held that 
 the defendant had the burden of proof to show such aver- 
 ment false, and if he offered none the jurisdiction would be 
 sustained. 10 
 
 i Morris v. Gilmer, 129 U. S. 315. 7 Claiborne v. Waddell, 50 Fed. 
 
 2 Deputron v. Young, 134 U. S. Rep. 368. 
 
 241. 8 Lewis v. Cocks, 23 Wall. 466; 
 
 3 Coal Co. v. Blatchford, 11 Covert v. Waldron, 33 Fed. Kep. 311. 
 Wall. 172; Meyer v. Herrera, 41 9 Grace v. Am. Cent. Ins. Co., 
 Fed. Rep. 65; Wardens, etc. of St. 109 U. S. 278; Mansfield, C. & L. 
 Luke's Church v. Sowles et al., 51 M. Ry. Co. v. Swan, 111 U. S. 
 Fed. Rep. 609; Mangels v. Donau 379; Jackson v. Allen, 132 U. S. 
 Brewing Co., 53 Fed. Rep. 513; 27 ; Grand Trunk R. R. v. Twichell, 
 Green v. Rogers et al., 56 Fed. Rep. 59 Fed. Rep. 727; and see cases 
 220. cited post, p. 240. A plea to the 
 
 4 Simon v. House, 46 Fed. Rep. jurisdiction should aver the facts 
 317; Stayton Mining Co. v. Woody as of the date of the commencement 
 et al., 50 Fed. Rep. 633; Vannerson of the action. Mollan v. Torrance, 
 v. Leverett, 31 Fed. Rep. 376. 9 Wheat. 537. 
 
 s Anderson p. Watt, 138 U.S. 694. 10 Foster v. Cleveland, C, C. & 
 
 « U. S. v. Crawford, 47 Fed. Rep. St. L. Ry. Co., 56 Fed. Rep. 434, 
 
 561. citing Sheppard v. Graves, 14 How. 
 
218 
 
 JURISDICTION OF FEDERAL COURTS. 
 
 Questions of Privilege — How Raised. There does not ap- 
 pear to be any uniform practice as to the manner of presenting 
 objections to the jurisdiction of the court, based upon the 
 statute limiting the district of suit. 1 For matters apparent 
 upon the face of the bill or petition a demurrer is proper, 2 
 and, it is believed, the best practice. 3 A motion to dismiss 
 has been approved in several cases, 4 particularly if no ob- 
 jection is made. 5 
 
 In all cases of this nature a special appearance should be 
 entered to preserve any questions of waiver by appearing 
 generally, a general appearance being construed as a waiver 
 of the objection. 6 It has been held, however, that a general 
 appearance may be amended upon leave and for cause shown, 
 so as to limit it to a special appearance. 7 Obtaining leave of 
 court to plead, answer, demur, or take such action as might 
 be advised, is waiver ; 8 or obtaining from court an extension 
 of time to plead or answer. 9 But a general appearance is not 
 
 505. These cases do not seem con- 
 sistent with the spirit of the Act of 
 1875. See Robinson v. Anderson, 
 121 IT. S. 522. 
 
 1 Romaine v. Union Ins. Co., 28 
 Fed. Rep. 625. See this case for a 
 learned discussion of the practice 
 in such cases. 
 
 2 Southern Pacific Co. v. Denton, 
 146 U. S. 202; Reinstadler ». 
 Reeves, 33 Fed. Rep. 308 ; Harvey 
 v. Richmond & M. Ry. Co., 64 Fed. 
 Rep. 19. 
 
 8 See Bicycle Stepladder Co. v. 
 Gordon, 57 Fed. Rep. 529. 
 
 * Gormully & Jeffrey Co. v. Pope 
 Mfg. Co., 34 Fed. Rep. 818; Con- 
 nor v. Vicksburg & M. R. Co., 36 
 Fed. Rep. 273; Denton v. Interna- 
 tional Co., 36 Fed. Rep. 1; Filli v. 
 Delaware, L. & W. R. R. Co., 37 
 Fed. Rep. 65. 
 
 6 Bicycle Stepladder Co. v. Gor- 
 don, 57 Fed. Rep. 529. 
 
 6 See cases cited ante, p. 148, 
 and see Jones v. Andrews, 10 Wall. 
 327; Atkins v. Disintegrating Co., 
 18 Wall. 272; Norris v. Atlas 
 Steamship Co., 37 Fed. Rep. 279; 
 Foote v. Mass. Ben. Ass'n, 39 Fed. 
 Rep. 23; Kelsey v. Penn. R. R. Co., 
 14 Blatchf. 89, Fed. Cas. No. 7679. 
 
 7 U. S. v. Yates, 6 How. 605 ; Ho- 
 horst v. Hamburg-American Packet 
 Co., 38 Fed. Rep. 273 ; Romaine v. 
 Union Ins. Co., 28 Fed. Rep. 625. 
 
 8 Hupfeld v. Automaton Piano 
 Co., 66 Fed. Rep. 788. But see 
 Reinstadler v. Reeves, 33 Fed. Rep. 
 308. 
 
 9 Briggs v. Stroud, 58 Fed. Rep. 
 717. 
 
AMENDING JURISDICTIONAL AVERMENTS. 219 
 
 a waiver of right to move to dismiss where the suit is begun 
 by summons and the defendant has no means of knowing 
 where plaintiff's residence is until the complaint is filed. 1 
 
 Effect of Objection not Lost by Proceeding after Objection 
 Overruled. In this class of cases, if the attention of the court 
 be properly called to the privilege of the party objecting to 
 the exercise of jurisdiction by the court, the objecting party 
 is not bound to stand upon his objection to the exclusion of 
 contesting the case upon the merits, but he may proceed, and 
 if the record be properly preserved, he may have the benefit 
 of the point upon error or appeal. The rule is stated by 
 Field, Justice, as follows: "Illegality in a proceeding by 
 which jurisdiction is to be obtained is in no case waived 
 by the appearance of the defendant for the purpose of calling 
 the attention of the court to such irregularity; nor is the ob- 
 jection waived when being urged it is overruled, and the 
 defendant is thereby compelled to answer. He is not consid- 
 ered as abandoning his objection because he does not submit 
 to further proceedings without contestation. It is only where 
 he pleads to the merits in the first instance, without insisting 
 upon the illegality, that the objection is deemed to be waived." 2 
 
 Amending Jurisdictional Averments. The pleadings may be 
 amended as to jurisdictional averments in the discretion of 
 the court, and the want of such averments has been permitted 
 to be remedied by amendment even after the jury has been 
 instructed and are out considering their verdict ; 3 and, in oue 
 case, even upon a motion in arrest of judgment. 4 
 
 1 Crown Cotton Mills v. Turner, v. Dun, 51 Fed. Rep. 139. Com- 
 82 Fed. Rep. 337. pare Eddy v. Lafayette, 49 Fed. Rep. 
 
 2 Harkness v. Hyde, 98 U. S. 807. 
 
 476. See York v. Texas, 137 U. S. 8 Grand Trunk Ry. v. Tennant, 
 
 15; Southern Pacific Company v. 66 Fed. Rep. 922, 21 U. S. App. 
 
 Denton, 146 U. S. 202; In re 682, 14 C. C. A. 190. 
 
 Atlantic City R. R., 164 U. S. 633 ; * Maddox v. Thorn, 60 Fed. Rep. 
 
 Clews v. Woodstock I. Co., 44 Fed. 217, 23 U. S. App. 189, 8 C. C. A. 
 
 Rep. 31 ; First Nafc. Bank v. Cun- 574. But compare Denny v. Pironi, 
 
 ningham, 48 Fed. Rep. 517 ; Brooks 141 U. S. 121. 
 
220 
 
 JURISDICTION OF FEDERAL COURTS. s 
 
 Amendment Relates back to Date of Suit. Where the plead- 
 ings in the Circuit Court do not show jurisdiction by reason 
 of the lack of proper averments as to the citizenship of the 
 parties, and an amendment is allowed, the amendment when 
 made will date back to the time of filing the original declara- 
 tion in the suit. 1 
 
 In such a case, a plea of the Statute of Limitations will be 
 of no avail, although the statutory limit was complete before 
 the amendment, as it is held that, while the record did not 
 
 1 Robertson v. Cease, 97 U. S. 
 646. See B. & 0. Ry. v. McLaugh- 
 lin, 73 Fed. Rep. 519, 43 U. S. 
 App. 181, 19 C. C. A. 551, where 
 it is said : " In the original peti- 
 tion the plaintiff made no aver- 
 ment as to his own citizenship. 
 ... In the amended petition the 
 averments as to jurisdiction were: 
 ' Now comes John R. McLaughlin, 
 plaintiff herein, by leave first ob- 
 tained, and for his cause of ac- 
 tion against the said Baltimore & 
 Ohio Railroad Company, defendant 
 herein, says that the plaintiff herein 
 is a citizen of the State of Ohio, 
 resident at Columbus, Franklin 
 County, Ohio.' 
 
 "The first objection made by 
 the plaintiff in error is that the 
 averments of jurisdiction in the 
 amended petition are not sufficient 
 to show that the plaintiff was a 
 citizen of Ohio at the time of the 
 filing of the petition. The amended 
 petition in this case was merely the 
 addition to the original petition of 
 the averment with reference to the 
 citizenship. It was an amendment 
 to the original petition, and the 
 new averment contained in the 
 amendment had relation, in point 
 of time to the filing of the original 
 
 petition. . . . So, here, we think 
 the averment by way of amend- 
 ment to the original petition must 
 be construed as of the date of the 
 original petition, and be given ef- 
 fect as if the averment had been 
 made a part of the original peti- 
 tion. It would be improper, in 
 an amendment to a petition, for 
 the plaintiff to aver a fact which 
 happened subsequent to the filing 
 of the original petition. A plead- 
 ing averring such a fact would be a 
 supplementary petition, and not an 
 amendment to the original petition. 
 An amendment to a petition is not 
 to be construed in the same way, 
 in this regard, as the petition for 
 removal. A petition for removal 
 is necessarily filed some time after 
 the pleading which begins the cause, 
 and the petition for removal is not 
 in proper form unless it expressly 
 avers the citizenship as of the time 
 of the beginning of the suit. An 
 averment in the present tense in a 
 petition for removal is an averment 
 as of the time of the filing of that 
 petition, and not as of the time of 
 filing the original pleading in the 
 cause." See Chicago Lumber Co. 
 v. Comstock, 71 Fed. 477, 21 U. S. 
 App. 682, 14 C. C. A. 190. 
 
AMENDMENT RELATES BACK TO DATE OF SUIT. 221 
 
 show jurisdiction in the lower court, it nevertheless had 
 jurisdiction, Only requiring the averments necessary to make 
 it show upon the record. 1 Thus in Bowden v. Burnham, 2 
 the question was whether an attachment sued out on a 
 petition which did not make the proper jurisdictional aver- 
 ments would relate back to the time of filing the original 
 petition, after an amendment had been made to the petition 
 supplying the defect. In that case the court said, speaking 
 by Judge Caldwell: "The court very properly granted the 
 plaintiffs leave to amend their complaint, and it was amended. 
 Nevertheless, the plaintiff in error asserts that as the com- 
 plaint, at the time the attachment was issued, did not con- 
 tain the necessary jurisdictional averments, every step taken 
 in the cause prior to the amendment was void, and that the 
 amendment to the complaint could not impart vitality or 
 validity to anything done before the amendment was made. 
 This contention is wholly untenable. It is every-day practice 
 to allow amendments of the character of those made in this 
 case, and, when they are made, they have relation to the date 
 of the filing of the complaint, or the issuing of the writ or pro- 
 cess amended. When a complaint is amended, it stands as 
 though it had originally read as amended. The court in fact 
 
 1 Kobertson v. Cease, 97 U. S. tion. After judgment the case was 
 646. reversed for want of jurisdiction, 
 
 2 59 Fed. Rep. 752, 10 U. S. with leave to the parties to amend 
 App. 448, 8 C. C. A. 248. In Car- to make the proper averment. An 
 negie, Phipps & Co. v. Hulbert, amendment was made. By the 
 70 Fed. Rep. 209, 36 U. S. App. time the amendment was made, 
 81, 16 C. C. A. 498, the ques- the time of the statutary limita- 
 tion was whether a statute of tion had expired, and the conten- 
 limitations constituted a good de- tion was that the suit must be 
 fence to the action. Suit had been regarded as having been commenced 
 brought within the statutory period, from the time the proper jurisdic- 
 but the petition with which the tional averment was made. This 
 suit was begun did not contain the contention was defeated on the 
 requisite averment as to the diverse ground that the amendment re- 
 citizenship of the parties essential lated back to the time when the 
 to give the Circuit Court jurisdic- original petition was filed. 
 
222 JURISDICTION OF FEDERAL COURTS. 
 
 had jurisdiction of the cause from the beginning, but the 
 complaint did not contain the requisite averments to show it. 
 In other words, the amendment did not create or confer the 
 jurisdiction ; it only brought on the record a proper averment 
 of a fact showing its existence from the commencement of 
 the suit." 
 
 But it is too late to raise a question as to the jurisdiction 
 of the trial court after a decree rendered which is reversed 
 upon appeal by the Supreme Court, the cause again being 
 in the lower court, and the mandate only requiring the exe- 
 cution of the Supreme Court's decree. 1 
 
 1 Skillem's Exrs. v. May's Exrs., 6 Cr. 267. 
 
CIRCUIT COURT OP APPEALS ACT. 223 
 
 CHAPTER XIV. 
 
 Appellate Review of Questions Involving the Jurisdiction of Circuit 
 Courts. — Review in Supreme Court. — Election to take Case to 
 Supreme Court or Circuit Court of Appeals. — Certifying Jurisdic- 
 tional Questions. — What Certificate must Show. — When Certifi- 
 cate Unnecessary. — Practice as to Granting Certificate. — Certificate 
 from Circuit Courts of Appeal to Supreme Court. — Review of 
 Jurisdictional Questions by Circuit Court of Appeals. 
 
 The jurisdiction of courts of appeal to review the judg- 
 ments of inferior courts upon questions involving the juris- 
 diction of such inferior courts will now be considered. This 
 review, of course, is necessarily confined to cases involving 
 the subjects treated of in this work, the general jurisdiction 
 of the Federal Courts of Appeal being only discussed so far 
 as is necessary to properly consider the subject matter of this 
 chapter. 
 
 The Act of March 3, 1891. "Circuit Court of Appeals Act." 
 Prior to the Act of March 3, 1891, 1 creating the United 
 States Circuit Courts of Appeals, the only review of the judg- 
 ments of a Circuit Court of the United States was in the 
 United States Supreme Court. The passage of the Court of 
 Appeals Act, however, made a material change in the man- 
 ner of appellate review of the proceedings of the inferior 
 Federal courts. 
 
 For the general provisions of the Act, reference must be 
 had to the Act itself. 2 The portions necessary to be consid- 
 ered here are sections five and six. By these it is provided 
 as follows : 
 
 1 26 Stat. 826. 3 See Appendix. 
 
224 JURISDICTION OP FEDERAL COURTS. 
 
 " Section 5 : That appeals or writs of error may be taken 
 from the district courts or from the existing circuit courts 
 direct to the Supreme Court in the following cases : 
 
 " (a) In any case in which the jurisdiction of the court is 
 in issue ; in such cases the question of jurisdiction alone shall 
 be certified to the Supreme Court from the court below for 
 decision. 
 
 " (6) From the final sentences and decrees in prize causes. 
 
 "(c) In cases of conviction of a capital crime. 1 
 
 " (d) In any case that involves the construction or applica- 
 tion of the Constitution of the United States. 
 
 " (e) In any case in which the constitutionality of any law 
 of the United States, or the validity or construction of any 
 treaty made under its authority is drawn in question. 
 
 "(/) In any case in which the constitution or law of a 
 State is claimed to be in contravention of the Constitution of 
 the United States. 
 
 " (g~) Nothing in this Act shall affect the jurisdiction of the 
 Supreme Court in cases appealed from the highest court of a 
 State, nor the construction of the statute providing for re- 
 view of such cases." 
 
 "Section 6. That the circuit court of appeals established by 
 this Act shall exercise appellate jurisdiction to review by ap- 
 peal or writ of error final decision[s] in the district courts and 
 the existing circuit courts in all cases other than those pro- 
 vided for in the preceding section of this Act, unless other- 
 wise provided by law, and the judgments or decrees of the 
 circuit courts of appeals shall be final in all cases in which 
 the jurisdiction is dependent entirely upon the opposite par- 
 ties to the suit or controversy, being aliens and citizens of 
 the United States or citizens of different States; also in all 
 cases arising under the patent laws, under the revenue laws, 
 and under the criminal laws and in admiralty cases, except- 
 ing that in every such subject within its appellate jurisdic- 
 
 1 As amended by Act, Jan. 20, 1897, 29 Stat. 492. 
 
CIRCUIT COUKT OF APPEALS ACT. 225 
 
 tion the circuit court of appeals at any time may certify to 
 the Supreme Court of the United States any questions or 
 propositions of law concerning which it desires the instruc- 
 tion of that court for its proper decision. And thereupon 
 the Supreme Court may either give its instruction on the 
 questions and propositions certified to it, which shall he bind- 
 ing upon the circuit courts of appeals in such case, or it may 
 require that the whole record and cause may be sent up to it 
 for its consideration, and thereupon shall decide the whole 
 matter in controversy in the same manner as if it had been 
 brought there for review by writ of error or appeal. And 
 excepting also that in any such case as is hereinbefore made 
 final in the circuit court of appeals it shall be competent 
 for the Supreme Court to require, by certiorari or otherwise, 
 any such case to be certified to the Supreme Court for its 
 review and determination with the same power and authority 
 in the case as if it had been carried by appeal or writ of error 
 to the Supreme Court." 
 
 REVIEW BY THE SUPREME COURT. 
 
 From an examination of the foregoing sections of the stat- 
 ute it will be seen that the jurisdiction of the Supreme Court 
 to review questions arising out of the citizenship of the par- 
 ties is only to be exercised within certain prescribed limits. 
 Actual practice has made it evident that the various Circuit 
 Courts of Appeals decide most of such questions, and that 
 comparatively few cases are taken direct to the Supreme 
 Court under the provision of the statute allowing appeals and 
 writs of error on jurisdictional questions. 
 
 The keynote to the construction of the Act of 1891 may 
 be found in the causes which led to the creation of the Cir- 
 cuit Courts of Appeals. It is matter of public history, and, 
 indeed, is manifest upon the face of the Act, that its primary 
 object was to facilitate the prompt disposition of cases in the 
 Supreme Court, by relieving that court of the ever-increasing 
 
 15 
 
226 JURISDICTION OF FEDERAL COURTS. 
 
 number of cases upon its docket. 1 It may be said to be a 
 remedial Act, and this should not be overlooked when con- 
 sidering questions arising under it. 
 
 Election as to Taking Case to Supreme or Appellate Court. 
 The intention of the act is, that the party desiring appellate 
 review shall be put upon his election as to the forum. There 
 cannot be an appeal or writ of error to the Supreme Court 
 upon the question of jurisdiction alone, and an appeal to the 
 proper Circuit Court of Appeal upon the whole case. 2 "The 
 true purpose of the Act, as gathered from its context, is that 
 the writ of error, or the appeal, may be taken only after final 
 judgment, except in the cases specified in section 7 of the 
 Act. When that judgment is rendered, the party against 
 whom it is rendered must elect whether he will take his writ 
 of error or appeal to the Supreme Court upon the question of 
 jurisdiction alone, or to the Circuit Court of Appeals upon 
 the whole case." 3 
 
 Construction of the Act as a Whole. In considering the 
 theory of the Act in a recent case, 4 the Supreme Court held: 
 
 (1) If the jurisdiction of the Circuit Court is in issue and 
 decided in favor of the defendant, as that disposes of the case, 
 the plaintiff should have the question certified and take his 
 appeal or writ of error directly to this court. 
 
 (2) If the question of jurisdiction is in issue, and the juris- 
 diction sustained, and then judgment or decree is rendered 
 in favor of the defendant on the merits, the plaintiff, who has 
 maintained the jurisdiction, must appeal to the Circuit Court 
 of Appeals, where, if the question of jurisdiction arises, the 
 Court of Appeals may certify it. 
 
 (3) If the question of jurisdiction is in issue, and the 
 jurisdiction sustained, and judgment on the merits is ren- 
 dered in favor of the plaintiff, then the defendant can elect. 
 
