John C. Deshler v. George C. Dodge, 16 How. 622

Mr. Justice NELSON delivered the opinion of the court. This is a. writ of error to the Circuit Court of the United States- for the District of Ohio. The suit below was an action of replevein to recover the possession of a quantity of bank-bills, in the hands of the defendant, upon banks in the city of Cleveland, amounting in the whole to the sum of thirty-eight thousand five hundred and ninety-two dollars, and the title to which was derived by an assignment from the banks to -the plaintiff.

The d eclaration is in the usual form for wrongfully arid unjustly detaining the possession of the property, the plaintiff averring that he is a citizen and resident of the State of New York; and the defendant a citizen and resident of the State of Ohio.

To this declaration, the defendant plead to the jurisdiction of the court, setting up that the defendant was a’cting-treasurer of the county of Cuyahoga, Ohio, and had distrained the bills in question belonging to the banks to satisfy the taxes and penalties duly imposed upon them; and that after the said bills had been thus distrained and in his possession, the said banks being incorporated companies by the laws of the State of Ohio, and doing business in the city of Cleveland,- sold, assigned, and transferred the sanie to the plaintiff; and that all the right and title to the said bills belonging to him is derived from the aforesaid assignment: Wherefore the defendant says, the supposed causes of action are not within the jurisdiction of the court, and prays judgment if it will take further cognizance of the suit.

To this plea the plaintiff demurred, and the defendant joined in demurrer, upon which judgment in the court below was given for the defendant. The only question presented in the case by' cither of the par- ' ties is, whether or not the court below had jurisdiction of the case within the true meaning of the Ilth

section of the Judiciary Act of 1789, the material part of which is as follows: “ 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.” It is admitted the assignors in this case could not have maintained the suit in the federal courts; We are of opinion that this clause of the statute has no application to the case of a suit by the assignee of a chose in action to recover possession of the thing in specie, or damages fpr its wrongful caption ox detention ; and that it applies only to cases in which the suit is •brought to recover the' contents, or to enforce the contract contained in the instrument assigned.

In the case of a tortious taking, or wrongful detention of a chose in action against the right or title of the assignee, the injury is one to the right of property in the thing, and it is there-. fore unimportant as it respects the derivation of the title; it is sufficient if it belongs to the party bringing the suit at the time of the injury. 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 —where 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 chattel.

The principle governing the case will be found in easeq that have frequently been before us arising out of the assignment of mortgages, where it has been held, if the suit is brought to recover the possession of the mortgaged premises, the assignee may bring the suit in the federal courts, if a citizen of a State other than that of the tenant in possession, whether the mortgagee could have maintained it or. not, within this section'; but, if brought to enforce the payment or collection of the debt by-sale of the premises or by a decree against the mortgagor, then thb assignee is disabled, unless the like suit could have been maintained by the mortgagee. 7 Howard 198.

This distinction is stated by Mr. Justice Grier, in the case of Sheldon et al. v. Sill, 8 Howard, 441. The learned Justice, in delivering the opinion of the court in that case, observed, “ that the term chose in action is one' of comprehensive import.

It includes the. infinite' variety of contracts, covenants, and promises, which confers on one party a right to recover a personal chattel, or sum of money from another, by action.” This paragraph has been relied on to sustain the plea in question; but other portions of this opinion will show, that the phrase “right to recover a personal chattel,” was not meant a' recovery in specie, or damages for a tortious injury to the same, but a remedy on the contract for the breach of it, whether the contract was for the payment of money, or the delivery of a personal chattel.

Indeed, upon a close examination, this is the fair import of the language used, as he was speaking of the contract in the instrument assigned, not of the sale or transfer of it. We have looked simply at the question of jurisdiction in the case, as that is the only question raisfed by the plea, and as we are satisfied that the demurrer to it is well taken, the judgment of the court below should be reversed, with costs, and proceedings remitted, with directions that judgment be given for the plaintiff that the defendant answer over. Mr. Chief Justice TANEY,, Mr. Justice CATRON, Mr. Justice DANIEL, and Mr.

Justice CAMPBELL, dissented.