[M'Micken v. Webb.]

that the defendant, Amos Webb, who was also averred to be a citizen and resident of the state of Louisiana, with Mary Ann Smith, in her own capacity, and also as tutrix to Catharine Smith and Sarah Smith, minor children, and heirs of Jedediah Smith, who is now deceased, and whom the said Mary Ann, as his widow, now survives, having, since his death, intermarried with Ira Smith, who is, therefore, the tutor of said children, all of whom, also, arc citizens of and resident in the state of Louisiana, were jointly and severally indebted to the plaintiff in the sum of 4,866 dollars 93 cents, besides interest and costs. The plaintiff averred that said indebtedness depended upon the following facts:

In 1815 the petitioner, the plaintiff, and one James H. Ficklin, formed a copartnership, and did business in the parish of Feliciana, in the state of Louisiana, under the name of M'Micken & Ficklin ; that on or about the 8th of September, 1817, the partnership was dissolved by mutual consent; and the stock of merchandise then on hand the said Ficklin agreed to take to his own account, and to pay for one-half of the same to the petitioner, at the original cost, with the addition of five per centum; to conclude which agreement, the said Ficklin thereupon executed the note of which the following is a copy:

"$4,866 932.

ST. FRANCISVILLE, Sept. 20, 1817.

"On the 1st day of March, 1819, we, or either of us, promise to pay, jointly or separately, unto M'Micken & Ficklin, or order, four thousand eight hundred and sixty-six dollars ninety-three and onehalf cents, being for value received, with ten per cent. interest, after due, until paid.

The petitioner then avers that the note was made payable to M Micken & Ficklin; that it was in fact, and intended so to be for his (petitioner's) portion of said partnership property, the same having been made after said firm had been dissolved; the joint name being used merely for the petitioner's sole benefit, the said Ficklin being in no wise a party thereto, except as one of the obligors.

The petitioner further avers that said Mary Ann Smith, and her two said minor children, (Catharine and Sarah) now own and possess

[M'Micken v. Webb.]

all the property and estate of said Jedediah Smith; the said Catharine in right of her community, and the said children as heirs, and by reason of which they have become obligated, in solido, to pay to the petitioner the amount of the note aforesaid.

A citation was prayed for in the usual form. Service was legally made, and, on the 11th of February, 1835, Webb,'one of the defendants, appeared, by his attorney, and filed three pleas to the jurisdiction of the court. The other defendants, Mary Ann Smith and her children (Catharine and Sarah) appeared on the same day, by attorney, and filed two pleas to the jurisdiction. The pleas by all the defendants, with the exception of the first, are the same, and, they 'presented the same questions for consideration.

The first plea by Webb is, "That while he admits he is a citizen of the state of Louisiana, and that he was in New Orleans when the citation was served, he avers that he resides in the parish of St. Landry, in the western district of said Louisiana; wherefore he prays judgment, and whether the court will take further cognisance of the cause as regards him, or that the suit may be transferred to said western district of Louisiana, at the cost of the petitioner."

The second plea, which is common to all the defendants, avers, that as the note stated in the petition is made payable to M'Micken & Ficklin-that, as the petitioner can only bring suit thereon by virtue of some assignment thereof, and protesting that there is no such assignment, it does not appear, by averment in the petition, that said M'Micken & Ficklin, comprising the payees of said note, could have prosecuted their suit against the makers thereof in this court. To these statements is added the general prayer that the court will not take jurisdiction.

The third plea avers that it does not appear by the petition that the payees, at the time said note was made, could have prosecuted, or that the makers could have been prosecuted, in the district court.

Several other pleas appeared in the record, but they present matter in bar, and as they were not considered by the court below, they are not stated.

In December, 1835, the cause came on for hearing, and the judgment of the court is thus recorded:

"The court having maturely considered the plea to the jurisdiction made in this case, now order that the same be sustained, and that the plaintiff's petition be dismissed at his costs."

[M'Micken v. Webb.]

The plaintiff prosecuted a writ of error to this Court.

The case was argued at the bar by Mr. Storer, for the plaintiff in error; and the counsel for the defendants, Mr. Eustis, submitted a printed argument to the Court.

Mr. Storer, stated that the plaintiff insisted that the judgment of the circuit court of Louisiana should be reversed.

As the opinion of the court is not clear in designating the particular plea which was sustained, it is necessary to examine them all. None of them will furnish a legal ground for the judgment of the court below.

As to the residence of the defendant, Webb, in the western district, at the time he was served with process by the marshal of the eastern district, it is not apprehended that the fact can change the relation of the debtor, or take away the jurisdiction of the court.

