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of a large amount of metropolitan police of is hereto annexed as Exhibit 'A,' and warrants, issued to officers and members of made a part of this bill; that said claims the metropolitan police, and assignee of have been duly assigned and transferred to sundry creditors of said board of metropoli- your orator for a valuable consideration, tan police, on the 21st of October, 1886, and he is now the holder and owner there. brought suit in the 26th judicial district of. court in and for the parish of Jefferson, Lou- “And your orator avers that each of said isiana, against said city of New Orleans, said persons in whose favor said claims accrued, city of benner and said parishes of Jeffer- and to whom said certificates were issued, son and St. Bernard, in behalf of himself or their heirs or legal representatives, are and all other creditors of said board, simi- citizens respectively of states other than larly situated, praying the appointment of Louisiana, and competent as such citizens a receiver and enforcement of the liabilities to maintain suit in this honorable court of said several defendants, for the purpose against said defendant for the enforcement of paying and discharging the obligations of said indebtedness, represented by said of said board; that citation was served on certiticates and transfers, if no assignment the 26th of October, 1886, upon each of said or transfer thereof had been made, the citi. defendants to appear and answer in said zenship of said persons being as follows, suit, and afterwards said suit was removed viz.: into this honorable court, where holders of “Said D. M. Moore is a citizen of the state warrants and claims against said board, of New York. amounting to a much larger sum, appeared “Said Eli Jones is a citizen of the state of before the master appointed by the order Texas. of the court, and proved their demand, the * "Said Peter Joseph is a citizen of the * claims now held by your orator being among state of Colorado. those so presented and proved, as will ap- “Said Robert Crofton is a citizen of the pear by said master's report now on file, state of Mississippi. which is here referred to for greater certain. “Said W. C. Bodechtel is a citizen of the ty; that the case as against the city of New state of California. Orleans was afterwards dismissed upon the “Said J. H. Moore is a citizen of the ground that this court had not acquired ju- state of Colorado. risdiction thereof; but as to all other de. “Said Edward Masterson is a citizen of fendants the same still remains pending and the state of Ohio. undisposed of.

“Said John Dinan is a citizen of the state “That afterwards, to wit: February 9th, of Ohio. 1891, Henry W. Benjamin exhibited and “Said F. Coleman is a citizen of the state filed his bill of coniplaint in this honorable of Ohio. court against said city of New Orleans and "Said R. H. Taylor is a citizen of the state others for an account of the sums due by of Illinois. said defendants, applicable to the*

*payment

"Said W. H. Murphy is a citizen of the of the certificates and claims against said state of Michigan. police board held by him, being the same "Said G. H. ltamersley resided in and was claims upon which said Goldstein brought a citizen of the state of California, until he suit as aforesaid, and which said Ben min died recently leaving two sons, G. H. Ham. had acquired; that various persons having ersley and Hamersley, as his sole heirs, like claims against said police board inter- who are also citizens of the state of Calivened in said suit and proved the same be- fornia. fore the master therein; that among said "Said Dr. J. B. Cooper resided in and was claims sued upon by said Benjamin and said also a citizen of the state of California, interveners were included the obligations and where he died leaving Mrs. Catherine E. claims since acquired and now held and Cooper, his widow in community, as sole owned by your orator, hereinafter enumer- heir under the laws of said state of which ated and described; that process of subpæna she is a citizen. in said case was duly served upon said city "15th. And your orator further shows and of New Orleans February 9th, 1891, that avers that there are now outstanding, due she afterwards appeared and answered and and unpaid, other warrants and certificates a final decree was made against her in favor issued by said board of metropolitan police, of said complainant, and the interveners and sums due and owing by it, for services therein establishing their claims and decree rendered and supplies furnished thereto, ing the said city to pay the same, which amounting to a large sum, the exact amount suit was afterwards dismissed for want of thereof being unknown to your orator, but jurisdiction in this honorable court, but he avers upon information and belief that, without prejudice to a new bill, which de- including interest thereof, the amount er. cree became final January 31st, 1898. ceeds two hundred thousand dollars ($200,