 1 McLish v. Roff, 141 U. jS- 661. see Northern Pao. R. R. Co. v. 
 
 2 Idem. Glasspell, 49 Fed. Rep. 482, 4 U. S. 
 8 Idem. App. 238, 1 C. C. A. 327; s. c. 144 
 * U. S. v. Jahn, 155 U. S. 109; U. S. 211. 
 
WHAT CERTIFICATE MUST SHOW. 227 
 
 either to have the question certified and come directly to this 
 court, or to carry the whole case to the Circuit Court of 
 Appeals, and the question of jurisdiction can he certified by 
 that court. 
 
 (4) If in the case last supposed the plaintiff has ground of 
 complaint in respect of the judgment he has recovered, he 
 may also carry the case to the Circuit Court of Appeals on 
 the merits, and this he may do by way of cross-appeal or writ 
 of error if the defendant has taken the case there, or inde- 
 pendently if the defendant has carried the case to this court 
 on the question of jurisdiction alone, and in this instance the 
 Circuit Court of Appeals will suspend a decision upon the 
 merits until the question of jurisdiction has been determined. 
 
 (5) The same observations are applicable where a plaintiff 
 objects to the jurisdiction and is, or both parties are, dissatis- 
 fied with the judgment on the merits. 
 
 Jurisdictional Questions must be Certified. In practice un- 
 der this section it should be noted that the statute requires 
 that the jurisdictional question shall be certified by the lower 
 court to the Supreme Court, and this requirement has been 
 strictly insisted upon by that court; unless the record shows 
 a certificate of the lower court the appeal or writ of error 
 will be dismissed, except in cases where the court finds that the 
 record itself contains something equivalent to such certificate. 1 
 
 "What Certificate must Show. The certificate itself must be 
 explicit, for if vague and indefinite it will be disregarded. 
 The views of the Supreme Court upon the necessity of cer- 
 tificates in these cases and their form is well expressed in the 
 cases of Maynard v. Jlecht 2 and Moran v. Hagerman. s In 
 the former case, in giving the reasons for the enforcement of 
 the rule, it is said: — 
 
 " Under section 5 of the Judiciary Act of March 3, 1891, 
 
 i Maynard v. Hecht, 151 U. S. 2 151 U. S. 324. 
 324; Moran v. Hagerman, 151 U. S. 8 151 U. S. 329. 
 329. 
 
228 JURISDICTION OP FEDERAL COURTS. 
 
 a writ of error can be taken directly to this court from the 
 Circuit Courts only in the six classes of cases therein men- 
 tioned, and the contention is that the writ may be sustained 
 in this case as falling within the first class described in that 
 section as follows : ' In any case in which the jurisdiction of 
 the court is in issue ; in such case the question of jurisdiction 
 alone shall be certified to the Supreme Court from the court 
 below for decision. ' According to that provision the ques- 
 tion involving the jurisdiction of the Circuit Court must 
 have been in issue and decided against the party seeking to 
 bring it before this court for determination, and must be cer- 
 tified for decision. And as no such question was certified by 
 the Circuit Court in this case, we are confronted on the 
 threshold with the inquiry whether we can take jurisdiction 
 of the writ, an inquiry controlled by the rule that an affirma- 
 tive description of the appellate jurisdiction of this court in 
 a suit implies a negative on the exercise of such appellate 
 power as is not comprehended within it. By the Act of 
 February 25, 1889, 1 it was provided: 'That in all cases 
 where a final judgment or decree shall be rendered in the Cir- 
 cuit Court of the United States in which there shall have 
 been a question involving the jurisdiction of the court, the 
 party against whom the judgment or decree is rendered shall 
 be entitled to an appeal or writ of error to the Supreme Court 
 of the United States to review such judgment or decree with- 
 out reference to the amount of the same ; but in cases where 
 the judgment or decree does not exceed the sum of $5,000, the 
 Supreme Court shall not review any question raised upon 
 the record except such question of jurisdiction.' The Act 
 of 1891 was framed in this regard in view of the former Act, 
 and section five restricts the power of this court, in all suits 
 in which its appellate jurisdiction is invoked by reason of the 
 existence of a question involving the jurisdiction of the Cir- 
 cuit Court over the case, to the review of that question only. 
 
 i 25 Stat. 693. 
 
"WHAT CERTIFICATE MUST SHOW. 229 
 
 The Act did not contemplate several appeals in the same suit 
 at the same time, but gave to a party to a suit in the Circuit 
 Court where the question of the jurisdiction of the court over 
 the parties or subject matter was raised and put in issue upon 
 the record at the proper time and in the proper way, the 
 right to a review by this court, after final judgment or decree 
 against him, of the decision upon that question only, or by 
 the Circuit Courts of Appeals on the whole case. And the 
 section under consideration declares in express terms that 
 when the case is brought directly to this court, the question 
 of jurisdiction so in issue shall be certified for decision. 
 
 " The rules in relation to certificates of division of opinion 
 in civil causes under sections 650, 652, 693 of the Eevised 
 Statutes were well settled. Each question had to be a dis- 
 tinct point or proposition of law, clearly stated, so that it 
 could be definitely answered without regard to the other 
 issues of law in the case ; to be a question of law only, and 
 not a question of fact, or of mixed law and fact, and hence 
 could not involve or imply a conclusion or judgment on the 
 weight or effect of testimony or facts adduced in the case ; 
 and could not embrace the whole case, even where its deci- 
 sion turned upon matter of law only, and even though it were 
 split up in the form of questions. 1 The same rules were ap- 
 plicable to the certificate of points on division of opinion on 
 the hearing or trial of criminal proceedings under sections 
 651 and 697. 2 And prior to the Act of February 25, 1889, 
 this court had jurisdiction of a case brought up on certificate 
 of division of opinion on the question whether the Circuit 
 Court had jurisdiction of it. 3 
 ; " By section 6 of the Act of March 3, 1891, it is provided 
 
 1 See Fire Insurance Association 2 See U. S. v. Hall, 131 D. S. 
 v. Wickham, 128 U. S. 426; Dub- 50; U. S. v. Perrin, 131 U. S. 55. 
 lin Township v. Mitfovd Savings 3 See Baltimore & Ohio R. R. v. 
 Institution, 128 U. S. 510. Marshall County Supervisors, 131 
 
 U. S. App. xcix. 
 
230 JURISDICTION OF FEDERAL COURTS. 
 
 ' that in every such subject within its appellate jurisdiction, 
 the Circuit Court of Appeals may at any time certify to the 
 Supreme Court of the United States any questions or proposi- 
 tions of law concerning which it desires the instruction of 
 that court for its proper decision.' In Columbus Watch Co. 
 v. Bobbins, 1 it was held that in order to give this court juris- 
 diction over questions or propositions of law sent up by a 
 Circuit Court of Appeals for decision, it was necessary that 
 the questions or propositions should be clearly and distinctly 
 certified to, and should show that the instruction of this court 
 was desired in a particular case as to their proper decision. 
 And reference was there made to the rules laid down in refer- 
 ence to certificates on division of opinion above adverted to. 
 So in Cincinnati, Hamilton, &c. Railroad Co. v. McKeen, 2 it 
 was held that the Act of March 3, 1891, does not contem- 
 plate the certification of questions of law to be answered in 
 view of the entire record in the cause, although this court 
 may, if it sees fit, order the entire record to be sent up, and 
 thereupon decide the case as if it had been brought up by a 
 writ of error or appeal. We think the intention of Congress 
 as to the certification mentioned in both sections is to be 
 arrived at in the light of rules theretofore prevailing as to 
 certifying from the court below, and since, in the instance of 
 an appeal upon the question of jurisdiction under the fifth 
 section of the act, a certificate by the Circuit Court present- 
 ing such question for the determination of this court is ex- 
 plicitly and in terms required in order to invoke the exercise 
 by this court of its appellate jurisdiction, we are of opinion 
 that the absence of such certificate is fatal to the maintenance 
 of the writ of error in this cause. The narrowness of range 
 in the particular instance can make no difference in the ap- 
 plication of the principle." 
 
 When Formal Certificate Unnecessary. Later cases, how- 
 ever, appear to have relaxed somewhat the rule of previous 
 
 1 148 U. S. 266. « 149 U. S. 259. 
 
WHEN FORMAL CERTIFICATE UNNECESSARY. 231 
 
 decisions. Thus it is held, that "It is not necessary that 
 the word k certify ' be formally used. It is sufficient if there 
 is a plain declaration that the single matter which is by the 
 record sent up to this court for decision is a question of juris- 
 diction, and the precise question clearly, fully, and separately 
 stated. No mere suggestion that the jurisdiction of the court 
 was in issue will answer. This court will not of itself search, 
 nor follow counsel in their search of the record to ascertain 
 whether the judgment of the trial court did or did not turn 
 on some question of jurisdiction." 1 
 
 Upon this point the case of In Re Lehigh Mining & Manu- 
 facturing Co., Petitioner,* is instructive. In that case the 
 Circuit Court dismissed the cause for want of jurisdiction 
 appearing upon an agreed statement of facts, and pleas in 
 abatement. Thereupon the plaintiff tendered the court its 
 bill of exceptions, which was made a part of the record, and 
 contained the pleas in abatement and the agreed statement of 
 facts, and declared that the court "held that the court did 
 not have jurisdiction of this suit, and ordered the same to be 
 dismissed, to which opinion and action of the court the plain- 
 tiff did then and there except." The plaintiff thereupon 
 prayed for a writ of error from the Supreme Court of the 
 United States, which was allowed by the order of the court 
 as follows : " The plaintiff, considering itself aggrieved by the 
 ruling of said court in said case, in which final judgment was 
 rendered . . . dismissing the said case because the said 
 court, in its opinion, did not have jurisdiction thereof, and 
 having on the thirtieth day of May, 1894, filed its bill of 
 exceptions, and having on this day filed its assignment of 
 errors and its petition praying for a writ of error to said judg- 
 ment and proceedings to the Supreme Court of the United 
 States upon the said question of jurisdiction, and praying 
 that said writ of error be allowed it to the Supreme Court of 
 
 i Shields v. Coleman, 157 U. S. 2 156 U. S. 322. 
 168. 
 
232 JURISDICTION OF FEDERAL COURTS. 
 
 the United States and that a full transcript of the record and 
 proceedings in said cause, duly authenticated, be sent to the 
 said Supreme Court, Now on this day, to wit, May 30, 
 1894, it is ordered and considered by this court that said 
 writ of error be allowed and awarded as prayed for ..." 
 Afterward, the complainant applied to the Circuit Court to 
 enter an order certifying the question of jurisdiction to the 
 Supreme Court, pursuant to the statute, and the court denied 
 the application upon the ground, among others, that the ques- 
 tion had already been sufficiently certified by the orders pre- 
 viously entered and the proceedings had, and the complainant 
 thereupon applied to the Supreme Court for a mandamus to 
 compel the Circuit Court to grant a proper certificate. 
 
 In the opinion, by Chief Justice Fuller, it is said: "We 
 think the District Judge was quite right in holding that 
 the question had already been sufficiently certified. The 
 question involved was only the question of jurisdiction, and 
 the judgment not only recited that for reasons in writing, 
 filed as part of the order, the court considered that it had no 
 jurisdiction of the case, and therefore dismissed it for want 
 of jurisdiction ; but the District Judge certified in the bill of 
 exceptions that it was ' held that the court did not have juris- 
 diction of the suit, and ordered the same to be dismissed; ' 
 and, in the order allowing the writ of error, certified in effect 
 that it was allowed ' upon the question of jurisdiction. ' "We 
 observed, in United States v. Jahn, 1 that 'the provision that 
 any case in which the question of jurisdiction is in issue 
 may be taken directly to this court, necessarily extends to 
 other cases than those in which final judgment rests on the 
 ground of want of jurisdiction, for in them that would be the 
 sole question, and the certificate, though requisite to our 
 jurisdiction under the statute, would not be in itself essen- 
 tial, however valuable in the interest of brevity of record. 
 But in such other cases, the requirement that the question of 
 jurisdiction alone should be certified for decision was in- 
 i 155 U. S. 109. 
 
WHEN FORMAL CERTIFICATE UNNECESSARY. 233 
 
 tended to operate as a limitation upon the jurisdiction of this 
 court of the entire case and of all questions involved in it, a 
 jurisdiction which can he exercised in any other class of cases 
 taken directly to this court under section five.' If in this 
 case the jurisdiction had been sustained and the defendants 
 had preserved the question hy certificate in the form of a hill 
 of exceptions and the cause had subsequently proceeded to a 
 final decree against them, it would seem that they could have 
 brought the case, at the proper time, on the question of juris- 
 diction solely, directly to this court, although not compelled 
 to do so. At all events, where the question is certified as it 
 was here, we think the requisition of the statute sufficiently 
 complied with." 
 
 And in Shields v. Coleman, 1 a receiver appointed by a State 
 court intervened in a suit in a Federal court, and appealed 
 from the order entered in the Federal court by which a 
 receiver was appointed in that court and took the res from 
 the possession of the intervenor, and in his petition the inter- 
 vener prayed an appeal from said "decree and interlocutory 
 orders taking and exercising jurisdiction as aforesaid ... as 
 authorized by section five of the Act of Congress of the 
 United States, approved March 3, 1891." The order of the 
 Circuit Court recited that " this appeal is granted solely upon 
 the question of jurisdiction, and unless counsel shall agree 
 by stipulation, filed with the clerk, in respect to the portions 
 of the record to be transcribed and filed in said United States 
 Supreme Court under said appeal as prayed and granted, the 
 appellant has leave to present the record to the court . . . 
 for the determination of what portion of the record shall be 
 certified to said Supreme Court under said appeal." Subse- 
 quently the court directed what portions of the record should 
 be certified to the Supreme Court. In this case it was said : 
 
 "The single question presented by this appeal is that of 
 the jurisdiction of the Federal court to appoint a receiver, 
 
 1 157 U. S. 168. 
 
234 JURISDICTION OP FEDERAL COURTS. 
 
 and take the railroad property out of the possession of the 
 receiver appointed by the State court. In such cases, as was 
 held in Maynard v. Hecht, 1 it is essential that the question 
 of jurisdiction alone should be ^certified to this court from the 
 trial court. But under the authority of United States v. 
 Jahn, 2 and in lie Lehigh Company, 3 the statement in the last 
 order quoted from the record in connection with the petition 
 upon which it was founded must be held to be a sufficient cer- 
 tificate. It is not necessary that the word ' certify ' be form- 
 ally used. It is sufficient if there is a plain declaration that 
 the single matter which is by the record sent up to this court 
 for decision is a question of jurisdiction, and the precise ques- 
 tion clearly, fully, and separately stated. No mere sugges- 
 tion that the jurisdiction of the court was in issue will answer. 
 This court will not of itself search, nor follow counsel in 
 their search of the record, to ascertain whether the judgment 
 of the trial court did or did not turn on some question of 
 jurisdiction. But the record must affirmatively show that 
 the trial court sends up for consideration a single definite 
 question of jurisdiction. And that is here shown. The pe- 
 tition for an appeal is upon the single ground that the court 
 wrongfully took jurisdiction of the property, because it was 
 then in the possession of the State court, and in the order 
 allowing the appeal it is explicitly stated that ' this appeal is 
 granted solely upon the question of jurisdiction,' and the 
 court at the same time reserved to itself the right, which it 
 subsequently exercised, of determining what portions of the 
 proceedings should be incorporated into the record sent here 
 for the purpose of presenting this question." 4 
 
 1 151 U. S. 324. the question of jurisdiction is not 
 
 2 155 U. S. 109. properly certified to this court. The 
 8 156 U. S. 322. record discloses that the defend- 
 * In Smith v. McKay, 161 D. S. ants below appealed upon the ex- 
 
 355, it was said: "It is contended press ground that the court erred 
 on the part of the appellee that we in taking jurisdiction of the bill and 
 should dismiss this appeal, because in not dismissing the bill for want 
 
LIMITS OE THE RULE. 235 
 
 Limits of the Rule. The precise limits of the doctrine as 
 to certificates may be gathered from the decision of the Su- 
 preme Court in the recent case of Ghappell v. United States. 1 
 In that case the petition for the writ of error recited "in 
 order that said rulings, judgments and orders may be re- 
 viewed and re-examined by the Supreme Court of the United 
 States upon the question of jurisdiction raised in said excep- 
 tions, pleas, and demurrers, and other papers on file in this 
 cause." The Supreme Court, in passing upon the case, say 
 that " If both a question of jurisdiction and other questions 
 were before the court below, and a writ of error is allowed in 
 the usual and general form to review its judgment, without 
 certifying or specifying the question of jurisdiction, this court 
 cannot take jurisdiction under this clause of the statute. . . . 
 The record in the present case falls far short of satisfying any 
 such test. The defendant, among many other defences, and 
 in various forms, objected to the jurisdiction of the District 
 Court, because the Act of Congress under which the proceed- 
 ings were instituted was unconstitutional, because the pro- 
 ceedings were not according to the laws of the United States, 
 and because they should have been had in a court of the 
 State of Maryland ; and the court, overruling or disregarding 
 all the objections, whether to its jurisdiction over the case, 
 or to the merits or the form of the proceedings, entered final 
 judgment for the petitioners. There is no formal certificate 
 of any question of jurisdiction ; the allowance of the writ of 
 
 of jurisdiction, and prayed that defendants' motion to dismiss the 
 
 their appeal should be allowed and cause for want of jurisdiction was 
 
 the question of jurisdiction be certi- denied. It therefore appears that 
 
 fled to the Supreme Court, and that the appeal was granted solely upon 
 
 said appeal was allowed. The the question of jurisdiction, and 
 
 certificate further states that there this brings the case within the 
 
 is sent a true copy of so much of the rulings in Shields v. Coleman, 157 
 
 record as is necessary for the deter- U. S. 168, and In re Lehigh Mining 
 
 mination of the question of jurisdic- Co., 156 U. S. 322." See Interior 
 
 tion, and as part of the record so Construction & Improvement Co. v. 
 
 certified is the opinion of the court Gibney, 160 IT. S. 217. 
 below, in accordance with which 1 160 U. S. 499. 
 
236 JURISDICTION OF FEDERAL COURTS. 
 
 error is general, and not expressly limited to such a question ; 
 and the petition for the writ, after mentioning all the pro- 
 ceedings in detail, asks for a review of all the ' rulings, 
 judgments, and orders ' of the court, ' upon the question of 
 jurisdiction raised in said exceptions, pleas and demurrers, 
 and the other papers on file in this cause, ' without defining or 
 indicating any specific question of jurisdiction. Here, cer- 
 tainly, is no such clear, full, and separate statement of a defi- 
 nite question of jurisdiction, as will supply the want of a 
 formal certificate under the first clause of the statute." 
 
 Practice. Certificate must be Granted within the Term. The 
 giving of the certificate required by the statute is a judicial 
 act, and must be granted within the terms at which the judg- 
 ment or decree is entered. 1 This is in accordance with the 
 general rule as to the inability of a court to deal with matters 
 of the sort after the expiration of the term, and by analogy to 
 the statutory provisions on the .subject which obtained in 
 relation to certificates of division of opinion. 2 
 
 Cases from the Circuit Courts of Appeals. The rule as to 
 certificates applies to cases from the various Circuit Courts of 
 Appeals, under the provisions of the Act of 1891, 3 which 
 allow a Circuit Court of Appeals to certify to the Supreme 
 Court any question or proposition of law concerning which it 
 desires the instruction of that court. In such cases it is 
 necessary that the questions or propositions of law should be 
 clearly and distinctly certified, and that the certificate should 
 show that the instruction of the Supreme Court as to their 
 proper decision is desired. 4 And in this connection reference 
 must be had to the rules of the Supreme Court as to the 
 manner of bringing the record before that court. 5 
 
 1 Colvin v. City of Jacksonville, 4 Columbus Watch Co. v. Rob- 
 158 U. S. 456. bins, 148 U. S. 266. See Cincinnati, 
 
 2 Hickman v. City of Fort Scott, &c. R. R. Co. v. McKeen, 149 U. S. 
 141 U. S. 415 ; Morse v. Anderson, 259. 
 
 150 U. S. 156. 6 See rule 37, as follows: (1) 
 
 8 26 Stat. 826. Where, under section 6 of said act a 
 
CASES FROM THE CIRCUIT COURTS OP APPEALS. 237 
 REVIEW BY CIRCUIT COURTS OP APPEALS. 
 
