claimants he ought of right to render and pay the same. And your orator further represents and shows to the court that it is under no liability to either said Foss and Hunter or said Bissell beyond that which arises to the title to the money so deposited in its bank. Said Bissell on the one hand, and Foss and Hunter on the other, demand that your orator should pay such money over to them, but they refuse to join in a joint check or order in checking the same out; that your orator has doubts as to which of said parties really owns said money, and that it cannot safely pay or render it to one party without being liable for the same debt to the other," etc.

The prayer is that defendants may be required to interplead, and settle or adjust between themselves their right or claim in or to the disputed fund, the bank declaring its readiness to pay in accordance with the decree of the court. It is well settled that a trustee or bailee who is sued, or in danger of being sued, by several claimants of the same property, may have relief by filing a bill to compel them, by the authority of a court of equity, to interplead and settle their dispute in one suit. This rule is based upon the ground that such a proceeding relieves the bailee or depository from being harassed by suits in which he has no interest; and it is especially applicable to a case "where two or more persons severally claim the same thing under different titles, or in separate interests, from another person, who, not claiming any title or interest therein himself, and not knowing to which of the claimants he ought of right to render the debt or duty claimed, or to deliver the property in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from conflicting claims of the parties." 2 Story's Eq. Jur., § 806. The proceeding may be instituted, not only to secure for the bailee or depository protection against being compelled to pay or deliver the thing claimed to both claimants, but also to relieve him from the vexation attending upon the suits which are or may be instituted against him. For a full discussion of the whole subject see 2 Story's Eq. Jur., §§ 801 to 8136, inclusive, and cases cited in notes. The doctrine has been applied to the case of a bank having possession of funds claimed by adversary parties, which is this case. The City Bank of New York v. Skelton, 2 Blatch., 14.

4. The remedy in such a case is, as will be seen from an examination of the foregoing authorities, by bill of interpleader, which is an original bill, filed by a person who claims no interest in the subject-matter, in opposition to the person against whom the bill is exhibited, but prays the decree of the court touching the rights of those persons for the safety of the plaintiff in the bill. Story's Eq. Pl., § 18. The remedy is here sought by means of a cross-bill, filed in a case already commenced; but upon examining this pleading I find that it is in substance, and in everything but name, an original bill of interpleader, and I am of the opinion that for the purposes of this motion it may be regarded as an original suit brought by the bank, in the nature of a bill of interpleader, against the several claimants of the fund in controversy. It was filed before answering the original bill, and it contains all the substantial allegations of a bill of interpleader, including a prayer for process and for relief. Story's Eq. Pl., ch. 6. In form, the bill, considered as a bill of interpleader, may be slightly defective, but in substance it is sufficient, and in considering the question of jurisdiction we will look to the substance rather than to form. As the whole controversy is presented by the cross-bill, and can be settled thereunder, I have no hesitation in holding that this court has jurisdiction, and the motion to dismiss is accordingly overruled.

ST. LOUIS NATIONAL BANK v. BRINKHAM.

(Circuit Court for Kansas: 1 McCrary, 9-11. 1880.)

Opinion by FOSTER, D. J.

STATEMENT OF FACTS.- The plaintiff is a national bank, duly organized under the act of congress of June 3, 1864 (13 U. S. St., 99), and is established and doing business at the city of St. Louis, state of Missouri. It brings this action against the defendant, who is a citizen of the state of Kansas, to recover the sum of $138.51, with interest from August 10, 1880, at ten per cent. per annum, for so much money collected by defendant for the use and benefit of plaintiff. The defendant maintains that the plaintiff being a national bank established out of this judicial district, this court has no jurisdiction. The question is one upon which I have found no adjudicated case, and we have to look to the several acts of congress to determine the point at issue.

§ 1469. A national bank has no right to sue in federal courts out of its district, if the amount in controversy is less than five hundred dollars.

Involving, as it does, the right of national banks to sue in the federal courts out of the district in which they are established, the question presented is an interesting one. The amount in controversy in this case being less than $500, that alone would defeat the jurisdiction, unless there is some law authorizing national banks to sue in the federal courts out of the district where they are established, and without regard to the sum in controversy.

