1 Pet. 238-240, 7 L. 127, BREITHAUPT v. BANK OF GEORGIA. Federal courts.- A bill averring plaintiffs as citizens of one State but without averring that stockholders of defendant corporation were citizens of some other cannot support jurisdiction of Federal courts on account of diverse citizenship, p. 240.

Cited and principle followed in Speigle v. Meredith, 4 Biss. 126, F. C. 13,227, holding that the citizenship of each party must be stated positively; Donaldson v. Hazen, Hemp. 424, F. C. 3,984, holdIng that not only must it be shown that they are citizens of different States but that one of them is a citizen of the State where the suit is brought; United States v. Woolsey, 28 Fed. Cas. 767, holding that in the Federal courts the record must always show either that the subject-matter or the party is within the jurisdiction; Bank of Cumberland v. Willis, 3 Sumn. 473, F. C. 885, and case of the Sewing M. Cos., 18 Wall. 575, 21 L. 919, both holding that all the corporators must be citizens of a different State from the party sued to give jurisdiction to a Federal court; Oakey v. Commercial, etc., Bank, 14 La. 517, 518, holding that a corporation defendant may remove a cause on a petition alleging the corporators are each and all citizens of other States or aliens. See note to 12 Am. Rep. 546, citing authorities on citizenship of corporations. Distinguished in Wood v. Mann, 1 Sumn. 584, F. C. 17,952, holding that the exception to the jurisdiction of the Circuit Court must be taken by plea in abatement and not by any general answer; referred to in Shaw v. Quincy Min. Co., 145 U. S. 451, 36 L. 772, 12 S. Ct. 938, on the point that the rule of the principal case was in force for half a century but that it had been later adjudged it was sufficient if the corporation is created in a different State; Marshall v. Balt., etc., R. R. Co., 16 How. 348, 350, 14 L. 968, 969, disenting opinion, majority holding a citizen of Virginia may sue in the Circuit Court for Maryland and an averment that the defendants are a body corporate, created by the legislature of Maryland, is sufficient.

1 Pet. 241-247, 7 L. 128, FINDLAY v. HINDE.

Lost instruments.- When the loss of a deed or other instrument is the ground for coming into equity for relief, an affidavit of loss must be annexed to the bill; but the objection is waived if a party fail to demur, p. 244.

Cited in Nesbitt v. Dallam, 7 Gill & J. 510, 28 Am. Dec. 241, holding that proceeding to trial without raising question of want of affidavit to an answer is a waiver; Hopkins v. Adams, 20 Vt. 414, holding that the want of an affidavit is no ground for dismissing bill; Temple v. Gove, 8 Iowa, 513, 74 Am. Dec. 321, holding a bill to recover on a lost note cannot be maintained without proof of loss of the note; Stafford v. Bartholomew, 2 Ind. 154, on the point that a bill alleging a lost will was bad on demurrer where there

was no affidavit. Cited generally in Frazier v. Miller, 16 Ill. 49, where a bill was presented in equity on the ground that the bond sued on was lost or in the defendant's possession.

Lost instruments.- One claiming under a lost deed, which was not proved, acknowledged or recorded is entitled to a discovery against purchasers of the property upon the ground of notice, and if notice be brought home to them, to a decree quieting title, p. 245. Cited in Way v. Lyon, 3 Blackf. 78, as to validity of deeds not acknowledged and recorded.

Lost instruments.- If bill alleges that complainant's grantor entered into an executory contract with them to convey and then executed a formal deed which was lost, and prayed relief against subsequent purchasers of the 1-nd, complainants may rely upon the contract to convey if they fail to prove the deed and a demurrer to the whole bill for want of an affidavit of loss cannot be sustained, p. 245.

Parties. On a bill for discovery and relief filed by complainants, claiming under an executory contract to convey against subsequent purchasers from the same grantor, the grantor is a necessary party, p. 246.

Cited in Bowman v. Wathen, 2 McLean, 381, F. C. 1,740, holding one who can only set up an equity must make those from whom he claimed such equity parties; Smith v. Shane, 1 McLean, 31, F. C. 13,105, holding in a controversy respecting land in the United States military districts the patentee should be made a party although he had conveyed; Crane v. Chic., etc., Ry. Co., 20 Fed. 406, on the point that a railroad company under lease is a necessary party in an action against the lessee corporation involving the construction of one of its contracts; Chester v. Chester, 7 Fed. 4, holding that in a bill to establish a resulting trust in land in possession of a mortgagor, both mortgagor and mortgagee are indispensable parties. Cited generally in Paine v. French, 4 Ohio, 327, dissenting opinion, as to the necessity of an assignor of a mortgage being made a party.