“12th. That your orator is the holder and 000); that the only assets of said board of owner of certificates issued by said board of metropolitan police, at the time it was abol. metropolitan police in acknowledgment of ished, were the amounts due to it by the said its indebtedness for services rendered to it city of New Orleans, and by other municipal by the persons therein named and of trans- corporations within said police district; fers of debts due by said police board, amount that the amount due by said city as afore ing to three thousand, thirty and forty- said is applicable to the payment of the eight-100 dollars ($3,030.48), a list where claims held and owned by your orator as

• 38

aforesaid, the same being for services rency of the city of New Orleans are fully sufidered within said city, and that he is enti. cient. tled to an accounting by said city, in order “ 'It is further ordered that defendant's that the amount due by her may be ascerthird and fourth grounds of demurrer are tained and fixed and decreed to be paid, and hereby sustained, the court finding and de applied to the payment of your orator's creeing that there is no equity in the bill of claims, and of such others as shall join complaint herein, and said bill is therefore herein and contribute to the expense of this dismissed for want of equity with full ressuit.

ervation of complainant's right to sue and “In consideration whereof and inasmuch proceed at law.' as your orator has not a complete and ade- “The complainant below prosecuted an apquate remedy at law to the end*therefore peal to this court, and assigns herein errors that the said defendant may, if she can, show as follows: why your orator should not have the relief “'Ist. Said circuit court erred in sustainhereby prayed, and that she may full, true, ing the demurrer to the complainant's bill, and perfect answer make to all and singular and in dismissing the same. the premises (but not under oath, the oath “2d. Said court erred in holding that thereto being expressly waived); that an accomplainant's bill does not state a case with. count be taken before a master to be ap- in the jurisdiction of a court of equity. pointed by the court, of the amount of taxes “Wherefore, for the errors assigned, and collected by the defendant on account of the others manifest in the record, said complain. Assessments and levies of taxes for police ant prays that said decree be reversed and purposes, as set forth in the bill, and of the said cause reinstated to be proceeded with amounts due by the defendant on account of according to law.' the apportionments aforesaid due by her, “And now at this term this cause came on and that the defendant may be decreed to to be heard on the transcript and was arpay into the hands of a receiver the amount gued, of said taxes collected, with interest thereon, "Whereupon, for the proper decision of since the same have come into the hands of the case, this court, desiring the instruction the defendant, and a suflicient amount of the of the honorable, the Supreme Court of the said apportionments as trust funds, to meet United States, certifies to that court the fol. the demands of the complainant and other lowing questions and propositions of law creditors similarly situated who may come arising on the record, to wit: 1. This being into this cause and take the benefit of these a suit brought by an assignee to recover the proceedings, and all expenses and costs; and contents of choses in action, does the bill that the same be applied to their payment.” state sufficient facts to give the court juris.

diction on the ground of diverse citizenship? Then followed prayer for process and for 2. Under the facts stated in the bill and ungeneral relief and signatures of counsel; also der the proper construction of act No. 35 of Exhibit "A," "list of certificates of indebt. the Laws of Louisiana, approved March 31, edness of board of metropolitan police and 1877, can the city of New Orleans, as a legal claims against it held and owned by said successor of the defunct metropolitan police complainant.” These were in small amounts, board, be held liable to the complainant as some of them dated in October, November, the holder of valid outstanding certificates and December, 1874, some in December, 1875, of indebtedness issued by the late board of and some in November and December, 1876. *metropolitan police for the amounts due on The original payees were D. M. Moore, Eli said certificates! 3. Under the facts stated Jones, Peter Joseph, Robert Crofton, W. C. in the bill, can the complainant maintain a Bodechtel, Edward Masterson, R. H. Taylor, suit in equity in the circuit court of the John Dinan, G. H. Hamersley, W. H. Nur- United States for the eastern district of phy, F. Coleman, and Dr. J. B. Cooper. Louisiana against the city of New Orleans

