Argument for Appellants.

was filed. On issue joined on this plea, it was overruled, and Small put in an answer to the bill, as did also Robertson.

The defendant Helen Robertson Blacklock put in an answer, admitting the allegations of the bill, and averring that Robertson held the bond and mortgage as a trustee for herself and her sisters, in whom was the real and actual interest therein; that the attempted payment by Small was without legal effect; that the bond and mortgage were still the property of the defendant and her sisters; and that she joins in the prayer of the bill that the pretended payments of the bond, by Small to Robertson, and the satisfaction entered on the mortgage, be declared null and void, that the bond and mortgage be declared valid and subsisting obligations of Small to Robertson, as the trustee of a trust for the benefit of the defendant and her sisters, and that Small be decreed to pay the defendant and the plaintiffs the amount of money secured by the bond and mortgage.

Under replications to the answers, proofs were taken by the several parties. The case was heard on its merits, and a decree was made dismissing the bill, with costs. From this decree the plaintiffs and the defendant Helen Robertson Blacklock appealed to this court.

Mr. B. H. Rutledge (with whom was Mr. James Lowndes) for appellants contended, on the question of jurisdiction, as follows.

I. "The distinction, as it respects the application of the 11th section of the Judiciary Act to a suit, concerning a chose in action is this-when the suit is brought to enforce the contract, the assignee is disabled unless it might have been brought in the court if no assignment had been made; but if brought for a tortious taking or wrongful detention of the chattel, then the remedy accrues to the person who has the right of property or of possession at the time, the same as in case of a like wrong in respect to any other sort of personal property." Deshler v. Dodge, 16 How. 622, 631.

"The assignee of a chose in action may maintain a suit in

Argument for Appellants.

the Circuit Court to recover possession of the specific thing: or damages for its wrongful caption or detention, though the court would have no jurisdiction of the suit if brought by assignors." Bushnell v. Kennedy, 9 Wall. 391.

What is the fundamental character of this suit? To recover possession and control of specific papers-tortiously taken and wrongfully detained-by virtue of an act apparently legal on the face of the papers, but totally illegal and without effect. If "founded on contract," the court is without jurisdiction. If founded on tort, it has jurisdiction. The question is purely technical.

(a) There is no essential difference in principle between Deshler's and the present case. In each the assignee sues when the assignor could not. In each the critical contention is to obtain possession of a specific personal chattel-bank-notes in one-bond and mortgage in the other of which the defendant had possession under an apparent claim of right, viz., an unlawful distress in the one, and an unlawful payment in the other. In each the crucial point is whether the act under which the defendant claims is lawful or not. If lawful, the possession is lawful; if unlawful, it is tortious.

There are slight differences in the facts of the cases. Deshler proceeded by replevin. The Blacklocks by bill in equity. Either course is correct. The latter is the most approved. The same doctrine applies to other instruments and securities, and other evidences of property which are improperly withheld from the persons who have an equitable or legal interest in them, or who have a right to have them preserved. This redress, a court of common law is for the most part incapable of affording, since the prescribed forms of its remedies rarely enable it to pronounce a judgment in rem in such cases which is or can be made effectual. It is true that an action of detinue or even replevin might in some few cases lie and give the proper remedy if the thing could be found; but generally in actions at law damages only are recoverable, and such a remedy must in many cases be wholly inadequate. This constitutes the true ground for the prompt interposition of courts of equity for the recovery of the specific deeds or other instruments.

Argument for Appellants.

(b) But it may be said the ulterior object to obtain payment of the bond-determines it to be "founded on contract." It was not so considered in Deshler's case. It is true if the contract of the bond and mortgage had not been made, this suit could not exist. But it is equally true, if Small had not got these papers into his possession by an illegal and tortious act, this suit could not exist. It is most natural and appropriate for the plaintiffs to set aside the tort before they attempt to proceed on the contract.

(c) Also that the structure of the bill shows contract to be its foundation. Prima facie there is no contract remaining. Small says there is not, that it has been discharged by a given act, and is as if it had never been, and the papers are his. Who is to determine this? It stands until it is annulled by the court. The bill asks that it be annulled the lien of the mortgage declared existing and the papers delivered into the custody of the owners. Why not? If the act was illegal, the rest follows ex necessitate.