 As has already been shown, 1 the Supreme Court has held 
 that a party is put upon his election whether he will take a 
 writ of error or appeal to the Supreme Court on the question 
 of jurisdiction alone, or to the Circuit Court of Appeals upon 
 the whole case. 2 And in a later decision it is said that "the 
 Act did not contemplate several appeals in the same suit, at 
 the same time, but gave to a party in the suit in the Circuit 
 Court, where the jurisdiction of the court over the parties or 
 subject matter was raised and put in issue upon the record at 
 the proper time and in the proper way the right to a review 
 by this (Supreme) Court, after final judgment, or decree 
 against him, of the decision upon that question only, or by 
 the Circuit Court of Appeals upon the whole case. 3 
 
 It follows from these decisions that where the whole case 
 is brought to a Circuit Court of Appeals, — that is, where the 
 errors assigned include other questions, the Circuit Court of 
 Appeal will also pass upon a jurisdictional question. 1 
 
 Circuit Court of Appeals shall entire record of the case shall be 
 
 certify to this court a question or furnished to this court by the appli- 
 
 proposition of law, concerning which cant, as part of the application, 
 
 it desires the instruction of this 1 Ante, p. 226. 
 
 court for its proper decision, the 3 McLish v. Roff, 141 U. S. 661. 
 
 certificate shall contain a proper s Maynard v. Hecht, 151 U. S. 
 
 statement of facts on which such 324. 
 
 question or proposition of law arises. ' Am. Sugar Refining Co. v. 
 (2) If application is thereupon made Johnson, 60 Fed. Rep. 503, 13 U.S. 
 to this court that the whole record App. 681, 9 C. C. A. 110; Same v. 
 and cause may be sent up to it for Tatum, 60 Fed. Rep. 511, 13 U. S. 
 its consideration, the party making App. 700, 9 C. C. A. 121 ; Baltimore 
 such application shall, as a part & Ohio R. R. Co. v. Meyers, 62 Fed. 
 thereof, furnish this court with a Rep. 367, 18 U. S. App. 569, 10 
 certified copy of the whole of said C. C. A. 485 ; Rust v. United Water- 
 record. (3) Where application is works Co., 70 Fed. Rep. 129, 36 
 made to this court under section 6 U. S. App. 167, 17 C. C. A. 16; 
 of said Act to require a case to be Coler v. Grainger County, 74 Fed. 
 certified to it for its review and de- Rep. 16, 20 C. C. A. 267. 
 termination, a certified copy of the 
 
238 JURISDICTION OF FEDERAL COURTS. 
 
 Where, however, the only question raised upon the record 
 is that of the jurisdiction of the lower court, the weight of 
 authority holds that the appeal or writ of error should be dis- 
 missed, for want of jurisdiction in the Circuit Court of Ap- 
 peals to entertain it. 1 Several cases in the Circuit Court of 
 Appeals for the Eighth Circuit hold to the contrary. 2 
 
 1 Davis & Rankin Bldg. & 2 Crabtree v. Madden, 54 Fed. 
 
 Mfg. Co. v. Barber et al., 60 Fed. Rep. 426, 12 U. S. App. 159, 4 
 
 Rep. 465, 18 U. S. App. 476, 9 C. C. A. 408; Same v. Byrne, 54 
 
 C. C. A. 79; Cabot v. McMaster, 65 Fed. Rep. 432, 12 U. S. App. 169, 4 
 
 Fed. Rep. 583, 24 U. S. App. 57, 13 C. C. A. 414; and compare King v. 
 
 C. C. A. 39 ; The Alliance, 70 Fed. McLean Asylum, 64 Fed. Rep. 325, 
 
 Rep. 273, 44 U. S. App. 52, 17 21 U. S. App. 407, 12 C. C. A. 139; 
 
 C. C. A. 124; U. S. v. Severns, 71 Green v. Mills, 69 Fed. Rep. 852, 25 
 
 Fed. Rep. 768, 37 U. S. App. 622, U. S. App. 383, 16 C. C. A. 516. 
 18 C. C. A. 314. 
 
THE RULE STATED BY JUSTICE MATTHEWS. 239 
 
 CHAPEK XV. 
 
 Practice in Appellate Courts. — Record must Show Jurisdiction. — Rule 
 Stated by Justice Matthews. — Court will Inspect Record and Act 
 of its Own Motion. — What is the Record. — No Amendment in 
 Appellate Court. — Practice. — Costs. 
 
 The necessity of strict compliance with the statutes con- 
 ferring jurisdiction upon the Federal courts is shown by the 
 care which the Supreme Court has taken that in all cases 
 brought before it by error or appeal the record should affirma- 
 tively show the jurisdiction of the lower court. From the 
 beginning it has been the constant practice of the Supreme 
 Court to scrutinize every record brought before it, and to 
 summarily dispose of those in which the jurisdiction of the 
 lower court, as well as its own, did not affirmatively appear. 
 Not only must the facts, as alleged, be sufficient to confer 
 jurisdiction upon the lower court, but they must appear upon 
 the record in such a manner as to affirmatively show such 
 jurisdiction. " On every writ of error or appeal," it is said, 
 "the first and fundamental question is that of jurisdiction, 
 first of this court, and then of the court from which the rec- 
 ord comes." 1 
 
 The Rule Stated by Justice Matthews. "The rule, Spring- 
 ing from the nature and limits of the judicial power of the 
 United States, is inflexible and without exception, which re- 
 quires this court, of its own motion, to deny its own jurisdic- 
 tion, and, in the exercise of its appellate power, that of all 
 other courts of the United States, in all cases where such 
 
 >■ Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379. 
 
240 JURISDICTION OP FEDERAL COURTS. 
 
 jurisdiction does not affirmatively appear in the record on 
 which, in the exercise of that power, it is called to act." 1 
 
 Early Cases. The first case holding that the record must 
 affirmatively show the jurisdiction of the lower court is that 
 of Bingham v. Cabot. 2 It was decided at the February Term, 
 1798, and while no written opinion is given, the reporter 
 seems to have noted the reason governing the decision. 
 He says: "The court were clearly of opinion, that it was 
 necessary to set forth the citizenship (or alienage, where a 
 foreigner was concerned) of the respective parties, in order to 
 bring the case within the jurisdiction of the Circuit Court; 
 and that the record, in the present case, was in that respect 
 defective. This cause and many others, in the same predica- 
 ment, were, accordingly struck off the docket." 
 
 In a few of the earlier cases the practice appears to have 
 been to strike the cause from the docket; as this had the 
 effect of leaving the judgment in the court below in full force 
 it was soon abandoned. The rule now is to reverse such 
 cases. 3 
 
 1 Mansfield, C. & L. M. Ry. Co. American Central Ins. Co., 109 U. S. 
 v. Swan, 111 U. S. 379. 278 ; Bors v. Preston, 111 U. S. 252; 
 
 2 3 Dall. 382. Mansfield, C. & L. M. Ey. Co. „. 
 8 See Mossman v. Higginson, 4 Swan, 111 U. S. 379; Hancock v. 
 
 Dall. 12; Course v. Stead, 4 Dall. Holbrook, 112 U. S. 229; Thayer v. 
 
 22 ; Turner v. Bank, 4 Dall. 8 ; Wood Life Ass. 112 U. S. 717 ; Continental 
 
 v. Wagnon, 2 Cr. 9; Winchester v. Ins. Co. v. Rhoads, 119 U. S. 237 
 
 Jaekson, 3 Cr. 514; Montalet v. Halsted v. Buster, 119 U. S. 341 
 
 Murray, 4 Cr. 46 ; Chappedelaine Peper v. Fordyce, 119 U. S. 469 
 
 v. Dechenaux, 4 Cr. 306 ; Kempe's Everhart v. Huntsville College, 120 
 
 Lessee v. Kennedy, 5 Cr. 173 ; New U. S. 223; King Bridge Co. v. Otoe 
 
 Orleans v. Winter, 1 Wh. 91 ; Jackson County, 120 U. S. 225 ; Menard v. 
 
 v. Twentyman, 2 Pet. 136; Jackson Goggan, 121 U. S. 253; Cameron v. 
 
 v. Ashton, 8 Pet. 148; Dred Scott v. Hodges, 127 U. S. 322; Chapman v. 
 
 Sanford, 19 How. 393; Hornthall Barney, 129 U. S. 677; Timmons v. 
 
 v. Collector, 9 Wall. 560; Assessors Elyton Land Co., 139 U. S. 378; 
 
 v. Osbornes, 9 Wall. 567; Mason v. Anderson v. Watt, 138 U. S. 694; 
 
 Rollins, 13 Wall. 602; Muller v. Wolffe v. Hartford, &c. Ins. Co., 148 
 
 Dows, 94 U. S. 444 ; Robertson U. S. 389. 
 v. Cease, 97 V. S. 646; Grace v. 
 
WHAT IS THE EECOBD. 241 
 
 Appellate Court will Act of its own Motion. As stated in 
 Mansfield, &c. Railroad v. Swan, 1 the court will of its own 
 motion inspect the record, and decline to proceed with the 
 case upon the merits if the jurisdiction does not affirmatively 
 appear, although the point be not made by counsel. 2 
 
 A similar practice prevails in the various Circuit Courts of 
 Appeals. 3 
 
 Reason of the Rule. This doctrine is founded upon the 
 peculiar nature of the inferior courts of the Federal judicial 
 system. As stated elsewhere, they are not inferior courts, in 
 the ordinary sense of that term, but their jurisdiction is cir- 
 cumscribed by the Constitution and by the statutes creating 
 them. Indeed, it may be broadly stated that there are no 
 presumptions in favor of the jurisdiction of the courts of the 
 United States. 4 
 
 And where facts other than diverse citizenship are relied 
 upon to sustain the jurisdiction of a Federal court, they must 
 affirmatively appear of record. 5 
 
 What is the Record. Thus far in this chapter we have, 
 when speaking of the record, referred in general to cases 
 pending in an appellate court. Many of the principles here 
 
 1 111 U. S. 379. rule there are no exceptions. There 
 
 2 See Parker ». Ormsby, 141 are no presumptions in favor of 
 U. S. 81 ; Grace v. Am. Cen. Ins. the jurisdiction of courts of the 
 Co., 109 U. S. 278. United States. Ex Parte Smith, 94 
 
 8 Burnham v. First Nat. Bank, U. S. 455. 
 53 Fed. Rep. 163, 10 U. S. App. It is the settled doctrine of 
 
 485, 3 C. C. A. 486 ; Grand Trunk this court that in cases where the 
 
 Ry. Co. v. Twitchell, 59 Fed. Rep. jurisdiction of the Federal courts 
 
 727, 21 U. S. App. 45, 8 C. C. A. depends upon the citizenship of the 
 
 237; Wetherby v. Stinson, 62 Fed. parties, the facts essential to support 
 
 Rep. 173, 18 U. S. App. 714, 10 that jurisdiction must appear some- 
 
 C. C. A. 243. where in the record. Robertson v. 
 
 4 The facts upon which the juris- Cease, 97 U. S. 646. 
 diction of the courts of the United 6 Ex parte Smith, 94 U. S. 455 ; 
 
 States rests must, in some form, Metcalf v. Watertown, 128 U. S. 
 
 appear in the record of all suits 586 ; Colorado Central Mining Co. v. 
 
 prosecuted before them. To this Turck, 150 U. S. 138. 
 
 16 
 
242 JURISDICTION OP FEDERAL COURTS. 
 
 enunciated apply with equal force in considering the state of 
 the pleadings before a Circuit Court. And the same reason- 
 ing may be applied in determining what effect should be 
 given to a similar situation in those courts. But, as used in 
 the Supreme Court, the term "record" has its limitations. 
 In that court it means, generally speaking, such parts of the 
 transcript of the proceedings of the lower court as may prop- 
 erly be considered by an appellate court. 
 
 Same Subject. So that while the facts necessary to confer 
 jurisdiction need not necessarily appear in the pleadings, it 
 being sufficient if they are in some form affirmatively shown 
 in other parts of the transcript, 1 yet where it did not appear 
 that a deposition or the notice under which it was taken was 
 before the trial court for any purpose, and was not embodied 
 in the bill of exceptions, the Supreme Court refused to con- 
 sider an averment in the notice to take the depositions and in 
 the commission therefor, to the effect that the parties were 
 citizens of a State, although set forth in the transcript filed 
 in the Supreme Court. 
 
 Thus, in Robertson v. Cease, 7, the court said: "It is con- 
 tended that the citizenship of Cease in Illinois is satisfactorily 
 shown by the foregoing documents, which, it is insisted, are 
 a part of the record upon this writ of error. But this posi- 
 tion cannot be maintained. It involves a misapprehension of 
 our former decisions. When we declared that the record, 
 other than the pleadings, may be referred to in this court, to 
 ascertain the citizenship of parties, we alluded only to such 
 portions of the transcript as properly constituted the record 
 upon which we must base our final judgment, and not to 
 papers which had been improperly inserted in the transcript. 
 Those relied upon here to supply the absence of distinct aver- 
 ments in the pleadings as to the citizenship of Cease, clearly 
 
 1 Railway Co. v. Ramsey, 22 ison, 64 Fed. Rep. 148, 24 U. S. App. 
 Wall. 322 ; Briges v. Sperry, 95 U. S. 351, 12 C. C. A. 75. 
 401; Danahy v. Nat. Bank of Den- 2 97 U. S. 646. 
 
OTHER CASES. 243 
 
 do not constitute any legitimate part of the record. They 
 are not so made either by a bill of exceptions, or by any order 
 of the court referring to them, or in any other mode recog- 
 nized by the law. As there is nothing to show that the dep- 
 osition of Cease, or the commission or notice under which it 
 was taken, was before the jury or the court for any purpose, 
 during the trial, no fact stated in them can be made the 
 foundation of any decision we might render, either upon the 
 merits or the question of jurisdiction." 
 
 Other Cases. And in Benny v. Pironi, 1 after the entry of 
 judgment, a motion in arrest was made, upon the ground that 
 there was no allegation in the petition showing that the plain- 
 tiffs were citizens of different States. Thereupon the plain- 
 tiff filed a remittitur of five dollars from the amount of the 
 judgment, and in the remittitur averred the citizenship of the 
 parties in due form. The court thereupon denied the motion 
 in arrest, and reduced the judgment according to the remit- 
 titur. In reversing the case Justice Brown said: "The 
 remittitur formed no proper part of the judgment record, 
 and the recital of citizenship formed no proper part of the 
 remittitur. Undoubtedly proceedings subsequent to the 
 judgment are admissible to show what action has been taken 
 upon such judgment, as for instance, that it has been vacated, 
 stayed, amended, modified, or paid, that execution has been 
 issued upon it, or that a part of it has been remitted, but such 
 proceedings cannot be introduced to validate a judgment void 
 for want of jurisdiction. Not only is the remittitur in this 
 case open to this objection, but it appears upon its face not to 
 have been filed in good faith, but for the sole purpose of in- 
 troducing the averment of citizenship; in other words, the 
 averment is the object, and the remittitur the incident. Ke- 
 mittiturs are used when the judgment has been accidentally 
 entered for a larger amount than was due, or occasionally to 
 forestall an appeal, but never to give jurisdiction where it is 
 
 i 141 U. S. 121. 
 
244 
 
 JURISDICTION OP FEDERAL COURTS. 
 
 not otherwise shown. As well might it be contended that 
 the difficulty could be surmounted by filing an affidavit sub- 
 sequent to judgment. In either case it would be impossible 
 for the defendant to take issue upon it, or to submit it to the 
 court or jury as upon a plea in abatement. " 
 
 So where the averments of citizenship appeared only in the 
 caption of a bill, it was held insufficient, the caption being no 
 part of the bill ; 1 but if in the introductory part of the bill it 
 is sufficient, and this is the common practice. 2 
 
 But if the summons sets out the citizenship of the parties it 
 will bring the case within the rule that it will suffice if the 
 jurisdictional facts appear in any part of the record, the sum- 
 mons being a part of the record. 3 So of a joinder in demurrer.* 
 
 1 Jackson v. Ashton, 8 Peters, 
 148. But see Jones v. Andrews, 10 
 Wall. 327. The statement of the 
 case says that the " suit was entitled 
 at the beginning, Stephen M. Jones, 
 citizen and resident of Richmond 
 County, Georgia, v. Joseph An- 
 drews, citizen and resident of City, 
 County, and State of New York, P. 
 Reed, and H. W. Bryson, both citi- 
 zens and residents of Shelby County, 
 Tennessee." And the prayer of the 
 bill began thus: " The premises con- 
 sidered, complainant prays that 
 Joseph Andrews, a resident and 
 citizen of the city, county, and State 
 of New York, and the said Reed and 
 Bryson, both of whom are residents 
 of Shelby County, in the State of 
 Tennessee, be made parties defend- 
 ant, by due process and publication," 
 &c. The court below dismissed the 
 bill for want of jurisdiction over the 
 parties, and in support of its action, 
 counsel contended that the citizen- 
 ship of the parties was not suffi- 
 ciently alleged in the bill. That a 
 mere incidental and sidewise men- 
 
 tion of citizenship in a caption of the 
 bill was no averment or allegation of 
 citizenship; that it could not be re- 
 garded as traversable, or an allega- 
 tion for the falseness of which the 
 party thus incidentally mentioning it 
 would be responsible." Upon this 
 point the court held (Bradley, J.) that 
 " Although the allegation of citizen- 
 ship is not made in precise and 
 technical form, we consider it suffi- 
 ciently explicit to sustain the juris- 
 diction of the court. It is more 
 explicit than the allegation in the 
 case of Express Company v. Kountze 
 Brothers (8 Wall. 342) which was 
 sustained by the court. All that is 
 necessary is, that it fairly appears by 
 the bill of what States the respective 
 parties are citizens. In this case 
 the form of the allegation leaves no 
 room for reasonable doubt." 
 
 2 Sharon v. Hill, 23 Fed. Rep. 
 353. See Equity Rule 20. 
 
 8 Gordon v. Third Nat. Bank, 
 144 IT. S. 97. 
 
 4 Bradstreet v. Thomas, 12 Peters, 
 59. 
 
NO AMENDMENT IN APPELLATE COURT. 245 
 
 No Amendment in Appellate Court. And where the record 
 is brought to an appellate court, if it fails to affirmatively 
 show the jurisdiction of the court below, no amendment can 
 be made in the appellate court, nor can the defect be sup- 
 plied by affidavits, or in any manner. This is established by 
 the decision in Cameron v. Hodges, 5 where the defendant 
 Hodges filed in the State court of Tennessee a petition for 
 the removal of the cause to the Circuit Court of the United 
 States, alleging that he was a citizen of Arkansas, and was 
 such at the time of bringing the suit, and that none of the 
 complainants " are or were at that time citizens of the State 
 of Arkansas." The suit was removed, and a decree rendered 
 on the merits, from which an appeal was prayed to the United 
 States Supreme Court. Upon an assignment of error being 
 made in that court, that the record did not show that the 
 Circuit Court had jurisdiction of the suit, Hodges, the de- 
 fendant in error, filed in the Supreme Court an affidavit, set- 
 ting forth the citizenship of the parties, and stating that the 
 original petition inadvertently omitted to state the citizen- 
 ship of the complainants, although as a matter of fact they 
 were then, and were at the time of the commencement of the 
 suit, citizens respectively of various States, naming them. 
 In passing upon the question the Supreme Court (Justice 
 Miller) said : " We have considered the application of Hodges, 
 the defendant in error, to supply the want of averments in 
 regard to the citizenship of the complainants in this suit. 
 The difficulty here, however, does not relate to the jurisdic- 
 tion of this court, in regard to which evidence by affidavit 
 has sometimes been received where the defect was as to the 
 amount in controversy, and perhaps in relation to some other 
 point. The jurisdiction of this court in the present case is 
 undoubted, but, as the previous remarks in this opinion show, 
 the Circuit Court never had jurisdiction of it ; and while we 
 
 8 127 U. S. 322. See Continental St. Louis, I. M. & S. R. R. v. New- 
 Iiis. Co. v. Rhoads, 119 U. S. 237; com, 56 Fed. Rep. 951. 
 
246 JURISDICTION OP FEDERAL COURTS. 
 
 may be authorized to reverse the decree so rendered we have 
 no power to amend the record so as to give jurisdiction to 
 that court by proceedings here. The case in this court must 
 be tried upon the record made in the Circuit Court." 
 
