The Revised Statutes further direct that "the trial of offenses punishable with death shall be had in the county where the offense was committed, where it can be done without great inconvenience." 38 The fact that a suit relates to land within the district does not give the Circuit Court jurisdiction where there is no Federal question nor difference of citizenship.39 Where a suit is brought in a Circuit Court to recover land in another district together with the rent of the same, the court has jurisdiction to award judgment for the value of the rents."

§ 23. Special limitation upon jurisdiction of the Circuit Court for Southern District of New York.- The Revised Statntes provide that "the original jurisdiction of the Circuit Court for the Southern District of New York shall not be construed to extend to causes of action arising within the Northern District of said State." This does not exclude from the jurisdiction of the court causes of action that arise without the State.2 It has been held that this forbids the issue by that court of an injunction to prevent the infringement of a patent when the sole previous cases of infringement occurred in the northern district of New York. The effect of a recent statute upon this limitation has not been decided.4

§ 24. Suits by assignees.-The statutes further limit the jurisdiction of the courts of the United States by providing that no Circuit or District Court shall "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."1

The words "if such instrument be payable to bearer and be not made by any corporation" do not limit the comprehensive

ners of the phrase "chose in action." The effect of this clause is to deprive the Circuit Courts of all jurisdiction for the recovery of promissory notes or other choses in action, except (1) suits upon foreign bills of exchange; (2) suits which might have been brought there had no assignment or transfer been made; and (3) suits upon choses in action made by corporations and payable to bearer.3 A draft drawn in one State and payable in another of the United States is a foreign bill of exchange.* A check is a bill of exchange. A promissory note payable "to the order of " is equivalent to a promissory note payable to bearer. A bill of exchange or promissory note drawn to the order of the bearer and by him indorsed in blank is payable to bearer within the meaning of the statute. A county warrant payable to a specified person or bearer is equivalent to one payable to bearer. A city, county," incorporated town,11 or township, is held to be a corporation, and the holder of their bonds, warrants or other written obligations payable to bearer can sue in a Federal court in a proper case irrespective of the citizenship of any previous holder. The assignee of a city warrant not payable to bearer cannot sue in a Federal court which would have had no jurisdiction of a suit by his assignor.13 "The terms used, 'the contents of any promissory

12

2 Mexican Nat. R. Co. v. Davison, is overdue when it is assigned does 157 U. S. 201, 206, 207. not deprive the assignee of his right to seek the Federal jurisdiction. Cross v. Allen, 141 U. S. 528.

3 Newgass v. New Orleans, 33 Fed. R. 196; New Orleans v. Quinlan, 173 U. S. 191.

4 Buckner v. Finley, 2 Pet. 586, 593. 5 Bull v. Bank of Kasson, 123 U. S. 105.

"Steel v. Rathburn, 42 Fed. R. 390; Lyon County v. Keene F. C. Sav. Bank (C. C. A.), 100 Fed. R. 337.

7 Bank of British N. A. v. Barling, 46 Fed. R. 357; s. c. in C. C. A., 56 Fed. R. 260; Jones v. Shapero, 57 Fed. R. 457. A promissory note payable to the order of a specified person and indorsed by him in blank is not a promissory note payable to bearer within the statutory exception. Thomson v. Town of Elton, 100 Fed. R. 145. The fact that a note payable to bearer and secured by a mortgage

8 Thompson v. Searcy County (C. C. A.), 57 Fed. R. 1030; Jerome v. Rio Grande Co. Com'rs, 18 Fed. R. 873. So is a county drain order. Gratiot County v. Aylesworth, 159 U. S. 250. 9 New Orleans v. Quinlan, 173 U. S. 191.

10 Leake Co. Com'rs v. Dudley, 173 U. S. 243; Rollins v. Chaffee County, 34 Fed. R. 91; Wilson v. Knox County, 43 Fed. R. 481.