The city demurred to the bill on the for the establishment of a fund out of which ground that the circuit court had no juris- ne in common with other creditors of the diction as such for want of proper averments late metropolitan police board may be paid of diverse citizenship; that necessary par- pro rata upon their claims ?” ties were lacking; that plaintiff had not stated a case entitling him to the relief Messrs. J. D. Rouse and William Grant prayed; and that the remedy was at law, for appellant. and not in equity. On hearing the circuit Messrs. Frank B. Thomas and Samuel court entered the following decree:

L. Gilmore for appellee. ^ "This cause came on to be heard at a for. Mr. Chief Justice Fuller delivered the mer day upon the demurrer to the bill, filed opinion of the court: by defendant, and after arguments from This is a certificate under § 6 of the judi. counsel, was submitted.

ciary act of March 3, 1891 (26 Stat. at L. *“ 'On consideration thereof for the rea-826, chap. 517), and it is settled as to such sons on file:

certification that each question propounded “ 'It is ordered that the defendant's first must be a definite point or proposition of ground of demurrer be and the same is here. law clearly stated, so that it can be definitely by overruled, the court finding and decree. answered without regard to other issues of ing that the allegations of the citizenship of law in the case; that each question must be the complainant, of the original payees, and a question of law only, and not of fact, or of mixed law and fact; and that the certificate had been no assignment or transfer. We lay cannot embrace the whole case, even where out of view as inapplicable the limitation on its decision turns on matter of law only, and amount prescribed as to parties plaintiff by even though it be split up in the form of another clause with a different purpose. questions. Graver v. Faurot, 162 U. S. 435, But it is objected that the restriction re 40 L. ed. 1030, 16 Sup. Ct. Rep. 799; Cin- lates to the time when the paper was as.. cinnati, A. & D. R. Co. v. McKcen, 149 U. S. signed, and not to the time of the commence 259, 37 L. ed. 725, 13 Sup. Ct. Rep. 840. inent of the suit; and that if there were in.

Rule 37 provides: “Where, under $ 6 of termediate assignees jurisdiction in respect the said act, a circuit court of appeals shall of them must appear, and does not appear certify to this court a question or proposi. on the face of this bill. tion of law, concerning which it desires the We are of opinion that the inquiry is to instruction of this court for its proper de be determined as of the date when the suit cision, the certificate shall contain a proper is commenced. Jurisdiction vests then and statement of the facts on which such ques. cannot be devested by subsequent change of tion or proposition of law arises.” In this residence; but jurisdiction cannot be held to case there is no such statement, but the en- have vested prior to action brought. There tire record is certified, and the questions con- have been many decisions to this effect, the template an examination of the whole case same question being presented under all the and in large part its decision on the merits. acts from 1789.

We cannot regard this certificate as in In Chamberlain v. Eckert, 2 Biss. 126, Fed. compliance with the rule, and are con Cas. No. 2,577, Judge Drummond held that strained to decline to answer the second and the time of the commencement of the suit third questions, but we think we may prop determined the question; and, among other erly answer the first question in view of the things, said: “But if the rule contended for narrow limits by which it was apparently by the defendant is the true rule, then do intended to be circumscribed.

change in the status of the payee, after the The judicial power extends to controver: assignment, could ever enable a party to sies between citizens of different states; and bring a suit, and it might happen, where the between citizens of a state and citizens or note was executed by the maker to the payeo subjects of foreign states; but the judiciary of another state, and at the time of the com. act of 1789 provided that the district and mencement of the suit in the Federal court, circuit courts of the United States should he was of the same state with the maker, not “have cognizance of any suit to recover the suit could be maintained by the assignee, the contents of any promissory note or other a citizen of another state, because you have chose in action in favor of an assignee, un- to look according to the view of the defense, less the suit might have been prosecuted in to the status of the parties at the time that such court to recover the said contents if the assignor held the note. And if he ever no assignment had been made, except in could have prosecuted the suit, the assignes cases of foreign bills of exchange” (1 Stat. could prosecute it, although at the time at L. 78, chap. 20, § 11); and the same pro when the suit is brought the payee and vision of the act of March 3, 1887, as cor: maker are citizens of the same state. That rected by that of August 13, 1888, is in these would be the necessary consequence, and the words: “Nor shall any circuit or district question recurs, What does the language of court have cognizance of any suit, except the statute mean, 'unless the suit might upon foreign bills of exchange, to recover have been prosecuted in said court, if no the contents of any promissory note or other assignment had been made ? I think it chose in action in favor of any assignee, or means at the time the suit was prosecuted, of any subsequent holder if such instrument so that if it appears then that the assignor be payable to bearer and be not made by any could have maintained the suit if no assigncorporation, unless such suit might have ment had been made, the assignee, being a been prosecuted in such court to recover the citizen of another state, can maintain the said contents if no assignment or transfer suit." And see Thaxter v. Hatch, 6 McLean, had been made.” 25 Stat. at L. 433, 434, 68, Fed. Cas. No. 13,866. chap. 866, 8 1.

