CODWISE et al. v. GLEASON et al., 5 F. Cas. 1164

EDWARDS, District Judge. The consideration that the note is stated not to have been a valid one, will not have much weight with the court. In the next place, if the note had been genuine and valid, sun this suit might be sustained in this court. The defendants, by the assignment, entered inu-a new contract with the plaintiffs for the breach of which the present action is brought, not for the non-payment of the note by the maker. The contract between the maker and payee, and that between the indorsor and indorsee, are distinct and essentially different.

To the latter the restrictive clause of the act does not extend. The reason of the law is that where a man enters into a contract of which this court has not jurisdiction, he shall not afterwards be subjected to its jurisdiction on account of such contract, by the acts of other persons. But this reason is applicable only to the ease of the maker. But it may be said that if the plaintiffs recover in this case the rule of damages will be the contents of the note. Admitting this, it does not follow that this case is within the restrictive clause.

It is surely too much to say that the clause extends to every case where the plaintiff, if he prevails, will recover the same amount with the contents of the note. Suppose a note executed by A. to B., both citizens of Connecticut C., a citizen of Massachusetts, enters into a contract with A. by the terms of which he is to pay and take up A.’s note. It will not be contended that the. clause in question would deprive the circuit court of jurisdiction over this contract; and yet if C. were to sue upon it and recover, the rule of damages would be the contents of A.’s note.

Or, suppose C. in the case put should tortiously take the note from B., and B. should bring trover for it and recover; the rule of damages would be the amount of the note, but might not the circuit court have jurisdiction ? But we deny that the rule of damages in the case before the court will be the contents of the note merely. The rule of damages will be the damages sustained by the breach of the contract implied by the indorsement, which may include the expenses of protest, of a suit against the maker, etc.

At any rate the damages are not necessarily the precise amount of the note, which is sufficient for our purpose. NOTE [from original report]. Jurisdiction— Citizenship Essential to. — -It is settled by the decisions that in an action by an indorsee against an indorsor of a note or bill, if they are citizens of different states, this citizenship is sufficient to give jurisdiction though the maker and payee be citizens of the same state. See Coffee v. Planters’ Bank of Tenn.. 13 How. [51 U. S.j 1S3: Evans v. Gee, 11 Pet. [36 U. S.] 80: Ñoung v. Bryan, 6 Wheat. T19 U. S.] 146: Molían v. Torrance, 9 Wheat. [22 U.

S.] 537; Campbell v. Jordan [Case No. 2,362]: Gaylord v. Johnson [Id. 5,2S5]; Dennison v. Darned [Id. 3,798], [NOTE. On the trial on the merits, the jury rendered a verdict for plaintiffs. Case No. 2,-930.) 2. The averments in the plea are insufficient. It is not alleged that the original parties to the note were not citizens of different states. If they were citizens of different states, then a suit might have been prosecuted in this court before any assignment was made, and of course the statute has no bearing upon this case. Again, the plea is defective, as it does not show what court has jurisdiction.

EDWARDS, District Judge. I have no doubt as to the jurisdiction of the court in this case; but I am not prepared to give a formal opinion on a point of this importance, at this time. My opinion will be that the plea in abatement is insufficient. It appears to me that the argument in favor of the jurisdiction is irresistible. On a subsequent day his honor delivered an elaborate opinion on this point, but the reporter heard only a part of it, and was not at that time in a situation which admitted of his taking any minutes. The case was afterwards continued to the next term for trial on the merits.