Distinguished in Thomas v. Kennedy, 24 Iowa, 403, 95 Am. Dec. 744, holding a wife was entitled to have title quieted in her where she stands against the plaintiff strictly on the defensive without making others parties; Platt v. Vattier, 1 McLean, 150, F. C. 11,117 holding that one claiming under an absolute conveyance need not make his grantor a party in an action against one claiming the property.

Appeals. Where a decree is erroneous and awards costs generally against all of the defendants who have appealed and the irregularities in conducting the trial have been so great and so numerous that it seems impracticable that justice be done between

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the parties without sending the cause back as to all the parties, the reversal should be general as to all the appellants, p. 247.

Distinguished in Albright v. McTighe, 49 Fed. 822, holding that in an action for a malicious prosecution against several defendants a recovery may be had against one or more.

Miscellaneous.- Cited but not in point in Oliver v. Mutual, etc., Ins. Co., 2 Curt. 299, F. C. 10,498; Peddle v. Hollingshead, 9 Serg. & R. 284.

1 Pet. 248-249, 7 L. 131, GRANT v. MCKEE.

Appeal and error.- An appeal by a defendant in ejectment will be dismissed where the value of the defendant's lot was less than $2,000, although the value of the whole property recorded in the ejectment exceeded that, p. 248.

Cited in Simon v. House, 46 Fed. 318, where in a suit to set aside a conveyance the plaintiffs allege the land to be of greater value than $2,000, but the undisputed testimony showed it to be much less; Hartford F. I. Co. v. Bonner Merc. Co., 56 Fed. 383, 15 U. S. App. 134, and in New England Mtg. Co. v. Gay, 145 U. S. 130, 36 L. 648, 12 S. Ct. 816, both holding that the jurisdiction is determined by the amount involved in the particular case and not by any contingent loss; Jones v. Rowley, 73 Fed. 289, where the plaintiff sued for a large tract and the defendant was in possession of a small part and disclaimed as to the rest; Elgin v. Marshall, 106 U. S. 581, 27 L. 250, 1 S. Ct. 487, holding that where judgment was rendered for $1,600 on interest coupons the Supreme Court had no jurisdiction, although the bonds were for a larger sum than $5,000.

1 Pet. 250-263, 7 L. 132, KONIG v. BAYARD.

Practice. A question decided at the trial cannot arise after verdict unless a motion for a new trial has been made, p. 261.

Bills and notes.- Drawee of a bill after its protest from nonacceptance may intervene through an agent for the honor of an indorser, p. 262.

Bills and notes. Where one intervenes on a draft which was not accepted, for the honor of the indorser, at the request of and under a guaranty from the drawee, any defense available against the drawee would be available against the acceptors for honor in an action by them against the indorsers, p. 262.

Bills and notes. One who intervenes and pays a draft for the honor of an indorser at the request of the drawee and under a guaranty from him, may recover the amount paid from the indorser, p. 262.

Cited in the note to 92 Am. Dec. 579, 580, citing cases on payment er acceptance to prevent dishonor.

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1 Pet. 264-292, 7 L. 138, SCHIMMELPENNICH v. BAYARD.

Bills and notes. An authority to draw, given to a special agent with limited powers, does not bind the principal to accept any bills In excess of those powers, p. 283.

Cited in Tallmadge v. Williams, 27 La. Ann. 655, dissenting opinion where parties were held liable for drafts drawn under a letter of credit; Franklin Bank v. Lynch, 52 Md. 279, 36 Am. Rep. 877, holding a telegram "you may draw on me for $700" implies a promise to accept; Wildes v. Savage, 1 Story, 27, F. C. 17,653, remarking that the Supreme Court has shown a strong disinclination to enlarge the doctrine of the virtual acceptance of nonexisting bills.

Distinguished in Merchants' Bank v. Griswold, 72 N. Y. 479, 28 Am. Rep. 163, holding an authority to an agent to draw drafts for the purchase of lumber was an unconditional engagement to pay.

