the indorsee, to show that the original payee was so; for it is his description, as well as that of the indorsee, which gives the jurisdiction. But an alien cannot sue a citizen in the Circuit Court of the United States, if the latter be at the time a resident in a foreign country, notwithstanding he has property in the district which might be attached. No compulsory process, under the Judiciary Act of 1789, lies against a person who is not at the time an inhabitant of, or is not found in the district in which the process issues. This goes to exclude from the federal courts the proceeding by foreign attachment under the local laws of the states. (c) 4. Jurisdiction between Citizens of Different States. The Judiciary Act of 1789, sec. 11, gives jurisdiction to the Circuit Court when an alien is a party; and it was decided in Mossman v. Higginson, (d) that the jurisdiction was confined to the case of suits between citizens and foreigners, and did not extend * to suits between alien and alien; and that if it appeared * 345 on record that the one party was an alien, it must likewise appear affirmatively that the other party was a citizen. So, again, in Course v. Stead, (a) 1 it was decided to the same effect. The principle is, that it must appear upon the record, that the character of the parties supports the jurisdiction; and the points in that case were reasserted in Montalet v. Murray, (b) and in Hodgson (c) Picquet v. Swan, 5 Mason, 35; Toland v. Sprague, 12 Peters, 300. (d) 4 Dallas, 12. (a) 4 Dallas, 22. The omission of the above averments, or any other requisite to give jurisdiction, is matter of substance, and not cured by verdict, nor amendable after verdict. 1 Paine, 486, 594; Jackson v. Twentyman, 2 Peters, 136. (b) 4 Cranch, 46. 1 Prentiss v. Brennan, 2 Blatchf. 162; Rateau v. Bernard, 3 Blatchf. 244. So the court has no jurisdiction when all the parties, as well plaintiffs as defendants, are citizens of states other than that in which the suit is brought. Kelly v. Harding, 5 Blatchf. 502. See Merserole v. Union Paper Collar Co., 6 Blatchf. 356. And when some of the parties to a bill for partition, being citizens of the District of Columbia, made a merely colorable conveyance to a citizen of a state, it was held not to give the court jurisdiction. Barney v. Baltimore, 6 Wall. 280. See Jones v. League, 18 How. 76; Smith v. Kernochen, 7 How. 198; Starling v. Hawks, 5 McL. 318. [See Williams v. Nottawa, 104 U S. 209; Hawes v. Oakland, ib. 450.] But it was admitted that if the conveyance had really transferred the interest, although made for the avowed purpose of enabling the court to entertain jurisdiction of the case, it would have accomplished that purpose, 6 Wall. 288; and it was so held in Osborne v. Brooklyn City R. R. 5 Blatchf. 366; Newby v. Oregon C. R. Co., 3 Am. Law Times, 127. [401] v. Bowerbank, (c) and in Sullivan v. The Fulton Steamboat Company. (d) In Maxfield v. Levy, (e) the question of jurisdiction, arising from the character of the parties, was discussed in the Circuit Court in Pennsylvania, and the court animadverted severely upon an attempt to create a jurisdiction by fraud, contrary to the policy of the Constitution and the law. The suit was an ejectment between citizens of the same state, to try title to land; and, to give jurisdiction to the Circuit Court, a deed was given, collusively, and without any consideration, to a citizen of another state, for the sole purpose of making him a nominal plaintiff, in order to give the federal court jurisdiction. The court dismissed the suit, and observed, that the Constitution and laws of the United States had been anxious to define, by precise boundaries, and preserve with great caution, the line between the judicial authority of the Union and that of the individual states. No contrivance to defeat the law of the land, and create jurisdiction by fraud, could be tolerated. (f) But if a citizen of one state thinks proper to change his domicile, and remove with his family to another state, not colorably, but perma* 346 nently, and with a bona fide intention to reside there, * even though his object was to avail himself of the jurisdiction of the federal courts, he becomes instantly a citizen of the other state, and may sue as such in the courts of the United States. (a) The doctrine in the original case of Bingham v. Cabot was again confirmed in Abercrombie v. Dupuis, (b) with some symptoms of reluctance; and it would seem that the court was not entirely (c) 5 Cranch, 303. (d) 6 Wheaton, 450; Dodge v. Perkins, 4 Mason, 435, s. p. (e) 4 Dallas, 330. This case was repudiated by Mr. Justice Story, in Briggs v. French, 2 Sumner, 257, as being erroneously decided. (f) The same doctrine was held by Judge Washington, in Hurst r. McNeil, 1 Wash. 70, 83. But in Briggs v. French, 2 Sumner, 251, it was