With respect to the question on the peculiar right of the Bank of the United States to sue in the federal courts, it was decided, in reference to the first Bank of the United States, that no right was conferred on that bank by its act of incorporation to sue in those courts. It had only the ordinary corporate capacity to sue and be sued; and being an invisible, artificial being, a mere legal entity, and not a citizen, its right to sue must depend upon the character of the individuals of which it is composed. The Constitution of the United States supposed apprehensions might exist, that the tribunals of the states would not administer justice as impartially as those of the nation, to parties of every description, and, therefore, it established national tribunals for the decision of controversies between aliens and a citizen, and between citizens of different states. The persons whom a corporation represents may be aliens or citizens, and the controversy is between persons suing by their corporate name for a corporate right, and the individual defendant. Where the members of the corporation are aliens or citizens of a different state from the opposite party, they *348 come * come within the reason and terms of the jurisdiction of the federal courts. The court can look beyond the corporate name, and notice the character of these members, who are not considered, to every intent, as placed out of view, and merged in the corporation. Incorporated aliens may sue a citizen, or the incorporated citizens of one state may sue a citizen of another state, in the federal courts, by their corporate name, and the controversy is substantially between aliens and a citizen, or between the citizens of one state and those of another. In that case, the president, directors, and company of the Bank of the United States averred, that they were citizens of Pennsylvania, and that the defendants were citizens of Georgia; and this averment, not traversed or denied, was sufficient to sustain the suit in the circuit court. In suits by the Bank of the United States, of 1816, such an averment is not necessary, because the act incorporating the bank (a) authorizes it to sue and be sued in the circuit court of the United States, as well as in the state courts. Without such

federal courts in their essential jurisdiction in cases of suits between citizens of different states. The act of Congress of 28th February, 1839, gave aid to this decision, it being considered in its language and construction as an enlargement of jurisdiction in respect to the character of the parties.

(a) Act of Congress April 10, 1816, sec. 7.

an express provision, it would have been difficult for the Bank of the United States ever to have sued in the federal courts, if the fact of citizenship of all the members was to be scrutinized, for there were probably few or no states which had not some stockholder of the bank a resident citizen. (b) It was indispensable for Congress to provide specially for a jurisdiction over suits in which the bank was concerned, or no jurisdiction could well have been sustained. It was truly observed, by the Supreme Court, that if the Bank of the United States could not sue a person who was a citizen of the same state with any one of its members, in the circuit courts, this disability would defeat the power.

A trustee, who holds the legal interest, is competent to sue in right of his own character as a citizen or alien, as 349 the case may be, in the federal courts, and without reference to the character or domicile of his cestui que trust, unless he was created trustee for the fraudulent purpose of giving jurisdiction. (a) This rule equally applies to executors and administrators, who are considered as the real parties in interest; but it does not apply to the case of a general assignee of an insolvent debtor, and he cannot sue in the federal courts, if his assignor could not have sued there. The 11th section of the Judiciary Act will not permit jurisdiction to vest by the assignment of a chose in action (cases of foreign bills of exchange excepted), unless the original holder was entitled to sue; and whether the assignment was made by the act of the party, or by operations of law, makes no difference in the case. An executor or administrator is not an assignee, within the meaning of the 11th section of the Judiciary Act. (b) 1

(b) Osborn v. United States Bank, 9 Wheaton, 738; United States Bank v. Planters' Bank, 9 Wheaton, 904.

(a) Chappedelaine v. Dechenaux, 4 Cranch, 306, 308; Brown v. Strode, 5 Cranch, 303. See, also, 5 Cranch, 91, and Childress v. Emory, 8 Wheaton, 642. If the nominal plaintiff and the real defendant be citizens of the state, yet if the party for whose use the suit was brought was a citizen of another state, the circuit court of the United States has jurisdiction. Brown v. Strode, sup. ; McNutt v. Bland, 2 How. 9. (b) Sere v. Pitot, 6 Cranch, 332; Mayer v. Foulkrod, 4 Wash 349. But it is adjudged that a note payable to A, or bearer, may be sued in the federal courts, in

1 What is a chose in action within the section? The act speaks of "any suit to recover the contents of any promissory note or other chose in action in favor of an assignee." In Bushnell v. Kennedy, 9 Wall.

