that "The judicial power shall extend to all

controversies between a state or the citizens thereof, and foreign states, citizens or subjects." Section 2 of the judiciary act (1 Stat., 78) provides that "The circuit courts shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state." It has long since been settled that an action between aliens only cannot be maintained in the circuit court. That the language of the judiciary act, giving jurisdiction where “an alien is a party," must be restrained within the terms of the constitution, which only "extends the judicial power" to an action between an alien and a citizen of a state of the United States. When both plaintiff and defendant are aliens, the judicial power of the United States does not extend to the case. Montalet v. Murray, 4 Cranch, 46; Mossman v. Higginson, 4 Dal., 12; Piquignot. The Pennsylvania R. Co., 16 How., 104 (3 1086, supra).

But the second part of this plea in abatement assumes that, if the party defendant is an alien or subject of a foreign state, the court has no jurisdiction. This assumption is not warranted by the constitution or judiciary act, but is in direct contradiction of both. If the action is between a citizen of a state and the subject of a foreign state, the court has jurisdiction. It is immaterial which party is plaintiff or which defendant. In Jackson v. Twentyman, 2 Pet., 136, the court says: "That, by the constitution, the judicial power was not extended to private suits in which an alien is a party, unless a citizen be the adverse party." The case at bar comes within the latter alternative. Admitting the facts as affirmatively stated in the plea, the court has jurisdiction, because the plaintiff is a citizen of the state of Massachusetts, and the defendants, Soo Chung, Hip Hing and Kroning, are subjects of a foreign state. The action is between them, and each is the adversary of the other. Then, whether these defendants are all citizens of the state of California, as alleged in the complaint, or a part of them are subjects of a foreign state, as averred in the plea, it makes no difference. The jurisdiction of the court is undoubted in either case.

§ 1311. A plea in abatement is not sufficient which simply alleges that the defendant is an alien; it should disclose the name of the foreign state of which he is a subject.

I

may add that, as a question of pleading, the plea is otherwise insufficient as to Kroning. It alleges that he is an alien. To allege that a party is an alien is not sufficient to give jurisdiction to the court. Wilson v. City Bank, 3 Sumn., 423. By a parity of reasoning such an averment is not sufficient in a plea of abatement for the purpose of preventing the jurisdiction of the courts. The language of the constitution is, that the party is a citizen or subject of a foreign state. As a matter of practice, I think the plea ought also to disclose the name of the particular foreign state of which the party claims to be a citizen or subject, so as to give the adverse party an opportunity to traverse it.

The demurrer is sustained, with leave to the defendants joining in the plea in abatement to answer to the merits within five days, and upon the payment of the costs of the plea and demurrer.

§ 1312. Suit must be between an alien and a citizen of a state. It is not sufficient to give jurisdiction to a federal court that an alien is a party; the controversy must be between a citizen of a state and an alien. Prentiss v. Brennan,* 2 Blatch, 164. The federal courts

have no jurisdiction of suits between aliens. And where the action was by a citizen of New York against an alien as maker of promissory notes payable to another alien, and indorsed to the plaintiff, it was held that the court had no jurisdiction. Montalet v. Murray,* 4 Cr., 46. § 1313. It is not sufficient that one of the parties may for some purposes be regarded as a citizen of the United States; he must be a citizen of a state. Montalet v. Murray,* 4 Cr., 46. § 1314. In suits in the federal court, where the plaintiff is an alien, the record should contain averments of the citizenship of the defendants, otherwise the court will not have juris diction of the case. Jackson v. Twentyman, 2 Pet., 136.

§ 1315. Where the plaintiff was a native of New York but domiciled in Canada, and the defendant an alien, it was held that the court had no jurisdiction; because in order to give it jurisdiction between individuals the suit must be one in which a citizen of a state and an alien are parties. Prentiss v. Brennan,* 2 Blatch., 162.

§ 1316. If a plaintiff alleges himself to be an alien and the defendant a citizen of a state, it is a good plea if the defendant alleges both to be aliens. Donaldson v. Hazen, Hemp., 424.

