To entitle a person to sue upon a promissory note, other than one negotiable by the law-merchant, in a federal court, there must be an allegation of the citizenship of the original owners of the paper sued on.

2. SAME-PROMISSORY NOTE-LAW-MERCHANT.

Since the jurisdiction must appear by affirmative allegations, it is necessary that the bill of exchange or promissory note sued on be one negotiable by the law-merchant.

3. SAME EFFECT OF CONDITIONS.

The character of the note must determine the question of jurisdiction, and the fact that the party suing is willing to waive certain of his rights under it, and sue on such a portion of the contract as might constitute a negotiable instrument, cannot give it.

Action on Promissory Note. diction.

Motion to dismiss for want of juris

This was an action having a statutory and common-law count on a note in the following terms:

"$1,040.

SAVANNAH, GA., April 20, 1881. "On or before the seventeenth day of October next we agree to pay J. S. Wood & Bro., or order, for advances, one thousand and forty dollars, and eight per cent. interest from maturity. We waive expressly all right that we or our dependents may have to retard the collection of this debt by claiming homestead or personalty exemption, under the laws of Georgia, on any property we may hereafter own. If this note is not paid promptly, we agree to pay costs, if sued, and ten per cent. as stipulated attorney's fees. We agree to ship, before due, one bale of cotton to J. S. Wood & Bro. for each ten dollars of this claim, or in default to forfeit to them the commissions at 2 per cent. on 500 pounds, at price of middling cotton, when due. "Witness our hands and seals:

C. W. SNELL. "B. W. SNELL.

[Seal.] [Seal.]

"Indorsed: J. S. WOOD, CHAS. S. WOOD, J. S. WOOD & BRO."

The plaintiff in its declaration avers itself to be a citizen of the state of Maryland, and that the defendants are citizens of the state of Georgia, and alleges therein that the said note was indorsed by said J. S. Wood & Bro. and by them delivered to said plaintiff, but there is no allegation as the citizenship of Wood & Bro.

Chisholm & Erwin, for plaintiff.

J. K. Hines, for defendants.

LOCKE, J., (orally.) There is no allegation of the citizenship of the original owners of the paper sued on, and since jurisdiction must

1 Reported by W. B. Hill, Esq., of the Macon bar.

v.21F,no.6-23

appear by affirmative allegations it is necessary that the foundation of the suit be a bill of exchange or a promissory note negotiable by the law-merchant. Its form at once precludes the idea that it is a bill of exchange, but it is claimed that it is a promissory note. It is not sufficient that it be a promissory note as between the parties, or even negotiable under certain circumstances and with certain conditions, but it must be negotiable by the law-merchant. It must be a positive promise and agreement to pay the holder a sum certain at a given date, without detraction or conditions; an amount that is easily determinable from its own face without further search or inquiry. The character of the note must determine the question of jurisdiction, and the fact that the party suing is willing to waive certain of his rights under it, and sue on such a portion of the contract as might constitute a negotiable instrument, cannot give it.

It is apparent that the last clause in the note in suit contains conditional provisions, which might be still undetermined at its maturity, so that it could never bear upon its face a fully settled amount due, which fact is conclusive against its negotiability under the lawmerchant, and consequently against the jurisdiction in a suit upon it. The fact that the instrument is under seal has also been urged, which objection, in the light of Coe v. Cayuga Lake R. Co. 8 FEd. Rep. 535, would seem to be fatal; but the form and substance of the note so fully determines all questions that a consideration of anything further is unnecessary.

Motion to dismiss is granted.

PALMER V. SCRIVEN and another, Receivers, etc.1

(Circuit Court, S. D. Georgia. April 26, 1884.)

ACTION AGAINST RECEIVERS.

When based upon consent to sue, on petition to equity court, can only be entertained by that court.

Common-law Action for Personal Injury. Motion to dismiss for want of jurisdiction.

Denmark & Adams, for plaintiffs.

Chisholm & Erwin, for defendants.

PARDEE, J., (orally.) Permission to sue must be given by the equity court. Such permission cannot confer jurisdiction upon any other court, ratione materice or ratione persone. In this case, the permission being obtained from the court of equity, this suit was permitted only to be brought in that court. There is no permission to sue

1 Reported by W. B. Hill, Esq., of the Macon bar.

in this court on the law side. This court, as a court of law, is without jurisdiction, so far as the record shows, by reason of the citizenship of the parties, and consequently has no jurisdiction in the case. Motion granted."

LOCKE, J., concurs.

HAUSMEISTER v. PORTER, Treasurer, etc.

(Circuit Court, D. California. August 25, 1884.)

EQUITY JURISDICTION-ADEQUATE REMEDY AT LAW-REV. ST. § 723-PAYMENT OF COUPONS ON MUNICIPAL BONDS-MANDAMUS.

Where a writ of mandamus will lie to compel a city treasurer to pay coupons due on bonds of the city out of the fund provided by statute, or to compel the proper officers to set apart taxes collected as a sinking fund for the payment thereof, the bondholder has an adequate remedy at law, and cannot proceed by bill in equity, not ancillary to any pending proceeding at law, to enjoin the application of the funds to other purposes.

In Equity.

Rosenbaum & Scheeline and S. C. Denson, for complainant.
W. A. Anderson and J. H. McKune, for defendant.