 Practice -where Case must be Reversed for Lack of Juris- 
 diction. In cases reversed in the Supreme Court where it hot 
 only appears that the lower court did not have jurisdiction of 
 the cause, but that no subsequent proceedings in the lower 
 court would vest it with jurisdiction, the customary judg- 
 ment in the Supreme Court and the several courts of appeals, 
 is to reverse the judgment or decree, and remand the case 
 with instructions to the lower court to dismiss the suit. 1 
 Where, however, the jurisdiction of the lower court may be 
 shown by permitting proper amendments, the judgment or 
 decree will be reversed and the cause remanded with direc- 
 tions to the court below to permit the amendment in its 
 discretion. 2 
 
 Judgment on Merits Improper. If it appears upon error or 
 appeal that judgment or decree has been entered upon the 
 merits in a cause over which the court had no jurisdiction, 
 the cause will be remanded with instructions to the lower 
 court to dismiss the suit for want of jurisdiction, without 
 finding upon the merits and without prejudice. 3 
 
 1 Morris v. Gilmer, 129 U. S. 315 ; might be amended in that court so 
 Whittemore v. Amoskeag Nat. Bank, as to show the citizenship of the 
 134 U. S. 527 ; Anderson v. Watt, plaintiff, if both parties consented. 
 138 U. S. 694. i If not, then the case was to stand 
 
 2 King Bridge Co. v. Otoe County, reversed, but without setting aside 
 
 120 U. S. 225 ; Menard v. Goggan, the verdict, in order that the court 
 
 121 U. S. 253; Metcalf v. Water- below might allow an amendment, 
 town, 128 U. S. 586; Parker v. This case establishes a novel practice 
 Onnsby, 141 U. S. 81. in appellate procedure in this class 
 
 In the late case of Fitchburg of cases, and is at total variance 
 
 R. R. Co. v. Nichols, 85 Fed. Rep. with the previous practice. It seems 
 
 869 (C. C. of A., First Circuit), an of doubtful authority, 
 order was entered by the Circuit 8 Plant Investment Co. v. Jack-. 
 
 Court of Appeals that the record sonville, Tampa & Key West R. R. 
 
COSTS UPON BEVERSAL. 
 
 247 
 
 Costa upon Reversal. As a general rule the costs upon re- 
 versal for want of jurisdiction will be taxed against the party- 
 instituting or removing the cause. 1 But the court may make 
 such order as to costs as justice and right shall seem to 
 require. 2 
 
 And after a reversal of judgment for want of jurisdiction 
 the lower court has jurisdiction to compel restitution where 
 the appeal has not operated as a stay. 3 
 
 Co., 152 U. S. 71 ; Rust v. Brittle 
 Silver Co. et ah, 58 Fed. Rep. 611, 
 19 U. S. App. 237, 7 C. C. A. 389; 
 Wetherby v. Stinson, 62 Fed. Rep. 
 173, 18 U. S. App. 714, 10 C. C. A. 
 243. 
 
 1 See Mansfield, Coldwater & 
 Lake Michigan R. R. v. Swan, 111 
 U. S. 379; Hancock v. Holbrook et 
 ah, 112 U. S. 229 ; Peninsular Iron 
 Co. v. Stone, 121 U. S. 631 ; Chap- 
 pell v. Wadsworth, 155 U. S. 102 ; 
 Home v. Geo. H. Hammond Co., 
 155 U. S. 393. 
 
 2 In Tug River Coal & Salt Co. 
 v, Brigel, 67 Fed. Rep. 625, 31 U. S. 
 App. 665, 14 C. C. A. 577, the court 
 
 said : " In this case the record is 
 voluminous. Appellant has had the 
 entire record brought up and printed. 
 Appellant made no objection to 
 jurisdiction in the Circuit Court, and 
 did not call the court's attention to 
 lack of jurisdiction. While the de- 
 fendant appellant must recover costs 
 in the court below, we do not think 
 it should be allowed full costs in this 
 court. The costs of the appeal will 
 be divided equally." See Hancock 
 v. Holbrook, 112 U. S. 229; Peper 
 v. Fordyce, 119 U. S. 469. 
 
 3 Northwestern Fuel Co. v. Brock, 
 139 U. S. 216. 
 
APPENDIX. 
 
APPENDIX. 
 
 STATUTES. 
 
 An act to correct the enrollment of an act approved March third, 
 eighteen hundred and eighty-seven, entitled, 
 
 "An act to amend sections one, two, three, and ten of an act to 
 determine the jurisdiction of the circuit courts of the United 
 States, and to regulate the removal of causes from the State courts, 
 and for other purposes, approved March third, eighteen hundred 
 and seventy-five." 1 
 
 Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That the act 
 approved March third, eighteen hundred and eighty-seven, en- 
 titled "An act to amend sections one, two, three, and ten of an act 
 to determine the jurisdiction of the circuit courts of the United 
 States, and to regulate the removal of causes from State courts, 
 and for other purposes, approved March third, eighteen hundred 
 and seventy-five," be, and the same is -hereby amended so as to 
 read as follows : 
 
 "Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, 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 other purposes,' approved 
 March third, eighteen hundred and seventy-five, be, and the same 
 is hereby, amended so as to read as follows : 
 
 " That the circuit courts of the United States shall have origi- 
 nal cognizance, concurrent with the courts of the several States, 
 of all suits of a civil nature, at common law or in equity, where 
 
 i Approved Aug. 13, 1888, 25 Stat. 433. 
 
252 APPENDIX. 
 
 the matter in dispute exceeds, exclusive of interest and costs, 
 the sum or value of two thousand dollars, 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 contro- 
 versy 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 aforesaid, or a controversy between citi- 
 zens of the same State claiming lands under grants of different 
 States, or a controversy between citizens of a State and foreign 
 states, citizens, or subjects, in which the matter in dispute ex- 
 ceeds, exclusive of interest and costs, the sum or value aforesaid, 
 and shall have exclusive cognizance of all crimes and offences 
 cognizable under the authority of the United States, except as 
 otherwise provided by law, and concurrent jurisdiction with the 
 district courts of the crimes and offences cognizable by them. 
 But no person shall be arrested in one district for trial in another 
 in any civil action before a circuit or district court; and no 
 civil suit shall be brought before either of said courts against any 
 person by any original process or proceeding in any other district 
 than that whereof he is an inhabitant, but where the jurisdiction 
 is founded only on the fact that the action is between citizens 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 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 con- 
 tents if no assignment or transfer had been made; and the cir- 
 cuit courts shall also have appellate jurisdiction from the district 
 courts under the regulations and restrictions prescribed by law." 
 
 That the second section of said act be, and the same is hereby, 
 amended so as to read as follows: 
 
 " Sec. 2. That any suit of a civil nature, at law or in equity, 
 arising under the Constitution or laws of the United States, or 
 
APPENDIX. 253 
 
 treaties made, or which shall be made, under their authority, of 
 which the circuit courts of the United States are given original 
 jurisdiction by the preceding section, which may now be pending, 
 or which may hereafter be brought, in any State court, may be 
 removed by the defendant or defendants therein to the circuit 
 court of the United States for the proper district. Any other 
 suit of a civil nature, at law or in equity, of which the circuit 
 courts of the United States are given jurisdiction by the preced- 
 ing section, and which are now pending, or which may hereafter 
 be brought, in any State court, may be removed into the circuit 
 court of the United States for the proper district by the defend- 
 ant or defendants therein, being non-residents of that State. And 
 when in any suit mentioned in this section there shall be a con- 
 troversy which is wholly between citizens of different States, and 
 which can be fully determined as between them, then either one 
 or more of the defendants actually interested in such controversy 
 may remove said suit into the circuit court of the United States 
 for the proper district. And where a suit is now pending, or 
 may be hereafter brought, in any State court, in which there is a 
 controversy between a citizen of the State in which the suit is 
 brought and a citizen of another State, any defendant, being 
 such citizen of another State, may remove such suit into the cir- 
 cuit court of the United States for the proper district, at any 
 time before the trial thereof, when it shall be made to appear to 
 said circuit court that from prejudice or local influence he will 
 not be able to obtain justice in such State court, or in any other 
 State court to which the said defendant may, under the laws of 
 the State, have the right, on account of such prejudice or local 
 influence, to remove said cause: Provided, That if it further 
 appear that said suit can be fully and justly determined as to the 
 other defendants in the State court, without being affected by 
 such prejudice or local influence, and that no party to the suit 
 will be prejudiced by a separation of the parties, said circuit 
 court may direct the suit to be remanded, so far as relates to 
 such other defendants, to the State court, to be proceeded with 
 therein. 
 
 "At any time before the trial of any suit which is now pend- 
 
254 APPENDIX. 
 
 ing in any circuit court, or may hereafter be entered therein, and 
 which has been removed to said court from a State court on the affi- 
 davit of any party plaintiff that he had reason to believe and did 
 believe that, from prejudice or local influence he was unable to ob- 
 tain justice in said State court, the circuit court shall, on applica- 
 tion of the other party, examine into the truth of said affidavit and 
 the grounds thereof, and, unless it shall appear to the satisfaction 
 of said court that said party will not be able to obtain justice in 
 such State court, it shall cause the same to be remanded thereto. 
 
 "Whenever any cause shall be removed from any State court 
 into any circuit court of the United States, and the circuit court 
 shall decide that the cause was improperly removed, and order 
 the same to be remanded to the State court from whence it came, 
 such remand shall be immediately carried into execution, and no 
 appeal or writ of error from the decision of the circuit court so 
 remanding such cause shall be allowed." 
 
 That section three of said act be, and the same is hereby, 
 amended so as to read" as follows: 
 
 " Sec. 3. That whenever any party entitled to remove any suit 
 mentioned in the next preceding section, except in such cases as 
 are provided for in the last clause of said section, may desire to 
 remove such suit from a State court to the circuit court of the 
 United States, he may make and file a petition in such suit in 
 such State court at the time, or any time before the defendant is 
 required by the laws of the State or the rule of the State court in 
 which such suit is brought to answer or plead to the declaration 
 or complaint of the plaintiff, for the removal of such suit into the 
 circuit court to be held in the district where such suit is pend- 
 ing, and shall make and file therewith a bond, with good and 
 sufficient surety, for his or their entering in such circuit court, 
 on the first day of its then next session, a copy of the record in 
 such suit, and for paying all costs that may be awarded by the 
 said circuit court if said court shall hold that such suit was 
 wrongfully or improperly removed thereto, and also for their 
 appearing and entering special bail in such suit if special bail 
 was originally requisite therein. It shall then be the duty of the 
 State court to accept said petition and bond, and proceed no 
 
APPENDIX. 255 
 
 further in such suit; and the said copy being entered as afore- 
 said in said circuit court of the United States, the cause shall 
 then proceed in the same manner as if it had been originally com- 
 menced in the said circuit court; and if in any action com- 
 menced in a State court the title of land be concerned, and the 
 parties are citizens of the same State, and the matter in dispute 
 exceed the sum or value of two thousand dollars, exclusive of 
 interest and costs, the sum or value being made to appear, one or 
 more of the plaintiffs or defendants, before the trial, may state 
 to the court, and make affidavit if the court require it, that he or 
 they claim and shall rely upon a right or title to the land under a 
 grant from a State, and produce the original grant, or an exem- 
 plification of it, except where the loss of public records shall put 
 it out of his or their power, and shall move that any one or more 
 of the adverse party inform the court whether he or they claim a 
 right or title to the land under a grant from some other State, the 
 party or parties so required shall give such information, or other- 
 wise not be allowed to plead such grant or give it in evidence 
 upon the trial ; and if he or they inform that he or they do claim 
 under such grant, any one or more of the party moving for such 
 information may then, on petition and bond, as hereinbefore 
 mentioned in this act, remove the cause for trial to the circuit 
 court of the United States next to be holden in such district; 
 and any one of either party removing the cause shall not be 
 allowed to plead or give evidence of any other title than that by 
 him or them stated as aforesaid as the ground of his or their 
 claim." 
 
 Sec. 2. That whenever in any cause pending in any court of 
 the United States there shall be a receiver or manager in posses- 
 sion of any property, such receiver or manager shall manage and 
 operate such property according to the requirements of the valid 
 laws of the State in which such property shall be situated, in the 
 same manner that the owner or possessor thereof would be bound 
 to do if in possession thereof. Any receiver or manager who 
 shall wilfully violate the provisions of this section shall be 
 deemed guilty of a misdemeanor, and shall, on conviction thereof, 
 be punished by a fine not exceeding three thousand dollars, or by 
 
256 APPENDIX. 
 
 imprisonment not exceeding one year, or by both said punish- 
 ments, in the discretion of the court. 
 
 Sec. 3. That every receiver or manager of any property ap- 
 pointed by any court of the United States may be sued in respect 
 of any act or transaction of his in carrying on the business con- 
 nected with such property, without the previous leave of the 
 court in which such receiver or manager was appointed; but 
 such suit shall be subject to the general equity jurisdiction of 
 the court in which such receiver or manager was appointed, so 
 far as the same shall be necessary to the ends of justice. 
 
 Sec. 4. That ail national banking associations established 
 under the laws of the United States shall, for the purposes of all 
 actions by or against them, real, personal, or mixed, and all suits 
 in equity, be deemed citizens of the States in which they are re- 
 spectively located; and in such cases the circuit and district 
 courts shall not have jurisdiction other than such as they would 
 have in cases between individual citizens of the same State. 
 
 The provisions of this section shall not be held to affect the 
 jurisdiction of the courts of the United States in cases com- 
 menced by the United States or by direction of any officer 
 thereof, or cases for winding up the affairs of any such bank. 
 
 Sec. 5. That nothing in this act shall be held, deemed, or 
 construed, to repeal or affect any jurisdiction or right mentioned 
 either in sections six hundred and forty-one, or in six hundred 
 and forty-two, or in six hundred and forty-three, or in seven 
 hundred and twenty-two, or in title twenty-four of the Revised 
 Statutes of the United States, or mentioned in section eight of 
 the act of Congress of which this act is an amendment, or in 
 the act of Congress approved March first, eighteen hundred and 
 seventy-five, entitled "An act to protect all citizens in their civil 
 and legal rights." 
 
 Sec. 6. That the last paragraph of section five of the act of 
 Congress approved March third, eighteen hundred and seventy- 
 five, 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 other purposes," and section six hun- 
 dred and forty of the Revised Statutes, and all laws and parts of 
 
APPENDIX. 257 
 
 laws in conflict with the provisions of this act, be, and the same 
 are hereby repealed : Provided, That this act shall not affect the 
 jurisdiction over or disposition of any suit removed from the 
 court of any State, or suit commenced in any court of the United 
 States, before the passage hereof except as otherwise expressly 
 provided in this act. 
 
 Sec. 7. That no person related to any justice or judge of any 
 court of the United States by affinity or consanguinity within the 
 degree of first cousin shall hereafter be appointed by such court 
 or judge to, or employed by such court or judge in, any office 
 or duty in any court of which such justice or judge may be a 
 member. 
 
 THE CIRCUIT COURTS OF APPEALS ACT. 1 
 
 An act to establish circuit courts of appeals and to define and 
 regulate in certain cases the jurisdiction of the courts of the United 
 States, and for other purposes. 
 
 Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That there shall 
 be appointed by the President of the United States, by and with 
 the advice and consent of the Senate, in each circuit an addi- 
 tional circuit judge, who shall have the same qualifications, and 
 shall have the same power and jurisdiction therein that the cir- 
 cuit judges of the United States, within their respective circuits, 
 now have under existing laws, and who shall be entitled to the 
 same compensation as the circuit judges of the United States in 
 their respective circuits now have. 
 
 Sec. 2. That there is hereby created in each circuit a circuit 
 court of appeals, which shall consist of three judges, of whom 
 two shall constitute a quorum, and which shall be a court of 
 record with appellate jurisdiction, as is hereafter limited and 
 established. Such court shall prescribe the form and style of its 
 seal and the form of writs and other process and procedure as 
 
 i Act Mar. 3, 1891, c. 517 (26 Stat. 826, 1 Supp. R. S. 2d ed. 901). 
 
 17 
 
258 APPENDIX. 
 
 may be conformable to the exercise of its jurisdiction as shall be 
 conferred by law. It shall have the appointment of the marshal 
 of the court with the same duties and powers under the regula- 
 tions of the court as are now provided for the marshal of the 
 Supreme Court of the United States, so far as the same may be 
 applicable. The court shall also appoint a clerk, who shall per- 
 form and exercise the same duties and powers in regard to all 
 matters within its jurisdiction as are now exercised and per- 
 formed by the clerk of the Supreme Court of the United States, 
 so far as the same may be applicable. The salary of the mar- 
 shal of the court shall be twenty-five hundred dollars a year, and 
 the salary of the clerk of the court shall be three thousand dollars 
 a year, to be paid in equal proportions quarterly. The costs and 
 fees in the Supreme Court now provided for by law shall be costs 
 and fees in the circuit courts of appeals ; 1 and the same shall be 
 expended, accounted for, and paid for, and paid over to the 
 Treasury Department of the United States in the same manner 
 as is provided in respect of the costs and fees in the Supreme 
 Court.* 
 
 The court shall have power to establish all rules and regula- 
 tions for the conduct of the business of the court within its juris- 
 diction as conferred by law. 
 
 1 Amended by Act Feb. 19, table to the Chief Justice of the 
 
 1897, c. 263 (29 Stat. 536) as to United States, and within one year 
 
 costs and fees so that, " The costs thereof the Supreme Court of the 
 
 and fees in each circuit court of United States shall revise said 
 
 appeals shall be fixed and estab- table, making the same, so far as 
 
 lished by said court in a table of may seem just and reasonable, uni- 
 
 fees, to be adopted within three form throughout the United States, 
 
 months after the passage of this The table of fees, when so revised, 
 
 Act ; Provided, That the costs and shall thereupon be in force for each 
 
 fees so fixed by any court of appeals circuit." 
 
 shall not, with respect to any item, 2 Act, July 16, 1892, c. 196 (27 
 
 exceed the costs and fees now Stat. 183, 222) repealed the provi- 
 
 charged in the Supreme Court, sion for marshals and provided that 
 
 Each circuit court of appeals shall, the marshal for the district where 
 
 within three months after the fix- the court should be held should also 
 
 ing and establishing of costs and be marshal for the court of appeals, 
 fees as aforesaid, transmit said 
 
APPENDIX. 259 
 
 Sec. 3. That the Chief-Justice and the associate justices of 
 the Supreme Court assigned to each circuit, and the circuit 
 judges within each circuit, and the several district judges within 
 each circuit, shall be competent to sit as judges of the circuit 
 court of appeals within their respective circuits in the manner 
 hereinafter provided. In case the Chief-Justice or an associate 
 justice of the Supreme Court should attend at any session of the 
 circuit court of appeals he shall preside, and the circuit judges 
 in attendance upon the court in the absence of the Chief -Justice 
 or associate justice of the Supreme Court shall preside in the 
 order of the seniority of their respective commissions. 
 
 In case the full court at any time shall not be made up by the 
 attendance of the Chief- Justice or an associate justice of the 
 Supreme Court and circuit judges, one or more district judges 
 within the circuit shall be competent to sit in the court according 
 to such order or provision among the district judges as either by 
 general or particular assignment shall be designated by the court : 
 Provided, That no justice or judge before whom a cause or ques- 
 tion may have been tried or heard in a district court, or existing 
 circuit court, shall sit on the trial or hearing of such cause or ques- 
 tion in the circuit court of appeals. A term shall be held annually 
 by the circuit court of appeals in the several judicial circuits at 
 the following places : In the first circuit, in the city of Boston ; 
 in the second circuit, in the city of New York ; in the third cir- 
 cuit, in the city of Philadelphia ; in the fourth circuit, in the city 
 of Eichmond; in the fifth circuit, in the city of New Orleans; in 
 the sixth circuit, in the city of Cincinnati; in the seventh circuit, 
 in the city of Chicago; in the eighth circuit, in the city of Saint 
 Louis ; in the ninth circuit, in the city of San Francisco ; and in 
 such other places in each of the above circuits as said court may 
 from time to time designate. The first terms of said courts shall 
 be held on the second Monday in January, eighteen hundred and 
 ninety-one, and thereafter at such times as may be fixed by said 
 courts. 
 
 Sec. 4. That no appeal, whether by writ of error or otherwise, 
 shall hereafter be taken or allowed from any district court to the 
 existing circuit courts, and no appellate jurisdiction shall here- 
 
260 APPENDIX. 
 
 after be exercised or allowed by said existing circuit courts, but 
 all appeals by writ of error otherwise, from said district courts 
 shall only be subject to review in the Supreme Court of the United 
 States or in the circuit court of appeals hereby established, as 
 is hereinafter provided, and the review, by appeal, by writ of 
 error, or otherwise, from the existing circuit courts shall be had 
 only in the Supreme Court of the United States or in the circuit 
 courts of appeals hereby established according to the provisions 
 of this act regulating the same. 
 
 Sec. 5. That appeals or writs of error may be taken from the 
 district courts or from the existing circuit courts direct to the 
 Supreme Court in the following cases: 
 
 In any case in which the jurisdiction of the court is in issue ; 
 in such cases the question of jurisdiction alone shall be certified 
 to the Supreme Court from the court below for decision. 
 