11 A New York town, Andes v. Ely, 159 U. S. 312.

12 An Ohio township, Loeb v. Trustees of Columbia Tp., 91 Fed. R. 37.

13 Cloud v. City of Sumas, 52 Fed. R. 177; New Orleans v. Benjamin, 153 U. S. 411. The acceptance by a

note or other chose in action,' were designed to embrace the rights the instrument conferred which were capable of enforcement by suit. They were not happily chosen to convey this meaning; but they have received a construction substantially to that purport in repeated decisions." 14

16

The phrase "suit to recover the contents of a chose in action" includes suits to recover debts, or any claims for damages for breach of contract, or for torts connected with contract.15 The phrase also includes suits to foreclose mortgages, and to enforce the specific performance of contracts for the delivery of real or personal property," and to recover upon a contract of insurance with a reformation of the policy.18 The phrase does not include a suit of replevin 19 or ejectment,20 or otherwise brought to recover property taken by the defendant before the assignment of the title to the plaintiff; " nor a suit to recover damages for the conversion of personal property; 22 nor a suit in equity to compel the transfer of stock on the books of a corporation; nor, it has been held, a suit by the

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city of an order by a contractor directing the payment to a third person of part of the contract price was held to constitute a new contract between the city and the payee, and not to be the assignment of the original contract. City of Superior v. Ripley, 138 U. S. 93.

14 Shoecraft v. Bloxham, 124 U. S. 730, 735; affirmed in Plant Inv. Co. v. Jacksonville, T. & K. W. Ry. Co., 152 U. S. 71, 76.

15 Bushnell v. Kennedy, 9 Wall. 387; 390; Sere v. Pitot, 6 Cranch, 332, 335, 336; Sheldon v. Gill, 8 How. 441, 449, 450; Tredway v. Sanger, 107 U. S. 323, 325; Mersman v. Werges, 112 U. S. 139, 143; Corbin v. County of Black Hawk, 105 U. S. 659, 665, 666. But not a suit by the assignee of a note to recover damages against a public officer for the illegal execution of the same. Indiana v. Glover, 155 U. S. 513.

16 The holder of a promissory note payable to bearer, which is secured by a mortgage, may foreclose in a

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Federal court in a case where the original holder could not. Tredway v.

Sanger, 107 U. S. 323; Cross v. Allen, 141 U. S. 528. Not, however, where the note is void and the mortgage valid. Mersman v. Werges, 112 U. S. 139.

17 Corbin v. County of Black Hawk, 105 U. S. 659, 665; Shoecraft v. Bloxham, 124 U. S. 730; Plant Inv. Co. v. Jacksonville, T. & K. W. Ry. Co., 152 U. S. 71, 76; Jackson & S. Co. v. Pearson, 60 Fed. R. 113.

18 Laird v. Indemnity Mut. M. Co., 44 Fed. R. 712.

19 Deshler v. Dodge, 16 How. 622, 631.

20 Smith v. Kernochen, 7 How. 198. 21 Gest v. Packwood, 39 Fed. R. 525. 22 Ambler v. Eppinger, 137 U. S. 480. Nor a claim against a railroad company to recover excessive overcharges for freight. Conn v. Chicago, B. & Q. R. Co., 48 Fed. R. 177. 23 Jewett v. Bradford S. B. Tr. Co., 45 Fed. R. 801.

assignee of a corporate debt to enforce the individual liability of a stockholder; 24 nor a suit by the assignee of a claim against a decedent to set aside a decree for fraud and to compel the payment of the claim; 25 nor a suit founded upon a judgment which seeks other relief than the payment of the same, although the suit in which the judgment was recovered could not have been brought in a Federal court.26 But it seems that a suit to collect a judgment cannot be brought by an assignee in a Federal court unless his assignor might have sued there; 27 and the holder of a municipal warrant who seeks to recover municipal assets without a previous judgment at law is within the meaning of the phrase.28