SAWYER, J. This is a bill in equity, filed against the treasurer of Sacramento city by a holder of $10,000 of the bonds, and $600 overdue coupons thereon, of the city of Sacramento, issued in pursuance of the laws, and under the circumstances fully set forth in Kennedy v. City of Sacramento, 19 FED. REP. 580. The bill alleges the facts relating to the issue of the bonds and the amount held by complainant; that there is a large amount of money-$174,000 and upwards -in the interest and sinking fund in the city treasury, applicable to the payment of said coupons, and something over $170,000 of taxes and water rents, collected for the year 1883-84, in the city treasury, and that "it is the duty of said treasury to apportion and set apart to said interest and sinking fund' fifty-five per cent. of the whole of said revenues, and to hold and pay out the said fifty-five per cent. of said sums for the purposes of said fund and no other purpose;" that the complainant has demanded payment of said coupons held by him, and that said treasurer should set apart said 55 per cent. to said interest and sinking fund, and only apply it for the proper uses of said fund; that said treasurer refuses to comply wita said demand, and is unlawfully diverting said fund to other objects of city expenditure, and, if not restrained from so doing, will appropriate the whole of said fund to such other objects, and leave nothing applicable to the payment of said bonds and coupons. He therefore asks, as relief, that defendant be perpetually enjoined from paying out said money for any other purpose than the liquidation of said bonds and coupons;

and he further asks for a preliminary injunction pending the suit. Defendant demurs to the bill on the ground of want of equity, and that the facts disclosed show no cause of equitable jurisdiction. He also opposes the preliminary injunction on the same grounds.

Section 723, Rev. St., provides that "suits in equity shall not be sustained in either of the courts of the United States, in any case where a plain, adequate, and complete remedy may be had at law." And this provision has been often recognized and enforced by the supreme court of the United States; as in Hipp v. Babin, 19 How. 271; Parker v. Winnipiseogee Co. 2 Black, 545; Watson v. Sutherland, 5 Wall. 74, and many other cases.

In this case, if, as alleged, there are funds in the treasury applicable to the purpose, it appears to me that the complainant has a plain, adequate, and complete remedy at law, by mandamus, for the non-payment of any lawful coupons held by him now due. Also, a complete remedy at law, by mandamus, if any remedy he has at this time, to compel defendant to set apart any moneys in the treasury required by law to be set apart as a "sinking fund" for the payment when they fall due of any bonds held by him not yet matured. In a case relating to a part of these same bonds, the supreme court of California, in Meyer v. Porter, 2 Pac. Rep. 884, held that a mandamus should issue to compel the treasurer of Sacramento to pay the overdue coupons, there being money in the treasury applicable to their payment.

It is alleged in the bill that there is a much larger amount of money applicable to the purpose in the treasury than is necessary to pay complainant's overdue coupons. That being so, the supreme court hold that it is the duty of the treasurer to pay them, and, if he refuses payment, that he can and should be compelled to pay them by mandamus. So, also, in Meyer v. Brown, the supreme court of the state, sitting in bank, in regard to this same class of bonds, unanimously held the writ of mandate to be a proper remedy to compel the city authorities to levy a tax to supply a fund to pay these coupons. In this case the court followed the judgment of the supreme court of the United States in Louisiana v. Pilsbury, 105 U. S. 302, which directed a writ of mandamus to issue to compel the city of New Orleans to levy an annual tax to pay the interest on the bonds then in question. See, also, Kennedy v. Sacramento, 19 FED. REP. 580.

From these cases it is clear that if there is money in the city treasury applicable to the purpose, and it is alleged that there is,—the treasurer can be readily compelled by mandamus to pay the amount due complainant on his coupons; and if the officers do not provide the funds by levying the proper tax, that they can be compelled to do so by mandamus. This is a remedy at law direct, speedy, and adequate, and, as was stated in the last case cited, the only remedy, in view of the provisions of the statute under which the bonds were

issued and accepted. The decree asked for in this bill would afford no relief whatever without other and independent proceedings at law. It would simply keep the money in the treasury. No decree for the payment of the money could be made, because a judgment against the city, at law, would be ample for that purpose where a judg nent could be had, and no such decree is asked. But, in the case of these bonds, it was held in Kennedy v. Sacramento, supra, that a judgment at law against the city could not be obtained under the statute. For the same reasons, no decree in equity could be had, even if the court had jurisdiction in other respects to enter such a decree. But it has none, as the remedy, if any, would be a judgment at law. The decree asked does not appear to be ancillary to any proceeding at law now pending, or even contemplated, to obtain the money if retained in the treasury. But if it is the duty of the treasurer to pay these coupons out of the funds alleged to be in the treas ry, the most crect, speedy, and effective way to obtain payment is by mandamus in a court of law. This remedy is complete and adequate. It would not only prevent the money from being diverted to other purposes,-all that this bill seeks,-but would secure the payment of the overdue coupons held by complainant, and be, in itself, a full and adequate remedy, while that sought in this bill could only be ancillary to some other remedy in a court of law, to which complainant would be driven at last.

The bill, in my judgment, presents no case of equitable cognizance. The preliminary injunction must be denied, the demurrer to the bill. sustained, and the bill dismissed; and it is so ordered.

PRICE, Receiver, v. COLEMAN and others.

(Circuit Court, D. Massachusetts. September 3, 1884.)

1. EQUITY-PLEADING-MULTIFARIOUSNESS-ACTION BY RECEIVER OF NATIONAL

BANK.

Where a bill, brought by the receiver of a national bank against all of the directors holding office during the existence of the bank, the legal representatives of deceased directors, and the cashiers of the bank, joins claims for losses suffered by the bank by reason of the directors' negligence and inattention, and claims for losses suffered by the stockholders by reason of having been induced to subscribe for new shares by misrepresentations of the directors, it is multifarious.

2. SAME-CERTAINTY-DEMURRER.

Where such a bill does not state the dates of the losses sustained by the corporation, nor the dates of the acts or omissions contributing to those losses, with sufficient certainty to inform each of the defendants with which and how many of the losses it is sought to charge him, it is demurrable.

In Equity.

A. A. Ranney and J. R. Clark, for complainant.