Section 59 of the act of 1863, commonly known as the "Currency Act" (12 U. S. St., 681), reads as follows: "That suits, actions and proceedings, by and against any association under this act, may be had in any circuit, district or territorial court of the United States, held within the district in which such association may be established."

The act of June 3, 1864 (13 U. S. St., 116, § 57), re-enacts this section, omitting the words "by and," so it in terms only authorized proceedings in said courts against such associations and not by them. But the supreme court, in Kennedy v. Gibson, 8 Wall., 506 (BANKS, NAT., §§ 6-12), held that the omission of those words was accidental and not intentional, so the law remained in that respect as it was originally enacted. When the revision of the United States statutes was had, this section was dropped from the currency act, title "National Banks," and was placed under the title "Judiciary," and there reads as follows: "The circuit courts shall have original jurisdiction as follows: Tenth. Of all suits by or against any banking association, established in the district for which the court is held, under any law providing for national banking associations." U. S. Rev. St., 110, 111.

It will be seen that this provision is in substance the same as that contained in the currency acts before mentioned, and very clearly limits the jurisdiction to suits by or against banking associations established in the district where the court is held, and that jurisdiction in no way depends upon the amount in controversy. There is but one other provision of the law touching this question, and that is found in the Revised Statutes (2d ed.), 903, under the title "National Banks," and among the enumerated powers conferred on these banks is the following: To sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons." This provision is copied verbatim from the currency acts of 1863 and 1864.

There is nothing in this enactment conferring any special jurisdiction on the federal courts in cases where national banks are parties; but these banks are

placed on an equal footing with natural persons in all courts of law and equity. Now in the case of natural persons the citizenship of the parties and the amount in controversy in actions of this nature are both material, and are the controlling elements to jurisdiction in this court.

I need not decide or discuss the question whether a national bank organized under the law of congress and established in the state of Missouri is a citizen of that state under the rule recognizing corporations organized under the laws of a state as citizens of that state, for the purpose of suing and being sued in the federal courts. Even if the affirmative of that proposition could be maintained, there would still be a want of jurisdiction in this case, as the amount in controversy is not sufficient, and on that ground this case must be dismissed, and the costs paid by defendant refunded to him.

§ 1470. National banks.—Circuit courts have jurisdiction in all suits by or against national banks within their districts, and it is not necessary that the case involve the construction of some provision of constitution, law or treaty of the United States. Third National Bank v. Harrison,* 3 McC., 162.

§ 1471. In a suit by a national bank in the circuit court for its own district, under the banking act of June 3, 1864, the right of the bank to sue is not dependent upon the judiciary act, and the restriction as to suits by assignees does not apply. Commercial Bank v. Simmons, 1 Flip., 449 (SS 1456-57).

§ 1472. Section 629 of the Revised Statutes of the United States gives the circuit courts jurisdiction of suits brought by or against a national bank without regard to the citizenship of the parties, where the suit is brought in the district in which the bank is located. County of Wilson v. National Bank, 13 Otto, 776 (BONDS, §§ 1044-48).

$1473. The United States statute in amendment to section 5198, specifying certain courts in which national banks may be sued in certain cases, does not exclude suits in other forums. New Orleans Nat. Bank v. Adams,* 3 Woods, 21.

§ 1474. By act of congress (13 Stat. at Large, 116), creditors of a national bank may sue it in any state or municipal court which has jurisdiction of the subject-matter of the claim. Bank of Bethel v. Pahquioque Bank, 14 Wall., 383 (BANKS, NAT.. §§ 252-256).

§ 1475. National banks can only be sued in the courts designated by section 57 of the act of June 3, 1861, the provisions of state statutes to the contrary notwithstanding. Cadle v. Tracy,* 11 Blatch., 101.

§ 1476. Suits against national banks are cases arising under a law of the United States, and it was competent for congress to determine the question of jurisdiction. Ibid.

§ 1477. Quære, whether a national banking association can maintain a suit in the circuit courts of the United States, except in the district where the association is established. First Nat. Bank of Hannibal v. Smith,* 6 Fed. R., 215.

