Ambler v. Eppinger

after stating the case, 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, *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, pp. 552, 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 a 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 in action to recover possession of a specific chattel or damages *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 actio.n founded on some wrongful act or some neglect of duty to which the law attaches damages. .

The judgment below being under five thousand dollars, 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 fnatters touching the merits of the action, and are not open to consideration here. '

Judgment affirmed.