ATTORNEY AT LAW THE DECISIONS OF THE Supreme Court of the United States, AT DECEMBER TERM, 1855. THOMAS I. COGGESHALL, WILLIAM | Ex-parte IN THE MATTER OF COGGESHALL AND COOK BORDEN, On hearing of cause, decree entered on stipulation, reversing decree below for damages and costs, and affirming decree for injunction and making it perpetual and without costs to either party. Argued Dec. 12, 1856. GEORGE BULKLEY, Plaintiff in Error, v. CHRISTIAN HONOLD. LATHROP L. STURGESS, Plaintiff in Error, V. CHRISTIAN HONOLD. (See S. C., 18 How., 40-41.) Motion for extension of time to file return. Where the clerk of the Circuit Court certifies that he cannot, consistently with his other duties, reDecided Dec. 12, 1856. turn to this court a transcript of the record, within the time required by the rules, a motion for further time to return such transcript will be denied. Decided Dec. 18, 1855. APPEAL from the Circuit Court of the chusetts. Mr. G. T. Curtis for appellants. Mr. Chief Justice Taney made the follow ing order: This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and on the stipulation filed by the counsel of the respective parties, that the following decree should be entered: on consideration whereof, and on the motion of Mr. Curtis, of counsel for appellants, it is now here ordered, adjudged and decreed, that so much of the decree of the Circuit Court as required payment by the appellants to the appellees of the sum of $6.945.63, and interest thereon, as profits, and $691.79, as costs, be, and the same is hereby reversed; and that so much of the said decree as relates to an injunction restraining the appellants, their agents and servants and assigns, from using certain patterns and stoves therein mentioned, be, and the same is hereby affirmed and the injunction made perpetual; and that the said Circuit Court be, and the same is hereby directed to enter a full satisfaction of all damages and costs in this cause; and it is further ordered and decreed by this court, that neither party take any costs in this or the Circuit Court in this cause. Supreme Court, nor within less than ninety days thereafter. On this statement of the clerk, a motion is made for longer time to certify the record. At the December Term, 1853, this court adopted a rule requiring, where a judgment or decree was entered thirty days before the suc ceeding term of this court, that the writ of error or appeal should be entered on the record of this court, and the record filed within the first six days of the term. But if less than thirty days intervene between the entry of the judgment or decree and the sitting of this court, the case should be entered on the docket of this court, and the record filed, within thirty days from the commencement of the term. The above rule was adopted to prevent unnecessary and improper delays, in prosecuting writs of error or appeals in this court from the inferior courts. Thirty days from the commencement of this term affords ample time to the clerk to make out and forward the records in the above cases. The rules of this court can in no respect depend upon the convenience of the clerks of the inferior courts. ORDER. On consideration of the motion made by Mr. Lawrence on a prior day of the present term, to wit: on Friday, the 7th inst., and of the following certificate, to wit: "Circuit Court of the United States, Fifth Circuit and Eastern District of Louisiana, clerk's office. CHRISTIAN HONOLD v. GEORGE BULKLEY. 2392. I certify that on this 25th day of November, A. D. 1855, a writ of error to the December Term, A. D. 1855, of the Supreme Court of the United States was duly applied for, allowed and filed by the defendant in the above entitled cause, George Bulkley, from the judgment rendered against him therein in the said Circuit Court on the 16th day of November, 1855. And I further certify that I cannot, consistently with the other duties of my office, make out and have ready the transcript of the record and proceedings in the said cause in time for the same to reach Washington City at the opening of the term of the Supreme Court to which it is returnable, nor within less than ninety days thereafter. New Orleans, 21st. Nov., 1855. Attest: J. W. CURLEY, Clerk." It is now here considered and ordered by this court, that the extension applied for be, and is hereby denied; and that the said motion be, and the same is hereby overruled. Per Mr Justice McLean. ORDER. On consideration of the motion made by Mr. Lawrence on a prior day of the present term, to wit: on Friday, the 7th instant, and of the following certificate, to wit: "Circuit Court of the United States, Fifth Circuit and Eastern District of Louisiana, clerk's office. CHRISTIAN HONOLD v. LATHROP L. STURGES. No. 2393. A. D. 1855, a writ of error to the December Term, A. D. 1855, of the Supreme Court of the United States was duly applied for, allowed and filed by the defendant in the above entitled cause, Lathrop L. Sturges, from the judgment rendered against him therein in the said Circuit Court on the 16th day of November, 1825. And I further certify that I cannot, consistently with the other duties of my office, make out and have ready the transcript of the record and proceedings in the said cause in time for the same to reach Washington City at the opening of the term of the Supreme Court to which it is returnable, nor within less than ninety days thereafter. New Orleans, 21 Nov., 1855. Attest: J. W. CURLEY, Clerk." It is now here considered and ordered by this court, that the extension applied for be, and the same is hereby denied; and that the said motion be, and the same is