In White v. Leahy, 3 Dill. 378, Fed. Cas. To prevent abuse of the constitutional No. 17,551, the same conclusion was right to resort to the Federal courts, juris- nounced by Judge Dillon. The suit was a diction in respect of assignees or transfer. bill to foreclose, brought in the circuit court ees was thereby denied except as to suits for the district of Kansas by plaintiff, a cit. upon foreign bills of exchange, suits upon izen of Missouri, as the assignee of a note choses in action payable to bearer and made and mortgage. The maker and payee of the by a corporation, and suits that might have note were citizens of Kansas, and were such been prosecuted in such court to recover the at the time the note and mortgage were said contents if no assignment or transfer made and the payee indorsed the note and had been made. New Orleans v. Quinlan, assigned the mortgage, and delivered the 173 U. S. 191, 43 L. ed. 664, 19 Sup. Ct. Rep. same to plaintiff in Missouri. But at the 329.

time the suit was brought the payee was a The bill shows that at the time this suit citizen of Texas. Judge Dillon said: "Il was brought the circuit court had jurisdic- no assignment of this note had been made, tion as between plaintiff and defendant, and the assignor might, being at the time when also that the payees of these warrants might suit was brought a citizen of Texas, have themselves then have instituted it, if there 'then commenced it; and under the statute

an.

cases

his assignee has the same right. If the re- served that the payees were not only citizens striction on the assignee does not exist at of Alabama when the suit was commenced, the time suit is commenced, the court has but when the note was assigned. jurisdiction if the case involves the requi- In Mollan v. Torrance, 9 Wheat. 537, 6 L site amount and is between a citizen of a ed. 154, the declaration contained two counts, state where the suit is brought and a citizen The first was against the defendant, Torof another state."

rance, as indorser of a promissory note made The same ruling was made by the circuit by Spencer and Dunn, payable to Sylvester court of appeals for the fifth circuit in Jones Dunn, and indorsed by him to Torrance, by v. Shaperu, 6 C. C. A. 423, 13 U. S. App. whom it was indorsed to Lowrie, and by him 481, 57 Fed. 457, and the foregoing and other to plaintiffs. The other count was for

were cited. See also Portage City money had and received by Torrance to Water Co. v. Portage, 102 Fed. 769.

plaintiffs' use. The declaration stated plain. In Milledollar v. Bell, 2 Wall. Jr. 334, tiffs to be citizens of New York, and defend. Fed. Cas. No. 9,549, which was a bill to fore-ant to be a citizen of Mississippi, but was close, complainant, the mortgagee, was a cit- silent "respecting the citizenship or resi. izen of New York, and defendant was a cit. dence of Lowrie, the immediate indorsee of izen of New Jersey, but there had been in- Torrance, through whom the plaintiffs trace termediate assignments. Mr. Justice Grier their title to the money for which the suit said: “The complainant's case is therefore is instituted.". within the strict letter of the law; nor can The ruling in Young v. Bryan, 6 Wheat. we discover anything in the spirit, equity, 146, 5 L. ed. 228, “that an indorsee who reor policy of the act, or in adjudged cases, sides in a ditferent state may sue his im. which would compel us to give it a construc mediate indorser, residing in the state in tion such as the defendant asks. The stat- which the suit is brought, although that in. ute does not take from the assignee of a dorser be a resident of the same state with chose in action his right to sue in the courts the maker of the note," was affirmed, but it of the United States, unless his immediate was pointed out that,“in this case the suit is assignor could have sustained such action; brought against a remote indorser, and the but only in case the court could have had no plaintiff's, in their declaration, trace their jurisdiction as between the original parties title through an intermediate indorser, with. to the instrument, if no assignment had been out showing that this intermediate indorser made. The situation or rights of temporary could have sustained his action against the intermediate assignees, holders, or indorsers defendant in the courts of the United States. enter not into the conditions of the case." The case of Turner v. Bank of North Amer.