pointedly condemned; and the judge held, that a conveyance of land by a citizen of one state to a citizen of another, for the purpose of enabling the latter to maintain a suit on it in the courts of the United States, vested a legal title, and a stranger not claiming under either of the parties had no right to inquire into the motive of the conveyance. (a) Lessee of Cooper v. Galbraith, 3 Wash. 546; Case v. Clark, 5 Mason, 70; Catlett v. Pacific Ins. Co., 1 Paine, 594. In Briggs v. French, 2 Sumner, 251, it was held, that it was sufficient to give jurisdiction to the federal courts, that a citizen of one state had really, and not merely nominally, removed from one state to another, though his motive might have been to prosecute a suit in the courts of the United States. It was sufficient if the plaintiff was in fact a citizen of one state and the defendant of another. The motive of the removal was not to be inquired into. (b) 1 Cranch, 343. satisfied with the precise limits in which their jurisdiction had been circumscribed and embarrassed by their predecessors. But in Strawbridge v. Curtiss, (c) the limitation of the federal jurisdiction was considered as being still more close and precise. The Supreme Court declared, that where the interest was joint, and two or more persons were concerned in that interest, as joint plaintiffs or joint defendants, each of them must be competent to sue, or liable to be sued, in the federal courts; and the suit was dismissed in that case, because some of the plaintiffs and defendants were citizens of the same state. (d)1 The next case that arose on this subject was whether a corporation was a citizen within the meaning of the Constitution, and could sue in the federal courts in consequence of its legal character; and it was decided in the cases of The Hope Insurance Company v. Boardman, and of The Bank of the United States v. Deveaux, (e) that a corporation aggregate was not, in its corporate capacity, a (c) 3 Cranch, 267. (d) But the Circuit Court of the United States is not deprived of its jurisdiction arising from the character of the party, by joining with an alien or citizen of another state a mere nominal party, who does not possess the requisite character. 5 Cranch, 303; 8 Wheaton, 451; 1 Paine, 410. It has likewise been adjudged, that as the courts of Louisiana do not proceed according to the rules of the common law, but of the civil law, a suit may be brought in the federal courts by a resident alien against one or two obligors, bound severally as well as jointly, who reside in Louisiana, though the other obligor resides in another state. The rule in chancery and in the civil law is, that if the court can make a decree according to justice and equity between the parties before them, that decree shall not be withheld because a party out of its jurisdiction is not made a defendant, although he must have been united in the suit had he been within the reach of the process of the court. This was the principle of that decision. Breedlove v. Nicolet, 7 Peters, 413. See also Harrison v. Urann, 1 Story, 64. And now, by act of Congress of February 28, 1839, c. 36, if there be several defendants, and any one or more of them is not an inhabitant of, or not found in, the district where the suit is brought, and does not voluntarily appear, the court may entertain jurisdiction, and proceed against the parties properly before it. (e) 5 Cranch, 57, 61; Bank of Augusta v. Earle, 13 Peters, 519; Wood v. Hartford Fire Insurance Co., 13 Conn. 202, s. P. 1 The act mentioned at the end of note (d) does not enable the Circuit Court to make a decree in a suit in the absence of a party whose rights must necessarily be affected by such decree. On the other hand, it had been determined before the act was passed, that the non-joinder, for want of jurisdiction, of parties merely formal, or necessary, but without whom the court could proceed to a decree and do complete and final justice to the parties before it, was not fatal. So the act seems to be hardly more than declaratory in equity cases. Barney . Baltimore, 6 Wall. 280; Shields v. Barrow, 17 How. 130; Coiron v. Millaudon, 19 How. 113. See also Drake v. Goodridge, 6 Blatchf 151. citizen, and that its right to litigate in the federal courts *347 depended upon the character of the individuals who compose the body politic, and which character must appear by proper averments upon the record. (a)1 But a corporation aggregate, composed of citizens of one state, may sue a citizen of another state in the Circuit Court of the United States. If any of the stockholders are citizens of the same state with the defendant, the federal courts have no jurisdiction. And the rule relative to suits originally instituted in the courts of the United States, requiring all the individuals composing the respective parties