§ 1317. Averment of alienage.- Where alienage of one of the parties is relied upon to confer jurisdiction, it must be alleged expressly; it will not be inferred from facts stated or that the party is a subject of a foreign power. Michaelson v. Denison,* 3 Day (Conn.), 294. § 1318. Joinder of another alien as defendant.- When a suit in equity is brought in the United States circuit court by an alien against a citizen of the United States, the joinder of another alien as defendant, particularly if he is not a material party to the bill, will not affect the jurisdiction of the court. Rateau v. Bernard, 3 Blatch., 248.

§ 1319. Suit for use of alien.- In a suit against a citizen of Virginia, where the plaintiffs were nominally the justices of the peace for a county of the same state, but the suit was solely for the use of an alien, held, the circuit court had jurisdiction. Browne v. Strode,* 5 Cr., 303.

§ 1320. Intention to become a citizen.- Semble, that a foreign subject cannot divest himself of his character as an alien, for judicial purposes, by declaring his intention of becoming a citizen. Baird v. Byrne,* 3 Wall. Jr., 1.

§ 1321. Where stockholder in defendant corporation is also an alien.—If suit is brought by a friendly alien in the circuit court of the United States, against a corporation chartered by the laws of a state, and against two of its agents, to restrain them by injunction from performing certain acts, the objection that one of the stockholders of the corporation is also a friendly alien will not oust the jurisdiction of the court, as it can proceed against the agents, though it could not against the company alone. Bonaparte v. Camden & Amboy R. Co., Bald., 216.

§ 1322. Claim based on fraud on revenue.-A federal court will not support a claim which is based on a fraud on the revenue laws, although the claimant is an alien, for if he imports into the United States he is bound to know the revenue laws. So where A. and B. engaged in commercial transactions, A. being an alien and B. a citizen of the United States. and B. fraudulently obtained an American register for the vessel which they jointly owned and in which they imported their merchandise, thus avoiding payment of the high revenue duties on importations in foreign vessels, it was held that A. could not sue on a balance due him on these importations in a federal court. Cambioso v. Maffet, 2 Wash., 103.

§ 1323. A resident alien, holding real estate, by virtue of a state law, is entitled to maintain a suit in regard to it in the United States courts. Bonaparte v. Camden & Amboy R. Co., Bald., 216.

§ 1324. A friendly alien residing in a state, and holding land there by a special law of the state, may sue in the circuit court of the United States a corporation chartered by the laws of that state. Ibid.

§ 1325. Injunction against county.—If an alien owns land in a state which is liable to be taxed to raise money to pay the interest on bonds to be issued by the county in which the land is situated, to assist a railroad company, and the amount of the interest exceeds $500, the alien may bring a suit, so far as jurisdiction is concerned, in the United States circuit court, to enjoin the county from issuing the bonds. Goedgen v. Manitowoc County, 2 Biss., 330.

§ 1326. Foreign sovereign.- A suit in our courts by a foreign sovereign is not abated by a change in the person of the sovereign, as here by the deposition of Napoleon III; but the next successor, recognized by our government, is competent to carry on the suit and receive the fruits of it, and the court has authority to permit any necessary change of names. The Sapphire, 11 Wall., 164.

§ 1827. A foreign sovereign, as well as any other foreign person, who has a demand of a civil nature against any person here may prosecute it in our courts. Ibid.

d. Corporations.

[See CORPORATIONS.]

SUMMARY-Citizenship of corporators, §§ 1328-31.- Corporation, how found; service upon agent, §§ 1332-35.— Corporation chartered by two states, §§ 1336–39.— Corporation of one state licensed in another, § 1340.— Corporation of one state, however established, may sue in any other, § 1341.- Corporation a person within act of 1871, § 1342.— Joint stock companies similar to corporations, § 1343.

§ 1328. A corporation aggregate cannot for jurisdictional purposes be a citizen, and hence the capacity of a corporation to sue in the federal courts depends upon the citizenship of its members. Bank of United States v. Deveaux, §§ 1344-45. (Overruled in Louisville R. Co. v. Letson, 2 How., 497; § 1329, infra.)

§ 1329. When a corporation of one state is sued by a citizen of another, the fact that all of its members are not citizens of the same state will not oust the jurisdiction of the federal courts. Louisville R. Co. v. Letson, §§ 1346-50.