hereby overruled. Per Mr. Justice McLean. Mr. Justice McLean delivered the opinion of the court: This case was decided at the last term on an appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania, and a notion is now made by Mr. Rush, counsel for the appellee, for a re-argument, on the ground that he was prevented by sickness from attending the court at the time of the hearing. It is a subject of regret that any cause should be heard in the absence of counsel, and especially where the cause of absence, by a failure in the mail, was unknown to the court. In the above case, the brief of the counsel was before the court, and it is not probable that an oral argument would have changed the result. But in the case of Browder v. McArthur, 7 Wheat., 58, it was held that this court cannot grant a rehearing in a case which has been remitted to the court below; and in the case of I certify that on this 21st day of November, The Washington Bridge Company v. Stewart et al., 3 How., 413, the same principle was recog- though such was the motive of the conveynized. The motion is overruled. S. C., 17 How., 178. ance. Smith v. Kernochen, 7 How., 198-217; McDonald v. Smalley, 1 Pet., 623. The converse is true where no such consider Cited -12 Wall., 129, 603; 14 Wall., 22; 17 Wall., 283. ation passes, the title being transferred for the A change of citizenship for the purpose of bringing a suit in a federal court, must be with the bona file intention of becoming a citizen of the state to which the party removes. A short absence from the state of which plaintiff was a citizen, in another state without the intention to change his citizenship, is not sufficient. A conveyance of lands, which is only colorable, to enable grantee to bring an action for the benefit of the grantor, one third of the lands to be received by grantee in consideration that he should pay one third of the costs, and superintend the prosecution of the suit, will not entitle the grantee to bring the action. The owner of a tract of land may convey it, in order that the title may be tried in the federal courts, but the conveyance must be made bona fide, so that the prosecution of the suit shall not be for his benefit. Argued Dec. 13, 1855. Decided Dec. 18, 1855. IN ERROR to the District Court of the United States for the District of Texas. This was an action for trespass, brought in the District Court of the United States for the District of Texas, by the defendant in error, to try the title to certain premises in said State. On the final trial in the court below, the ver dict and judgment were in favor of the plaintiff. The defendants then brought the case here, on a writ of error. The facts of the case sufficiently appear in the opinion of the court. Mr. W. G. Hale, for the plaintiffs in error: The District Court erred in sustaining the demurrer to the first plea to the jurisdiction. Hart. Dig., 688. In determining the extent of the judicial power under the Constitution, we must look to things, not names. Me Nutt v. Bland, 2 How., 9. A conveyance for a valuable consideration by a citizen of one state to a citizen of another state, gives the federal courts jurisdiction, NOTE.-Jurisdiction of U. S. Circuit Court depending on parties and residence. See note to Emory v. Greenough, 3 Dall., 369. express purpose of giving said courts jurisdiction. Maxwell's Lessee v. Lery, 2 Dall., 381; S. C., 4 Dall., 330; Hurst's Lessee v. Neil, 1 Wash. C. C., 70-81; Smith v. Kernochen, 7 How., 198217. To say that the allegation as to citizenship contained in the plaintiff's petition is prima facie, or presumptive proof of the fact, is absurd. De Wolf v. Rabaud, 1 Pet., 496; Sheppard v. Graves, 14 How., 505; Gray v. Morris, 5 Pet., 620; Carver v. Jackson, 4 Pet., 82; Kelly v. Jackson, 6 Pet., 632. Mr. R. Hughes, for the defendant in error: When there are pleas to the jurisdiction and in bar filed at the same time, the plea to the jurisdiction will be considered waived. Sheppard v. Graves, 14 How.. 510. has jurisdiction. The plea attempted to show By the averments of the petition, the court that League was a colorable plaintiff only, but the plea made the conveyance from power to League part of the plea, from which a valuable consideration appears. Smith v. Kernochen, 7 How., 198. The jury was properly instructed. The admissions of the plaintiff below were prima facie only. The averment in the petition is prima facie evidence. Sheppard v. Graves, 14 How., 510. each other, and the jury were constrained to Hence the two presumptions counteracted find that, at the commencement of the suit, the plaintiff was a citizen of Maryland. Mollan v. Torrance, 9 Wheat., 537. Mr. Justice McLean delivered the opinion of the court: This is a writ of error to the District Court of the United States of the District of Texas. The plaintiff filed his petition in the District Court, alleging that he was seised in fee of a certain tract of land in the County of Refugio, on St. Joseph's Island, in the State of Texas; beginning on said island at the point nearest the Arkansas bar; thence in a northeasterly direction with the sea shore to the inlet from the sea into the bay; thence north forty-five degrees west to the shore of the bay or lagoon; thence, with the meanders of the bay, to the place of beginning, containing three and one half leagues, be the same more or less. That the defendants entered the same by force and ejected the plaintiff. And the petition further represents, that the plaintiff having possession of several other tracts of lands of which he was seised, the defendants forcibly entered and dispossessed