 From the final sentences and decrees in prize causes. 
 
 In cases of conviction of a capital or otherwise infamous 
 crime. 1 
 
 In any case that involves the construction or application of the 
 Constitution of the United States. 
 
 In any case in which the constitutionality of any law of the 
 United States, or the validity or construction of any treaty made 
 under its authority, is drawn in question. 
 
 In any case in which the constitution or law of a State is 
 claimed to be in contravention of the Constitution of the United 
 States. 
 
 1 Amended by Act, Jan. 20, 1897, conviction of an infamous crime 
 
 c. 68 (29 Stat. 492) so that so much not capital : Provided, That no case 
 
 of Sec. 5 above " as reads ' in cases now pending in the Supreme Court, 
 
 of conviction of a capital or other- or in which an appeal or writ of 
 
 wise infamous crime,' be amended error shall have been taken or sued 
 
 by striking out the words ' or other- out before the passage of this Act 
 
 wise infamous,' so that the same shall be hereby affected, but in all 
 
 shall read, ' in cases of conviction such cases the jurisdiction of the 
 
 of a capital crime;' and that ap- Supreme Court shall remain, and 
 
 peals or writs of error may be said Supreme Court shall proceed 
 
 taken from the district courts or therein as if this Act had not been 
 
 circuit courts to the proper cir- passed." 
 cuit court of appeals in cases of 
 
APPENDIX. 261 
 
 Nothing in this act shall affect the jurisdiction of the Supreme 
 Court in cases appealed from the highest court of a State, nor 
 the construction of the statute providing for review of such 
 cases. 
 
 Sec. 6. That the circuit courts of appeals established by this 
 act shall exercise appellate jurisdiction to review by appeal or by 
 writ of error final decision in the district court and the existing 
 circuit courts in all cases other than those provided for in the 
 preceding section of this act, unless otherwise provided by law, 
 and the judgments or decrees of the circuit courts of appeals 
 shall be final in all cases in which the jurisdiction is dependent 
 entirely upon the opposite parties to the suit or controversy, 
 being aliens and citizens of the United States or citizens of dif- 
 ferent States; also in all cases arising under tbe patent laws, 
 under the revenue laws, and under the criminal laws and in ad- 
 miralty cases, excepting that in every such subject within its 
 appellate jurisdiction the circuit court of appeals at any time 
 may certify to the Supreme Court of the United States any ques- 
 tions or propositions of law concerning which it desires the in- 
 struction of that court for its proper decision. And thereupon 
 the Supreme Court may either give its instruction on the ques- 
 tions and propositions certified to it, which shall be binding upon 
 the circuit courts of appeals in such case, or it may require that 
 the whole record and cause may be sent up to it for its considera- 
 tion, and thereupon shall decide the whole matter in controversy 
 in the same manner as if it had been brought there for review by 
 writ of error or appeal. 
 
 And excepting also that in any such case as is hereinbefore 
 made final in the circuit court of appeals it shall be competent 
 for the Supreme Court to require, by certiorari or otherwise, any 
 such case to be certified to the Supreme Court for its review and 
 determination with the same power and authority in the case as 
 if it had been carried by appeal or writ of error to the Supreme 
 Court. 
 
 In all cases not hereinbefore, in this section, made final there 
 shall be of right an appeal or writ of error or review of the case 
 by the Supreme Court of the United States where the matter in 
 
262 APPENDIX. 
 
 controversy shall exceed oDe thousand dollars besides costs. But 
 no such appeal shall be taken or writ of error sued out unless 
 within one year after the entry of the order, judgment, or decree 
 sought to be reviewed. 
 
 Sec. 7. That where, upon a hearing in equity in a district 
 court, or in an existing circuit court, an injunction shall be 
 granted or continued by an interlocutory order or decree, in a 
 cause in which an appeal from a final decree may be taken under 
 the provisions of this act to the circuit court of appeals, an 
 appeal may be taken from such interlocutory order or decree 
 granting or continuing such injunction to the circuit court of 
 appeals: Provided, That the appeal must be taken within thirty 
 days from the entry of such order or decree, and it shall take 
 precedence in the appellate court; and the proceedings in other 
 respects in the court below shall not be stayed unless otherwise 
 ordered by that court during the pendency of such an appeal. 
 (See amendment below. 1 ) 
 
 Sec. 8. That any justice or judge, who, in pursuance of the 
 provisions of this act, shall attend the circuit court of appeals 
 held at any place other than where he resides shall, upon his 
 written certificate, be paid by the marshal of the district in which 
 the court shall be held his reasonable expenses for travel and 
 attendance, not to exceed ten dollars per day, and such payments 
 
 1 Amended by Act of Feb. 18, ing, dissolving, or refusing to dis- 
 1895, c. 96 (28 Stat. 666), so as solve an injunction to the circuit 
 to read: "That where, upon a court of appeals: Provided, That 
 hearing in equity in a district the appeal must be taken within 
 court or a circuit court, an injunc- thirty days from the entry of such 
 tion shall be granted, continued, order or decree, and it shall take 
 refused, or dissolved by an inter- precedence in the appellate court; 
 locutory order or decree or an ap- and the proceedings in other re- 
 plication to dissolve an injunction spects in the court below shall not 
 shall be refused in a case in which be stayed unless otherwise ordered 
 an appeal from a final decree may by that court during the pendency 
 be taken under the provisions of of such appeal : and provided fur- 
 this Act to the circuit courts of ther, That the court below may in 
 appeals, an appeal may be taken its discretion require as a condi- 
 from such interlocutory order or tion of the appeal, an additional 
 decree granting, continuing, refus- injunction bond." 
 
APPENDIX. 263 
 
 shall be allowed the marshal in the settlement of his accounts 
 with the United States. 
 
 Sec. 9. That the marshals of the several districts in which 
 said circuit court of appeals may be held shall, under the direc- 
 tion of the Attorney-General of the United States, and with his 
 approval, provide such rooms in the public buildings of the 
 United States as may be necessary, and pay all incidental ex- 
 penses of said court, including criers, bailiffs, and messengers; 
 Provided, however, That in case proper rooms cannot be provided 
 in such buildings, then the said marshals, with the approval of 
 the Attorney-General of the United States, may, from time to 
 time, lease such rooms as may be necessary for such courts. 
 That the marshals, criers, clerks, bailiffs, and messengers shall 
 be allowed the same compensation for their respective services 
 as are allowed for similar services in the existing circuit 
 courts. 
 
 Sec. 10. That whenever on appeal or writ of error or other- 
 wise a case coming directly from the district court or existing 
 circuit court shall be reviewed and determined in the Supreme 
 Court the cause shall be remanded to the proper district or cir- 
 cuit court for further proceedings to be taken in pursuance of 
 such determination. And whenever on appeal or writ of error or 
 otherwise a case coming from a circuit court of appeals shall 
 be reviewed and determined in the Supreme Court the cause shall 
 be remanded by the Supreme Court to the proper district or cir- 
 cuit court for further proceedings in pursuance of such determi- 
 nation. Whenever on appeal or writ of error or otherwise a 
 case coming from a district or circuit court shall be reviewed 
 and determined in the circuit court of appeals in a case in 
 which the decision in the circuit court of appeals is final such 
 cause shall be remanded to the said district or circuit court 
 for further proceedings to be there taken in pursuance of such 
 determination. 
 
 Sec. 11. That no appeal or writ of error by which any order, 
 judgment, or decree may be reviewed in the circuit courts of 
 appeals under the provisions of this act shall be taken or sued 
 oat except within six months after the entry of the order, judg- 
 
264 APPENDIX. 
 
 ment, or decree sought to be reviewed : Provided however, That 
 in all cases in which a lesser time is now by law limited for 
 appeals or writs of error such limits of time shall apply to 
 appeals or writs of error in such cases taken to or sued out from 
 the circuit courts of appeals. And all provisions of law now in 
 force regulating the methods and system of review, through ap- 
 peals or writs of error, shall regulate the methods and system of 
 appeals and writs of error provided for in this act in respect of 
 the circuit courts of appeals, including all provisions for bonds 
 or other securities to be required and taken on such appeals and 
 writs of error, and any judge of the circuit courts of appeals, 
 in respect of cases brought or to be brought to that court, shall 
 have the same powers and duties as to the allowance of appeals 
 or writs of error, and the conditions of such allowance, as now by 
 law belong to the justices or judges in respect of the existing 
 courts of the United States respectively. 
 
 Sec. 12. That the circuit court of appeals shall have the powers 
 specified in section seven hundred and sixteen of the Revised 
 Statutes of the United States. 
 
 Sec. 13. Appeals and writs of error may be taken and prose- 
 cuted from the decisions of the United States court in the Indian 
 Territory to the Supreme Court of the United States, or to the 
 circuit court of appeals in the eighth circuit, in the same man- 
 ner and under the same regulations as from the circuit or dis- 
 trict courts of the United States, under this act. 
 
 Sec. 14. That section six hundred and ninety-one of the 
 Revised Statutes of the United States and section three of an 
 act entitled "An act to facilitate the disposition of cases in the 
 Supreme Court, and for other purposes," approved February six- 
 teenth, eighteen hundred and seventy-five, be, and the same are 
 hereby repealed. And all acts and parts of acts relating to 
 appeals or writs of error inconsistent with the provisions for 
 review by appeals or writs of error in the preceding sections five 
 and six of this act are hereby repealed. 
 
 Sec. 15. That the circuit court of appeal in cases in which 
 the judgments of the circuit courts of appeal are made final by 
 this act shall have the same appellate jurisdiction, by writ of 
 
APPENDIX. 265 
 
 error or appeal, to review the judgments, orders, and decrees of 
 the Supreme Courts of the several Territories as by this act they 
 may have to review the judgments, orders, and decrees of the 
 district court and circuit courts; and for that purpose the sev- 
 eral Territories shall, by orders of the Supreme Court, to be made 
 from time to time, be assigned to particular circuits. 
 
INDEX. 
 
INDEX. 
 
 ABATEMENT, 
 
 plea in, formerly necessary to traverse jurisdictional averments, 205- 
 214, 217. 
 practice since statute of March 3, 1875, 205-214. 
 discretion of trial court in refusing leave to file, not reviewable, 
 
 214. 
 should aver facts as of date of commencement of suit, 217. 
 (See Pleading.) 
 non-joinder of defendants not inhabitants of district of suit, when 
 not ground for, 11, 126. 
 
 (See District or Suit ; Pleading.) 
 
 ADMIRALTY, 
 
 constitutional provision for jurisdiction of Federal court over cases 
 
 in, 2. 
 proceedings in, not affected by provisions of statute of 1887-8 as to 
 
 district of suit, 158. 
 review in Circuit Court of Appeals of cases in, 224, 261. 
 
 AFFIDAVIT, 
 
 in Supreme Court, to show citizenship, 245, 246. 
 
 ACTS, 
 
 of parties as indicating domicile, 19, 20. 
 
 ADMINISTRATOR, 
 
 suits by, personal citizenship governs, 137, 138. 
 
 record must show citizenship, 189, 190. 
 no presumption that he is a citizen of State granting administration, 
 
 189, 190. 
 immaterial what State granted him letters, so far as jurisdiction con- 
 cerned, 138. 
 may be selected with a view to giving Federal court jurisdiction, 138. 
 right to sue on choses in action belonging to intestate, 187. 
 (See Assignees; Executor.) 
 
270 INDEX. 
 
 AGENT, 
 
 appointment of, by corporation, to receive service of process, not a 
 waiver of its right to claim exemption from suit in certain 
 district, 169. 
 (See Citizenship; Corporation; District of Suit.) 
 ALIEN CONTRACT LABOR LAWS, 
 
 jurisdiction of Circuit Courts over suits for violation of, 10. 
 ALIEN, 
 
 constitutional provision for suits by or against, 2, 25, 26. 
 
 prohibition of suits against States by, 3. 
 jurisdiction of Circuit Courts over cases brought by or against, 9. 
 need not reside abroad to sustain suit in Federal court, 26. 
 opposite party must be a citizen, in suits by an, 22, 23, 175, 202. 
 State cannot grant privilege of suing in Federal courts to, 16. 
 provisions of statute of 1887-8 as to residence, and inhabitancy as 
 
 applied to suits brought by or against, 158-160. 
 may be sued in any district where he can be found, 160. 
 removal of cause by an, 159. 
 naturalization as affecting right to sue or be sued in Federal courts, 
 
 16, 26. 
 consul of a foreign nation residing in United States not presumed to 
 
 be an, 26. 
 manner of averring that party is an, 202, 203. 
 averment that one party is an, does not dispense with averment of 
 
 citizenship of other party, 202. 
 appellate review of question of jurisdiction involving, 224, 260. 
 foreign corporations. (See Corporations.) 
 
 (See Ambassador ; Consul.) 
 AMBASSADOR, 
 
 cases affecting, constitutional provision for jurisdiction of Federal 
 courts over, 2. 
 
 (See Alien ; Consul.) 
 AMENDMENT, 
 
 of jurisdictional averments, 219, 246. 
 
 when made, dates back to commencement of suit, 220-222. 
 Statute of Limitations no defence, 220-222. 
 none in appellate court except by consent, 245, 246. 
 of general into special appearance, 218. 
 of attachment writ, 172. 
 
 (See Pleading.) 
 
 AMOUNT IN CONTROVERSY, 
 
 when not important, in ancillary proceedings, 115. 
 (See Ancillary Jurisdiction.) 
 in suit by assignee of chose in action, 181. 
 (See Assignees.) 
 
INDEX. 271 
 
 ANCILLARY JURISDICTION, 
 defined, 103, 104. 
 extent of, 103, 104. 
 limits of, 104. 
 
 what not within, 111, 112, 118. 
 need not be between parties to original suit, 106, 107. 
 bills to restrain enforcement of judgments and decrees, 105-110. 
 to enforce judgments, 118. 
 to prevent assignment of judgment, 117. 
 
 to prevent garnishment based upon fraudulent judgment, 108, 109. 
 to set aside judgments and decrees for fraud, 109. 
 bills in nature of supplemental bills, 117. 
 cross-bills, 110, 111. 
 bills for mechanic's lien, 110, 111, 118. 
 suit upon forthcoming bond, 117. 
 
 supersedeas bond, 117. 
 property in custody of Federal court, 112, 113. 
 creditors' bills, 113. 
 suits by receivers to collect assets, 115. 
 
 proceedings authorized by statute in aid of common-law suits, 115. 
 (See Citizenship.) 
 ANSWER, ' 
 
 denial of jurisdiction in, 216, 217. 
 
 (See Pleading.) 
 APPEAL AND ERROR, 
 
 statute dividing appellate jurisdiction in general between Supreme 
 
 Court and the Circuit Courts of Appeals, 224, 225, 260, 261. 
 in what cases decision of Supreme Court or Circuit Courts of Appeals 
 
 is final, 224, 260. 
 election to take case to Supreme Court or to Circuit Court of Appeals, 
 
 226, 237. 
 review of jurisdictional questions in Supreme Court, 224-236. 
 review of jurisdictional questions in Circuit Courts of Appeals, 223- 
 
 225, 237, 238. 
 practice as to granting certificates from Circuit Courts to the Supreme 
 
 Court upon jurisdictional questions, 225-236. 
 practice as to granting certificates from Circuit Courts of Appeals to 
 
 Supreme Court upon jurisdictional questions, 225-227, 236. 
 record upon appeal or error must affirmatively show jurisdiction, 239- 
 
 241. 
 court will itself notice failure of record to show jurisdiction, 239, 241. 
 what constitutes the record, upon examination to see if jurisdiction 
 
 appears, 240-244. 
 amendment of record as to jurisdictional averments in appellate 
 court, 245, 246. 
 
272 INDEX. 
 
 APPEAL AND ERROR — continued. 
 
 affidavit in Supreme Court as to citizenship, 245, 246. 
 
 discretion of trial court in refusing leave to file plea to jurisdiction, 
 
 not reviewable, 214. 
 restitution where appeal on jurisdictional question has not operated 
 
 as a stay, 247. 
 costs upon reversal for failure of record to show jurisdiction, 247. 
 review of admiralty cases, 224, 261. 
 review of cases involving crimes, 224, 260. 
 review of cases involving the Constitution, laws, or treaties of the 
 
 United States, 224, 260. 
 review of sentences and decrees in prize causes, 224, 260. 
 (See Certificate; Circuit Cookt ok Appeals; Supreme 
 Court.) 
 APPEARANCE, 
 
 general, is waiver of objection that party is sued in wrong district, 
 
 147-149, 168, 218. 
 general, when not a waiver of question of privilege, 218. 
 general, may be amended so as to be special, 218. 
 special, when objecting that writ is in wrong district, 218. 
 judgment not to conclude parties not appearing, when, 11, 126. 
 (See District of Suit ; Jurisdiction ; Pleading ; Residence.) 
 
 ARRANGING, 
 
 parties for jurisdictional purposes. (See Parties.) 
 
 ARREST OF JUDGMENT, 
 
 amendment of jurisdictional averment upon motion in, 219. 
 (See Amendment ; Citizenship ; Pleading.) 
 
 ASSIGNEES, 
 
 statutory restrictions upon suits by, 10, 179. 
 
 statute not to be taken in absolutely literal sense, 186. 
 
 object of statute, 179, 180. 
 
 effect of statute as to pleading citizenship, 180. 
 
 restriction of statute refers to citizenship, not to amount, 181. 
 
 citizenship of assignor at time suit is brought determines right of 
 assignee to sue, 181. 
 
 what included in term " chose in action," 185. 
 
 what included within the term " contents " of chose in action, 182- 
 185. 
 
 exceptions under previous statutes as to suits by assignees of prom- 
 issory notes, 181. 
 
 instruments payable to bearer, 181, 182. 
 
 notes payable to order of maker and endorsed in blank, 182. 
 
 judgments founded upon contracts, 183, 184. 
 
 contract of re-insurance, 183. 
 
INDEX. 273 
 
 ASSIGNEES. — continued. 
 municipal warrants, 183. 
 assigned contract need not be in writing, 185. 
 assignments by operation of law, 187. 
 right of receiver or assignee of insolvent debtor to sue upon choses in 
 
 action belonging to insolvent, 187. 
 right of executors and administrators to sue upon choses in action 
 
 belonging to deceased, 187. 
 where assignment is only nominal, 186. 
 when statute inapplicable, 185. 
 ASSIGNMENT, 
 
 of chose in action, negotiable instruments, judgments, etc., suits by 
 
 assignees of. (See Assignees.) 
 of judgment, ancillary suit to enjoin, 117. 
 
 (See Ancillary Jurisdiction.) 
 ATTACHMENT, 
 
 in Federal courts, statute governing, 171. 
 effect of statute, 170, 171. 
 
 only as supplemental to personal service, 170-172. 
 amendment of writ in, 171. 
 practice in, 171. 
 
 amendment of petition in, as to citizenship, relates back to date of 
 commencement of suit, 221. 
 
 (See Garnishment.) 
 
 BANKS. (See National Banes.) 
 BANKRUPTCY, 
 
 suit by assignees in, to set aside fraudulent deed, 117. 
 
 BEARER, 
 
 negotiable instrument payable to, right of assignee to sue, 181, 182. 
 
 (See Assignees.) 
 BILLS OF EXCHANGE, 
 foreign, suits upon, 10, 179. 
 
 (See Assignees.) 
 
 BOARDS OF APPRAISERS, 
 
 jurisdiction of Circuit Courts to review decision of, 10. 
 
 BONDS, 
 
 suits upon, as ancillary to the proceeding in which they were given, 
 117. 
 BURDEN OF PROOF, 
 
 on party alleging change of domicile, 21. 
 (See Domicile.) 
 where citizenship properly averred, but denied by answer, 217. 
 (See Citizenship.) 
 18 
 
274 INDEX. 
 
 CAPTION, 
 
 of bill, averments of citizenship in, disregarded, 244. 
 (See Pleading.) 
 CERTIFICATE, 
 
 in Supreme Court in cases involving jurisdictional questions, 224, 
 
 227-236, 260, 261. 
 in Supreme Court from Circuit Court of Appeals, 225-227, 236. 
 when unnecessary, 230-236. 
 must be granted within term, 236. 
 in Supreme Court, what must show, 227-236. 
 {See Appeal and Error; Circuit Court of Appeals; 
 Supreme Court.) 
 CHANGE OF CITIZENSHIP, 
 
 in order to give jurisdiction to Federal court, 21-25, 86-100, 210-216. 
 
 may be for express purpose of conferring jurisdiction, 86-100. 
 
 effect of motive actuating parties, 86-100. 
 
 must be real, and not merely ostensible, 87, 90, 91, 99, 100. 
 
 effect of statute of March 3, 1875, 98-100. 
 
 after suit, does not affect jurisdiction; 100-1 02. 
 
 of an alien, State cannot accomplish, 16. 
 