§ 1330. A corporation created by and doing business in a particular state is, for the purposes of jurisdiction at least, to be deemed a citizen of that state, without regard to the citizenship of its corporators. Ibid.

§ 1331. A suit by a corporation created by two states is regarded as a suit in which citizens of those states are joined as plaintiffs, and the federal courts have no jurisdiction in such a suit against an inhabitant in either state. Railroad Co. v. Wheeler, §§ 1351-52. (Qualified in following cases.)

§ 1332. A corporation may be “found," within the meaning of the judiciary act, in another state from that of its creation, and hence the circuit court may take jurisdiction of a case against a foreign insurance company which has in accordance with a state statute agreed that service upon its agent should be considered service upon itself. Knott v. Insurance Co., S$ 1353-55.

§ 1333. Under a Pennsylvania statute requiring foreign insurance companies doing business in that state to designate an agent to accept service of process, the circuit court for Pennsylvania has jurisdiction of a suit by a citizen of that state against a company upon whose agent service was made in accordance with the statute, and it is not a sufficient answer that the defendant is neither an inhabitant of nor found within the district. Ex parte Schollenberger, §§ 1356-58.

§ 1334. A corporation may be found out of the state of its creation, and it seems that a trading corporation may be found for the purposes of an action wherever it has an established place of trade. Hayden v. Androscoggin Mills, §§ 1359-61. (Overruled in same court by COLT, J., in Boston Electric Co. v. Electric Gas Lighting Co., 1885.)

§ 1335. The authorities have gone no farther than to hold that where, by local law, a foreign corporation may be sued in the state courts by service upon its agent, the federal courts will acquire jurisdiction by a like service. The mere fact that a foreign corporation does business within the district does not bring it within the jurisdiction of the federal court. Eaton v. Smelting Co., §§ 1362-1364.

§ 1336. Where two railroad companies chartered by different states have been consolidated under the laws of those states, the corporation so formed may sue or be sued as a citizen of one of those states, provided that its opponent be a citizen of any other state than that one. St. Louis R. Co. v. Indianapolis R. Co., §§ 1365-68.

§ 1337. A corporation formed as above is composed of two distinct entities, and when suing as a citizen of one state may join as a party defendant the corporation as a citizen of the other. Ibid.

§ 1338. When two corporations of different states are consolidated by the laws of those states, the corporation is for some purposes a citizen of each, and may sue or be sued as a citizen of either. Nashua & Lowell R. Co. v. Boston & Lowell R. Co., § 1369.

§ 1339. A corporation was chartered by Indiana and Illinois, the first act being passed by Indiana. Its work was upon the river dividing the two states. Its directors met in either state, though more commonly in Indiana, where lived the president and a majority of the directors. Held, it could be sued in Indiana as a citizen of that state, and probably also in Illinois as a citizen of that. Culbertson v. Navigation Co., §§ 1370-73.

§ 1340. A Kansas corporation which, under a general statute of Missouri, purchases and operates a railroad incorporated by and located in Missouri, does not thereby become a corporation of that state, and is still amenable to suit in the federal courts of that state as a foreign corporation. Williams v. Railway Co., § 1374.

§ 1341. A corporation having a legal existence in one state, whether established under the laws of that state or of the United States, may sue in the federal courts of any other state. Park Bank v. Nichols, § 1375.

§ 1342. A corporation is within the act of April 20, 1871, giving a right of action to any "person" deprived of rights or privileges, under color of any law of the United States. Fertilizing Co. v. Hyde Park, §§ 1376-77.

§ 1343. Joint stock companies, organized under the laws of the different states, and which are practically like corporations, except in the lack of a common seal, are considered the same as corporations, for jurisdictional purposes, and a suit in the name of the president of such a company organized in New York, against a defendant, a citizen of Indiana, may be maintained in the federal court, although some of the stockholders are citizens of the latter state. Fargo v. Railway Co., §§ 1378-79.

[NOTES.-See § 1380-1437.]

BANK OF THE UNITED STATES v. DEVEAUX.

(5 Cranch, 61-92. 1809.)

ERROR to U. S. Circuit Court, District of Georgia.