(d) Also that the bill prays foreclosure, and this shows the true inwardness of the case. The practice of equity is thus stated by this court: "Having obtained rightful jurisdiction of the parties and the subject matter of the action for one purpose, the court will make its jurisdiction effectual for complete relief." Ober v. Gallagher, 93 U. S. 199, 206; Tayloe v. Marine Ins. Co., 9 How. 390; Ward v. Todd, 103 U. S. 327; Quattlebaum v. Black, 24 So. Car. 55.

The rulings of Deshler v. Dodge and Bushnell v. Kennedy are not denied, nor are those of Ober v. Gallagher; but it is said the rule of the last case does not apply because, “although the court has obtained rightful jurisdiction of the parties and subject matter of the action for one purpose, it cannot proceed to adjudicate another subject matter embraced in the suit, of which it is expressly forbidden to take cognizance." But Chief Justice Marshall says in Osborn v. Bank of the United States, 9 Wheat. 738, 822, if jurisdiction is once obtained, "then all other questions must be decided as incidental to this, which gives that jurisdiction - These other questions cannot arrest the proceedings."

Argument for Appellants.

The analogy between this proceeding and bills for discovery, where general relief is given, although the right of discovery alone gives jurisdiction, is instructive. And further, the subject matters of the suit are, although distinct in one aspect, intimately connected. The tort is the root of the suit, and gives it its fundamental and jurisdictional character; and it is necessary that it shall be first declared before a right of action accrues on the mortgage or bond.

In fact and in law, the foreclosure or further proceedings can and will be simply "in addition to, and continuance of " ancillary to the original suit and such proceedings are maintainable "without reference to the citizenship or residence of the parties." Krippendorf v. Hyde, 110 U. S. 276; Jones v. Andrews, 10 Wall. 327; Pacific Railroad v. Missouri Railroad, 111 U. S. 505; Dewey v. Gas Coal Co., 123 U. S. 329.

II. If the parties on the record-plaintiffs and defendants respectively -are citizens of different States-and thus far the jurisdiction is unobjectionable, is it ousted by the fact that one defendant, who has a like but several interest with the plaintiffs is a citizen of the same State, with the defendant against whom the plaintiffs make their contention?

The plaintiffs have a constitutional right to sue in the Federal courts. In all the cases where this right is denied, either a citizen of the same State with defendant has joined in the suit as plaintiff; or has made a formal - not a substantial release to the plaintiffs-by such means to juggle into the jurisdiction; or otherwise sought to trick themselves into the jurisdiction. Removal Cases, 100 U. S. 457; Barney v. Baltimore, 6 Wall. 283; Williams v. Nottawa, 104 U. S. 209; Peninsular Iron Co. v. Stone, 121 U. S. 631; Sewing Machine Companies' Case, 18 Wall. 553.

If the principle contended for is admitted, the rights of citizens dependent on the Constitution are eliminated: and in its place the volition of one or more persons is substituted as the basis of jurisdictional right.

Mr. James Simons and Mr. Samuel Lord for appellees.

Opinion of the Court.

MR. JUSTICE BLATCHFORD, after stating the case, delivered the opinion of the court.

It appears by the proofs in the record that John F. Blacklock, the assignor of the bond, was, at the time of the assignment, a citizen of South Carolina, and continued to be such until this suit was commenced, and that the defendant Small was, when this suit was commenced, a citizen of South Carolina. Under these circumstances, the provision of the 1st section of the act of Congress of March 3, 1875, c. 137, (18 Stat. 470,) applies to this case. That provision is as follows: "Nor shall any Circuit or District Court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant, and bills of exchange."

The present suit is a suit against Small, founded on contract, namely, his bond and mortgage in favor of the plaintiffs, who claim only under the assignment made by their father, John F. Blacklock, to the defendant Robertson. John F. Blacklock could not have prosecuted this suit in the Circuit Court of the United States for the District of South Carolina, to recover on the bond and mortgage against Small, if he had made no assignment of the bond to Robertson, for the reason that he and Small were not citizens of different States when the suit was commenced, but were both of them at that time citizens of South Carolina.

In answer to this objection, it is contended by the appellants, that this suit is not to be regarded as a suit founded on the contract of Small, to recover thereon, but is to be regarded as a suit for the delivery of the bond and mortgage by Small to the plaintiffs, founded on their wrongful detention, and that the rest of the relief prayed by the bill is ancillary and incidental; and the cases of Deshler v. Dodge, 16 How. 622, and Bushnell v. Kennedy, 9 Wall. 387, are cited as authorities; but they do not apply.

The case of Deshler v. Dodge was an action of replevin, brought by a citizen of New York against a citizen of Ohio,