 (See Citizenship; Colorable; Domicile; Fraud.) 
 CHOSE IN ACTION. (See Assignees.) 
 CIRCUIT COURT OF APPEALS, 
 
 act printed at large. See Appendix and 223-225. 
 reason for creating, 225, 226. 
 construction of act creating, as a whole, 226, 227. 
 election as to taking case to Supreme Court or to, 226, 227, 237. 
 review of jurisdictional questions by, 223-225, 237, 238. 
 will not pass upon jurisdictional question alone, 237, 238. 
 when it will pass upon whole case, 237. 
 will raise question of jurisdiction of its own motion, 241. 
 jurisdiction to review cases under revenue laws, 224, 260. 
 under admiralty law, 224, 260. 
 involving crimes, 224, 260. 
 involving revenue laws, 224, 260. 
 under patent laws, 224, 260. 
 what judgment final, 224, 261. 
 certificate from, to Supreme Court, 225, 227, 236, 261. 
 
 (See Appeal and Error ; Supreme Court.) 
 CIRCUIT COURTS, 
 
 constitutional provision under which they are created, 2. 
 
 powers derived from Congress, 4. 
 
 Congress may increase, diminish, or take away their jurisdiction, 3-5. 
 
 although of limited jurisdiction, they are not inferior courts, 6, 7. 
 
INDEX. 275 
 
 CIRCUIT COURTS — continued. 
 
 presumption that cause is without their jurisdiction unless contrary 
 
 affirmatively appears, 6-8, 241. 
 exclusive jurisdiction of, 9. 
 concurrent jurisdiction of, 9, 10. 
 
 jurisdiction over cases arising under laws of United States, 9. 
 over controversies between citizens of different States, 9. 
 over controversies between aliens and citizens, 9. 
 over controversies between citizens of the same State claiming 
 
 under land grants of different States, 9. 
 over cases arising under the Constitution or laws of United 
 
 States, or treaties made by them, 9. 
 over crimes, 9. 
 
 over cases arising under patent laws. (See Patents.) 
 over cases arising under copyright laws. (See Copyrights. ) 
 ' over suits to recover penalties and forfeitures, 10. 
 over suits to protect civil rights, 10. 
 to review decisions of boards of general appraisers, 10. 
 over prosecutions for violations of laws regulating the carrying 
 
 of passengers, 10. 
 over prosecutions for violations of alien contract labor law, 10. 
 (See Assignees; Citizens; Citizenship; Corporations; Dis- 
 trict of Suit; Inferior Courts; Jurisdiction; Pleading; 
 Residence.) 
 CITIZENS, 
 
 of a State, who are, within the meaning of judicial clause of the 
 
 Constitution, 14-18. 
 of a State and the nation, distinguished, 14—16. 
 constitutional and statutory provisions for jurisdiction of Federal 
 
 courts over suits between citizens of different States, 2, 9. 
 constitutional and statutory provisions for jurisdiction of Federal 
 courts over suits by citizens of the same State claiming under 
 land grants, 2, 9. 
 constitutional and statutory provisions over suits between citizens 
 
 and aliens, 2, 9. 
 amendment restraining suits against a State by, 3. 
 of territory, cannot sue or be sued in Federal court, 16-18, 195. 
 of District of Columbia, cannot sue or be sued in Federal court, 16, 
 
 17, 124, 195. 
 corporations as. (See Corporations.) 
 national banks are, of State where located, 58-60. 
 
 (See National Bank.) 
 of a foreign State. (See Aliens.) 
 a State is not a, 16. 
 unincorporated society or association is not, 196. 
 
276 INDEX. 
 
 CITIZENS — continued. 
 
 of no particular State, 19. 
 
 (See Citizenship; Inhabitant; Jurisdiction; Resident.) 
 CITIZENSHIP, 
 
 in State and nation distinguished, 14-16. 
 domicile in test of, for jurisdictional purposes, 18, 201. 
 residence is prima facie evidence of, 21. 
 
 change of, to confer jurisdiction on Federal court, 86-100, 210-214. 
 intent of parties as showing, 99, 100. 
 after suit brought, 100-102. 
 may be had at will of party, 21. 
 
 (See Change of Citizenship.) 
 of date of commencement of suit governs jurisdiction, 193. 
 of parties having legal right, with others equitably interested, 139. 
 really interested, 133. 
 
 (See Parties.) 
 of nominal parties, 130-132. 
 
 proper, necessary, and indispensable parties, 127-129, 140, 141. 
 (See Parties.) 
 of parties, where there is a plurality of plaintiffs or defendants. (See 
 Joinder ; Joint and Several ; Joint Plaintiffs and De- 
 fendants; Parties.) 
 of executors and administrators, 137, 138. 
 
 (See Administrator ; Executors.) 
 of administrator, cannot be assumed because he is appointed in a 
 
 particular State, 189, 190. 
 of guardian, 139. 
 
 (See Guardian.) 
 of receiver, 115, 136, 137, 187. 
 
 (See Receivers.) 
 of receiver of national bank, immaterial, 137. 
 (See National Bank.) 
 of trustee, 133-135, 136. 
 
 (See Trustee.) 
 of one non compos mentis, suing by next friend, 133. 
 of infant, suing by next friend, 132, 133. 
 (See Infant.) 
 of corporations. (See Corporations.) 
 of joint-stock companies. (See Joint-Stock Companies.) 
 of unincorporated societies, 58, 196. 
 
 (See Societies.) 
 of aliens. (See Aliens.) 
 of assignor, in suits upon assigned chose in action, 180. 
 
 (See Assignees.) 
 must affirmatively appear of record, 239, 240. 
 
 (See Appeal and Error; Pleading.) 
 
INDEX. 277 
 
 CITIZENSHIP — continued. 
 
 averments must be explicit, 189, 192, 193. 
 no prescribed form as to, 201. 
 as to corporations, 195-200. 
 that citizenship is unknown, 194, 195. 
 
 that none of parties are citizens of same State as plaintiff, 195. 
 of "residence " instead of citizenship, 190. 
 that parties " as executors " are citizens, 195. 
 (See Pleading.) 
 of parties must be averred, although opposing party is an alien, 202. 
 
 (See Aliens; Pleading.) 
 not necessary to allege that a named State is one of the United 
 States, 194. 
 
 (See Pleading.) 
 averments of, in petition for removal, must show citizenship as of 
 date of commencement of suit, 220, 221. 
 
 (See Removal op Causes.) 
 effect of Fourteenth Amendment on defective jurisdictional averment, 
 191-193. 
 
 (See Pleading.) 
 burden of proof to dispute allegations of, 217. 
 manner of objecting where record does not show, 205. 
 
 (See Pleading.) 
 sufficient if any part of record shows, 139. 
 time of objecting to averments of, 216. 
 
 (See Pleading.) 
 diverse, not essential in ancillary proceedings, 103-119. 
 affidavit in Supreme Court, as to, 245, 246. 
 
 review of questions involving. (See Appeal and Error ; Circuit 
 Court of Appeals; Supreme Court.) 
 
 CIVIL EIGHTS, 
 
 jurisdiction of Circuit Courts in actions to protect, 10. 
 
 COLLATERAL ATTACK, 
 
 judgments of courts of United States not subject to, for failure of 
 record to show jurisdiction, 6, 7. 
 
 COLLUSIVE, 
 
 transfers of property or change of citizenship in order to give Federal 
 court jurisdiction. (See Change of Citizenship; Colorable; 
 Transfer.) 
 refusal of directors of corporation to bring suit, in order to give 
 jurisdiction to Federal court, 216. 
 
 COLORABLE, 
 
 transfers of property to give jurisdiction to Federal court, 90-100, 
 206-209. 
 
278 INDEX. 
 
 COLORABLE — continued. 
 
 transfer of real estate by corporation to foreign corporation, in order 
 to give jurisdiction to Federal court, 91-100. 
 
 (See Change of Citizenship ; Transfer.) 
 
 COMPENSATION, 
 
 of Federal judges, constitutional provision for, 2. 
 
 CONCURRENT JURISDICTION, 
 of Circuit with State courts, 9. 
 of Circuit Courts with Court of Claims, 10. 
 (See Circuit Courts.) 
 
 CONFLICT OF JURISDICTION, 
 
 between Federal and State courts, 104-112, 233. 
 (See Ancillary Jurisdiction.) 
 CONGRESS, 
 
 power to regulate appellate jurisdiction of Supreme Court, constitu- 
 tional provision for, 3. 
 no power to enlarge original or appellate jurisdiction of Supreme 
 
 Court, 3. 
 power to limit jurisdiction of inferior courts, 4-6. 
 power to create inferior courts, 4-6. 
 may exercise discretion in vesting judicial power, 145. 
 (See Circuit Courts ; Judicial Power; Supreme Court.) 
 
 CONSOLIDATION, 
 
 of corporations created by different States, effect on jurisdiction of 
 Federal courts, 79-85. 
 
 (See Citizenship ; Corporations ; Jurisdiction.) 
 
 CONSTITUTION, 
 
 of United States, provision as to extent of judicial power, 2. 
 provision as to Federal judges, 2. 
 provision as to Supreme Court, 2. 
 provision as to inferior courts, 2. 
 
 jurisdiction of Federal courts over cases arising under, 2, 9. 
 Eleventh Amendment, 2. 
 Fourteenth Amendment, 191. 
 
 of United States appellate review of questions involving, 224, 
 260. *■ 
 
 (See Circuit Courts; Courts; Judicial Power; Supreme 
 Court.) 
 CONSTRUCTIVE SERVICE, 
 
 in suit to enforce liens or remove clouds, etc., 12, 13, 173. 
 
 by service of order on non-resident, 173. 
 
 by publication, 173. 
 
 statute of 1875 as to, not repealed by statute of 1887-8, 173. 
 
INDEX. 279 
 
 CONSTRUCTIVE SERVICE — continued. 
 
 provisions of statute of 1887-8 do not apply to proceedings for, 
 
 174. 
 under statute may give jurisdiction though neither party resides in 
 
 district, 174, 
 provisions for, do not enlarge the jurisdiction of Federal courts, 
 
 diverse citizenship must still exist, 175. 
 what class of cases are included within the act, 175, 176. 
 in bill to foreclose mortgage, 176. 
 in bill for partition, 176. 
 
 in suit to set aside conveyance of real estate, 176. 
 in bill for receiver of railroad property, 176. 
 in bill for mechanic's lien, 176. 
 
 in bill to subject specific fund within jurisdiction of court, 176. 
 when statute inapplicable, 176. 
 
 (See District of Suit; Liens; Residence.) 
 CONSUL, 
 
 cases affecting, constitutional provision for jurisdiction of Federal 
 
 courts over, 2. 
 of foreign country residing in United States not presumed a citizen 
 of such foreign country, 26. 
 
 (See Alien; Ambassador.) 
 CONTENTS, 
 
 of promissory note, etc., suit to recover in Circuit or District Courts, 
 
 10. 
 meaning of, as used in statute prohibiting suits by assignees, 179, 182. 
 (See Assignees.) 
 CONTRACTS, 
 
 suit by assignees of, 183. 
 
 (See Assignees.) 
 COPYRIGHTS, 
 
 jurisdiction of Circuit Courts over cases arising under laws of, 10. 
 
 CORPORATIONS, 
 
 as embraced within the term " citizens " in constitutional grant of 
 
 judicial power, 27-56. 
 former views of Supreme Court on corporations as citizens, 27-36. 
 modern views of Supreme Court on corporations as citizens, 36-54. 
 are not citizens, within meaning of constitutional provision extending 
 
 judicial power, 52, 196. 
 are not citizens within clause of Constitution as to privileges and 
 
 immunities of citizens of States, 52. 
 suit by or against, regarded as a suit by or against its stockholders, 
 
 197. 
 conclusive presumption as to citizenship of stockholders of, -53, 76, 
 
 96, 97, 197. 
 
280 INDEX. 
 
 CORPORATIONS — continued. 
 
 estoppel of stockholders to claim citizenship in State other than that 
 
 chartering corporation, 52. 
 theory of corporate citizenship criticised, 27. 
 two States cannot unite in creating a single, 79-85. 
 chartered by two States, 61-67. 
 of one State may accept grants from another State without becoming 
 
 a corporation of such other State, 67. 
 of one State filing copy of charter in another State — effect on 
 
 citizenship, 69. 
 effect on citizenship of, where it leases a railroad in another State, 
 
 69, 70. 
 effect on citizenship, where it purchases railroad lying in another 
 
 State, 70-79. 
 of two or more States, when consolidated, citizenship of, 79-85. 
 removal of case from State court by a consolidated, 84. 
 
 (See Removal of Causes.) 
 municipal, as citizens, 54. 
 organized under laws of United States, suits by, involve Federal 
 
 question, 54, 55. 
 organized under laws of foreign nations, citizenship of, 53, 54. 
 domicile, residence and habitat of, 157, 201. 
 cannot have a domicile anywhere but in State chartering it, 201. 
 domicile as the test of citizenship of, 201. 
 as a "resident" and "inhabitant," 155-160, 201. 
 
 (See District of Suit; Residence.) 
 is an inhabitant only of the district where it has its principal office, 
 
 159, 201. 
 chartered by State having two Federal districts, must be sued in 
 
 district where principal office is, 158. 
 foreign, may be sued in any district where it can be found, 158, 159. 
 foreign, provision of statute of 1887-8 as to residence and inhabit- 
 ancy not applicable to, 163. 
 waiver by, of privilege of being sued in district of incorporation, 149. 
 privilege of, to claim exemption from suit except in certain district 
 
 not waived by appointing agent in State to receive service of 
 
 process, 169. 
 petition for removal by a non-resident, need not allege that it is not 
 
 a resident of the district, 169. 
 averments as to citizenship of, 195-200. 
 incorporated under a law of which court will take judicial notice, 
 
 State of incorporation need not be alleged, 204. 
 averment that corporation " does business in " a State not a sufficient 
 
 allegation of its citizenship, 201. 
 
 (See Pleading.) 
 
INDEX. 281 
 
 CORPORATIONS — continued. 
 
 instruments made by, suits by assignees. (See Assignees.) 
 
 collusive refusal by directors to bring suit, in order to give jurisdic- 
 tion, 216. 
 
 transfer of assets to authorize corporation to give jurisdiction to 
 Federal court, 91-100. 
 COSTS, 
 
 upon reversal for failure of record to show jurisdiction, 247. 
 COURT OF CLAIMS, 
 
 concurrent jurisdiction of Circuit Courts with, 10. 
 COURTS, 
 
 constitutional provisions for Federal, 2. 
 
 authority of Congress over, 3-5. 
 
 of United States, presumption against jurisdiction, 7, 8, 95, 188, 241 
 
 reason for establishing the Federal, 15. 
 
 (See Circuit Courts ; Circuit Court of Appeals ; Supreme 
 Court.) 
 CREDITORS' BILLS, 
 
 as ancillary to another proceeding, 113-117. 
 
 (See Ancillary Jurisdiction.) 
 CRIMES, 
 
 jurisdiction of Circuit Courts over, 9. 
 
 jurisdiction of District Courts over, 9. 
 
 review by Circuit Court of Appeals of convictions for, 224, 260. 
 
 CROSS BILLS, 
 
 as ancillary to original proceeding, 110, 111. 
 ■when not ancillary, 118. 
 
 (See Ancillary Jurisdiction.) 
 
 DECLARATIONS, 
 
 admissibility of, as evidence, in case of change of domicile, 20. 
 as indicating domicile, 20, 21. 
 
 (See Change of Citizenship; Citizenship; Domicile.) 
 
 DECREE, 
 
 ancillary power of Federal court to set aside, 104-110. 
 
 (See Ancillary Jurisdiction.) 
 dismissal of parties before taking, 122-126. 
 (See Judgment.) 
 DELAY, 
 
 in objecting to jurisdiction, effect of, 217. 
 
 (See Citizenship; Pleading.) 
 DEMURRER, 
 
 for failure of record to show jurisdiction, 205, 217. 
 
 upon face of pleadings because suit brought in wrong district, 218. 
 
282 
 
 INDEX. 
 
 DEMURRER — continued. 
 
 for failure to show residence in district, 170, 203. 
 
 for failure to show citizenship of assignor in suit upon assigned chose 
 
 in action, 180. 
 joinder in, citizenship appearing in, 244. 
 (See Pleading.) 
 DISCRETION, 
 
 of court in refusing leave to file plea in abatement, not reviewable, 
 
 214. 
 of court in passing upon motion to dismiss for lack of jurisdiction, 215. 
 DISMISSAL, 
 
 for want of jurisdiction, motion for, 217. 
 duty of court as to, for want of jurisdiction, 205-217. 
 of parties to cure jurisdictional defects, 122-126. 
 (See Abatement ; Pleading.) 
 DISTRICT COURTS, 
 
 jurisdiction over crimes, 9. 
 DISTRICT OF COLUMBIA, 
 
 citizen of, cannot sue or be sued in United States courts, 16, 17, 124, 
 195. 
 DISTRICT OF SUIT, 
 
 provision in statute of Sept. 24, 1789, relating to, 146. 
 provision in statute of March 3, 1875, relating to, 146. 
 provision in statute of 1887-8, relating to, 10, 11, 146. 
 provisions of statutes of 1875 and 1887-8 compared, 149-151. 
 statute as to, where State contains more than one Federal district, 
 
 11, 12, 176-178. 
 general effect of statute of 1887-8 as to, as construed by the Supreme 
 
 Court, 152, 153. 
 limitation is a matter of privilege only, and may be waived, 146- 
 
 148, 168, 204. 
 can objection that suit is brought in wrong district be taken by 
 
 other parties ? 169. 
 waiver of objections to suit in wrong district by appearing generally, 
 146-148, 168, 218. 
 
 (See Waiver.) 
 special appearance for purpose of objecting that suit is not brought 
 
 in proper, 218. 
 questions as to, how raised, 218. 
 demurrer because suit brought in wrong, 218. 
 
 demurrer for failure to show that suit is brought in proper, 170, 203. 
 motion to dismiss because suit brought in wrong, 218. 
 application of statutes limiting, to cases where there is a plurality of 
 parties plaintiff or defendant, 153, 154. 
 
INDEX. 283 
 
 DISTRICT OF SUIT — continued. 
 
 application of statutes limiting, to corporations, generally, 155-157. 
 corporation only suable in district where plaintiff resides, or district 
 
 in State chartering corporation, 157. 
 corporation of State having two Federal districts, suable only in dis- 
 trict where its principal office is located, 158. 
 corporation of foreign nation may be sued in any district where 
 
 service can be had, 159, 160. 
 appointment by corporation of agent in district to receive service of 
 process is not a waiver of its right to be sued only in certain dis- 
 trict, 169. 
 stockholders and creditor of corporation cannot object that corpora- 
 tion has waived its exemption from suit in particular district, 109. 
 (See Corporations.) 
 aliens may be sued in any district where they can be served with 
 
 process, 158-160. 
 provisions of statute of 1887-8 as to, not applicable to patent causes, 
 161-165. 
 not to affect admiralty suits, 158. 
 not applicable to suits under sections 740-742, Revised Statutes, 
 
 177, 178. 
 do not apply to proceedings for constructive service, 174. 
 application of statute in suits for infringement of trade-marks, 165- 
 
 167. 
 
 (See Inhabitant ; Residence.) 
 
 DOMICILE, 
 
 defined, 18, 19. 
 
 elements of, 18. 
 
 how determined, 19, 20. 
 
 as distinguished from residence, 18, 19. 
 
 implies more than residence, 19. 
 
 house of residence as evidence of, 21. 
 
 place of business as evidence of, 21. 
 
 descriptions of party in deed as evidence on change of, 20. 
 
 acts of parties as indicating, 19, 20. 
 
 declarations of parties as indicating, 20. 
 
 burden of proof on party alleging change in, 21. 
 
 once acquired, presumed to continue, 21. 
 
 citizenship follows, regardless of intentions, 18. 
 
 as foundation of State citizenship, 17, 18. 
 
 is test of citizenship, 201. 
 
 (See Citizenship.) 
 
 change of, to give jurisdiction to Federal court, 84-100. 
 
 (See Change op Citizenship; Colorable.) 
 
 of corporation is only in State chartering it, 157, 201. 
 