1478. Though a national bank incorporated under the provisions of the national banking law may have a complete and adequate remedy in a state court, yet it has also a right to sue in the federal courts and will not be compelled to resort to the state court. First Nat. Bank of New Orleans v. Bohne, 8 Fed. R., 116.

§ 1179. The fact that one of the defendants to a cause in a state court is a national bank does not of itself give a right of removal to a federal court. Pettilon v. Noble, 7 Biss., 452. § 1450. A stockholder in a bank, resident of a state other than that which chartered the bank, may sue the directors of the bank in the circuit court of the United States. Woolsey v. Dodge, 6 McL., 144.

§ 1481. If a national bank, plaintiff in a suit in the United States circuit court, alleges that it is a banking corporation incorporated under the banking act of congress, that it has capacity to sue by its corporate name and is a citizen of a certain state, located, residing and doing business in a certain town in that state, then the circuit court of the United States will take jurisdiction of the case, if the defendant, a natural person, is a citizen of another state, for it will conclusively presume that the incorporators of the bank are citizens of the United States, resident in the state in which the bank does business, and therefore citizens of that state. Manufacturers' Nat. Bank v. Baack, 2 Abb., 232 (§§ 1458-63).

§ 1482. Bank of United States.-The clause in the act of incorporation of the Bank of the United States enabling the bank to sue or be sued in the courts of the United States confers jurisdiction of such cases on the federal courts, and is valid and constitutional. Osborn v. Bank of United States, 9 Wheat., 816 (CONST., §§ 2363-87).

§ 1483. The right of the Bank of the United States to sue in the federal court is conferred by its charter, and is not affected by the limitation as to the assignment of choses in action in section 11 of the judiciary act. Bank of United States v. Planters' Bank, 9 Wheat., 904 (§§ 692, 693).

§ 1484. A suit by the Bank of the United States is a case arising under a law of the United States, i. e., the law incorporating the bank, and hence is within the judicial power granted in the constitution. Jurisdiction in such cases is given the circuit courts by the law of incorporation. Bank of United States v. Northumberland Bank,* 4 Wash., 108.

§ 1485. Neither in the judiciary act nor in the charter of the Bank of the United States was jurisdiction given the federal courts in suits by the bank, without averments enabling the court to look behind its corporate character. Bank of United States v. Martin,* 5 Pet., 479.

SUMMARY tion,

-

3. Constitution and Laws of the United States.

-What are cases arising under the constitution, § 1486.— Case involving construc1487.- Jurisdiction in suits upon a marshal's bond, § 1488–89.— Jurisdiction given by act of 1875, §§ 1490, 1492, 1495. — Sufficient averment, § 1491.— Jurisdiction depends upon the cause of action, § 1493.— Suit to enforce a right given by congress, § 1494.— Suit on a bond given under act of congress, §§ 1496–97.— Necessary averment, § 1498.— When a case arises under act of congress, § 1499.

§ 1486. Cases arising under the constitution and laws of the United States, and thus coming within the jurisdiction of the circuit court, are such as grow out of them when any claim or privilege, or any defense, in whole or in part, is asserted under them. San Mateo County v. Southern Pacific R. Co., § 1500-1502.

§ 1487. The circuit court has jurisdiction of a case if the defense involves the construction of a clause of the constitution. Ibid.

§ 1488. By the act of 1806, authorizing any party damnified to sue for his own use upon a marshal's bond, congress intended to confer upon the federal courts jurisdiction in such cases. United States v. Davidson, § 1503-1506.

§ 1489. The jurisdiction so conferred is a part of the judicial power of the United States given by the constitution in cases arising under its laws. Ibid.

§ 1490. Under the act of March 3, 1875, the entire judicial power of the United States in suits of a civil nature at common law or in equity, and arising under the constitution or laws, is given to the circuit courts. Eaton v. Calhoun, §§ 1507, 1508.

§ 1491. It is a sufficient averment for jurisdiction that plaintiff acquired his title through a deed of the United States, executed by an officer under the authority of a certain act, and that his claim of title arises under such act, and that the validity of the act and of the title thereunder are the only questions in controversy. Ibid.

§ 1492. The act of March 3, 1875, seems to give the circuit courts original jurisdiction in all cases involving a federal question, and which formerly could have been carried to the supreme court on a writ of error. Sawyer v. Concordia, §§ 1509-12.