Wilson v. lisher, Baldw. 133, Fed. Cas. ica, 4 Dall. 8, 1 L. ed. 718, has decided that No. 17,803, was approved. There a citizen this count does not give the court jurisdicof New York had obtained a judgment tion. But the count for money had and reagainst a citizen of Pennsylvania in the su ceived to the use of the plaintiffs being free preme court of that state. The judgment from objection, it becomes necessary to look was assigned to citizens of Pennsylvania, farther into the case.” The record showed and subsequently to complainant, who was that defendant Torrance had filed a plea to an alien, and jurisdiction was sustained; the jurisdiction, in which he stated that the Hopkinson, J., saying: “The suit cannot be promises laid in the declaration were made maintained here unless it might have been to Lowrie, and not to plaintiffs, and that prosecuted here if no assignment had been Lowric and defendant were both citizens of made; that is, as we understand it, if it had the state of Mississippi. Plaintiffs de remained with the original parties to the murred to this plea, the demurrer was sus transaction, contract, or cause of action. tained, and judgment rendered for defendThe law does not declare that no assignee ant. The court overruled the plea because shall prosecute his suit in this court unless it averred that Lowrie and defendant were his assignor might have done so; but, unless citizens of Mississippi at the time of the plea a recovery of the right claimed might have pleaded, not that they were citizens of the been had in this court if no assignment of it said state at the time the action was brought; had been made; and of course in every case and Chief Justice Marshall said: “It is in which a recovery might have been prose- quite clear that the jurisdiction of the court cuted in the courts of the United States if depends upon the state of things at the time do assignment had been made, it may be so of the action brought, and that after vesting prosecuted after such assignment to a party it cannot be ousted by subsequent events competent to sue here."

Since, then, one of the counts show jurisdic In Kirkman v. Hamilton, 6 Pet. 20, 8 L. tion, and the plea does not contain sufficient ed. 305, where the payees of a note and the matter to deny that jurisdiction, we think makers thereof were citizens of Tennessee, that judgment ought not to have been ren. and before the note became due the payees dered on the demurrer in favor of the de. became citizens of Alabama and indorsed it fendant.” The judgment was reversed and to a citizen of Alabama, the jurisdiction of the cause remanded. the circuit court for the western district of That was a suit on the distinct contract Tennessee of a suit brought by the holder of between indorsee and indorser, but as plainthe note was upheld because the payees tiff was not the immediate indorsee, and could have prosecuted a suit to recover the made title through Lowrie, who was, the contents of the note in that court if no ag- court held that the first count should have dignment had been made. But it is to be ob- 'shown the competency of the latter to invoke the jurisdiction at the time the suit 1887 (Ariz. Laws 1887, title 31), creating a was brought.

board of loan commissioners for the territory, The general rule is that when a note

was effected by the act of Congress of June bill is indorsed in blank the bona fide holder

25, 1890 (26 Stat. at L. 175, chap. 612) which

substantially reenacted the territorial act in of it may write an indorsement to himself

all its provisions, although the preamble of or to another over the indorser's name, and

such act speaks of the territorial act as being where there are several indorsements in amepded and, as amended, approved and con. blank he may fill up the first one to himself, firmed. or may deduce his title through all of them. 3. The legislature of Arizona was not author Evans v. Gee, 11 Pet. 80, 9 L. ed. 639; 1 Dan. ized to repeal the act of Congress of June 25, Neg. Inst. 4th ed. $$ 693, 694, 694a.