284 INDEX. 
 
 ELECTION, 
 
 in joining parties, as determining whether interest of parties is joint 
 or several, 121. 
 
 (See Joint and Several ; Parties.) 
 as to taking case to Supreme Court or Circuit Court of Appeals, 226, 
 
 227, 237. 
 (See Appeal and Error ; Circuit Court of Appeals ; Supreme 
 Court.) 
 EQUITY, 
 
 pleading, in ancillary jurisdiction of Federal courts, 104, 105. 
 original bills, what ancillary proceedings are not, 104, 105. 
 non-joinder of parties in, under rule 47, 127-129. 
 when court will grant relief in absence of some parties, 129. 
 rule 47, practice under, 127-129. 
 
 (See Bill of Review; Bill of Revivor; Decree; Injunction; 
 Pleading; Supplemental Bill.) 
 ESTOPPEL, 
 
 of stockholders of corporation to assert that they are citizens of a 
 State other than that chartering corporation, 52. 
 (See Corporations.) 
 EVIDENCE, 
 
 of change of citizenship, residence, domicile. (See Change of 
 
 Citizenship; Citizenship; Domicile; Residence.) 
 of fraudulent transfers of property to give jurisdiction. (See Color- 
 able ; Transfer.) 
 EXECUTORS, 
 
 suits by, personal citizenship governs, 137, 138. 
 
 right of, to sue upon choses in action which belonged to his testator, 
 
 187. 
 
 (See Assignees.) 
 
 averring that parties "as executors" are citizens, etc., insufficient, 
 
 195. 
 
 (See Administrators; Citizenship.) 
 
 EXTENSION, 
 
 of time to plead, is waiver of questions of district of suit, 218. 
 
 (See Pleading ; Waiver.) 
 
 PACT. (See Law and Fact.) 
 
 FEDERAL QUESTION, 
 
 constitutional provision for jurisdiction of Federal courts over cases 
 
 involving, 2. 
 jurisdiction of Circuit Courts in cases involving, 9. 
 must affirmatively appear of record, 241. 
 appellate review of cases involving, 224, 260. 
 
INDEX. 285 
 
 FORECLOSURE, 
 
 bill to set aside decree of, for fraud, 109. 
 
 (See Ancillary Jurisdiction.) 
 FOREIGN BILLS OF EXCHANGE. (See Bill of Exchange.) 
 FOREIGN CORPORATIONS. (See Corporations.) 
 FOREIGN STATE. (See Alien.) 
 FORFEITURES. (See Penalties and Forfeitures.) 
 FORMAL, 
 
 parties, defined, 140, 141. 
 
 (See Parties.) 
 FORTHCOMING BOND, 
 
 suit on, when ancillary to original proceeding, 117. 
 
 suit on, by marshal for use of, regardless of marshal's citizenship, 
 132. 
 FOURTEENTH AMENDMENT, 
 
 cannot aid defective averment of citizenship, 191. 
 
 FRAUD, 
 
 in change of citizenship, or transfer of property to give jurisdiction 
 
 to a Federal court, 19, 20, 84-100, 128. 
 
 (See Change of Citizenship ; Colorable; Transfer.) 
 ancillary jurisdiction to set aside judgments and decrees for, 108-110, 
 
 119. 
 (See Ancillary Jurisdiction; Decree; Judgment.) 
 
 GARNISHMENT, 
 
 ancillary jurisdiction to restrain, 108, 109. 
 
 of property in hands of United States court, 112. 
 
 (See Ancillary Jurisdiction ; Attachment.) 
 
 GRANTS. (See Land Grants.) 
 
 GUARDIAN, 
 
 citizenship of, as determining jurisdiction, 139. 
 (See Citizenship.) 
 
 GUARDIAN AD LITEM, 
 citizenship of, 132, 133. 
 
 (See Citizenship; Infant; Married Woman; Non Compos 
 Mentis.) 
 
 HABITAT, 
 
 of corporations, 157, 201. 
 
 (See Corporations.) 
 
 INCUMBRANCE, 
 
 constructive service in suits to remove, 172. 
 
 (See Constructive Service ; District of Suit.) 
 
286 INDEX. 
 
 INDISPENSABLE, 
 
 , parties, defined, 140, 141. 
 
 (See Parties.) 
 INFANT, 
 
 suing by next friend, infant's citizenship governs, 132. 
 (See Citizenship; Guardian ad Litem.) 
 
 INFERIOR COURTS, 
 
 constitutional -provision for, 2. 
 
 power of Congress to create, 4-6. 
 
 Congress has supreme power over jurisdiction of, within limits of 
 Constitution, 3-6. 
 
 Congress may limit jurisdiction of, 4-6. 
 
 meaning of inferior, as applied to Federal courts, 6. 
 
 Federal courts are not, strictly speaking, 6, 7, 241. 
 
 (See Circuit Courts ; Congress ; Constitution ; Courts ; 
 Judicial Power.) 
 INFRINGEMENT. (See Copyrights; Patents; Trade-marks.) 
 INHABITANT, 
 
 provision in statute of Sept. 24, 1789, relating to suit in district 
 where party is an, 146. 
 
 provision in statute of March 3, 1875, relating to suit in district 
 where party is an, 146. 
 
 provision in statute of 1887-8 relating to suit in district where de- 
 fendant is an, 10, 146. 
 
 provision of statutes of 1875 and 1887-8 as to suits in district where 
 party is an, compared, 149-151. 
 
 as used in statute, denned, 156. 
 
 and "resident " synonymous, 167, 168. 
 
 corporation as, within meaning of statute, 155-160. 
 (See Corporations.) 
 
 application of statutory restrictions where there is a plurality of 
 parties plaintiff or defendant, 153, 154. 
 
 when a portion of the defendants not inhabitants of district of suit, 11. 
 
 provision of statute of 1887-8 as to suits where party is an, not ap- 
 plicable to suits under sections 740-742, Revised Statutes, 177, 178. 
 
 provisions of statute of 1887-8, restricting suit to district where 
 party is an, not applicable to suits under Interstate Commerce 
 Act, 164. 
 
 provisions of act of 1887-8 limiting suit to district where party is 
 an, not applicable to patent cases, 161-165. 
 
 provisions of statute of 1887-8 as to, application in trade-mark 
 cases, 165, 167, 168. 
 
 statutory provision limiting suit to district where party is an, con- 
 fers personal privilege only and may be waived, 168. 
 (See District of Suit: Residence ; Waiver.) 
 
INDEX. 287 
 
 INJUNCTION, 
 
 in ancillary proceedings, against judgments or decrees, 104-110. 
 against assignment of judgment, 117. 
 in proceeding ancillary to suit to quiet title, 118. 
 bill for, against judgment at law, when ancillary, 119. 
 (See Ancillary Jurisdiction.) 
 INTENT, 
 
 of parties in transferring property or changing citizenship to give 
 jurisdiction to a Federal court. (See Change of Citizenship ; 
 Colorable ; Transfer.) 
 INTERSTATE COMMERCE ACT, 
 
 provisions of statute of 1887-8 as to residence and inhabitancy not 
 applicable to suits to recover damages under, 164. 
 
 JOINDER, 
 
 non-joinder of parties not inhabitants of district of suit under statute 
 
 of 1839, 11, 126-129. 
 of landlord as co-defendant with tenant in suit founded on diverse 
 
 citizenship of plaintiff and the tenant, 102. 
 of parties improperly or collusively under statute of March 3, 1875, 
 
 98-100. 
 of parties who might have sued severally, effect on jurisdiction, 120-129. 
 dismissal of parties in case of improper, 122-125. 
 (See Joint and Several ; Joint Plaintiffs or Defendants ; 
 
 Parties.) 
 in demurrer, citizenship appearing in, 244. 
 JOINT AND SEVERAL, 
 
 interest of parties plaintiff or defendant, 120-124. 
 obligations, suit to enforce, joinder of parties, 121-125. 
 (See Joinder ; Joint Plaintiffs or Defendants ; Parties.) 
 JOINT PLAINTIFFS OR DEFENDANTS, 
 
 each must possess the requisite citizenship, 33, 120-122. 
 (See Joinder; Joint and Several; Parties.) 
 JOINT-STOCK COMPANIES, 
 whether citizens or not, 56-58. 
 
 JUDGES, 
 
 constitutional provision for Federal, 2. 
 compensation of, constitutional provision as to, 2. 
 JUDGMENT, 
 
 of Federal court, when set aside on application of party brought in 
 by publication, 12, 13, 172, 173. 
 not to conclude parties not appearing, when, 11, 126. 
 of inferior courts of United States, not subject to collateral attack 
 for failure of record to show jurisdiction, 6, 7. 
 (See Circuit Courts ; Courts.) 
 
288 INDEX. 
 
 JUDGMENT — continued. 
 
 of inferior courts of United States, jurisdiction must appear, or may 
 be reversed on error, 6, 7. 
 
 (See Circuit Courts; Courts.) 
 of Circuit Courts of Appeals, when final, 224, 260. 
 
 (See Appeal and Error ; Circuit Courts of Appeals.) 
 cannot be rendered in attachment even against res except upon per- 
 sonal service, 172. 
 ancillary jurisdiction of Federal courts to set aside, -104-110. 
 
 (See Ancillary Jurisdiction.) 
 injunction against assignment of, when ancillary, 117. 
 
 (See Ancillary Jurisdiction.) 
 impeachment of, for fraud, 109, 110. 
 
 (See Ancillary Jurisdiction.) 
 dismissal of parties before taking, 122-126. 
 founded on a contract, right of assignee to sue, 183. 
 
 (See Ancillary Jurisdiction ; Assignees.) 
 
 JUDICIAL NOTICE, 
 
 courts will take, of the several States, 194. 
 
 corporation organized under a law of which court will take, State of 
 incorporation need not be alleged, 202. 
 
 JUDICIAL POWER, 
 
 constitutional provisions as to, 1, 2. 
 
 extent of, 2. 
 
 of Circuit Courts, explained, 4-6. 
 
 disposition of, in general, belongs to Congress, 6. 
 
 Congress has discretion as to vesting, 4, 145. 
 
 not to extend to suits against a State by citizens of another State or 
 
 by aliens, 3. 
 (See Circuit Courts; Congress; Constitution; Courts.) 
 
 JURISDICTION, 
 
 of Federal courts, must affirmatively appear, 7, 8, 188. 
 presumption that case is without, 7, 8, 95, 188, 241. 
 no presumption in favor of jurisdiction of, 241. 
 is limited by Constitution and statutes, 241. 
 acts of parties cannot enlarge, 204. 
 
 (See Circuit Courts ; Courts.) 
 of inferior Federal courts, Congress has supreme power over, within 
 limits of Constitution, 3-6. . 
 not limited in common meaning of the term, 6, 7. 
 (See Circuit Courts; Courts.) 
 of Circuit Courts over cases arising under Constitution, laws or 
 treaties of United States, 2, 9. 
 cases where United States are plaintiff, 2, 9. 
 
INDEX. 289 
 
 JURISDICTION — continued. 
 
 suits by assignees, 10, 179. 
 
 (See Assignees.) 
 special subjects, 10. 
 
 suits for infringement of trade-marks, 165-167. 
 
 (See Trade-marks.) 
 suits arising under patent laws, 10, 165. 
 
 (See Patents.) 
 cases arising under copyright laws, 10. 
 (See Copyrights.) 
 suits to recover penalties and forfeitures uuder laws of United 
 
 States, 10. 
 suits to review decisions of boards of general appraisers, 10. 
 suits to protect civil rights, 10. 
 suits for violation of alien contract labor laws, 10. 
 crimes, 10. 
 controversies between citizens of different States, 2, 9. 
 
 (See Citizens ; Citizenship.) 
 controversies between citizens of State and alien, 2, 9. 
 
 (See Aliens ; Citizens ; Citizenship.) 
 citizens of District of Columbia, 124. 
 
 (See District of Columbia ; Territory.) 
 citizens of a Territory, 16. 
 
 (See District op Columbia ; Territory.) 
 suits by guardian, 139. 
 
 (See Citizenship; Guardian; Guardian ad Litem.) 
 suits by executors and administrators, 137, 138. 
 (See Administrators ; Citizenship ; Executors.) 
 suit3 by receivers, 137. 
 
 (See Citizenship; National Banks.) 
 suits by trustees, 133-136. 
 
 (See Citizenship ; Trustees.) 
 suits fcy non compos mentis, 133. 
 
 (See Citizenship ; Guardian ad Litem.) 
 suits by infants, 132. 
 
 (See Citizenship; Guardian ad Litem.) 
 corporations, 29-53. 
 
 consolidated, 79-85. 
 
 receiving grants from other States, 67-78. 
 chartered by two or more States, 61-67. 
 organized under laws of United States, 54, 55. 
 organized under laws of foreign nation, 158, 159. 
 as limited by statutory restrictions as to residence and in- 
 habitants, 155-160. 
 
 (See Citizenship; Corporations.) 
 19 
 
290 INDEX. 
 
 JURISDICTION — continued. 
 
 of Federal courts as affected by improper or collusive joinder of 
 parties, 98-100. 
 joinder of formal, necessary and indispensable parties, 127-129, 
 
 140,141. 
 non-joinder of parties under statute of 1839, 126-129. 
 (See Joinder ; Parties.) 
 of Federal courts not affected by citizenship of nominal parties, 
 130-132. 
 
 (See Joinder; Parties.) 
 of Federal courts, ancillary, 103-119. 
 
 to set aside or modify former judgment or decree, 104-110. 
 (See Ancillary Jurisdiction.) 
 of Federal courts, not affected by change of citizenship of parties or 
 ownership of res after suit brought, 100-102. 
 
 (See Change of Citizenship ; Transfer.) 
 of Federal courts as affected by change of citizenship to give juris- 
 diction, 84, 100, 209-216. 
 
 (See Change of Citizenship ; Transfer.) 
 of Federal courts by attachment and garnishment, 170-172. 
 
 (See Attachment; Garnishment.) 
 of Federal courts over suits of a local nature, under statutes author- 
 izing constructive service, 146. 
 statute authorizing constructive service does not enlarge, 147. 
 (See Constructive Service; District of Suit.) 
 of Circuit Courts, as limited by inhabitancy and residence of parties, 
 10, 145-178. 
 
 (See District of Suit; Inhabitant ; Residence.) 
 distinction between matters affecting the, and matters of privilege, 
 147, 168, 204. 
 
 (See District of Suit; Inhabitant; Residence.) 
 of Circuit Courts, objection that party is sued in wrong district may 
 be waived, 168. 
 
 (See District of Suit; Inhabitant; Residence.) 
 of Circuit Court over proceedings under Interstate Commerce Act, 
 not affected by provision of statute of 1887-8 as to residence and 
 inhabitancy, 164. 
 
 (See District of Suit; Interstate Commerce Act.) 
 cannot be argumentatively inferred, 189, 192, 193. 
 
 (See Citizenship; Pleading.) 
 facts showing, must affirmatively appear, 239, 240. 
 must be explicitly averred, 189. 
 no prescribed form of averring, 201. 
 sufficient if they appear anywhere in record, 201. 
 (See Appeal and Error; Circuit Courts; Citizenship; 
 Courts ; Pleading.) 
 
INDEX. 291 
 
 JURISDICTION — continued. 
 
 is determined by conditions at commencement of suit, 193. 
 duty of court to dismiss suit on discovering lack of, 99, 123, 124, 126, 
 206, 216, 217. 
 
 (See Circuit Courts; Citizenship; Pleading.) 
 meaning of " appear to the satisfaction of court " in statute of March 
 3, 1875, authorizing court to dismiss if it has no jurisdiction, 215. 
 (See Circuit Courts; Citizenship; Pleading.) 
 duty of court to dismiss for want of, on its own motion, 241. 
 manner of objecting to, plea in abatement, 205-217. 
 by demurrer, 217. 
 by answer, 217. 
 by motion, 217. 
 
 by suggestion upon argument, 217. 
 under code practice, 216, 217. 
 (See Abatement; Citizenship; Demurrer; Motion; Pleading.) 
 time of raising objections to, 216, 217. 
 
 (See Citizenship; Pleading.) 
 effect of delay in objecting to, 217. 
 
 (See Citizenship; Pleading.) 
 plea to, should aver facts as of date of commencement of .suit, 217. 
 
 (See Citizenship; Pleading.) 
 effect of objection to, not lost by proceeding after objection over- 
 ruled, 219. 
 
 (See Citizenship; Pleading.) 
 amendment of record so as to show jurisdiction, 219-222. 
 (See Amendment ; Appeal and Error ; Citizenship ; 
 Pleading.) 
 appellate review of cases involving, in Supreme Court, 223-236. 
 in Circuit Courts of Appeals, 223-225, 237, 238. 
 (See Appeal and Error ; Circuit Court of Appeals ; 
 Supreme Court.) 
 election to take, case involving, to Circuit Courts of Appeal or to 
 Supreme Court, 227. 
 
 (See Appeal and Error; Circuit Court of Appeals; 
 
 Supreme Court.) 
 
 record on appeal and error must affirmatively show, 239, 240. 
 
 (See Appeal and Error ; Circuit Court of Appeals ; 
 
 Supreme Court.) 
 
 no question as to, where cause is in lower court on mandate from 
 
 Supreme Court, 222. 
 amending averments as to, after reversal, 246. 
 
 (See Amendment; Appeal and Error.) 
 where court has none, improper to render judgment on merits, 
 246. 
 
292 INDEX. 
 
 LAND GRANTS, 
 
 constitutional provision for jurisdiction of Federal courts over cases 
 of citizens of the same State claiming lands under grants of differ- 
 ent States, 2. 
 jurisdiction of Circuit Courts over suits involving, 9. 
 LANDLORD AND TENANT, 
 
 jurisdiction having attached over tenant, landlord may be substituted, 
 102. 
 
 (See Change of Citizenship; Transfer.) 
 
 LAW AND FACT, 
 
 constitutional provision for appellate jurisdiction of Supreme Court 
 over questions of, 2. 
 LAWS OF UNITED STATES. (See Congress; Constitution; 
 
 Federal Question ; United States.) 
 LIMITATIONS, STATUTE OF, 
 
 plea of, where jurisdictional averments are amended, not a defence, 
 220-222. 
 
 (See Amendment; Pleading.) 
 LIMITED PARTNERSHIPS. (See Partnership.) 
 LIENS, 
 
 suits to enforce, 12, 13, 173, 174, 177. 
 
 what not, within statute authorizing constructive service, 176. 
 
 bill to subject specific fund within jurisdiction of court is one to 
 
 remove a, within statute authorizing constructive service, 176. 
 suit by creditor to set aside conveyance by corporation in fraud of 
 creditors is a suit to remove a, within statute authorizing construc- 
 tive service, 176. 
 tax title is a, within meaning of statute authorizing constructive 
 service, 175. 
 
 (See Constructive Service; District or Suit.) 
 LOCAL NATURE, 
 
 suits of a, 12, 13, 176-178. 
 
 suits of a, process to run to any district in State, 12, 177. 
 (See Constructive Service; District op Suit; Liens.) 
 
 MANDAMUS, 
 
 to lower court to compel it to take jurisdiction, 158. 
 MANDATE, 
 
 where cause is again in lower court on mandate from Supreme Court, 
 no question as to jurisdiction can be raised, 222. 
 MARITIME, 
 
 jurisdiction of Federal courts, 2. 
 
 (See Admiralty.) 
 
INDEX. 293 
 
 MARRIED WOMAN, 
 
 next friend suing on behalf of, 133. 
 
 (See Guardian ad Litem.) 
 MATTER IN DISPUTE, 
 
 statutory restrictions on jurisdiction of Circuit Court as to, 9. 
 MECHANIC'S LIEN, 
 
 bill for enforcement of, as ancillary to another proceeding, 111. 
 (See Ancillary Jurisdiction; Constructive Service; Liens.) 
 MERCHANT VESSELS, 
 
 jurisdiction of Circuit Courts over suits to recover penalties for 
 carrying passengers in, 10. 
 MERITS, 
 
 judgment upon, improper where court has no jurisdiction, 246. 
 MORTGAGE, 
 
 foreclosure, arrangement of parties in, 143, 144. 
 
 (See Parties.) 
 foreclosure of, by constructive service, 175. 
 
 (See Constructive Service ; Liens.) 
 trustee in, his citizenship governs, 133-136. 
 
 (See Citizenship ; Trustee.) 
 MOTION, 
 
 to dismiss for want of jurisdiction, 217. 
 