The state of Louisiana is divided into two districts by the law of 1823. Laws U. S. vol. 7, 173. "For the more convenient transaction of business," as is stated in the first section; there is no limitation of jurisdiction; there is but one judge to preside over both districts, and the same practice obtains in each.

The limitation in the judiciary act of 1789, c. 20, § 11, it is believed, is clear on this question. "If the defendant is an inhabitant of, or is found in the district at the time process is served, the action is sustainable."

As to the second plea which is set up by all the defendants, the plaintiff in error insists that, by the law of 1824, Laws U. S. vol. 7, 315, regulating the mode of practice "in the courts of the United States for the district of Louisiana;" it is enacted that the mode of proceeding in civil causes therein, shall be conformable to the laws directing the mode of practice in the district courts of that state. The mode of procedure by petition is adopted from the state practice, and is, in fact, a suit in chancery; a procedure derived from the civil law, and intended to avoid the technicalities of the ordinary pleadings in courts of common law. It is immaterial, then, as to the objection of an assignment to transfer title, when, in equity, a parol transfer, for good consideration, is equally as valid as a written assignment. Besides, a chancellor will reform a contract to suit the intentions of the parties.

[M'Micken v. Webb.]

The plea of the defendants admits all the allegations in the petition, and they, it is insisted, make out a clear case of mistake.

If Ficklin had no interest, he need not have been made a party. If he had, there was a necessity that the court shall have required that he should be joined in the suit, before the final decree was rendered: when joined, it would then be the proper time to ascertain whether he was subject to the jurisdiction or not. In no view of the case was there a necessity that Ficklin should be made plaintiff, provided the statements in the petition are true; and as such they must now be regarded.

As Ficklin was not interested, nor could be made plaintiff on any just principle, it is immaterial where his residence was, or is. M'Micken, the petitioner, now resides in Ohio; and it was never doubted but the original parties to a contract, might avail themselves of any federal tribunal where their residence gave jurisdiction. That jurisdiction does not depend upon the contract, but upon the legal character of the parties. It is admitted that when a note is assigned, the assignors must have had the ability to sue in the United States court at the time of the transfer; and this decision was made to prevent the transfer of notes in "fraudem legis;" to deny to the resident creditor, when he could not in his own name sue in the circuit court, to use the name of another. Here, the plaintiff labours under no such disability.

The third plea is similar to the second, and is answered by the same argument which has been opposed to it. It is broader, however, in one respect, as it includes the averment that the defendants, the makers of the note, could not have been sued in the United States court when the note was made, or when it was assigned. As to a part of this matter, the objection is destroyed by the fact that the place where the contract is made does not fix jurisdiction: and as to the other, the force of the plea is not perceived. If the note in its origin acquired no locality, certainly a subsequent transfer could not give it an exclusive "situs;" besides, as it is contended, no assignment is set up, for none was necessary.

Mr. Eustace, for the defendant, submitted the following points:

1. The plaintiff does not make such allegations as to give the United States courts jurisdiction of the case; and this is pointed out by the exception of the defendants in plea to the jurisdiction.

[M'Micken v. Webb.]

2. In a suit against the drawers of a promissory note, on the law side of the United States court, under the act of 1789, § 11, all the payees must join and allege the facts necessary to give jurisdiction.

3. In all obligations not under seal, in a suit between original parties, when the plaintiff in his own declaration or petition, shows all the defendants to be naked sureties, there are no equities against them, either for jurisdiction, form of action, or on the merits.

This is a suit on a promissory note, in the following words:

$4,866 93.

St. Francisville, Sept. 2, 1817. On the first day of March, 1819, we, or either of us, promise to pay, jointly or separately, unto M'Micken & Ficklin, or order, four thousand eight hundred and sixty-six dollars, ninety-three and onehalf cents, being for value received, with ten per cent. interest, after due, until paid.

It is a promissory note, payable to order, and therefore completely within the act of September 24, 1789, sec. 11, which is as follows: "Nor shall any district or circuit court have cognisance of any suit to recover the contents of any promissory note, or other chose in action, in favour of any assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made; except in cases of foreign bills of exchange." 1 Story's Laws of the U. S. 57. Sergeant's Con. Law, 116.

It is to be observed, that the suit on this promissory note is brought by M'Micken alone, although the note is payable to M Micken & Ficklin. No endorsement or assignment is alleged to have been made by M'Micken & Ficklin, but the following allegation is made:

"Your petitioner further shows, that said obligation was erroneously made payable to M'Micken & Ficklin, though in truth and in fact said note was dated and executed subsequently to the said dissolution of said firm, and was made towards and in behalf and for the sole and individual benefit of your petitioner; the joint name of the then late firm being used and intended for your petitioner's sole benefit, and Ficklin being in no wise a party, or interested therein, except as one of the obligors."