It has been suggested that the restriction applies only to contracts "which may be properly said to have contents," not to "mere naked rights of action founded on some wrongful act," some neglect of duty to which the law attaches damages, such as failure to protest a note; but to "rights of action founded on contracts which contain within themselves some promise or duty to be performed." 29 It has been held that an indorsee who is a citizen of the same State as the maker of the note may sue his immediate indorser in a Federal court, if that indorser be a citizen of a different State; 30 but that when, in a suit against a remote indorser, the plaintiff derives his title through a citizen of the same State as the defendant, there is no jurisdiction on account of the difference of citizenship between the latter and the plaintiff;" that the person who has advanced money upon an accommodation note can sue the

24 Ballard v. Bell, 1 Mason, 243. 25 Bertha Z. & M. Co. v. Vaughn, 88 Fed. R. 566.

26 Bean v. Smith, 2 Mason, 252, 269; Ober v. Gallagher, 93 U. S. 199, 206; Mississippi Mills v. Cohn, 150 U. S. 202.

But see Metcalf v. Watertown, 128 U. S. 586. Nor a suit to vacate the satisfaction of a judgment. Hay v. Alexandria & W. R. Co., 20 Fed. R. 15. But see Blacklock v. Small, 127 U. S. 96.

27 Metcalf v. Watertown, 128 U. S. 586; First Nat. Bank v. Dull County, 74 Fed. R. 373.

36

34

38

maker, if a citizen of a different State, in a Federal court, although the indorser is a citizen of the same State; and that under similar circumstances the payee of a bill of exchange can sue the acceptor although he could not have sued the drawer in the Federal court.33 Assignees in insolvency are included within this restriction; but receivers 35 and executors and administrators are not. A party who claims the benefit of a contract as an incident to another contract is to be considered as the assignee of the former when he sues to enforce it, although it has never been formally assigned to him." A party who claims by subrogation is not within this restriction." It has been held that the restriction does not apply when the only reason why the assignor could not have sued was that his claim was less in value than the jurisdictional amount.3 The assignee must aver in his pleading that his assignor might have sued in the Federal court. An allegation in a bill filęd by an assignee of claims against a Louisiana corporation, that the assignors are and were citizens of States other than Louisiana, and competent as such to sue the defendant, in the Circuit Court, if no assignment has been made, was held to be insufficient to confer jurisdiction on the Circuit Court because the State or States of which the assignors were citizens were not specifically designated." Where at the time of the commencement of the suit the assignor might have sued in the Federal court, but at the time of the assignment he could not, it was

32 Goldsmith v. Holmes, 36 Fed. R. 484; s. C., Holmes v. Goldsmith, 147 U. S. 150; Wachusett Nat. Bank v. Sioux C. S. Works, 56 Fed. R. 321.

33 Superior v. Ripley, 138 U. S. 93. 34 Sere v. Pitot, 6 Cranch, 332, 336. So are buyers at a judicial sale. Glass v. Concordia P. Police Jury, 176 U.S. 207.

35 Davies v. Lathrop, 12 Fed. R. 353. But see U. S. Nat. Bank v. McNair, 56 Fed. R. 323; Thompson v. Pool, 70 Fed. R. 725.

36 Sere v. Pitot, 6 Cranch, 332, 336; Chappedelaine V. Dechenaux, 4 Cranch, 306; Childress v. Emory, 8 Wheat. 642.

37 Plant Inv. Co. v. Jacksonville, T.

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& K. W. Ry. Co., 152 U. S. 71,76. But see Portage C. W. Co. v. Portage, 102 Fed. R. 769.

38 New Orleans v. Caines' Adm'r,138 U. S. 595, 606.

39 Bernheim v. Birnbaum, 30 Fed. R. 885, 887; Bowden v. Burnham (C. C. A.), 59 Fed. R. 752; Bergman v. Inman, 91 Fed. R. 293; Chase v. Sheldon R. M. Co., 56 Fed. R. 625. See also Hammond v. Cleaveland, 23 Fed. R. 1.

40 Parker v. Ormsby, 141 U. S. 81; U. S. Nat. Bank v. McNair, 56 Fed. R. 323.

41 Benjamin v. New Orleans (C. C. A.), 74 Fed. R. 417.