Morgan's Executor v. Gay
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86 U.S. 81 (1873)
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U.S. Supreme Court
Morgan's Executor v. Gay, 86 U.S. 19 Wall. 81 81 (1873)
Morgan's Executor v. Gay
86 U.S. (19 Wall.) 81
1. Where a citizen of one state as endorsee of inland bills, drawn or accepted by a citizen of another -- the plaintiff claiming through the endorsement of the payee, or of the payee and subsequent endorsers -- sues the drawer or acceptor in the circuit court, the eleventh section of the Judiciary Act requires that the citizenship of such payee, or of such payee and subsequent endorsers, be alleged to be different from that of the defendant. It is not enough to allege that the plaintiff is a citizen of one state and the defendant of another.
2. It is not competent for a circuit court to determine without the intervention of a jury an issue of fact in the absence of the counsel of the party and without any written agreement to waive a trial by jury.
The eleventh section of the Judiciary Act, which gives jurisdiction to the circuit courts of suits "between a citizen of the state where the suit is brought and a citizen of another state," enacts nevertheless that no circuit court shall
"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."
This statute being in force, Gay, as endorsee of three several inland bills of exchange, drawn or accepted by one Morgan, in his life, sued his executor upon them. Two of the bills were endorsed by the payees, and the third by its payee and by other endorsers.
The plaintiff in his petition described himself as a citizen of Kentucky, and described the defendant as a citizen of Louisiana, but said nothing about the citizenship of the payees of the bills, nor, in the case of that one endorsed by subsequent endorsers, of the citizenship of these.
The defendant pleaded the statute of limitations, general issue &c.
The cause was called for trial, the plaintiff being represented
by counsel, but the counsel for the defendant not being present. The cause was submitted for hearing to the court without a jury, and without any written stipulation such as that which, when made in writing and filed with the clerk of the court, the Act of March 3d, 1865, allows to have the effect of waiving a jury. The court overruled the plea, determined that the case was made out, and rendered a judgment for the plaintiff for the sum of the three bills, with interest and costs. [Footnote 1]
The defendant now brought the case here for review.