1890 (26 Stat. at L 175, chap. 612), by a proHowever, this bill does not trace title

vision therein that the territorial refunding

act of March 18, 1887, wbich it substantially through any intermediate assignee, and, on

re-enacted, "is hereby amended," and "as the contrary, does so directly from the origi.

amended the same is hereby approved and nal payees. It is true that there are aver

contirmed, subject to future territorial legments that in a proceeding by one Goldstein, islation." still pending and undisposed of in the cir- 4. A petition for a writ of mandamus to comcuit court, against other parties than the pel the Arizona loan commission to issue re city of New Orleans, these claims, “now funding bonds in exchange for county bonds held” by complainant, were presented and

is a "proceeding theretofore taken," within

the meaning of the saving clause of Ariz. proved, the master's report thereon being re

Rev. Stat. 1887, 2934 (7), declaring that ferred to but not set out; and also that in

the repeal or abrogation of any statute shall a suit by one Benjamin and certain inter

not affect any action or proceeding theretoveners, brought against the city of New Or. fore taken, except as therein provided, and leans in the circuit court, and subsequently was therefore not affected by a subsequent redismissed without prejudice, these claims,

peal of the act creating the loan commission. “since acquired and now held and owned by" 5. Bonds of Pima county, Arizona, issued, in complainant, were included; and while this

literal compliance with the Arizona act of shows that these warrants must have passed

February 21, 1883, in exchange for bonds of

the Arizona Narrow Gauge Railroad Com. through the hands of others than complain.

pany, are not excluded from the provision of ant, it does not appear that there was any the act of Congress of June 6, 1896 (29 Stat. indorsement of them other than in blank, at L. 262, chap. 339), authorizing the refund. and on the bill as framed complainant dis. ing of all bonds which "bad been sold or ex. tinctly appears to be assignee of the payees.

changed in good faith in compliance with the What complications may emerge hereafter

terms of the act of the legislature by which in respect of the prior cases, or either of

they were authorized," because subsequent to them, need not be considered.

their issue the original holders of sucb bonds

falled to complete the railroad and the county We answer the first question by saying received no benefit therefrom, as the territhat on the face of the bill the circuit court torial act did not make the completion of the had jurisdiction on the ground of diverse cit- road a condition precedent to the issuance of izenship.

the bonds, or make their validity dependent It will be so certified.

upon the subsequent conduct of the railroad

company. Mr. Justice Gray did not hear the argument, and took no part in the decision.

[No. 388.)

Argued March 7, 10, 1902. Decided May 19, (186 U. S. 95)

1902. NATHAN O. MURPHY et al., Appts.,

N APPEAL from the Supreme Court of

the Territory of Arizona to review a JAMES L. UTTER et al.

judgment ordering a peremptory mandamus

io issue to the loan commissioners of Ari. Action-abatement-change of personnel in continuing municipal body-statutes-re- bonds of that territory. Affirmed.

zona, directing the refunding of certain peal by substantiul re-enactment-power See same case below, 64 Pac. 427. of territorial legislature to repeal act of Congress-territorial bonds_validity as Statement by Mr. Justice Brown: affected by subsequent conduct of holders. *This was an appeal by the loan commis.*

sioners of Arizona from a judgment of the 1. A change in the personnel of the loan commission of Arizona, created by Arizona Laws March 22, 1901, granting a peremptory writ

supreme court of that territory rendered 1887, title 31, substantially re-enacted in the act of Congress of June 25, 1890 (26 Stat. at of mandamus and commanding such loan L. 173, chap. 612), for the express purpose of commissioners, upon the tender by plaintiff's liquidating and providing for the payment of of $150,000 bonds of the county of Pima the outstanding indebtedness of the territory, with coupons attached, described in the pe does not abate a proceeding against the mem- tition, to issue and deliver to the petitioners bers of such commission, in their official capacity, to compel by mandamus the issue of refunding bonds of the territory pursuant refunding bonds, as such board was, by the to certain acts of Congress. acts creating it, made a continuing body with

The facts of the case are substantially as corporate succession, though not made a cor follows: By an act of the legislature of Arporation by name.

izona of February 21, 1883, the county of & The repeal of the Arizona act of March 18, 'Pima in that territory was authorized to is

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