him,&c.; and Colorable conveyances to enable suit to be brought. the petitioner prayed that after due trial, acmotive of transfer, when no objection. Coupons, resi-cording to the forms of law, he may have judgdence of assignor. See note to McDonald v. Smalley, 1 Pet., 620. Citizenship of corporations and their stockholders. Voluntary association. Holders of bonds of corporations secured by mortgage. General answer waives objectims to residence. See note to Hope Ins. Co. v. Boardman, 5 Cranch, 57. ment for his damages aforesaid, for the recovery of the lands aforesaid. The defendants plead that the court ought not to take further cognizance of the action of the plaintiff, because they say that the plaintiff claims title under and through a pretended in denture, purporting to be made and entered into on the 11th of May, 1850, by a certain John Power, of the County of Refugio and State of Texas, a certain James Hewetson, of the State of Coahuila, and Republic of Mexico, by his attorney in fact, James Power; and the said James Power, acting for and in behalf of the representatives of Duncan S. Walker, deceased, of the one part, and Thomas M. League, of the City of Galveston, and State of Texas aforesaid, of the other part, but really, and in law and fact, only by the said James Power, of the one part, and the plaintiff, of the other part; which said indenture purported to convey from James Power unto the plaintiff, his heirs and assigns forever, the said tracts and parcels of land described in the petition, and which the plaintiff seeks to recover in this action. that this must be done in the order of pleading, as at common law. In this case jurisdiction is claimed by the citizenship of the parties. The plaintiff avers that he is a citizen of Maryland, and that the defendants are citizens of Texas. In one of the pleas it is averred that the plaintiff lived in Texas twelve years and upwards, and that for the purpose of bringing this suit he went to the State of Maryland, and was absent from Texas about four months. The change of citizenship, even for the purpose of bringing a suit in the federal court, must be with the bona fide intention of becoming a citizen of the state to which the party removes. Nothing short of this can give him a right to sue in the federal courts, held in the state from whence he removed. If League was not a citizen of Maryland, his short absence in that State, without a bona fide intention of changing his citizenship, could give him no right to prosecute this suit. The said conveyance being made to the plaint iff in trust, for the following purposes: that the said League should commence all such suit, or suits, as might be necessary to settle the title to But it very clearly appears from the deed of said lands, in the District Court, and should a conveyance to the plaintiff, by Power, that it decision be made adversely in said court, that was only colorable, as the suit was to be proshe would prosecute a writ of error or appeal to ecuted for the benefit of the grantor, and the the Supreme Court of the United States; and one third of the lands to be received by the when the litigation was finally determined, the plaintiff was in consideration that he should said League would convey two thirds of the pay one third of the costs, and superintend the land recovered, in which the title should be set-prosecution of the suit. The owner of a tract tled, to said Power and Hewetson, and the rep resentatives of the said Walker, and their heirs and assigns; and until such conveyances were made, should hold said lands for the benefit of said parties; and the plaintiff agreed to pay one third of the expense of litigation, and the expense before that time incurred, which it was agreed amounted to $1,000. And the defendants allege, that the said Power, at the time of the conveyance, and for years before and ever since, has been a citizen of Texas; and that the said plaintiff has resided in the State of Texas for twelve years, and is a citizen of that State. That before commencing suit he went to Maryland and other States, and remained absent about four months, and on his return brought this suit as a citizen of Maryland; and that the said conveyance was colorable, and was made to give jurisdiction to the courts of the United States. Three other pleas were filed representing that the conveyance was made by Power, a citizen of Texas, and who is the real plaintiff in the case, to give jurisdiction to the federal courts, and that League is a nominal plaintiff. The plaintiff admits, for the purposes of this cause, that the only legal title which he claims to have to the several tracts of land in his petition described, is that conveyed to him by James Power, of the State of Texas. A demurrer was filed to the first plea and issues joined as to the others. At an early period of this court, it was held in some of the circuit courts, that the averment of citizenship, to give jurisdiction, must be proved on the general issue. And as a consequence of this view, if at any stage of the cause it appeared that the plaintiff's averment of cit izenship was not true, he failed in his suit. But it is now held, and has been so held for many years, that if the defendant disputes the allegation of citizenship in the declaration, he must plead the fact in abatement of the suit; and of land may convey it, in order that the title may be tried in the federal courts, but the conveyance must be made bona fide, so that the prosecution of the suit shall not be for his benefit. The judgment of the District Court is reversed, for want of jurisdiction in that court. |