The provision in the Act of March 3, 1887, 24 Stat. c. 373, § 1,
pp. 552, 553, 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,"
does not apply to an action of trespass brought by an assignee
of the claim to recover damages for cutting down and removing
timber from the land of the assignor.
The case, as stated by the court, was as follows:
This case comes before the Court on a writ of error under the
Act of February 25, 1889, 25 Stat. c. 236, p. 693, to review the
decision of the circuit court upon the question of jurisdiction.
That act provides that in all cases where a final judgment or
decree shall be rendered in a circuit court of the United States
involving the question of its jurisdiction, the party against whom
the judgment or decree is rendered shall be entitled to an appeal
to the Supreme Court of the United States or to a writ of error
from it to review such judgment or decree without reference to its
amount, except that where that does not exceed the sum of five
thousand dollars, the review shall be limited to the question of
jurisdiction.
The plaintiff is a citizen of New York, and the action is
brought by him in his own right and as assignee of John K. Russell
against the defendants, who are citizens of Florida, to recover as
damages six thousand dollars, the alleged value of three thousand
trees and pine logs cut down by the defendants upon the lands of
the plaintiff and the said Russell in the years 1885, 1886, and
1887 and carried away and converted to their use. The declaration,
after setting forth the entry by
Page 137 U. S. 481
the defendants upon the lands of the plaintiff and Russell, the
cutting down of the trees, and their removal and conversion,
alleges that afterwards, in November, 1887, Russell, for a valuable
consideration, sold and assigned to the plaintiff all his right,
title, and interest in the pine trees and logs thus cut down,
removed, and converted, and in the claim and demand against the
defendants, and that they refused to pay the plaintiff the value of
the trees and timber, though payment was often demanded. The
declaration contains four counts, but they all proceed for the same
trespass and conversion, the facts being stated with some
additional particulars in the different counts, not affecting the
question presented.
To the declaration the defendants demurred on several grounds,
all of which are embraced in this, that it appeared by the
declaration that the grievances complained of were on lands at the
time jointly owned by the plaintiff and John K. Russell, and that
the right of action was therefore not the subject of
assignment.
The demurrer was overruled, the defendants thereupon pleaded,
and issue was joined. They then moved the court to dismiss the
action upon the alleged ground that it was shown by the declaration
that it had no jurisdiction thereof. This motion was denied, and
the plaintiff obtained a verdict for eleven hundred dollars. A
motion to arrest the judgment on a similar ground was made and
overruled. Judgment upon the verdict was thereupon entered, to
review which the case is brought to this Court.
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
The record is silent as to the citizenship of Russell, who
assigned his interest to the plaintiff, and the defendants
below,
Page 137 U. S. 482
the plaintiffs in error here, contend that the circuit court was
therefore excluded by the Act of March 3, 1887, from jurisdiction
of the action, it not appearing that he could have prosecuted in
the circuit court a suit upon the claim. That act, after declaring
in its first section that certain suits shall not be brought in the
circuit or district courts, adds:
"Nor shall any circuit or district court 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."
24 Stat. c. 373, p. 553.
This act, as appears on its face, does not embrace within its
exceptions to the jurisdiction of those courts suits by an assignee
upon claims like the demand in controversy. The exceptions, aside
from suits on foreign bills of exchange, are limited to suits on
promissory notes and other choses in action where the demand sought
to be enforced is represented by an instrument in writing, payable
to bearer, and not made by a corporation, the words following the
designation of choses in action indicating the manner in which they
are to be shown. They must be such as arise upon contracts of the
original parties, and not founded, like the one in controversy,
upon trespass to property.
The construction given by this Court in
Deshler v.
Dodge, 16 How. 622, to the clause in the eleventh
section of the Judiciary Act, which denied to any circuit or
district court
"cognizance of any suit to recover the contents of any
promissory note, or other chose in action, in favor of an 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,"
is in harmony with the construction we give to the act of 1887.
It was there held that the exception by that section of the
jurisdiction of those courts of suits by an assignee did not extend
to a suit on a chose of action to recover possession of a specific
chattel or damages
Page 137 U. S. 483
for its wrongful caption or detention, although the assignee
could not himself sue in that court. And in the subsequent case of
Bushnell v.
Kennedy, 9 Wall. 387, it was said that the
exceptions to the jurisdiction applied only to rights of action
founded on contracts which contained within themselves some promise
or duty to be performed, and not to mere naked rights of action
founded on some wrongful act or some neglect of duty to which the
law attaches damages.
The judgment below being under $5,000, no other question than
that of jurisdiction can be reviewed by this Court. The validity of
the transfer of Russell's interest in the timber removed and
converted to the defendants' use, and the effect of such transfer
upon the amount of the plaintiff's recovery, are matters touching
the merits of the action, and are not open to consideration
here.
Judgment affirmed.