§ 1493. Jurisdiction depends upon the cause of action rather than upon the ground of defense; and if the former involve a federal question, the circuit court will have jurisdiction, even though the defense concede this question, and make the issues wholly upon other questions of fact. Ibid.

§ 1494. A suit to enforce a right given by congress regarding the taxation of property in bank shares is a suit arising under the laws of the United States, and thus within the jurisdiction of the circuit court. Stanley v. Board of Supervisors, §§ 1513-14.

§ 1495. The entire judicial power of the United States, in cases arising under the constitution or laws, is intended to be conferred by the act of March 3, 1875. Ibid.

§ 1496. A suit on a supersedeas bond given under the United States statute requiring the taking of good security when a judge signs a citation on a writ of error, and under the supreme court rule determining the form of security, is a case arising under the laws of the United States within the jurisdiction of the circuit court. Seymour v. Phillips & Colby Co., $S 1515-18.

1497. From the fact that a bond is given under an act of congress, it does not necessarily follow that the circuit court will have jurisdiction in a suit upon it, if it appear that no question of construction is involved. Ibid.

§ 1498. An allegation that a cause arises under the laws of the United States, and necessarily involves the construction of certain acts of congress, will not give jurisdiction to the

circuit court, as it is a mere conclusion of law; it should be supported by a recital of facts, showing how it involves such construction. Dowell v. Griswold, §§ 1519-21.

§ 1499. Semble, that under the act of March 3, 1875, a case does not arise under an act of congress, unless the right of the party has its origin in such act. Ibid.

[NOTES.-See $$ 1522-1529.]

SAN MATEO COUNTY v. SOUTHERN PACIFIC RAILROAD COMPANY.

(Circuit Court for California: 7 Sawyer, 517-525. 1882.)

Opinion by FIELD, J.

STATEMENT OF FACTS.-This is an action to recover of the Southern Pacific Railroad Company, a corporation created under the laws of California, certain state and county taxes levied upon its property for the fiscal year of 1880 and 1881, and alleged to be due to the plaintiff, with an additional five per cent. for their non-payment, and interest. It was commenced in the superior court of the county of San Mateo.

The railroad company, among other things, sets up in its answer as a defense substantially this: That by the thirteenth article of the constitution of the state a mortgage or other obligation by which a debt is secured is treated, for the purposes of assessment and taxation, as an interest in the property affected; that, "except as to railroad and other quasi public corporations," the value of the property, less the value of the security, is to be assessed and taxed to the owner, and the value of the security is to be assessed and taxed to its holder (sec. 4); that by the same article the franchise, roadway, road-bed, rails and rolling stock of railroads operated in more than one county are to be assessed by the state board of equalization at their actual value, and apportioned to the counties, cities or towns in which the roads are located in proportion to the number of miles of railway laid therein (sec. 5); that at the time of, and previously to, the assessment of the property of the railroad company upon which the taxes claimed in this action were levied, there existed a mortgage upon the property, executed for advances made for the construction and equipment of the road exceeding $3,000 for each mile of the same, no part of which has been paid except the accruing interest, and the whole of which was and still is a lien thereon; that the state board of equalization, acting under the authority of the provisions of the state constitution, assessed, as the property of the railroad company, its franchise, roadway, road-bed, rails and rolling stock at what was deemed to be their actual value, without allowing any deduction for the mortgage subsisting thereon, and thus made, as between the property of individuals and that of the railroad company, an unjust and unlawful discrimination against the company; and that the state constitution, in its discriminating provisions, conflicts with the inhibition of the fourteenth amendment of the constitution of the United States, which declares that no state shall deny to any person within its jurisdiction the equal protection of the laws. Upon that inhibition the company relies to defeat the assessment, or at least to reduce it by such deductions as are made in the estimate for taxation of the value of property held by individuals.

The railroad company also sets up, among other things, as a further defense to the action, substantially this: That the section of the thirteenth article of the state constitution, which confers all the authority possessed by the state. board to make the assessment complained of, is itself invalid, in this: that whilst it is self-executing, requiring no legislation for its enforcement, it makes no provision for affording to the owners of the property assessed an opportu