387, 393, it is said to be hard to reconcile Sere v. Pitot with later judgments, and the Chief Justice inclines to the view that the restriction of the 11th section applies only to rights of action founded on con

With respect to the District of Columbia, and to the territorial districts of the United States, they are not states, within the sense of the Constitution and of the Judiciary Act, so as to enable a citizen thereof to sue a citizen of one of the states in the federal courts. However extraordinary it might seem to be, that the courts of the United States, which were open to aliens, and to the citizens of every state, should be closed upon the inhabitants of those districts, on the construction that they were not citizens of a state, yet, as the court observed, this was a subject for legislative, and not for judicial consideration. (c) 2 * If the jurisdiction of the circuit court between citizens of different states has once vested, it is not devested

* 350

2

his own name, and that the 11th section of the Judiciary Act does not apply. Bullard v. Bell, 1 Mason, 243; Halsted v. Lyon, 2 McLean, 226. So the holder of a negotiable note, payable to the maker's own order, and indorsed, may sue the maker in the federal courts, though the holder be a citizen of another state; for the right passes not by assignment, but to bearer by delivery. Towne v. Smith, 9 Law Rep. 12. [1 Woodb. & M. 115.]

(c) The term state, in the sense of the Constitution, applies only to the members

tracts which contain within themselves some promise or duty to be performed, and not to those arising out of some wrongful act or neglect of duty to which the law attaches damages, (citing Barney v. Globe Bank, 2 Am. Law Reg. N. s. 229). He even intimates that the restriction might well have been limited to written promises to pay money, upon which an assignee could sue without using the name of the assignor.

A case not within this clause is replevin brought to recover bank-notes in specie, which lies, if the plaintiff has the requisite citizenship, although the assignor is of the same state with the defendant. Deshler v. Dodge, 16 How. 622. So a suit to recover possession of mortgaged premises; but not one to enforce the payment of the debt by sale or decree against the mortgagor. Ib. 631, citing Smith v. Kernochen, 7 How. 198; Sheldon v. Sill, 8 How. 441. See further Weems v. George, 13 How. 190. As to parties, the general rule is that to be a party for the purpose of jurisdiction, it is necessary to be one upon record, and it may be doubted whether the exception

mentioned above in note (a) extends beyond the case of bonds given to an officer in his official capacity. The de cided cases are of that nature. Hull v Hutchinson, 14 How. 586.

An equitable assignee of a claim to an account is within the clause. Wilkinson v. Wilkinson, 2 Curt. 582; ante, 302.

In addition to the cases given in note (b) above, the restriction does not apply to bonds payable in blank or to bearer. White v. Vermont & Mass. R.R., 21 How. 575; Thomson v. Lee County, 3 Wall. 327. And an indorsee may sue his immediate indorser, although he could not have maintained an action against the maker. Post, 350; Coffee v. Planters' Bank of Tennessee, 13 How. 183.

The assignee of a chose in action must show affirmatively that the action might have been maintained by the assignor it no assignment had been made. Bradley v. Rhines, 8 Wall. 393.

