1. In a suit brought by the assignee of a chose in action in the
federal court on the contract so assigned, it is necessary that
plaintiff shall show affirmatively that such action could have been
sustained if brought by the original obligee.
2. The burden of proof in such case is on the plaintiff, when
the instrument and its assignment are offered under the plea of the
general issue.
Section eleven of the Judiciary Act of 1789, which defines the
jurisdiction of the circuit courts as regards citizenship, after
declaring that no person shall be sued in any other district than
that of which he is an inhabitant, or in which he shall be found at
the service of the writ, adds:
"Nor shall any district or circuit court have 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."
With this provision in force, Bradley sued the administrators of
one Rhines in the court below, describing himself in the
declaration as a citizen of Kentucky, and alleging the defendants,
whom he described as administrators, to be citizens of
Pennsylvania. He declared in a special count on a contract of lease
and in two common counts for money had and received by defendants'
intestate to plaintiff's use, and for money laid out and expended
at his request. The
Page 75 U. S. 394
lease, which was set out in the declaration, was made by Breeden
& Co., described as of Elk County, Pennsylvania, as lessors,
and Andrew Hines and Hiram Carmen, lessees, and it was alleged that
Breeden & Co. had assigned the lease to the plaintiff.
A trial was had before a jury on the plea of the general issue,
in which the plaintiff offered in evidence the lease, its execution
and assignment being admitted by defendants. The court refused to
admit the lease in evidence, and the plaintiff took a bill of
exceptions to the ruling. As the lease was the foundation, so to
speak, of the plaintiff's action, the plaintiff, after its
rejection by the court, offered no further evidence, and verdict
and judgment went for the defendant. The ruling of the court just
mentioned was the error assigned.
Page 75 U. S. 395
MR. JUSTICE MILLER delivered the opinion of the Court.
The first proposition made by the counsel for the defendant in
error, and by which the ruling of the court is maintained, depends
for its soundness on the construction to be given to certain
statutes of Pennsylvania, and will not be examined by us if the
ruling of the court is well founded as to the second
proposition.
There can be no doubt that the lease sued on here is a chose in
action, and the assignors are described in the instrument as
residing in the same state with defendants.
Two propositions are relied on as taking this case out of the
prohibition of the statute:
Page 75 U. S. 396
1. That the plaintiff having purchased the lands which were the
subject of the lease, became entitled thereby to the benefit of the
lease, and the assignment was not necessary to enable him to
maintain the action.
If he had shown or offered to show that he had become the owner
of the land, the court would probably have permitted him to do so.
But as he only offered the lease and the assignment, the court
could not admit them on the ground of a purchase of which there was
no evidence.
2. Then it is argued that although Breeden & Co. might have
been, as the lease shows, citizens of Pennsylvania when the lease
was made, this may not have been so when suit was brought; and that
as the plaintiff was a citizen of Kentucky, and the defendants of
Pennsylvania, this makes a
prima facie case of
jurisdiction in the court, which can only be defeated by evidence
that the assignors were citizens of the same state with defendants
when the suit was brought.
This Court has decided the proposition otherwise. In
Turner
v. Bank of North America, [
Footnote 1] the plaintiff recovered judgment in the
circuit court as assignee of Biddle & Co. The only error
assigned was that it did not appear in the record that Biddle &
Co. were citizens of a state other than North Carolina, in which
district the defendant resided, and where he was sued, and for this
cause the judgment was reversed. The soundness of this decision is
recognized in the cases of
Mollan v. Torrance [
Footnote 2] and
Bank of United
States v. Moss, [
Footnote
3] and we take the doctrine to be settled that when a party
claims in the federal courts through an assignment of a chose in
action, he must show affirmatively that the action might have been
sustained by the assignor if no assignment had been made.
The case of
De Sobry v. Nicholson, relied on by
plaintiff's counsel, is not in point. There, plaintiff had become
possessed of all his partner's interest in the contract sued on
without assignment, and none was relied on. The partner not
being
Page 75 U. S. 397
a necessary party, his citizenship in the same state with
defendant did not defeat the jurisdiction.
Judgment affirmed.
[
Footnote 1]
4 U. S. 4 Dall. 8.
[
Footnote 2]
22 U. S. 9
Wheat. 537.
[
Footnote 3]
47 U. S. 6 How.
31.