 (See Jurisdiction ; Pleading.) 
 because suit brought in wrong district, 218. 
 (-See District of Suit ; Jurisdiction ; Pleading.) 
 MOTIVE, 
 
 of parties in changing citizenship or transferring property to give 
 jurisdiction to Federal courts, 84-100. 
 (See Change op Citizenship; Colorable; Transfer.) 
 MUNICIPAL CORPORATION. (See Corporations.) 
 
 NATIONAL BANKS, 
 
 are citizens of State where located, 58-60. 
 
 jurisdiction of Federal courts in proceedings to wind up, not affected 
 
 by statutory citizenship, 60. 
 waiver of privilege to be sued in particular district by, 148. 
 defective averment in regard to citizenship of, 191. 
 receiver of, may sue in Federal court regardless of citizenship, 137. 
 
 NATURALIZATION, 
 
 of alien, as affecting right to sue in Federal courts, 16, 26. 
 (See Alien; Citizenship.) 
 NECESSARY, 
 
 parties, joinder under equity rule 47, 127-129. 
 
294 INDEX. 
 
 NECESSARY — continued. 
 
 party in bill to foreclosure, trustee in mortgage is a, 135. 
 parties, defined, 140. 
 
 (See Parties.) 
 
 NON COMPOS MENTIS, 
 
 suing by next friend, latter's citizenship immaterial, 133. 
 (See Guardian ad Litem.) 
 NOTES. (See Promissory Notes.) 
 
 ORIGINAL, 
 
 jurisdiction of Supreme Court, constitutional provision for, 2. 
 jurisdiction of Supreme Court, cannot be enlarged by Congress, 3. 
 (See Appeal and Error; Supreme Court.) 
 
 PARTIES, 
 
 absent, when court will grant relief, 129. 
 
 absent, when equity will not make a decree for want of, 128, 129. 
 nominal, citizenship of, 130-132. 
 having real interest, their citizenship governs, 133. 
 rearranging, for jurisdictional purposes, 141-144. 
 formal, necessary and indispensable, defined, 140, 141. 
 joinder of, 127-129. 
 
 (See Joinder.) 
 non- joinder of, under statute of 1839, 11, 126-129. 
 trustee in a mortgage is a necessary party to bill to foreclose, 135. 
 dismissal of, to cure jurisdictional defects, 122-126. 
 plurality of, as plaintiffs or defendants, 120-129, 153, 154. 
 
 (See Joinder ; Joint Plaintiffs or Defendants.) 
 in ancillary proceedings, 106, 107. 
 constitutional provision for jurisdiction of Federal courts in cases 
 
 where United States is a party, 2. 
 State as party in Supreme Court, constitutional provision for, 2. 
 PARTITION, 
 
 bill for, constructive service in, 176. 
 suit for, rearranging parties in, 144. 
 PARTNERSHIP, 
 
 limited, jurisdiction of Federal courts over, 58. 
 
 suit against, for infringement of patent under act of March 3, 1897, 
 165. 
 
 (See Joint Plaintiffs or Defendants.) 
 PATENTS, 
 
 jurisdiction of Circuit Courts over suits arising under patent laws, 10, 
 
 161-165. 
 district in which suit concerning must be brought, 161-165. 
 
INDEX. L95 
 
 PATENTS — continued. 
 
 jurisdiction of Circuit Courts over, is exclusive, 163. 
 
 statute of March 3, 1897, as to suits involving, 165. 
 PENALTIES AND FORFEITURES, 
 
 under laws of United States, jurisdiction of Circuit Courts over suits 
 to recover, 10. 
 PLEA, 
 
 denial of jurisdiction by, 217. 
 
 (See Abatement ; Pleading.') 
 PLEADING, 
 
 alienage, how averred, 202, 203. 
 
 alien, averring that one party is an, does not dispense with averment 
 
 of citizenship of other party, 202. 
 amendment of, as to jurisdictional averments, dates back to com- 
 mencement of suit, 220-222. 
 petition in attachment suit, 221. 
 none in appellate court, 245, 246. 
 as to jurisdictional averment, 219. 
 
 (See Amendment.) 
 ancillary jurisdiction, pleading in equity, 104, 105. 
 assignees of choses in action, suits by, must show citizenship of 
 
 assignor, 180. 
 assignee of chose in action, on demurrer it will be assumed that 
 assignee and assignor were citizens of same State, 180. 
 (See Assignees.) 
 citizenship, diverse, how averred, 190. 
 
 averments of, in caption of bill, insufficient, 244. 
 
 averments of, in introductory part of bill, proper, 244. 
 
 not put in issue by denial of residence, 193. 
 
 averments as to, must be explicit, 195. 
 
 averring that it is unknown, 195. 
 
 averring that parties " as executors" are citizens, 195. 
 
 averring that parties are citizens of States other than that of 
 
 plaintiff, but not specifying them, 195. 
 averring that none of parties are citizens of same State as 
 
 plaintiff, 195. 
 describing parties as " of " a named State, 194. 
 (See Citizens; Citizenship.) 
 corporation, proper method of averring jurisdictional facts as to, 195, 
 196. 
 averring it to be a "citizen," 195-200. 
 
 allegation that a, " does business in " a State, not sufficient juris- 
 dictional averment, 201. 
 allegation of State chartering unnecessary, where law incor- 
 porating is one of which court will take judicial notice, 202. 
 (See Corporations.) 
 
296 INDEX. 
 
 PLEADING — continued. 
 
 district of suit, question as to whether suit is brought in proper, how 
 raised, 218. 
 general appearance is a waiver of right to object to, 147-149, 
 
 168, 218. 
 general appearance, when not a waiver of right to object to, 218. 
 general appearance, may be amended into a special appearance, 
 
 218. 
 special appearance in objecting that suit is brought in wrong, 
 
 218. 
 obtaining extension of time to plead is a waiver of objections 
 to the, 218. 
 
 (See Appearance ; Waivek.) 
 manner of objecting to, no general practice, 218. 
 by demurrer, 218. 
 by motion, 218. 
 averments as to, must be explicit, 203. 
 residence in, must be shown, or demurrer will lie, 203. 
 (See Demurrer.) 
 jurisdiction, averment as to, must be explicit, 189. 
 
 cannot be argumentatively inferred from statement in, 1 89. 
 facts showing, should be stated in first pleading filed, 188. 
 facts showing, should be set forth in bill, petition, or declara- 
 tion, 188. 
 facts showing, may appear anywhere in, 201. 
 facts showing, no prescribed form of averring, 201. 
 
 (See Citizenship.) 
 method of objecting to, by demurrer, 217. 
 by plea, 217. 
 by answer, 217. 
 
 suggestion upon argument, 217. 
 by motion, 217. 
 objecting to, for matters not apparent on face of pleadings, 
 
 effect of statute of March 3, 1875, 205-214. 
 objection that court has none, where record prima facie shows, 
 
 how taken, 205. 
 plea to, should state facts as of date of commencement of action, 
 
 193, 217. 
 delay in objecting to, 217. 
 time of taking objections to, 216. 
 objecting to, under code practice, 216. 
 removal, petition for, must show citizenship as of date of commence- 
 ment of suit, 220, 221. 
 PLURALITY OF PARTIES PLAINTIFF OR DEFENDANT. 
 (See Joinder ; Joint Plaintiffs or Defendants ; Parties.) 
 
INDEX. 297 
 
 PRESUMPTION, 
 
 that case is -without jurisdiction of Federal courts, 7, 8, 95. 
 jurisdiction, none in favor of, in Federal court, 18S, 241. 
 (See Circuit Courts; Citizenship; Courts ; Jurisdiction.) 
 as to citizenship of stockholders of corporation, 53, 54, 96, 97. 
 as to citizenship of stockholders of a corporation accompanies it when 
 it does business in another State, 76, 77. 
 
 (See Citizenship^ Corporations.) 
 PROCESS, 
 
 may run to all districts in same State, 177. 
 PROMISSORY NOTES, 
 
 statutory restrictions on suit to recover contents of, 10, 179. 
 citizenship of assignor must appear, in suit upon an assigned, 180. 
 exceptions under former acts restricting right of assignee to sue, 181. 
 payable to maker and endorsed, effect as to suit by assignee, 182. 
 (See Assignees.) 
 PUBLICATION, 
 
 service by, in Federal courts, 12, 13, 172. 
 (See Constructive Service ; District of Suit ; Liens.) 
 PUBLIC MINISTERS, 
 
 cases affecting, constitutional provisions for jurisdiction of Federal 
 courts over, 2. 
 
 (See Alien ; Ambassador ; Consul.) 
 
 QUIETING TITLE, 
 
 bill to, ancillary relief in, 118. 
 
 (See Ancillary Jurisdiction.) 
 
 REAL PROPERTY, 
 
 suits to remove liens upon, 173. 
 
 (See Constructive Service; Liens.) 
 RECEIVER, 
 
 citizenship of, governs jurisdiction, 136, 137. 
 
 citizenship of, not material where he sues to collect assets of estate, 
 
 115. 
 chose in action, suits upon by a, 187. 
 national bank, receiver of, may sue to collect assets, regardless of 
 
 citizenship, 137. 
 
 (See Citizenship.) 
 RECORD, 
 
 jurisdiction must affirmatively appear in, 180, 188, 239, 240. 
 jurisdiction, sufficient if it appear anywhere in, 201. 
 residence of parties should affirmatively appear in, 203. 
 amendment of, to show jurisdiction, none in appellate court, 245, 
 246. 
 
298 INDEX. 
 
 RECORD — continued. 
 
 what constitutes, in examination to see if jurisdiction can be 
 sustained, 205, 241-243. 
 
 (See Appeal and Error ; Citizenship ; Jurisdiction ; 
 Pleading.) 
 RE-HEARING, 
 
 in Supreme Court, for obvious oversight of that court, 107. 
 (See Appeal and Error.) 
 REMAND, 
 
 duty of court to, on discovering want of jurisdiction, 241. 
 (See Jurisdiction.) 
 REMOVAL OF CAUSES, 
 by alien, 159. 
 citizenship averments in, must be as of date of beginning of suit, 
 
 220. 
 by corporation chartered by another State, petition need not aver 
 
 non-residence, 169. 
 by consolidated corporation, 84. 
 
 substitution of landlord for tenant after cause removed, 102. 
 jurisdiction, duty to remand, on discovering lack of, 99, 123-126, 206, 
 
 216, 217. 
 rearranging parties for jurisdictional purposes in, 142-144. 
 resident, averment that a party is a, not cured by general allegation 
 
 that controversy is between citizens of different States, 193, 194. 
 by trustee in mortgage, his citizenship material, 135. 
 RESIDENCE, 
 
 as distinguished from domicile, 18, 19. 
 evidence of, 20-25. 
 
 as used in statute limiting suits to district of, synonymons with -" in- 
 habitant," 167, 168. 
 term, as used in statute limiting suit to place of, defined, 156. 
 provisions of statutes limiting suits to district of, 10-13, 146. 
 statutes of 1 875 and 1887-8 relating to, compared, 149-151. 
 provisions of statute of 1887-8, as to suits in district of, not appli- 
 cable to suits under sections 740-742, Revised Statutes, 177, 178. 
 provision of statute of 1887-8 as to suits in district of, not applicable 
 to proceedings for constructive service, 174. 
 
 (See Constructive Service; District op Suit.) 
 provisions of statute of 1887-8 as to, not applicable to suits under 
 
 Interstate Commerce Act, 164. 
 provisions of statute of 1887-8 as to, application in trade-mark 
 
 cases, 165-167. 
 provision of statute of 1887-8, providing for suit in district of, not 
 applicable to patent causes, 161-165. 
 
 (See District or Suit ; Patents.) 
 
INDKX. 299 
 
 RESIDENCE — continued. 
 
 of corporation, within statute limiting jurisdiction, 155-160, 201. 
 organized under laws of foreign nation, 158-160, 169. 
 organized under laws of foreign nation does not become a resi- 
 dent, by opening office and transacting business in a State, 169. 
 (See Corporations ; District op Suit.) 
 of alien in same State as plaintiff no objection, 26. 
 
 (See District of Suit ; Inhabitant.) 
 of parties must appear of record, 203. 
 demurrer for failure to show, 170, 203. 
 averments of, should be explicit, 203. 
 
 not equivalent to averments of citizenship, 190, 193. 
 not rendered equivalent of averment of citizenship by Four- 
 teenth Amendment, 191. 
 
 (See Pleading.) 
 denial of, in pleading, does not put citizenship in issue, 193. 
 
 (See Pleading.) 
 averment of, in petition for removal, not cured by general allegation 
 
 that controversy is between citizens, 193, 191. 
 special appearance in objecting that suit is not brought in district of, 
 218. 
 
 (See Appearance ; District of Suit.) 
 provisions of statutes limiting place where suit may be brought to 
 district of, confer personal privilege only, 146-149, 168. 
 (See District of Suit.) 
 objection that suit is not brought in the district of, can it be taken 
 
 by other parties ? 169. 
 of party in district not necessary where court has jurisdiction of res 
 by constructive service, 174. 
 
 (See Constructive Service.) 
 non-resident of district, service by publication, 12, 13, 73. 
 
 RESTITUTION, 
 
 where appeal has not operated as a stay, 247. 
 (See Appeal and Error.) 
 REVERSAL, 
 
 for want of jurisdiction, practice in, 246, 247. 
 for failure to show jurisdiction, costs on, 247. 
 
 (See Appeal and Error ; Jurisdiction.) 
 
 REVIVOR, BILL OP, 
 
 when not an original proceeding. (See Ancillary Jurisdiction.) 
 
 SCIRE FACIAS, 
 
 writ of, when ancillary to original proceeding, 119. 
 (See Ancillary Jurisdiction.) 
 
300 INDEX 
 
 SOCIETIES, 
 
 unincorporated, can enter Federal courts only when citizenship of 
 each member justifies it, 58. 
 are not citizens, -within meaning of Constitution, 196. 
 (See Citizenship; Corporations.) 
 STATE, 
 
 constitutional provision for jurisdiction of Federal courts over cases 
 of citizens of same State claiming lands under grants of differ- 
 ent States, 2. 
 over cases where there is a controversy between a State and 
 
 citizen of another State, 2. 
 over cases where there is a controversy between two or more, 2. 
 citizens suing, constitutional prohibition of, 3. 
 alien suing, constitutional prohibition of, 3. 
 
 not a citizen, within meaning of judicial clause of Constitution, 26. 
 citizens of, who are, 17, 18. 
 
 (See Citizens ; Citizenship.) 
 as party to suit in Supreme Court, constitutional provision for, 2. 
 
 (See Supreme Court.) 
 courts take judicial notice of the several, 194. 
 grants to corporation of another, 67. 
 legislation by two or more as affecting corporations, 63. 
 two cannot unite in creating a single corporation, 79-85. 
 whether legislative license by a, shows intent to create a domestic 
 corporation out of a foreign one, 68-79. 
 {See Corporations.) 
 suit by, for use of real plaintiff, latter's citizenship governs, 131. 
 STAY, 
 
 where appeal has not operated as, Court may order restitution, 247. 
 (See Appeal and Error.) 
 STOCKHOLDERS, 
 
 of corporation, presumptive citizenship of, 76, 96, 97, 202. 
 liability of, receiver in Federal court may enforce, regardless of citi- 
 zenship, 115. 
 cannot object on behalf of defendant corporation that suit is brought 
 in the wrong district, 169. 
 (See Citizenship ; Corporation; District of Suit.) 
 SUBJECTS, 
 
 of foreign State. (See Alien.) 
 SUBJECT-MATTER, 
 
 of suit, change of ownership pendente lite, 102. 
 
 (See Change of Citizenship ; Transfer.) 
 SUPERSEDEAS, 
 
 suit upon bond given in, is ancillary to original suit, 117. 
 (See Ancillary Jurisdiction.) 
 
INDEX. 301 
 
 SUBPCENA, 
 
 service of, upon attorney, -when allowed, 105. 
 
 SUMMONS, 
 
 if citizenship appears in, sufficient, 244. 
 
 (See Citizenship ; Pleading.) 
 
 SUPPLEMENTAL BILL, 
 
 as ancillary to original proceeding, 117. 
 
 (See Ancillary Jurisdiction.) 
 
 SUPREME COURT, 
 
 constitutional provision for a, 2. 
 original jurisdiction of, 2. 
 
 not to be enlarged by Congress, 3. 
 appellate jurisdiction of, 2, 3. 
 
 not to be enlarged by Congress, 3. 
 jurisdiction to review question involving Constitution or laws of 
 United States, 2, 224, 260. 
 to review cases where a State is a party, 2, 224, 260. 
 to review cases involving treaties, 2, 224, 260. 
 to review cases affecting ambassadors, public ministers, and 
 
 consuls, 2. 
 to review cases of admiralty and maritime jurisdiction, 2, 224, 260. 
 to review cases involving land grants, 2. 
 to review cases of crimes, 224, 260. 
 
 to review cases involving the jurisdiction of the inferior courts 
 of United States, 223, 236. 
 will itself raise question of jurisdiction, 241. 
 affidavit in, as to citizenship, 245, 246. 
 amendment in, so as to show citizenship, 246. 
 what constitutes record, in examining to see if jurisdiction appears, 
 
 241-243. 
 election as to taking case to Circuit Court of Appeals or to, 226, 227, 
 
 237. 
 certificate to, from Circuit Courts on questions of jurisdiction, 
 227-236. 
 from Circuit Courts of Appeals, 236. 
 when unnecessary, 230. 
 must be granted within term, 236. 
 (See Appeal and Error ; Certificate ; Circuit Court of 
 Appeals.) 
 
 TAXES, 
 
 payment of, as indicating residence, 21. 
 (See Domicile.) 
 
302 INDEX. 
 
 TERM, 
 
 of court, certificate from Circuit Court to Supreme Court must be 
 
 granted within, 236. 
 (See Appeal and Error; Certificate; Circuit Court of 
 Appeals; Supreme Court.) 
 TERRITORY, 
 
 citizen of, cannot sue in Federal courts, 16-18, 195. 
 
 (See Citizenship ; District of Columbia.) 
 TRADE-MARKS, 
 
 suits for infringement of, in what district brought, 165-167. 
 (See District of Suit.) 
 TRANSCRIPT, 
 
 what portions of, will be examined by Supreme Court on jurisdic- 
 tional questions, 241-243. 
 
 (See Appeal and Error; Record.) 
 TRANSFER, 
 
 of property pendente lite, 102. 
 
 of property to give jurisdiction to a Federal court, 86-100, 206-216. 
 of property to give Federal court jurisdiction, effect of statute of 
 March 3, 1875, 98-100. 
 
 (See Change of Citizenship; Colorable.) 
 TREATIES, 
 
 cases arising under, constitutional provision for jurisdiction of 
 
 Federal courts over, 2. 
 jurisdiction of Circuit Courts over cases arising under, 9. 
 appellate review of decision involving, 224, 260. 
 (See Supreme Court.) 
 TRUSTEE, 
 
 citizenship of, governs, 133-136. 
 bill to foreclose by, 111. 
 
 in mortgage, foreclosure, arranged on same side as complainants, 143. 
 (See Citizenship; Parties.) 
 
 UNINCORPORATED SOCIETIES. 
 
 (See Citizenship; Societies.) 
 UNITED STATES, 
 
 constitutional provision for jurisdiction of Federal courts over cases 
 
 where United States are a party, 2. 
 jurisdiction of Circuit Courts over cases involving the Constitution, 
 
 laws, or treaties of, 9. 
 jurisdiction of Circuit Courts over cases where United States are 
 
 plaintiffs, 9. 
 jurisdiction of Circuit Courts and Court of Claims over cases 
 against, 10. • 
 
INDEX. 303 
 
 UNITED STATES — continued. 
 
 jurisdiction of Supreme Court over cases involving the Constitution, 
 laws, or treaties of, or otherwise affecting the. (See Supreme 
 Court.) 
 
 VERDICT, 
 
 not set aside on reversal for failure to show jurisdiction, 246. 
 
 WAIVER, 
 
 of objection that party is sued in wrong district, what constitutes, 168. 
 
 of privilege of being sued in district of residence, by persons, 146-155. 
 
 of privilege of being sued only in district of residence, by corpora- 
 tions, 149. 
 
 appointment of agent in State to receive service of process, by a cor- 
 poration, is not a waiver of right to claim exemption from suit 
 except in certain district, 169. 
 
 by failing to object in apt time to defective jurisdictional averment, 
 202. 
 
 by appearing generally, of questions of privilege, 218. 
 
 (See District of Suit; Inhabitant; Pleading; Residence.) 
 
 proceeding in cause after objection to jurisdiction overruled is not, 219. 
 WRIT, 
 
 duplicate to issue to different districts in the same State, 11. 
 WRIT OF ERROR. (See Appeal and Error.)