to possess the requisite character to give the court jurisdiction, applies equally to suits removed from the state courts. (b) With respect to the question on the peculiar right of the Bank of the United States to sue in the federal courts, it was decided, in reference to the first Bank of the United States that no right was conferred on that bank by its act of incorporation to sue in (a) In Breithaupt v. The Bank of Georgia, 1 Peters, 238, it was there held that a bill, to give jurisdiction, must state that the stockholders were citizens of Georgia. (b) Ward v. Arredondo, 1 Paine, 410; Bank of Cumberland v. Willis, 3 Sumner, 472. But the very inconvenient and narrow doctrine contained in the cases of Strawbridge v. Curtiss, 3 Cranch, 367, Bank of the United States v. Deveaux, 5 Cranch, 84, and Comm. & R. R. Bank of Vicksburg v. Slocomb, 14 Peters, 60, was reviewed and overruled in the Louisville Railroad Co. v. Letson, in 2 How. 497. It was there held, that a corporation created and doing business in a state was an inhabitant of the state, capable of being treated as a citizen, for all purposes of suing and being sued, although some of the members of the corporation were not citizens of the state in which the suit was brought, and although the state itself might be a member of the corporation. This was a very important and salutary decision, and reinstated the federal courts in their essential jurisdiction in cases of suits between citizens of different states. The act of Congress of 28th February, 1839, gave aid to this decision, it being considered in its language and construction as an enlargement of jurisdiction in respect to the character of the parties. 1 The rule has now taken the form of a legal fiction. For while a suit by or against a corporation is considered to be brought by or against its members, they are conclusively presumed, for purposes of jurisdiction, to be citizens of the state in which the body was incorporated. Railway Co. v. Whitton, 13 Wall. 270, 284; Ohio & Mississippi R. R. v. Wheeler, 1 Black, 286; Covington Drawbridge Co. v. Shepherd, 20 How. 227; Marshall v. Balt. & Ohio R. R., 16 How. 314; Lafayette Ins. Co. v. French, 18 How. 404; Insurance Co. v. Francis, 11 Wall. 210; Pennsylvania On this principle it is held that a suit 1 * * 348 those courts. It had only the ordinary corporate capacity to sue and be sued; and being an invisible, artificial being, a mere legal entity, and not a citizen, its right to sue must depend upon the character of the individuals of which it is composed. The Constitution of the United States supposed apprehensions might exist, that the tribunals of the states would not administer justice as impartially as those of the nation, to parties of every description, and, therefore, it established national tribunals for the decision of controversies between aliens and a citizen, and between citizens of different states. The persons whom a corporation represents may be aliens or citizens, and the controversy is between persons suing by their corporate name for a corporate right, and the individual defendant. Where the members of the corporation are aliens or citizens of a different state from the opposite party, they come within the reason and terms of the jurisdiction of the federal courts. The court can look beyond the corporate name, and notice the character of these members, who are not considered, to every intent, as placed out of view, and merged in the corporation. Incorporated aliens may sue a citizen, or the incorporated citizens of one state may sue a citizen of another state, in the federal courts, by their corporate name, and the controversy is substantially between aliens and a citizen, or between the citizens of one state and those of another. In that case, the president, directors, and company of the Bank of the United States averred, that they were citizens of Pennsylvania, and that the defendants were citizens of Georgia; and this averment, not traversed or denied, was sufficient to sustain the suit in the Circuit Court. In suits by the Bank of the United States, of 1816, such an averment is not necessary, because the act incorporating the bank (a) authorizes it to sue and be sued in the Circuit Court of the United States, as well as in the state courts. Without such an express provision, it would have been difficult for the Bank of the United States ever to have sued in the federal courts, if the fact of citizenship of all the members was to be scrutinized, for there were probably few or no states which had not some stockholder of the bank a resident citizen. (b) It was indispensable for Congress to provide specially for a jurisdiction over suits in (a) Act of Congress April 10, 1816, sec. 7. (b) Osborn v. United States Bank, 9 Wheaton, 738; United States Bank v. Planters' Bank, 9 Wheaton, 904. |