Barney v. Baltimore, & Wall. 280; ante, 345, n. 1. Compare Miners' Bank v. Iowa, 12 How. 1; Scott v. Jones, 5 How. 343, cited ante, 326, n. 1.

by a subsequent change of domicile of one of the parties, and his removal into the same state with the adverse party, pendente lite. (a) The jurisdiction depends upon the state of things at the time the action is brought. So, an indorsee of a note, who resides in one state, may sue his immediate indorser, who resides in another state, though that immediate indorser and the maker be residents of the same state. The indorsement is a new contract between the parties to the record, quite distinct from the original note. (b)

5. Jurisdiction when a State is interested. The case of Osborn v. The Bank of the United States (e) brought into view important principles touching the constitutional jurisdiction of the federal courts, where a state claimed to be essentially a party. The court decided, that the circuit courts had lawful jurisdiction, under the act of Congress incorporating the national bank, of a bill in equity brought by the bank for the purpose of protecting it in the exercise of its franchises, which were threatened to be invaded under a law of the state of Ohio; and that as the state itself could not be made a party defendant, the suit might be maintained against the officers and agents of the state who were intrusted with the execution of such laws.

As the amendment to the Constitution prohibited a state to be made a party defendant by individuals of other states, the court felt the pressure and difficulty of the objection, that the state of Ohio was substantially a party defendant, inasmuch as the process of the court in the suit acted directly upon the state, by restraining its officers from executing the law of the state. The direct interest of the state in the suit was admitted, but the objection, if it were valid, would go, in its consequences, completely to destroy the powers of the Union. If the federal * 351 courts had no jurisdiction, then the agents of a state, under an unconstitutional law of the state, might arrest the execution of any law of the United States. A state might impose a fine or penalty on any person employed in the execu

of the American confederacy, and does not extend to a territory of the United States. Seton v. Hanham, R. M. Charlton (Ga.) 374; Hepburn v. Ellzey, 2 Cranch, 445; Corporation of New Orleans v. Winter, 1 Wheaton, 91. [Ante, 326, n. 1.]

(a) Morgan v. Morgan, 2 Wheaton, 290; Clarke v. Matthewson, 12 Peters, 164. (b) Young v. Bryan, 6 Wheaton, 146; Mollan v. Torrance, 9 Wheaton, 537. [Coffee v. Planters' Bank of Tennessee, 13 How. 183.]

(c) 9 Wheaton, 738.

tion of any law of the Union, and levy it, by a ministerial officer, without the sanction even of its own courts. All the various public officers of the United States, such as the carrier of the mail, the collector of the revenue, and the marshal of the district, might be inhibited, under ruinous penalties, from the performance of their respective duties. And if the courts of the United States cannot rightfully protect the agents who execute every law authorized by the Constitution, from the direct action of state agents in the collection of penalties, they could not rightfully protect those who execute any law. The court insisted, that there was no such deplorable failure of jurisdiction, and that the federal judiciary might rightfully protect those employed in carrying into execution the laws of the Union from the attempts of a particular state, by its agents, to resist the execution of those laws. It may use preventive proceedings, by injunction or otherwise, against the agents or officers of the state, and authorize proceedings against the very property seized by the agent; and the court concluded, that a suit brought against individuals for any cause whatever, was not a suit against a state, in the sense of the Constitution. The Constitution contemplated a distinction between cases in which a state was interested, and those in which it was a party; and to be a party for the purpose of jurisdiction, it is necessary to be one upon record. The Constitution only intended a party on record, and to be shown in the first instance by the simple inspection of the record, and that is what is intended in all cases where jurisdiction depends upon the party. (a)1

The question of jurisdiction depending upon the character and residence of parties, came again into discussion in the case *352 of The Bank of the United States v. The Planters' * Bank

(a) In the case of McNutt v. Bland, 2 How. 9, it was decided, that a citizen of another state might sue a citizen of Mississippi, in the circuit court of the United States, though he sued in the name of the nominal plaintiff or trustee, who was also a citizen of Mississippi, provided he was the party in interest. Mr. Justice Daniel dissented, and contended, on the authority of prior decisions, that the jurisdiction depended, not on the situation of the parties concerned in interest, but on the character of the parties appearing on the record.

1 The opinion of Mr. Justice Daniel mentioned in note (a) seems to state the general rule, and the exception is in the

case of bonds given to an officer in his official capacity, ante, 349, n. 1.