Bills and notes.-A letter written within a reasonable time before or after the date of a bill of exchange, plainly describing it and promising to accept, is as to the person taking the bill on the credit of the letter, a virtual acceptance, p. 284.

Cited in Carrollton Bank v. Tayleur, 16 La. 499, 35 Am. Dec. 222, holding a promise to accept must contemplate specific bills; Carnegie v. Morrison, 2 Met. 406, where the undertaking was not such an agreement to accept a specified bill as to bring it within the rule; Exchange Bank v. Hubbard, 62 Fed. 115, 26 U. S. App. 133, on the point that a promise to accept drafts generally and not to accept any particular drafts did not bind one as acceptor; State Nat. Bank v. Young, 5 McCrary, 14, 14 Fed. 890, holding that a letter that the writer expected to pay drafts as heretofore was an acceptance; Kennedy v. Giddes, 8 Port. 268, 33 Am. Dec. 290, holding a promise to accept will amount to an acceptance if the bill is taken on the faith of it; Greele v. Parker, 5 Wend. 419, dissenting opinion, holding a letter "I have no objection to accepting for you on the terms you propose was an acceptance; Bissell v. Lewis, 4 Mich. 459, holding a letter to an agent stating "You are at liberty to draw on us" to be an acceptance; Exchange Bank v. Rice, 98 Mass. 292, holding a promise to accept after the bill had been negotiated will not bind one as acceptor; Overman v. Hoboken City Bank, 30 N. J. L. 69, holding a promise to accept must be taken by the holder on the faith of such acceptance: Boyce v. Edwards, 4 Pet. 121, 7 L. 803, holding when holder seeks to charge one as acceptor upon some occasional or implied undertaking he must bring himself within this rule; Russell v. Wiggin, 2 Story, 237, F. C. 12,165, holding a promise in a letter of credit written by persons who are to be the drawees is an available promise; Henrietta Nat. Bank v. State Nat. Bank, 80 Tex. 651, 26 Am. St. Rep. 774, 16 S. W. 821, helding a telegram in reply to one of inquiry that a bank

would pay a check will support an action; Nelson v. First Nat. Bank, 48 Ill. 40, 95 Am. Dec. 513, holding a promise to pay a check relied on will support an action; Morse v. Mass. Nat. Bank, 1 Holmes, 215, F. C. 9,857, holding an agreement by a bank to pay a check on presentment was nudum pactum.

Bills and notes. If the drawees of a bill, refusing to honor it, were bound to accept and pay as drawees, they can acquire no rights as holders of the bill by paying under protest for the honor of the indorsers, p. 285.

Referred to in the note to 92 Am. Dec. 579, citing authorities on payment or acceptance to prevent dishonor.

An agent is bound to act in conformity to the authority and instructions of his principal, p. 287.

Agency.— The fact that an agent agrees not to make any consignments to any other house than that of his principal does not impress on his consignments or on his bills drawn on those consignments a character different from that which would have be longed to them had the consignment been made from choice, p. 287.

Agency. The usage of trade permits a draft to be made on a consignee on a shipment; and the consignee must pay the bills if the shipment places funds in his hands to pay them, p. 288.

Agency.- Money laid out in the purchase of articles by an agent on his own account cannot be regarded as advances on articles consigned to the principal, although the articles were purchased for the purpose of being consigned to the principal, p. 288.

Agency. A principal is not bound to accept bills drawn by an agent on his own account as a merchant, p. 289.

Cited in Jaques v. Todd, 3 Wend. 91, holding that where there were mutual shipments between a city and a country merchant, the former could not purchase on credit for the latter.

Agency. An agent with limited powers cannot bind his principal when he transcends his powers, p. 290.

Cited in Robinson v. Burleigh, 5 N. H. 228, holding an exchange made in excess of authority not binding; Komorowski v. Krumdick, 56 Wis. 28, 13 N. W. 883, holding in the absence of an express authority or usage an agent could not buy on credit; Thew v. Porcelain Mfg. Co., 5 S. C. 421, holding that the president of a manufacturing corporation had no power to give a confession of judgment; Chamberlain v. Darragh, Walk. Ch. (Mich.) 151, holding an agent could not sell absolutely under a power to sell on approval; Smith v. South Royalton Bank, 32 Vt. 350, 76 Am. Dec. 183, where an agent who was to deliver a deed on certain conditions violated his instructions.