STATEMENT OF FACTS.- Plea to the jurisdiction, on the ground that a corporation is not competent to sue in the circuit court of the United States. Demurrer to the plea, and judgment for the defendants. The action was brought by the president, directors and company of the Bank of the United States, and there was an averment that the plaintiffs were citizens of Pennsylvania, and that the defendants were citizens of Georgia.

Opinion by MARSHALL, C. J.

Two points have been made in this cause:

1. That a corporation, composed of citizens of one state, may sue a citizen of another state in the federal courts.

2. That a right to sue in those courts is conferred on this bank by the law which incorporates it. The last point will be first considered.

§ 1344. The act of incorporation of the Bank of the United States conferred no right on the bank to sue in the federal courts.

The judicial power of the United States, as defined in the constitution, is dependent: 1st. On the nature of the case; and 2d. On the character of the parties. By the judicial act (1 Stats. at Large, 73) the jurisdiction of the circuit courts is extended to cases where the constitutional right to plead and be impleaded, in the courts of the Union, depends on the character of the parties; but where that right depends on the nature of the case, the circuit courts derive no jurisdiction from that act, except in the single case of a controversy between citizens of the same state, claiming lands under grants from different states. Unless, then, jurisdiction over this cause has been given to the circuit court by some other than the judicial act, the Bank of the United States had not a right to sue in that court, upon the principle that the case arises under a law of the United States.

The plaintiffs contend that the incorporating act confers this jurisdiction. That act creates the corporation, gives it a capacity to make contracts and to acquire property, and enables it "to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in courts of record, or any other place whatsoever." This power, if not incident to a corporation, is conferred by every incorporating act, and is not understood to enlarge the jurisdiction of any particular court, but to give a capacity to the corporation to appear, as a corporation, in any court which would, by law, have cognizance of the cause, if brought by individuals. If jurisdiction is given by this clause to the

federal courts, it is equally given to all courts having original jurisdiction, and for all sums, however small they may be.

But the ninth article of the seventh section of the act (1 Stats. at Large, 194) furnishes a conclusive argument against the construction for which the plaintiffs contend. That section subjects the president and directors, in their individual capacity, to the suit of any person aggrieved by their putting into circulation more notes than is permitted by law, and expressly authorizes the bringing of that action in the federal or state courts. This evinces the opinion of congress that the right to sue does not imply a right to sue in the courts of the Union, unless it be expressed. This idea is strengthened also by the law respecting patent rights. The law expressly recognizes the right of the patentee to sue in the circuit courts of the United States. The court, then, is of opinion that no right is conferred on the bank, by the act of incorporation, to sue in the federal courts.

§ 1345. A corporation aggregate cannot, for jurisdictional purposes, be a citiThe capacity of a corporation to sue in the federal courts depends upon the citizenship of its members.

zen.

2. The other point is one of much more difficulty. The jurisdiction of this court being limited, so far as respects the character of the parties in this particular case," to controversies between citizens of different states," both parties. must be citizens to come within the description. That invisible, intangible and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen; and, consequently, cannot sue or be sued in the courts of the United States, unless the rights of the members, in this respect, can be exercised in their corporate name. If the corporation be considered as a mere faculty, and not as a company of individuals, who, in transacting their joint concerns, may use a legal name, they must be excluded from the courts of the Union.

The duties of this court, to exercise jurisdiction where it is conferred, and not to usurp it where it is not conferred, are of equal obligation. The constitution, therefore, and the law are to be expounded, without a leaning the one way or the other, according to those general principles which usually govern in the construction of fundamental or other laws. A constitution, from its nature, deals in generals, not in detail. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore confine it to the establishment of broad and general principles.

The judicial department was introduced into the American constitution under impressions, and with views, which are too apparent not to be perceived by all. However true the fact may be that the tribunals of the states will administer justice as impartially as those of the nation to parties of every description, it is not less true that the constitution itself either entertains apprehensions on this subject or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different states. Aliens, or citizens of different states, are not less susceptible of these apprehensions, nor can they be supposed to be less the objects of constitutional provisions, because they are allowed to sue by a corporate name. That name, indeed, cannot be an alien or a citizen; but the persons whom it represents may be the one or the other; and the controversy is, in fact and in law, between those persons suing in their corporate character, by their corporate name, for a corporate right, and the individual against whom the suit may be instituted. Substantially and essentially, the parties in such a case, where the members of the