BUSHNELL V. KENNEDY, 76 U. S. 387 (1869)

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U.S. Supreme Court

Bushnell v. Kennedy, 76 U.S. 9 Wall. 387 387 (1869)

Bushnell v. Kennedy

76 U.S. (9 Wall.) 387


1. It would seem that the restriction in the 11th section of the Judiciary Act, giving original jurisdiction of the circuit courts and which provides that they shall not

"have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made,"

applies only to rights of action founded on contracts which contain within themselves some promise or duty to be performed, and not to mere naked rights of action founded on some wrongful act or some neglect of duty to which the law attaches damages.

2. However this may be, the restriction of the 11th section not being found in the language of the 12th and the reasons for its being in the 11th section not existing for its being in the 12th, it is not to be considered as applying to cases transferred from state courts to the circuit court under this latter section.

The 11th section of the Judiciary Act, a section which defines the original jurisdiction of the circuit courts, [Footnote 1] enacts:

"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 when the matter in dispute exceeds, exclusive of costs, the sum or value of $500 and the United States are plaintiffs or petitioners . . . or the suit is between a citizen of the state where the suit is brought and a citizen of another state."

But the section gives this original cognizance subject to two limitations, of which one runs thus:

"Nor shall any District or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange. "

Page 76 U. S. 388

Having thus conferred and limited the original jurisdiction, the act in the 12th section provides:

"That if a suit be commenced in any state court against an alien or by a citizen of the state in which the suit is brought against a citizen of another state . . . and the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next circuit court, . . . it shall then be the duty of the state court to accept the surety and proceed no further in the cause, . . . and the cause shall then proceed in the same manner as if it had been brought by original process. [Footnote 2]"

With these enactments in force, Kennedy & Co., merchants of New Orleans, brought suit against Bushnell to recover from him the balance of ten thousand dollars which had been entrusted or lent by them to Mills & Frisby, doing business at Baton Rouge, for the purchase of cotton to be shipped to the firm in New Orleans. Bushnell borrowed the whole sum of Mills & Frisby under a promise to return it within six days; repaid, in fact, twenty-five hundred dollars, but failed to refund the balance. Thereupon, Mills & Frisby assigned all their claim to the debt of Bushnell to Kennedy & Co., who filed their petition against him in the Third District Court of New Orleans, and prayed a writ of attachment, which was issued accordingly.

Certain parties, resident in New Orleans, were made garnishees and required to answer interrogatories touching the moneys, credits, or property of Bushnell in their hands, or under their control. These interrogatories were answered by the peremptory denial of the garnishees that they had in their hands or under their control anything belonging to Bushnell. Afterwards, a citation was issued against Bushnell, and served personally upon him, requiring an answer to the petition. Thereupon he appeared and filed a petition, averring that all the members of the firm of Kennedy & Co. were citizens of Louisiana, and that he was a citizen of Connecticut, and prayed that the suit against be removed into

Page 76 U. S. 389

the Circuit Court of the United States for the District of Louisiana. This petition was allowed, and the cause removed according to its prayer. But by an order of the circuit court, the suit was remanded to the state district court, and it was this order which was brought here for revision by the writ of error.

That Kennedy & Co., as assignees of Mills & Frisby, were entitled, under the laws of Louisiana, to sue in the state court upon the debt assigned to them, in their own names, was apparently conceded upon the argument at the bar. But it seemed to have been the opinion of the circuit court that they could not maintain a suit in that character in a court of the United States without averring in their petition that their assignors, Mills & Frisby, were citizens of another state than the defendant, entitled, if no assignment had been made, to maintain suit upon the debt against the defendant; the ground of this opinion, doubtless, having been the disability to sue in the national courts, imposed by the already quoted 11th section of the Judiciary Act upon the assignees of a chose in action, in cases of which those courts would not have jurisdiction if the suit were brought by the assignors.

Page 76 U. S. 390

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